Started Winning

How Native Tribes Started Winning at the Supreme Court

In July, the court ruled that half of Oklahoma is an Indian reservation. The decision was two decades in the making.

DELILAH FRIEDLER

On a September morning in 2001, Native American leaders from across the country convened in a ballroom at the Grand Hyatt in Washington, DC to talk strategy. The Supreme Court was escalating a destructive war on tribal sovereignty, weakening the power of Indigenous nations to protect their people and lands. As the meeting opened, Sen. Daniel Inouye of Hawaii took the podium and stunned everyone with the news that two planes had just hit the twin towers of the World Trade Center. The meeting’s 300 attendees flocked to the lobby to watch live coverage of the attacks.

Less than one hour later, some esteemed tribal leaders called for the meeting to continue as planned. “What’s happened is awful,” lawyer Riyaz Kanji recalls them saying. “But we came here from all around the country to address some big issues. So let’s get to work.”

Their willingness to proceed testified to the urgency of their task. Though federal policies were slowly becoming more supportive of Native peoples, the Supreme Court had delivered two decades’ worth of judgments limiting their progress. In 2002, legal scholar David Getches “found that convicted criminals won 34 percent of the time while Indian tribes have won only 23 percent of the time.” He added, “Nobody does worse in this Supreme Court than Indian tribes.” After 2000 brought particularly brutal rulings over taxation and jurisdiction issues, tribal leaders and lawyers decided they needed a new approach. Thus, on September 11, 2001, they formed the Tribal Supreme Court Project—and their luck began to change.

The project was instrumental in securing last month’s victory in one of the most important tribal cases of the past century. In McGirt v. Oklahoma, the Supreme Court found that nearly half of Oklahoma still belongs to the Muscogee (Creek) Nation and other tribes, at least for jurisdictional purposes. In a majority opinion that evoked strong emotions throughout Indian Country, Justice Neil Gorsuch—a Trump appointee—suggested that the court has a duty to hold the US government to its oft-broken promises to tribes, marking the fourth consecutive ruling in favor of Natives’ treaty rights. This may be the dawn of a new judicial era, catalyzed by the Tribal Supreme Court Project and by new justices whose opinions reflect an evolving understanding of Indian law and history. 

Federal courts play a much larger role in the lives of Native Americans than most people’s, says Elizabeth Kronk Warner, citizen of the Sault Ste. Marie Tribe of Chippewa Indians and dean of the law school at University of Utah. That’s because “Indian” is technically not a racial identity but rather a legal designation. “It’s by virtue of my political relationship with my tribe that I also have a special relationship with the federal government,” she says. For tribal members, “everyday issues” like hunting rights and land ownership “become questions of federal law,” specifically a long-neglected branch of it called “Indian law.”

Under Indian law, crimes committed by Indians on reservations must be tried in federal court if they are felonies or involve non-Indian victims. This was at issue in McGirt v. Oklahoma: A Seminole man named Jimcy McGirt was sentenced to life by the state of Oklahoma for committing sex crimes against a child in 1996. Yet the felony happened on lands that Congress designated as the Muscogee (Creek) reservation after having removed the Muscogee from their southeastern homelands during the “Trail of Tears” in the 1830s.

Later, after encouraging white settlers to purchase much of the land promised to the Muscogee and four other tribes, both Congress and the state of Oklahoma ceased to recognize the original reservation boundaries. Yet the Supreme Court held last month that Congress never officially disestablished any of the five reservations, meaning those lands—making up more than half the state—are still part of “Indian Country,” a patchwork of Native communities across the US where state laws rarely apply. Jimcy McGirt, and dozens of tribal citizens in similar situations, should have been tried in federal court. 

They may now be retried, thanks to the efforts of McGirt’s lawyer Ian Gershengorn, Riyaz Kanji (who argued on behalf of the Muscogee), and others connected to the Tribal Supreme Court Project, a nationwide brain trust of more than 300 attorneys and scholars who collaborate to boost tribes’ arguments before the Supreme Court. It was formed out of a sense that the highest court in the land, a sometime ally of tribes throughout history, was turning sour on tribal sovereignty. John Echo-Hawk, founder of the Native American Rights Fund (NARF), was echoing a common sentiment when he declared in 2001, “There’s a crisis in Indian Country, and it’s called the US Supreme Court.” 

Since then, the Tribal Supreme Court Project has monitored 400 Indian law cases as they made their way through the courts, watching those likely to reach the Supreme Court and inviting their network to collaborate on petitions, arguments, and representation for the more than 150 that have. Spreadsheets are updated and shared by Joel Williams West, a Cherokee attorney who leads the initiative for NARF, which along with the National Congress of American Indians has anchored the Tribal Supreme Court Project from the start. In that time, says West, “the quality of tribal advocacy at the court has substantially improved,” not just with regard to representation but “the whole package of court presentation.”

Within two days of the Supreme Court agreeing to review the McGirt case, West was on a call with Kanji to plan a strategy around amicus briefs, the written arguments filed by outside parties interested in a case. Kanji knew from his time clerking for David Souter, in 1994, that Supreme Court justices have neither the obligation nor the time to read every brief that’s filed. He suggested the project focus on coordinating a limited lineup of briefs that clarify key issues, written by people of interest to the court (rather than piling on the briefs ad hoc over time). For McGirt, they recruited former US attorneys to file briefs challenging Oklahoma’s argument that redrawing the jurisdictional lines would create legal turmoil, and they found state elected officials to write about the high degree of existing cooperation between Oklahoma and tribes. 

West invited everyone on the project’s email list to a call, soliciting feedback from anyone interested—which, given McGirt’s potential implications for all tribes, was an extra large group. “The project has become a clearinghouse for information,” says Kanji, an immigrant from Uganda who has devoted hundreds of pro bono hours to the project. When the lead attorneys needed more evidence of the US “crushing tribal reservations,” they quickly accumulated examples from across the country. “It’s a very inclusive approach,” says West.

The Tribal Supreme Court Project was inspired by a similar initiative by the National Association of Attorneys General, which began coordinating efforts to defend states before the court in 1982, as Reagan’s “New Federalism” devolved regulatory powers to states and exposed them to more litigation. Yet despite the groundbreaking intertribal collaboration, the Indigenous project has only begun to win consistently in the past five years, since the arrival of Justices Sonia Sotomayor, Elena Kagan, and Gorsuch. Before that, the court had already flip-flopped several times in its approach to tribal issues.

Indian law as we know it dates back to the 1820s, when then–Chief Justice John Marshall authored the first of three landmark Supreme Court decisions known as the “Marshall Trilogy.” These rulings, two of which involved the Cherokee Nation in the lead-up to the Trail of Tears, established the federal government’s primacy over states in dealing with Indigenous nations, who Marshall said had a sovereign right to manage their own affairs.

Their newly recognized sovereignty was soon crushed when President Andrew Jackson pushed forward with a program of forced removal, kicking off a century in which Indian policy shifted toward conquest, land grabs, and annihilation. The Supreme Court began following Congress’ and the executive’s lead, says Dylan Hedden-Nicely, a citizen of Cherokee Nation and law professor at the University of Idaho. The turning point was United States v. Kagama, which in 1886 held that the federal government could prosecute major crimes committed by one Indian against another, diminishing tribes’ sovereign right to govern their own citizens.