Supreme Court Says Congress Must Live Up to its Treaty Obligations
Article from For Liberty by Norm Leahy.
In one of its final decisions for the 2019-2020 term, the U.S. Supreme Court ruled that Congress must abide by the promises and treaties it made to native tribes in the 1830s granting them a permanent homeland in what is now Oklahoma.
The effect of the ruling is that nearly half the state, including much of Tulsa, now appears to fall under the jurisdiction of the Muscogee Nation.
Writing for the majority, Justice Neil Gorsuch said that while Congress has, over time, “diminished” the amount of land under native control, “Congress has never withdrawn the promised reservation.”
Instead, Congress has relied on neglect and indifference to get out of its treaty obligations.
“Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye,” Gorsuch said.
“If Congress wishes to withdraw its promises,” he said, “it must say so. Unlawful acts, per-formed long enough and with sufficient vigor, are never enough to amend the law.”
“To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”
The immediate effects are unclear, but could be wide-ranging:
The decision puts in doubt hundreds of state convictions of Native Americans and could change the handling of prosecutions across a vast swath of the state. Lawyers were also examining whether it had broader implications for taxing, zoning and other government functions. But many of the specific impacts will be determined by negotiations between state and federal authorities and five Native American tribes in Oklahoma.
The bottom-line: if Congress wants to change the treaty it should do so publicly and on the record. It’s a big step toward accountability.
Image Credit: Joe Ravi [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons