The Environmental Consequence of McGirt V. Oklahoma
By Carlo James Aragón
Amidst America’s reckoning of the past and racial injustice, a monumental decision was being finalized in the nearly empty chambers of the U.S. Supreme Court. That decision was McGirt v. Oklahoma. On the surface, McGirt seems like a straightforward case on whether the State of Oklahoma had the authority to convict a Native American man for a crime. Yet, the reality is far more complicated, because the crime was committed by a citizen of the Seminole Nation and the crime took place within the boundaries of Muscogee (Creek) Nation, which was established in 1833 by a treaty with the U.S. Government. Therefore, McGirt called into question if treaties with Native American Nations or Tribes are enforceable and if these Tribal Nations still wield sovereignty today. In the end, the Supreme Court signaled that these treaties are enforceable, and are the “supreme Law of the Land” as outlined in Article VI of the U.S. Constitution.
Justice Neil Gorsuch authored the majority opinion in McGirt concluding,
“Today, we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
Justice Gorsuch affirmed the validity of tribal treaties, which are often thought as pieces of history as opposed to living law. Between 1777 to 1868, the United States negotiated and signed 368 treaties with Tribal Nations. After McGirt, these “historical” treaties now appear more “real” and “modern” than before. Interestingly, one major implication of McGirt is that the decision may shape the trajectory of environmental law.
This is because there are 573 federally recognized tribes collectively possessing a landmass equivalent to that of the country of Tunisia, or about 55 million acres. After McGirt, that landmass may increase by 19 million acres, if the treaty boundaries of the Five Tribal Nations in Oklahoma are formally recognized as Indian reservations. For now, the Supreme Court ruled that the historic treaty boundaries of the Creek Nation are sovereign Indian territory, because Congress never formally dissolved its treaty with the Creek Nation. In writing the majority opinion, Justice Gorsuch reminded us that, “Each tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.” Yet, the possibility that 47% of Oklahoma may one day become part of “Indian Country” and the Supreme Court’s willingness to interpret tribal treaties in favor of tribes may be a turning point for Tribal Nations, which have sought redress for diminishing environmental resources outlined in treaties or agreements with the United States.
Source: Wikimedia
There is no better example of how Tribal Nations may shape the trajectory of environmental law than another Supreme Court decision, Washington v. United States (2019), which decided the future of culverts and treaty protected salmon. In what would be called “the Culverts Case” by the media, the 20 tribes of Washington sued Washington State, charging that the state had to fix and repair road culverts that blocked the passage of salmon that moved between ocean feeding areas and freshwater spawning grounds. The issue at hand was that these culverts were depleting the salmon runs, which tribes rely on for their livelihoods and consider part of their cultural identities. Most importantly, the tribes’ traditional fishing rights were protected in treaties made with the United States between 1854-1855.
Source: Wikimedia
Finally, in 2018 the Supreme Court effectively affirmed the opinion of the lower Ninth Circuit Court decision, mandating that the state of Washington remove the culverts that blocked fish migration. In the dramatic end to the Culverts Case, the state of Washington was responsible for immediately spending $3.7 billion to remove the culverts and restore the salmon runs. Admittedly, the state of Washington was not happy about the decision, but Tribal leaders such as Jay Julius, Chairman of the Lummi Nation, saw it as a reaffirmation of the power invested in tribal treaties. Exclaiming, “Today is a historic decision. I think all of Indian Country, all of the treaty tribes, are just grateful that the Supreme Court upheld the Decision”.
In circling back to the McGirt decision, the Supreme Court specifically asked whether the land promised in tribal treaties are still considered an Indian reservation for the purposes of Federal Criminal law. Yet due to the legal precedence set forth in McGirt, the Supreme Court may later be asked to determine whether promises in tribal treaties include the right to environmental protection to fulfill the purposes of an Indian reservation. This question is not of insignificance as most Tribal lands lie to the west, where water is increasingly scarce and environmental resources are being threatened by climate change.
The sheer endowment and diversity of natural resources within the lands of the 573 federally recognized tribes, coupled with their expanding powers vested in tribal treaties and expanding influence over scarce water resources in the western United States, places Native American Nations in a unique position to be leaders in our changing climate. Therefore, as we confront the challenges of climate change it may be of increased importance that the international community and the United States engage with these Tribal Nations. As these tribes are not insignificant, powerless governments, rather these nations embody the incredible resilience, ingenuity, persistence, and wisdom to confront the climate emergency.
Carlo James Aragón is a 2020 MALD alumnus who studied International Environmental Resource Policy and Social Entrepreneurship. He recently joined the U.S. Foreign Service as a Public Diplomacy Officer.