REFERENCE MCGIRT V OKLAHOMA, SCOTUS, JULY 9, 2020
“On the far end of the Trail of Tears was a promise.”
Majority decision authored by Justice Neil Gorsuch
THAT UPON WHICH CONSERVATIVES AGREE
Attempts to erase and rewrite American history are done for political motivations by those who oppose respecting and honoring the traditions upon which our country was founded and has thrived. The Civil War pitted one segment of our country against another. But genuine leaders such as Abraham Lincoln and Ulysses Grant understood that reconciliation was essential to national reunification.
So, now as conservatives unite against the attempt to undo our past with all its blemishes, we must readily and willingly accept that while our past has not been perfect, it is our past and we must respect and honor our commitments. With this unity of spirit among conservatives firmly in mind, I will now proceed to a present day matter where we conservatives must be consistent in applying those ideals that make us who we are.
TO WHOM AM I SPEAKING?
At this point, I am not addressing progressives directly, but rather will focus upon an issue where we can all have common cause. There are cases where party politics need not divide us in doing the right thing. To get to the point, we need to talk about honoring our Treaty obligations.
TO THE OKLAHOMA CONGRESSIONAL DELEGATION
With two Republican U.S. Senators and 4 of 5 GOP Members of the U.S. House of Representatives, Oklahoma is duly known as a conservative state. What I’m going to say will align 100% with your conservative values. You believe in keeping your word. Now’s the perfect chance for you to put that principle into action.
McGirt v Oklahoma affirmed that the Treaty between the United States of America and the Muscogee (Creek) Nation of 1866 is still in effect and that Muscogee Creek (Creek) Nation [MCN] Reservation has never been disestablished. Since Statehood in 1907, the State of Oklahoma has improperly assumed jurisdiction over natives within the MCN boundaries.
Jimsey McGirt is a Seminole citizen who was convicted as a child molester under Oklahoma state law within the boundaries of the Muscogee (Creek) Nation. While not in anyway siding with a convicted criminal, MCN became a party to the SCOTUS case because the issue was whether the 1866 Treaty and reservation status are still in effect.
Justice Neil Gorsuch, nominated by President Donald Trump and confirmed by the United States Senate, resoundingly said “Yes!” It was a bipartisan majority. While the decision should rightly have been 9-0, a Conservative Justice from the western state of Colorado, nominated by our Republican President, fully understanding the United States Constitution and Indian law, articulately reviewed the history of Congressional actions which have left the Treaty intact all these years.
Justice Gorsuch admits that Congress has not always honored its commitments and has at times violated Treaties. Even an honest member of Congress of either political party wouldn’t dare argue with that assessment. He basically stated that Congress cannot violate a Treaty and terminate a reservation unless it expressly does so under statute. Whether the admission of Oklahoma as the 46th State of the Union in 1907 demonstrated such intent, it did NOT end the Treaty or terminate the MCN Reservation. Without going into details, neither did the infamous Congressional Dawes Commission. Those who understand this case already know what that was and everybody else can look it up.
TO THE GOVERNOR AND ATTORNEY GENERAL OF OKLAHOMA
Please understand that the McGirt case relates entirely and exclusively to the Treaty and Reservation of the Muscogee (Creek) Nation. While the Cherokee, Choctaw, Chickasaw and Seminole also lost their original homelands east of the Mississippi River under the Indian Removal Act enforced by President Andrew Jackson, and while the concepts articulated by Justice Gorsuch may serve as a precedent in future litigation, do not incorrectly assume that the “Five Tribes” are one monolithic unit.
Do not attempt to play one against another. The Cherokee, for instance, heirs of the great scholar and linguist Sequoia, have no place in any commissions discussing issues of cooperation between the sovereign Muscogee (Creek) Nation and the State of Oklahoma. Each of the other four tribes may indeed have a very solid case to pursue litigation, but SCOTUS has NOT yet determined whether their own respective treaties were disestablished or still exist.
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TIME FOR A DISCLAIMER
I am a citizen of both the United States of America and the Muscogee (Creek) Nation, but I would never presume to speak officially on behalf of either. Rather, as a patriotic American whose heritage long predates the arrival of the Pilgrims from Europe, my purpose here is just to frame the issues. Principal Chief David Hill and the MCN National Council will represent the Mvskoke people in all contacts with the United States federal government and the State of Oklahoma.
I am not an attorney but am a retired Federal Officer, having taken an Oath myself to uphold the Constitution of the United States just as has every Member of Congress. I take that Oath seriously and I am sure that every Senator and every Representative is equally accountable. We must abide by the U.S. Constitution and must never put anything whatsoever above our Constitutional Oath.
The ramifications of the McGirt decision were fully considered by the Supreme Court of the United States. They made a wise decision. Every member of Congress would be well-advised to read word for word what Justice Gorsuch wrote in that majority decision. He carefully explained that what Congress tried to do in the past did not always work out to the benefit of either the United States or those with whom it has made Treaties.
The Muscogee (Creek) Nation is ready and capable to handle its jurisdiction as reaffirmed by McGirt. MCN can talk directly to the State of Oklahoma about coordination of specific law enforcement and judicial matters within tribal boundaries.
There is no need whatsoever for any U.S. Congressional action or legislation.
True to their conservative values, Senators Inhofe and Lankford, along with Representatives from the 5 Congressional Districts, are admonished to communicate with Chief Hill and MCN. There need not be any other parties at the table. This is a treaty between United States and the Muscogee (Creek) Nation. No one else has any standing.
LET’S LOOK AT THE U.S. CONSTITUTION TOGETHER
ARTICLE II, SECTION 2, CLAUSE 2
The President… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….
