Indian Time - A Voice from the Eastern Door

By Andy Gardner

A recent Supreme Court decision that ruled about half of the state of Oklahoma is Muscogee Creek reservation land could have an impact on St. Regis Mohawk Tribe’s land claims, according to the tribe’s general counsel.

The plaintiff in the case, a Seminole man named Jimcy McGirt, claimed that the state of Oklahoma had no jurisdiction to try him for sex crimes. He claimed the alleged offenses took place on Muscogee Creek land established in an 1866 treaty that was never ceded from the tribe by an act of Congress, therefore Oklahoma has no authority to prosecute the case.

Dale White, SRMT general counsel, said the case could have ripple effects in Akwesasne because “there was no congressional action to disestablish our 1796 (reservation) boundaries.”

“It’s an Oklahoma case. It has a great deal of impact in Oklahoma. It’s a different set of facts than our situation. I think it has the applicability to our situation is over our 1796 lands within our boundaries,” White said. “In that sense, it has larger ramifications.”

“In terms of jurisdiction, I would have to say [the McGirt case] answers the criminal jurisdiction … the court did leave open the civil element. That’s something we’ll have to watch down the road,” he said.

White called the decision “good news” because it leaves intact a previous precedent outlined in Nebraska v. Parker.

“The rule (from Nebraska) was very strict, in terms of disestablishing the boundaries, that you have to have an express act of Congress,” White said. “The 5-4 (McGirt) decision followed that (Nebraska) precedent. It’s a very good opinion.”

White noted that the ongoing land claims talks with Franklin County are not in litigation but are “in the negotiation phase.”

He said the McGirt decision can help them argue that the reservation boundaries should still be where they were set by the 1796 treaty, since Congress never voted to shrink the reserve.

The question McGirt leaves open is civil jurisdiction.

“It says ‘your reservation boundaries are here … but what’s the limit in terms of civil jurisdiction,’ zoning and things like that,” he said.

He said the tribe has “come quite a way in our negotiations with Franklin County,” but the coronavirus pandemic slowed things down.

“Since then, there’s been a status conference with the judge. I think we’re going to try to get back on track,” White said. I’d say we’re as close … that I’ve seen, I would say over the last 10 years.”

White said with two recent conservative Supreme Court justices appointed by President Donald Trump, that the Nebraska v. Parker ruling could have been in jeopardy.

“I was a little worried this new Supreme Court, the makeup … might do something to that,” he said.

White said that a Trump nominee, Justice Neil Gorsuch, “has become a new hero in Indian County because of this.”

“He’s been on the tribal side in previous decisions as well,” White said.

Trump’s other nominee, Justice Brett Cavanaugh, sided with the dissenters.

Siding with the majority were justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Other dissenting votes came from justices John Roberts, Samuel Alito, and Clarence Thomas.