November 29, 2020

After a Trail of Tears, Justice for ‘Indian Country’

TULSA, Okla. — It was an ordinary July morning in the Arts District of the Muscogee Creek Nation territory here. Already hot and set to get hotter. I was inside my house fooling with some lyrics when my husband burst in. “We won!” he announced. The cellphone in his hand carried the breaking news. “We won the McGirt v. Oklahoma decision!”

I froze, caught on an inhale, in disbelief and shock. How could any Native tribal nation win any decision with this conservative Supreme Court? And at a time in American history like this when justice seemed so imperiled? My husband and I teared up.

We were part of a collective cry that went up in what we call Indian Country when the decision landed. We spent much of the rest of the day checking in with friends and family confirming the news was real.

Writing for the majority, Justice Neil Gorsuch, nominated for the court by President Trump, ruled that because of a 1866 treaty the Creek Nation signed with the United States much of Oklahoma is still sovereign tribal land, and so Indigenous people who allegedly commit crimes on that land must face justice in tribal or federal courts, not state ones.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Justice Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.” But the ruling was about so much more. It was about validity, personhood, humanity — the assertion of our human rights as Indigenous peoples and our right to exist.

Justice Gorsuch continued: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding ‘all their land, east of the Mississippi River,’ the U.S. government agreed by treaty that ‘the Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.’”

All day, I kept thinking how this decision was girded by centuries of history; how the news would be received by the parents, grandparents and great-grandparents who have left this world.

The elders, the Old Ones, always believed that in the end, there will be justice for those who care for and who have not forgotten the original teachings, rooted in a relationship with the land. I could still hear their voices as we sat out on the porch later that evening when it cooled down. Justice is sometimes seven generations away, or even more. And it is inevitable.

When you understand history this way — as linked stories — then it is no longer a misty past. My ancestor Monahwee, six generations back, was one of the Red Stick warriors who fought directly against Andrew Jackson, against the illegal theft of our lands in the Southeast, at the Battle of Horseshoe Bend.

ImageDelegates from 34 tribes gathered at the Creek Council House in Indian Territory, later known as Oklahoma,  circa 1880.
Credit…Corbis, via Getty Images

The Old Ones have always reminded us that we will be here long after colonization has worn itself out. An elder explained to me once, pressing her fingers together, “See this?” I could see no light between her fingers. “This is the time since European settlement.” Then, she spread her arms from horizon to horizon: “This is the whole of time.”

The Supreme Court decision last week affirmed what those of us who live close to our history here know already. Still, we weren’t sure what was going to happen because we do not usually fare well in courts. We have always been dogged by legal fictions and false narratives. In the Declaration of Independence we are referred to as “the merciless Indian savages” on “our frontiers.”

That a conservative nominee to the Supreme Court stood with four other justices and followed the rule of law, instead of bowing to political arguments, is striking: a decision of integrity. It provides hope that the rule of law upon which this country is based can be applied equally.

The Old Ones understood the truth that “we are all related,” and now, as a nation reckoning with racism, maybe more of us are beginning to understand it too.

We tribal nation citizens will continue to go about our lives here as ordinary U.S. and Oklahoma citizens: going to public schools, working jobs, paying taxes, holding positions of public trust and raising our families.

And still, we will have our lives apart from the mainstream. You will find us in our Creek churches, ceremonial grounds and community centers, situated in our rural communities, at the edge of the towns and cities, out there in the trees, the land.

There you will hear our language spoken and sung, calling us back to that circle around our nation. You will hear our principles of living: “eyasketv,” or humbleness, and “vnoketkv,” or love.

It is important to stop here, in the moment, and to recognize all that it has taken to arrive at this act of justice. There was the resolve, struggle and battle, the food cooked to help those working long hours.

There were those who picked up, who took care of the children. Those who kept walking the long distance of heartbreak to arrive, in a reservation, and start all over again. And at last, on the far end of the Trail of Tears, a promise has been kept.

Joy Harjo (@JoyHarjo), the United States poet laureate, is a member of the Muscogee Creek Nation.

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