Essay on Treaty Clause
The Treaty Clause has a number of striking features. It gives the Senate, in James Madison’s terms, a “partial agency” in the president’s foreign-relations power. The ultimate purpose, then, of the Treaty Clause was to ensure that treaties would not be adopted unless most of the country stood to gain.
The Framers believed that treaties should be strictly honored.
Under Article VI treaties were, like statutes, part of the “supreme Law of the Land.”
A … difficult question is whether the Treaty Clause implies a Senate power or role in treaty termination.
A … view is that Congress as a whole has the power to terminate treaties, based on an analogy between treaties and federal laws.
Supreme Court has concluded that for purposes of U.S. law the last expression of the sovereign will controls, so that a later-enacted statute overrides an earlier-enacted treaty and vice versa.
Michael D. Ramsey
Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law
Article VI: Supreme Law
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
THEREFORE CONGRESS MUST NOT UNILATERALLY TERMINATE A TREATY, WHICH IS THE SUPREME LAW OF THE LAND!
“The Framers believed that treaties should be strictly honored.”
“Under Article VI treaties were, like statutes, part of the ‘supreme Law of the Land.’”
[They still are!]
GOING BACK TO HISTORICAL PERSPECTIVE, CONSERVING OUR HISTORY AND HONORING OUR SACRED OATH
At the time that James Madison and our Founders framed the U.S. Constitution, there were many sovereign indigenous nations within what would become the United States as the young nation expanded westward. Having thrown off the bondage and oppression from the British throne, Americans overwhelmingly believed in respecting the rights of all peoples to self-determination. But this came at the cost of displacing those who already inhabited and owned this land.
Make no mistake that the Muscogee (Creek) Nation and other indigenous peoples were treated as sovereigns. This is true in the sense of the word that Treaties which are the supreme law of the United States under the U.S. Constitution were made between governments. In the more colloquial or everyday sense of how they were treated, our attitude and behavior as Americans did not always fully accord with our obligations under our inviolable Treaties. We promised that the Muscogee (Creek) Nation would never be made part of any State of the Union of the United States. But, that is what happened in 1907 when the State of Oklahoma was established. Absolutely nobody that I know expects or even wants to try to go back 113 years and have a do-over.
MCN citizens are also U.S. citizens and many including myself have served in uniform of the United States Armed Forces. I served five years in the U.S. Air Force during the Vietnam era with assignments in the Philippines and on Okinawa. MCN citizens who have served in all branches of the U.S. military are proud veterans who willingly protected the way of life of all Americans, non-natives as well as natives. That is as it should be and most certainly will continue to be so.
A WORD TO NON-NATIVES WITHIN MCN BOUNDARIES
It may come as a surprise to many that the City of Tulsa, which was founded by Muscogee Creeks who survived the Trail of Tears for that promise on the far end ~ which Justice Gorsuch so aptly described ~ is now part of the MCN Reservation. There really should be no difference in the everyday lives of non-natives living in the counties which comprise the MCN. Only crimes involving American Indians of any tribe, either as perpetrator or victim, within MCN will be affected. It’s not my purpose here to go into the details of that. It will not in any way disinherit non-natives who own property.
I noticed that when our President had his recent rally in Tulsa, he consistently spoke to the people of Oklahoma. I don’t recall him even once saying the name of the city Tulsa that he was in. The President’s advisors should reassure him that his commitment to the people of Oklahoma fully includes the people of Muscogee (Creek) Nation within which his Tulsa rally took place.
We often think of Treaties which are made between the United States and other countries around the world. But in historical perspective, we must be totally cognizant that the United States as it presently exists has not always been as we now know it. After the original 13 states, others joined the union one by one. The Muscogee (Creek) Nation was promised sovereign land within Indian Territory in exchange for their original homelands in the southeast. Even today the flag bears the Great Seal of the Muscogee Nation I.T., which means Indian Territory.
TO THE GREAT CHEROKEE, CHOCTAW, CHICKASAW AND SEMINOLE PEOPLE
The best thing you can do for your own people is to support the Muscogee (Creek) Nation and respect its unique relationship under its Treaty of 1866 with the United States. You certainly have very solid ground for pursuing litigation to affirm your own respective treaties. But McGirt is not your case.
I urge and admonish the Oklahoma Congressional Delegation to respect the Muscogee (Creek) Nation. Do not initiate any legislation, particularly not as a rider to some other bill to bury it and sneak it by without due consideration. That kind of disrespect would dishonor your Constitutional Oath and your obligation to all Oklahomans and to all Americans of every state, both native and non-native.
Besides upholding your Oath, honor your conservative values and consider how respecting all voters in this election year will benefit you in continuing to be what Will Rogers described as the hired help of the American people. He still stands guard in Statuary Hall in the U.S. Capitol building. Nobody in the State of Oklahoma, Muscogee (Creek) Nation, or Will Rogers’ own Cherokee Nation wants Nancy Pelosi to find some excuse for ridding herself of his watchful eye.
I have said my piece. These words and these views are mine and mine alone and are not intended to represent either the official positions of the USA or MCN. I am a proud citizen of both.
I pray that the United States Congress along with President Trump and Oklahoma Governor Stitt will honor SCOTUS’s McGirt decision. With the pandemic, riots in major American cities, serious foreign threats from China and Iran and elsewhere around the globe, you have a very full plate at the moment. November 3rd is just 103 days away.
Muscogee (Creek) Nation is in excellent hands with Principal Chief David Hill, Second Chief Del Beaver and the MCN National Council.
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