How Native Nations’ sovereign status was taken and how it could be restored

Native Nations made approximately 368 treaties with the U.S. government between 1777 and 1868. Native Nations negotiated those treaties as sovereign, independent entities.

The United States would later unilaterally declare Native Nations “domestic dependent nations.”

When and how did that switch happen? Were the U.S. actions legally valid?

An article published this year by the NYU Law Review, Revitalizing Tribal Sovereignty in Treatymaking, says no. It provides a new analysis on how Native Nations could challenge the paternalistic system the United States has imposed on them — and have their sovereign status recognized.

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Landmark U.S. Supreme Court ruling a big win for tribal sovereignty

McGirt v. Oklahoma acknowledges broken treaties

Implies that much of eastern Oklahoma is reservation lands

Ruling puts tribes in strong negotiating position

Oklahoma today. Image: Wikimedia.

On the surface, MCGIRT v. OKLAHOMA was an effort by Jimcy McGirt, an enrolled member of the Seminole Nation, to get a new trial on sexual assault conviction, a crime that took place on the Creek Reservation.

The underlying issues the case needed to resolve gave the decision a much broader impact.

At issue was whether the State of Oklahoma or U.S. government had jurisdiction to prosecute McGirt’s crime. The Supreme Court ruled that the federal government had jurisdiction because the Creek Nation effectively was an Indian reservation, at least as far as prosecuting major crimes such as sexual assault.

This was a roundabout way of a broken treaty getting long-overdue attention.

The decision’s impact ranges from overturning more convictions, like McGirts’, that were committed by an Indigenous person on Indigenous lands. It also could affect such things as zoning, taxation, and environmental law within reservation borders.

The decision will spark significant negotiations between the U.S. government, the state of Oklahoma, and the five Native Nations in the state. Continue reading

This Day in History: Supreme Court Cases Triggers Erosion of Tribal Court Powers

On this day in history, January 17, 1883, the U.S. Supreme Court issued its ruling in Ex Parte v. Crow Dog, a significant decision siding in favor of tribal court sovereignty. It would eventually trigger congressional action to erode that power.

Here is the background, provided by Wikipedia. In 1881, Crow Dog, a member of the Brulé band of the Lakota Sioux, shot and killed Spotted Tail, a Lakota chief. Accounts differ on the details of the killing. Regardless of the motives, the tribal council dealt with it according to tradition; Crow Dog paid restitution to the dead man’s family ($600, eight horses and a blanket). Unsatisfied with that result, federal authorities assumed authority and prosecuted Crow Dog for murder in  Deadwood, South Dakota.

According to Wikipedia: the Deadwood Times reported that “it was the first time ‘in the history of the country, [that] an Indian is held for trial for the murder of another Indian.'” Crow Dog was found guilty and sentenced to hang. The case eventually ended up before the U.S. Supreme Court.

The Supreme Court held that unless authorized by Congress, federal courts had no jurisdiction to try cases where the offense had already been tried by the tribal council. Crow Dog was therefore released.

Congress, unhappy with the result, passed the Major Crimes Act of 1885. That law places certain major crimes under federal jurisdiction even when committed by Native Americans against other Native Americans on reservation land. According to Wikipedia, the law initially applied to seven major crimes, and the number now has grown to 15, including murder, manslaughter, burglary, robbery and felony child abuse and neglect.