Emory Undergraduate Journal of Law & Society

Introduction

In Paradoxes of Hawaiian Sovereignty, historian J. Kehaulani Kauanui discussed the colonization and forced assimilation into Western culture that have been, and continue to be, imposed on Indigenous and Hawaiian people by the United States government. Kauanui detailed how United States treaties and governance have been impacted by Western ideas that directly contradict those of Indigenous and Hawaiian communities: in particular, the notion of sovereignty [1]. The act of granting sovereignty to Indigenous groups is itself a paradox. While it is invariably beneficial to be granted political autonomy, Western constructions of sovereignty inevitably contradict with Indigenous conceptions of sovereignty. This invokes the question of whether granting legal sovereignty to Indigenous or Hawaiian communities is ultimately a triumph, or a defeat of one’s own beliefs.

In McGirt v. Oklahoma (2022), a member of the Muscogee nation, Jimcy McGirt, alleged that Oklahoman charges against him for sexual abuse of a child were outside of the jurisdiction of the state and thus could not be enforced because of a section in the Indian Major Crimes Act which states that any crime involving a Native American victim or defendant and that occurred in reservation boundaries was not subject to state jurisdiction. The Court was tasked with determining whether a member of this tribe could be prosecuted by the state for crimes which occurred within reservation boundaries.

The Decision

In a 5–4 decision, the Supreme Court held that under the Major Crimes Act, Oklahoma lacked the jurisdiction to prosecute Jimcy McGirt. They found that the land on which McGirt was alleged to have committed the criminal acts to be, for legal purposes, a Native American reservation. As such, McGirt’s criminal acts could not be prosecuted by the Oklahoman government.

The Majority opinion began by asserting that the Major Crimes Act, which McGirt’s case rested upon, states that within “the Indian country,” “[a]ny Indian who commits” certain offenses will be subjected exclusively to the jurisdiction of the federal government, and not any state governments. The question then became whether the Creek reservation where McGirt’s crime had occurred could be legally treated as a Native American reservation. The majority held that, although early treaties did not refer to Muscogee lands as a “reservation”, the 1833 Treaty created by Congress which delineated this land to the Muscogee people used language sufficiently similar to other treaties from the time period to justify the Muscogee land being treated, for legal purposes, as a reservation.

Though the Oklahoman government argued that Congress had expressed intent to disestablish the reservation by using historical examples of how Congress had undermined the sovereignty of the Muscogee lands in the past, the Majority detailed how Congressional policy towards the Creek Nation had taken a supportive turn in the 1900s. They concluded that, throughout history, Congress had never disestablished the reservation, and over time, Congress’ support for Muscogee sovereignty grew. The Majority also mentioned concerns about the precedent this case could set if Oklahoma was granted the ability to prosecute McGirt, worried it would provide states the ability to take Native American land and “treat Native American claims of statutory right as less valuable than others” [2].

The Paradox of Sovereignty

The opinion of the court ultimately determined McGirt’s case to be outside of the jurisdiction of the state of Oklahoma, reaffirming the legal status of reservations in the United States and the political autonomy of groups like the Muscogee throughout the continent. The majority opinion contended that past Congressional intrusions against Native American sovereignty do not constitute a clear expression of Congressional intent to disestablish that reservation, and that past intrusions against the Muscogee people by Congress are insufficient reason to consider the Muscogee land disestablished. Furthermore, as the state of Oklahoma had mentioned in their own arguments, they planned to continue prosecuting cases against Indigenous persons across the state and undermining tribal sovereignty; this decision by the Supreme Court rendered them unable to do so. The outcome of this case was a victory: not just for McGirt, but for future Indigenous people who may have been prosecuted by Oklahoma under the Oklahoma Enabling Act, and even for Native American people in other states that may have followed Oklahoma’s lead had the majority ruled differently. Yet, while McGirt succeeded in legally ensuring these rights for McGirt and other Native Americans, the ability for the Court to accomplish such an action hinged upon a definition of sovereignty which is not universally shared. 

In both Hawaiian and Indigenous cultures, scholar Kaleikoa Kaʻeo notes that: “Our sovereignty does not come from a constitution. The sovereignty doesn’t come from the gun. The sovereignty doesn’t come from arms. But in fact the sovereignty comes from the land…the land itself is our sovereignty”. This stands fundamentally at odds Western ideology, which presents sovereignty as something that is legally bestowed upon a group, and which can be written into – or written out of – existence at any point in time. Thus, accepting sovereignty as it exists in Western cultures constitutes a subjugation of one’s own principles to that of Western nations.

While McGirt succeeded in reaffirming the legal sovereignty of the Muscogee people, it presupposed that the sovereignty of McGirt and his peers was a concept which needed to be recognized by law and by government in order to exist in the first place. The very notion that the government could prescribe sovereignty onto the Muscogee people, another presupposition of Western ideology, directly contradicts Indigenous tradition and thinking. This creates a paradox in which colonial ideals are imposed regardless of the outcome of the case, as Indigenous people are forced to navigate a legal system which directly contradicts their beliefs and was designed for their subjugation, while striving to achieve political and legal autonomy. In such a system, Indigenous people are presented with a lose-lose situation, wherein an assurance of liberty and freedom are dependent upon a subjugation of one’s own ideals. 

The recognition of any of these considerations remains largely absent from both the majority and dissenting opinions of McGirt, reflecting an incomplete understanding of the Indigenous rights they are seeking to establish a precedent for. The majority opinion centers on the Muscogee land as a “reservation” – a Western term established by Western treaties – and the argument that sufficient evidence of Congressional intent to disestablish the reservation had not been provided by the state; thus invoking the section of the Major Crimes Act which prevents the prosecution of crimes committed by Native Americans on Native American reservations by state governments. Similarly, Chief Justice Robert’s dissent scrutinizes the legal designation of Muscogee land as a reservation and analyzes past Congressional intrusions on Muscogee sovereignty.

Apparent in both opinions is the assumption that Muscogee sovereignty is within the United States government’s ability to designate – or something that any government, law, or persons could designate at all. These arguments, while carefully constructed and relevant under Western ideas of sovereignty and government, remain incomplete as long as they fail to acknowledge the viewpoints of the population on which the case centers. 

Citations

[1] J Kēhaulani Kauanui. (2018). Paradoxes of Hawaiian Sovereignty Land, Sex, and the Colonial Politics of State Nationalism. Duke University Press.

[2] McGirt v. Oklahoma, 591 US _ (2020).