Sovereignty and the Muscogee (Creek) Nation, Today and in History

Abstract

This unit explores the intersections of history, treaties, and law at the center of the highly significant Supreme Court decision on McGirt v. Oklahoma (2020), which recognizes much of the eastern portion of the state of Oklahoma to be Native American territory.  

There are six lesson plans in this unit.

The first lesson plan is an introduction. This lesson features the first of several online, mini-research projects that students will complete for their journals. These journals are a collection of assignments that students will use to build a case for their final project structured as a debate. Students will learn about the Removal Era (1812) through map comparison, placing the McGirt v. Oklahoma legal conflict in historical context.

The second lesson plan is an exploration of the post-Civil War, 1866 Muscogee (Creek) Treaty with the United States. Students will create an in-depth analysis of the 1866  treaty. Treaty-making as a practice will be discussed from an Indigenous perspective. The 1866 Muscogee (Creek) Treaty is a primary document that was foundational to the tribe’s reservation lands and subsequent legal battles in the Supreme Court.

The third lesson plan asks the students to examine two Supreme Court decisions, Sharp v. Murphy and McGirt v. Oklahoma. An assignment based on the podcast, This Land, gives students the opportunity to explore a critical Indigenous perspective to the Supreme Court cases.

The fourth lesson plan centers on the Muscogee (Creek) government’s response to the Supreme Court decision. The statement by the nation is a critical frame for the unit as a whole, providing insight into Indigenous legal sovereignty from the perspective of one tribal nation, but with ramifications for considerations of sovereignty for all tribes in the United States.

The fifth lesson plan is based on an excerpt from the Supreme Court decision in McGirt v. Oklahoma. Lesson Plans 4 and 5 are assembled to repeat similar exercises, giving students the opportunity to build on previous learning. Each assignment is an exploration of a primary source. The students will research differing viewpoints of the case, tracking them through legal channels.

The sixth, and last, lesson plan is a summative project. Students will participate in a debate, incorporating their research from the entire unit into a project. Their task will be to anticipate and design arguments based on different views of the Supreme Court decision.

This unit has relevance for tribal nations along the Lewis and Clark National Historic Trail (and beyond), because many tribes have experienced both Removal and the making of treaties, and all tribal nations assert their rights to self-governance.

 

Curriculum Design Approach

The Honoring Tribal Legacies curriculum follows a place-based multiliteracies design approach. This type of framework incorporates learning about “place” using physical and cognitive activities that focus on our visual, auditory, tactile, spatial, smell/taste, movement/gestural, linguistic, and spiritual abilities. The lessons in this unit provide a variety of learning experiences including community discussions, journal writing, creative arts pieces, presentations, video and audio files, and other activities designed to engage students on a more than perfunctory level.

 

Curriculum Expressions

  • Big Ideas

Tribal sovereignty is a central concern for Indigenous tribes and peoples. It is an essential aspect of tribal treaty rights.

Court decisions have created opportunities for the expansion of tribal sovereignty. The July 9th, 2020, Supreme Court ruling on McGirt v. Oklahoma is a key case in the history of Muscogee (Creek) Nation tribal sovereignty and may become a precedent for upholding sovereignty for many tribal nations along the Lewis and Clark Trail and beyond.

Key precedent decisions in the history of Indian law include Johnson v. M’Intosh (1823), which established the European doctrine of discovery as the law of the land, officially codifying white supremacy. Also, Cherokee v. Georgia (1831), which held that tribal nations were domestic dependent nations and not foreign sovereigns. Worcester v. Georgia (1832) established Congress as the government body that regulated Indian affairs. Last, Oliphant v. Suquamish (1978) denies tribes jurisdiction over non-tribal members on reservation lands.

The article, Judicial Toolkit on Indian Law, provides concise descriptions of the foundational cases in the tribal law canon.

https://www.courts.ca.gov/documents/Key-Federal-Indian-Law-Cases.pdf 

  • Essential  Understandings

Essential Understandings for this unit are taken from the National Museum of the American Indian Native Knowledge 360° Essential Understandings about American Indians.

https://americanindian.si.edu/nk360/about/understandings

    • Adaptation

American Indians have always operated and interacted within self-defined social structures that include institutions, societies, and organizations, each with specific functions.

