Thinking Citizen Blog — Native American Sovereignty and the Safety of Native American Women and Children

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic — Native American Sovereignty and the Safety of Native American Women and Children

On July 9, 2020, the Supreme Court of the United States decided the case of McGirt v Oklahoma. The vote was 5–4. The decision, welcomed by proponents of Native American sovereignty, was written by Trump-appointee Neil Gorsuch and supported by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Narrowly, the decision related to whether state or federal courts had authority over the case. More broadly. the issues raised were whether or not the eastern most populous half of Oklahoma still belong to the “Five Civilized Tribes” and what the consequences of restoring tribal authority would be for current non-Native American residents and for Native American women and children. Experts — please chime in. Correct, elaborate, elucidate.

BACKGROUND: Convicted under state law, McGirt appeals on procedural grounds

1. “In 1997, Jimcy McGirt was convicted by the state of Oklahoma for molesting, raping, and sodomizing his wife’s four-year-old granddaughter.” (see third link)

2. “He later challenged his state conviction under the 1885 Major Crimes Act, which holds that “[a]ny Indian who commits” certain crimes within “the Indian country” must be tried in federal courts.” (ditto)

3. “Mr. McGirt claimed he was a member of the Seminole Nation and committed the crime on land Congress reserved as a “permanent home to the whole Creek Nation” in an 1833 treaty.” (ditto)

NB: “Since Congress never enacted a law explicitly reneging on the treaty, he said the land belongs to the Creeks. Justice Gorsuch and the four liberals agreed.” (ditto)

THE NEIL GORSUCH ARGUMENT OF THE MAJORITY AND THE DISSENT OF CHIEF JUSTICE ROBERTS

1. “Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear . . .” (Gorsuch)

2. “But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.” (Gorsuch)

3. The essence of the Roberts dissent: “Congress disestablished the Creek reservation through a series of laws.

For the past century, the Court has determined whether an Indian reservation persists by examining Congress’s acts and “all the [surrounding] circumstances.” (WSJ summary, third link below)

BROADER CONTEXT — SLAVE OWNERSHIP, GAY RIGHTS, HIGH RATES OF ABUSE OF WOMEN

1. The Five Civilized Tribes held slaves and fought for the Confederacy during the Civil War.

2. “The Cherokee owned slaves and denied membership to the descendants of slaves — the so-called Cherokee freedmen — until forced to accept them in 2017, under the order of a federal district court.” (second link)

3. Rates of violence against Native American women on reservations are 2.5X higher than in the general population. (see fourth link)

NB: The US Supreme Court decision legalizing gay marriage (Obergefell v Hodges) does not apply to reservations. The Chickasaw and Choctaw, two of the Five Civilized Nations ban same-sex marriage.

POST SCRIPT: what is in the best interest of Native American children? is the question irrelevant? or is it the most important to ask?

McGirt v. Oklahoma

Opinion | Native American Sovereignty Is No Liberal Triumph

Opinion | The Tempting of Neil Gorsuch

Sexual victimization of Native American women

Same-sex marriage in tribal nations in the United States

YOUR TURN

Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.

This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.