Last week, the Supreme Court decided a case out of Oklahoma that could have implications for Native American Nations and their land rights in New York and elsewhere.
McGirt v. Oklahoma concerned a member of the Muscogee Nation named Jimcy McGirt who was convicted of sex crimes on Creek land. The State of Oklahoma tried and convicted McGirt for his crimes, but McGirt appealed and claimed that only a federal court had jurisdiction since the crimes took place on Indian Territory.
The court was asked to decide whether the Creek reservation was still in existence after Oklahoma became a state.
In a majority ruling written by Neil Gorsuch, the Supreme Court ruled with McGirt, saying yes, the Creek reservation continues to exist, and that McGirt must be tried in federal court.
While McGirt is a criminal case, the language used by Gorsuch in his ruling has at least one Indian Nation’s attorneys pretty excited.
“[Gorsuch] opens the case by saying, ‘on the far end of the Trail of Tears was a promise,’ and that promise was that the Muscogee Nation would have the reservation in Oklahoma forever,” said Joe Heath, general counsel for the Onondaga Nation.
“[Gorsuch’s] general construct throughout the case was that once the federal government has made promises and treaties, it must keep them,” Heath continued. “I can tell you that in the almost four decades since I have worked for the Onondaga that has not been the law.”
Gorsuch wrote that nothing in the Constitution says treaties are no longer valid simply because they’re old, disruptive, or that white people have settled on the land.
All three of those principles were used against Native American land claims in a 2005 Supreme Court case called Sherrill v. Oneida Nation of New York.
In the 2005 Sherrill decision, the Supreme Court held that repurchase of ancestral lands did not restore sovereignty to that land – meaning that a Native American can purchase land in New York, but he or she would be taxed as if a non-Indian had purchased it.
Albany Law School’s Robert Batson explains the significance of Sherrill this way: Native Americans who purchase back land that was stolen from them would be subject to the local government, would have to pay real property taxes, and would be subject to local zoning and building codes.
Batson is less optimistic than Heath when it comes to the re-litigation of land claim cases. He told Spectrum News, “McGirt and Sherrill come to court in two very different ways. McGirt was a criminal case. Sherrill was a real property taxation case, and was subsequently applied to land claim cases.”
Batson believes it would take a very persuasive argument to get the Supreme Court to change its past rulings – which may be why Heath wants to try a diplomatic approach first.
“We will reach out to [Attorney General] Tish James’ office first,” he said.
When asked about possible negotiated outcomes, Heath mentioned the Nation’s right of first refusal when someone sells property, with the State of New York then obligated to pay taxes on the land to the towns and counties in perpetuity.