In exchange for ceding all their land east of the Mississippi river, the U.S. As with countless other Native treaties, the USA had promised the Creeks (the term the English used to reference the Muscogee people) the proverbial moon. was experiencing (and, continues to experience) nationwide demands to eliminate systemic racism and discrimination, and Native American communities were being (and, continue to be) disproportionately impacted by covid-19.Īt the heart of the case is the relevance today of a series of mid-1800s treaties between the federal government and the Muscogee (Creek) Nation. The McGirt ruling – described below – came at a time when the U.S. Supreme Court issued its decision – written by Trump-appointee Justice Neil M. Given the historical context, it was not surprising to see the jubilation among Native Americans and Indigenous rights activists on July 9, 2020, when the U.S. Although an 1823 decision had described Indian tribes as “wholly distinct nations” within whose boundaries “the laws of a State can have no force,” the high court soon departed from the “conceptual clarity” of that view, and “acknowledged certain limitations on tribal sovereignty.”īy 1886, the Supreme Court proclaimed that there exists only two entities with the right of sovereignty, “the government of the United States” and “the states of the Union.” Indian tribes were relegated to a “ semi-independent position … not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations.” As recently as 1983, a unanimous decision (delivered by Justice Thurgood Marshall) included the following statement: “ e have acknowledged that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status, that under certain circumstances a State may validly assert authority over activities of nonmembers on a reservation, and that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.“ĭespite this less-than-stellar record, our nation’s preeminent court has congratulated itself for “hav consistently guarded the authority of Indian governments over their reservations.” What it has done, for certain, is consistently remind Native Americans that Congress possesses the power to take that authority away. Supreme Court, Native tribes are not nations, not states, and not sovereigns, but “ unique aggregations possessing attributes of sovereignty”. Constitution granting Congress, even implicitly, “paramount authority” over Native tribes, the Supreme Court justifies the federal government’s absolute power over the Indigenous population by referring to “ the policy of the European nations and the United States in asserting dominion over all the country discovered by them.” In other words, the USA has the power over, and ownership of, the entire country – including Native American tribes – because that’s what White colonizers do, leaving “ the Indians” with, at best, a “ possessory right to the soil over which they roamed and hunted and established occasional villages.” If that statement weren’t repugnant enough, our nation’s top jurists uttered what I consider the ultimate expression of “ White Privilege.” Finding itself unable to identify a specific provision in the U.S. An oft-cited 1885 opinion asserts: “ The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.” Adding injury to its many insults, the Supreme Court presumes that the federal government acts in good faith when it breaches the promises it has made in Native treaties, or totally terminates a reservation: “ It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.” This condescension towards North America’s Indigenous peoples has been mirrored in the high court’s rulings. “An ignorant and dependent race.” “Wards of the nation.” “Remnants of a race once powerful, now weak and diminished in numbers.” “Pupils.” “Communities dependent on the United States largely for their daily food, and for their political rights.” Such characterizations of “Indian tribes” – ranging from paternalistic, disrespectful, and disparaging, to outright repugnant – can be found repeatedly in nineteenth- and twentieth-century opinions issued by our nation’s highest court. Supreme Court has historically denied Native Americans the respect owed every human being.
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