Jimcy McGirt and the Tomahawk Chop

Hank Edmondson is a Professor of Political Science & Public Administration at Georgia College.

The stunning success of the Atlanta Braves in the 2021 World Series has generated a great deal of excitement in the state and beyond.

The most recent World Series has also provided an opportunity for some to again allege that Georgia is a racist state, in this instance because of the crowd-pleasing “tomahawk chop.” Native American leaders seem to be divided on the chop but at least one has noted that it is the least of his worries. He has a point: If the chop were stopped tomorrow, it’s doubtful that it would do anything to alleviate the high unemployment, low education levels, high crime rates, high addiction rates – and hopelessness – among Native Americans.

This raises another point, namely, the problem of “symbolic” justice, or, as it is often called “virtue signaling.” Too many of us seem to be satisfied if we look like we are addressing problems, rather than actually doing something about injustice. It’s nice that with no more effort than using a smartphone to donate money or retweet an angry remark that we can change the world. Except that we can’t.

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Native Americans don’t have the political representation in Washington that other minorities enjoy. However, there is the Bureau of Indian. Affairs and recently their political presence has been growing. Deb Haaland, a native of New Mexico and a member of the Laguna Pueblo Tribe, is the new Secretary of the Interior; and, as of the 2020 elections, there are now five Native Americans in the U.S. Congress.

Even more significantly, Native American now have a friend on the Supreme Court, Trump-appointee Neil Gorsuch. Gorsuch is a westerner, whose home is in Boulder, Co. and, prior to jointing the Supreme Court, he was on the 10th Circuit Court of Appeals located in Denver. He’s already made an impact in several court cases, in this instance, McGirt v. Oklahoma.

Gorsuch opens his opinion in this way:

“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.”

The Trail of Tears involved 60,000 Creeks, Cherokees and Seminoles and Choctaws who were forcibly removed to the area that is now Oklahoma, despite a desperate appeal by a group of Georgia Cherokees to the Supreme Court. Thousands died of disease, exposure and hunger on the trek.

The Constitution says almost nothing about Native Americans – only a phrase in Article I, Section 8 giving Congress the power to “regulate commerce . . . with the Indian Tribes.” This has been interpreted to give Native Americans a special relationship with the federal government, a relationship that may supersede state authority.

That’s what is at issue in McGirt. Jimcy McGirt, a Creek Indian, is no one’s hero. He was convicted in 1997 and sentenced to two 500 year sentences for sex crimes. But McGirt appealed saying he should have been tried in a tribal or state court because the crime occurred on “tribal land.” The Supreme Court agreed and vacated his conviction. McGirt was subsequently charged in the United States District Court for the Eastern District of Oklahoma.

But the Court decision is far more reaching than just McGirt, as these things sometimes go. It decided that about a third of Oklahoma, including Tulsa, given to Native Americans at the end of the Trail of Tears, is indeed still “tribal land.”

What does all of this mean? In Oklahoma, it means that Cherokee, Chickasaw, Creek and Choctaw nations will exercise much more jurisdiction in criminal law, civil law and other ordinances. The Governor of Oklahoma, Kevin Stitts, himself a member of the Cherokee Nation, complains that this is creating chaos in the state. Representatives of the tribes respond, yes, there is a lot to work to do, but if the state of Oklahoma will cooperate, it all can be resolved. Nonetheless, Oklahoma is begging the Supreme Court to immediately reconsider the case and overrule the decision.

The most important thing about all of this is that more cases are likely to be appealed to the Supreme Court on behalf of Native Americans. Two are already on this years docket, one involving questions of jurisdiction. If nothing else, the country is hearing more about the lives of Americans who has suffered a great deal. And perhaps that will inspire those concerned about a historically oppressed minority to do more than tweet.

One last point: it is now, of course, the Cleveland Guardians, not the Cleveland Indians. We can only hope that the name change will bring better conditions to Native American reservations, but don’t hold your breath.

This article originally appeared on Augusta Chronicle: Virtual signaling should not be favored over concrete actions