How Native Tribes Started Winning at the Supreme Court

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.


https://www.motherjones.com/crime-justice/2020/08/how-native-tribes-started-winning-at-the-supreme-court/