Joint sovereignty: is the tide coming in?

There is a tide in the affairs of men…

Julius Caesar Act 4, scene 3

The New York Times reports on the recent US Supreme Court decision in McGirt v Oklahoma relating to Treaty rights in Oklahoma (link here) which appears to confirm the ongoing operation of native American sovereignty over Native Americans residing in much of eastern Oklahoma. I recommend readers look at the report in full.

The Times report summarised the core of the case as follows:

The court’s decision means that Indigenous people who commit crimes on the eastern Oklahoma reservation, which includes much of Tulsa, cannot be prosecuted by state or local law enforcement, and must instead face justice in tribal or federal courts.

The rationale for the majority decision boils down to a decision that Congress should be required to uphold promises made. The NY Times reports states, inter alia,

Justice Neil M. Gorsuch, a Westerner who has sided with tribes in previous cases and joined the court’s more liberal members to form the majority, said that Congress had granted the Creek a reservation, and that the United States needed to abide by its promises.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Justice Gorsuch wrote in the majority opinion. “Because Congress has not said otherwise, we hold the government to its word.”

The case raises the obvious question for Australian readers: what does this mean for Indigenous rights in Australia?

The short answer is ‘very little’. In Australia, we do not have formal treaties, and nor did past Governments make formal and legally enforceable promises.

There are however in my view at least two broad implications for Australian policymakers to seriously consider.

First, the decision does however create yet another north American precedent of the legal system (in this case the highest court in the USA) acknowledging the legitimacy of recognising Indigenous sovereignty albeit constrained by the terms of the original Congressional commitments. 

Australian policymakers appear set on a course of resisting any substantive reform notwithstanding the huge accumulation of evidence that Indigenous citizens are the subject of structurally exclusionary policies.

Second, the decision appears to acknowledge and recognise the reality and indeed desirability of joint sovereignty in Oklahoma and by virtue of this perhaps more widely in the future. Neil Westbury and I explored the concept of joint sovereignty as a potential way forward in the Australian context in our 2019 Policy Insights Paper Overcoming Indigenous Exclusion (available online here).