External educational, governmental, and religious institutions have exerted major influences on American Indian individuals, groups, and institutions. Native people have fought to counter these pressures and have adapted to them when necessary. Many Native institutions today are mixtures of Native and Western constructs, reflecting external influence and Native adaptation.Today, because of treaties, court decisions, and statutes, tribal governments maintain a unique relationship with federal and state governments. Today, American Indian governments uphold tribal sovereignty and promote tribal culture and well-being.

Ideals, principles, and practices of citizenship have always been part of American Indian societies. American Indians today may be citizens of their tribal nations, the states they live in, and the United States.

    • Government-to-Government Relations

American Indians devised and have always lived under a variety of complex systems of government. Tribal governments faced rapid and devastating change as a result of European colonization and the development of the United States. Tribes today still govern their own affairs and maintain a government-to-government relationship with the United States and other governments. Based on treaties, laws, and court decisions, they operate as sovereign nations within the United States, enacting and enforcing laws and managing judicial systems, social well-being, natural resources, and economic, educational, and other programs for their members. Tribal governments are also responsible for interactions with American federal, state, and municipal governments.

A variety of political, economic, legal, military, and social policies are used by Europeans and Americans to remove and relocate American Indians and to destroy their cultures. U.S. policies regarding American Indians were the result of major national debate. Many of these policies had a devastating effect on established American Indian governing principles and systems. Other policies sought to strength and restore tribal self-government.

A variety of historical policy periods have had a major impact on American Indian people’s abilities to self-govern. These include:

    • Colonization Period, since 1492
    • Treaty Period, 1789-1871
    • Removal Period, 1834-1871
    • Allotment/Assimilation Period, 1887-1934
    • Tribal Reorganization, 1934-1958
    • Termination, 1953-1988
    • Self-Determination, 1975-present
  • Essential Questions

Lesson Plan 1

  • What was the Trail of Tears?
  • How can you learn about tribal history through an examination of the Removal Era?
  • How is Indian Removal depicted online?
  • What can a map communicate?

Lesson Plan 2

  • What are the motivations behind treaties?
  • How do Indian nations approach treaty-making?
  • Why are treaties between tribal nations and the United States key parts of history?
  • How do you analyze a treaty?
  • How do you determine if treaties are fundamentally fair?
  • How is the 1866 Creek Treaty connected to issues of Muscogee (Creek) sovereignty?

Lesson Plan 3

  • How does tribal sovereignty work in practice?
  • What are important concepts in tribal government?
  • What is the conflict between Muscogee (Creek) Nation and the state of Oklahoma?
  • How does tribal jurisdiction work?
  • What are the boundaries of tribal jurisdiction?

Lesson Plan 4

  • How do treaties intersect with sovereignty?
  • How can a treaty hold a sacred promise?
  • Why have treaties been upheld (or not upheld)?
  • How and why has tribal sovereignty been ignored or suppressed?
  • Why is sovereignty important to Indigenous people?

Lesson Plan 5

  • What is the connection between treaties and the law?
  • What is the relationship between the Supreme Court and tribal nations?
  • How is fairness created through the judicial system?
  • When is fairness not created by the judicial system?
  • How is justice created in the judicial system?
  • When is justice not present in the judicial system?

Lesson Plan 6

  • How have Indigenous nations been covered in the media?
  • How are media narratives created?
  • Why are media narratives powerful?

 

Lesson Plan #1:  INDIAN REMOVAL

  • Subject: Government, History
  • Nations: Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations
  • Grade Band: Secondary
  • Region: Southeast, Midwest, Indian Territory
  • Timeline: 19th Century, Removal Era (1812-1850)

Materials

  • Access to technology
  • Journal-making materials

Essential Questions

  • What was the Trail of Tears?
  • How can you learn about tribal history through an examination of the Removal Era?
  • How is Indian Removal depicted online?

(Please note:  Aside from unrealistic portrayals, you will also find archival print material/primary sources are available on line; see, for example, Indian agent notes, photographs, newspaper articles, accounts by miners, soldiers, and linguists who happened to bear witness, such as Frachtenberg.)

  • What can a map communicate?

