The nation’s highest court found that centuries-old treaties between tribes and the U.S. government remain in effect, even if they have long been ignored.
Stateside spoke with Michigan State University law professor Matthew Fletcher, who runs the school's Indigenous Law and Policy Center, about the ruling in McGirt v. Oklahoma and how it could impact other tribes' disputes over legal jurisdiction. Hear that conversation above.
In the court’s 5-4 decision, Justice Neil Gorsuch wrote, “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
Attorney David Giampetroni represents the Little Traverse Bay Bands of Odawa Indians in a lawsuit currently before the U.S. 6th Circuit Court of Appeal.
He says the McGirt v. Oklahoma decision informs lower courts how to read treaties and statutes in disputes between tribes and state governments.
“The McGirt case and the Little Traverse case involve different treaties and statutes. But McGirt very much informs how lower courts should read treaties and statutes that deal with reservations. So while the treaties and statutes at issue in McGirt were different from those at issue in the Little Traverse case, the courts in the Little Traverse case will have to abide by McGirt in interpreting the treaties and statutes at issue," says Giampetroni.
The Little Traverse Bay Bands are seeking more than 300 square miles of land in northern Michigan.
A federal judge last year ruled against the tribe’s claim the land is part of their reservation, based on an 1855 treaty.
Matthew Fletcher is a law professor at Michigan State University and the director of the Indigenous Law and Policy Center at the school. He says that while there are some important differences in the details of the two cases, he does think McGirt could add weight to the tribe’s argument in the 6th Circuit case.
“Until the McGirt case, it was possible for states and the federal government, on occasion, and non-members to say 'Well, maybe you had a reservation boundary, and maybe it’s still there, but too many people have moved into the area, too much land has gone out of Indian ownership, and because of the weight of history, I’m sorry your reservation is gone.' Now, if we take the McGirt opinion by its word, that analysis is irrelevant,” said Fletcher.