Melissa Erkel, a fish passage biologist with the Washington Department of Fish and Wildlife, examines a culvert along the north fork of Newaukum Creek near Enumclaw, in June 2015. Washington is under a federal court order based on tribal treaty fishing rights and affirmed by the U.S. Supreme Court in 2018, to fix under-roadway culverts that block migrating fish by 2030. (Ted S. Warren / Associated Press file photo)

Melissa Erkel, a fish passage biologist with the Washington Department of Fish and Wildlife, examines a culvert along the north fork of Newaukum Creek near Enumclaw, in June 2015. Washington is under a federal court order based on tribal treaty fishing rights and affirmed by the U.S. Supreme Court in 2018, to fix under-roadway culverts that block migrating fish by 2030. (Ted S. Warren / Associated Press file photo)

Comment: Supreme Court’s recent treaty ruling could be undone

Tribes have won recent high court battles, but Congress could reverse the latest in Oklahoma.

By Rebecca A. Reid and Todd A. Curry / Special to The Washington Post

In a 5-to-4 ruling in McGirt v. Oklahoma this month, the Supreme Court delivered a decisive legal victory for Native Americans.

In a rare move, the court upheld an 1866 treaty between the Muscogee (Creek) Nation and the United States, a treaty that had established the Muscogee Nation’s geographic borders. The court’s decision means that much of eastern Oklahoma remains Native American land today, blocking state authorities from prosecuting First Nations individuals within the boundaries of the Muscogee Nation.

But the win may prove ephemeral. Congress could get back in the game and remold the boundaries of the Muscogee Nation.

Here are three takeaways from this landmark case.

It’s rare for treaties to matter to the courts: McGirt upholds U.S. treaty obligations and promises that these lands will belong to the tribe in perpetuity. Remarkably, our research shows that although there are more than 370 treaties between the United States and Indigenous people, treaties have historically not been persuasive to Supreme Court justices.

Using a unique data set consisting of all 104 cases involving Indigenous people and tribes before the U.S. Supreme Court from 1969 to 2010, we find no relationship between the court’s citation or reference to a treaty and a victory for First Nations or tribes. Indeed, the Supreme Court has rejected nearly half of the indigenous claims before it. In about 40 percent of these cases, the court cited treaties in its decision. But even when the court cites a treaty, it tends not to recognize indigenous claims.

Even though the Constitution dictates that treaties with tribes are binding federal law, the pattern of cases before the court suggests that First Nations who sign treaties with the United States are no more protected legally than members of tribes who did not. In other words, the treaties don’t seem to provide much legal protection for First Nations.

Given this track record, McGirt’s affirmation of tribal sovereignty is highly unusual.

It matters who serves on the Supreme Court: Justice Neil Gorsuch, appointed by President Trump and confirmed by the Senate in 2017, wrote the McGirt decision. Gorsuch’s presence may usher in a new era for Indigenous rights before the court. Both the National Congress of American Indians and the Native American Rights Fund supported Gorsuch’s nomination. And upon joining the court, Gorsuch chose the first tribal citizen to serve as a Supreme Court clerk.

Since joining the Supreme Court, Gorsuch has joined the four liberal justices in each of four cases involving First Nations. In each of these cases, Gorsuch makes clear that he sees treaties as binding law.

For example, in Washington State Department of Licensing v. Cougar Den, Gorsuch joined liberal justices in a 5-to-4 plurality decision interpreting an 1855 treaty with the Yakama Nation to grant a state gasoline tax exemption to the tribe.

In Herrera v. Wyoming, the Supreme Court held that Wyoming’s statehood did not void the Crow Tribe’s right to hunt on unoccupied lands under an 1868 treaty, and that the Bighorn National Forest did not automatically become “occupied” when the forest was created. Although the majority opinion was written by Justice Sonia Sotomayor, Gorsuch again joined the liberal justices in this decision.

Gorsuch’s affinity for tribes probably stems from his experience serving as a judge on the U.S. Court of Appeals for the 10th Circuit, a court that covers six states and 76 recognized tribes. In his 11-year appellate service, Gorsuch regularly ruled in favor of indigenous rights. In Cougar Den, Gorsuch affirms that when the court is dealing with a tribal treaty, then the court must “give effect to the terms as the Indians themselves would have understood them,” as he quotes the 1999 Supreme Court decision Minnesota v. Mille Lacs Band of Chippewa Indians.

Congress could still interfere:

The court’s decision upholds the Major Crimes Act of 1885, which put certain “major” criminal activities under federal, not state, jurisdiction, even if committed by an indigenous individual on indigenous lands. In practical terms, this means that the court overturned Jimcy McGirt’s state court sentence for sex crimes. He can still be tried in a federal court. McGirt could also lead other indigenous individuals who were criminally convicted in state courts to appeal their sentences.

However, the court’s decision invites and creates incentives for congressional action to diminish or disestablish reservation lands in Oklahoma. Because Congress never disestablished the treaty or diminished the lands, the court holds that the boundaries established by the treaty remain valid law. But the court previously established in Cherokee Tobacco in 1870 that congressional statutes would supersede previously established treaties.

That means that Congress could overturn the McGirt decision by changing the boundaries of indigenous lands in the eastern half of Oklahoma, thereby returning the prosecution of indigenous crimes within the reworked boundaries back to Oklahoma authorities.

The Muscogee Nation’s hard-won legal victory may prove short-lived.

Rebecca A. Reid is an assistant professor of political science at University of Texas at El Paso whose research focuses on judicial politics, comparative courts, human rights, international law and indigenous law. Todd A. Curry is an associate professor of political science at University of Texas at El Paso whose research focuses on state supreme courts, judicial communications and indigenous law. For other analysis and commentary from The Monkey Cage, an independent blog anchored by political scientists from universities around the country, see www.washingtonpost.com/blogs/monkey-cage.

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