Learning Objectives

Students will be able to:

  • Identify geographical features on a map.
  • Assess the meaning behind map features.
  • Compare and contrast different maps.
  • Interpret the Trail of Tears based on map features.
  • Critique the information presented on a map.
  • Critique information as it is presented online.
  • Assemble their own narrative of Removal based on map analysis.
  • Discuss the information they encounter on line about the Trail.

Background

Five Indigenous nations from the Southeast (the Chickasaw, Choctaw, Muscogee-Creek, Seminole, and original Cherokee nations) region experienced violent, coerced removal by the United States government between 1830 and 1850. Sparked by President Andrew Jackson’s May 28,1830 Indian Removal Act, United States soldiers rounded up communities for a forced march to a new settlement in the West. Walking a long way on foot, some people in chains, with little or no food or supplies, approximately sixty-thousand people were subjected to this genocidal policy. Mortality was high throughout, and it is estimated that at least six thousand people died before reaching Indian Territory in what today is the eastern half of Oklahoma (Thorton 1984).

The history of Removal is further complicated by internal political and social strife within nations, as well as the protracted legal battles waged by, in particular, the Cherokee nation, in opposition to Removal.  A prominent example occurred when the Cherokee legal team took their argument against Removal to the Supreme Court in Cherokee Nation v. Georgia. According to the website DocsTeach, “In 1831, the Supreme Court case Cherokee Nation v. Georgia changed the status of Native tribes from ‘independent, sovereign nations’ to ‘domestic dependent nations,’” which many tribes see as having undermined sovereignty significantly.  While the Cherokee legal strategy was unsuccessful in the Supreme Court in the 1830s, their actions reflect the deep roots of Indigenous legal resistance in the face of genocidal policies.

A notable example of political capitulation in the face of Removal is found in the 1820s, during which several groups within the Muscogee (Creek) Nation willingly signed treaties abdicating ancestral lands. The actions of this group took place despite Muscogee (Creek) tribal law categorizing this action as a capital crime, and this faction received both payment and the perceived guarantee of safety in their new settlements.

Instruction

  • Guide students through an online search.
  • Students should conduct a Google image search for “Indian removal map.” (Here’s a webpage with advice about improving your Google searches, https://www.textbroker.com/types-searches-transactional-navigational-informational.)
  • Each student should choose a different map to click on.
  • Lead a discussion about the different maps.
  • As an expansion of the discussion, have students search the critical framing provided by the Oklahoma Historical Society.
  • Students can compare and contrast the maps found via their Google image search with the maps presented on the Oklahoma Historical Society website.
  • Students can also discuss the other kinds of information presented on the Oklahoma Historical Society website.

Critical Framing

Oklahoma Historical Society, “Removal of Tribes to Oklahoma”

Indian Removal Act (May 28, 1830), DocsTeach

In-class activities

Students will discuss the different maps depicting Indian removal found online.

They can answer the following:

    • What are the basic facts of this episode in history?
    • When did it happen?
    • Where did it occur?
    • What tribal peoples were involved?
    • What was the starting point for the various tribal communities?
    • What was the ending point?
    • How are the different maps presented?
    • Who created the map the student has chosen?
    • What colors are used?
    • Are geographic features clear in your map?
    • Do the maps give you a clear picture of the communities involved? 

JOURNAL

Students can respond to the following prompt:

Please write down five major take-aways from your map search. Also, include at least one piece of information that was shared during class discussion.

Differentiated Instruction: Activity Menu

  • Create an illustrated timeline.
  • Use digital media to represent changes in Tribal territory over time.
  • Develop a script for a short newscast; if there’s time, produce it.
  • Create a poster that represents the lessons’ most vital information in the style of those mid-1800s “Free Indian Land” posters.
  • Design a mural.
  • Draft a speech; if there’s time, deliver it.
  • Organize and promote a protest against unjust policies featured in the lesson.
  • Design an additional webpage for the Oklahoma Historical Society website.

Assessment

Students will:

  • Conduct their online map search.
  • Find and identify a map.
  • Present a few details about their chosen map.
  • Discuss map details with peers.
  • Complete journal entry.
  • Place tragic events of the Removal era in a critical context.
  • Express legal, social, and political dimensions of the Trail of Tears.
  • Make specific connections about the experiences of people on the trail, including: regional and cultural affiliation; protests and challenges to removal; geographic features along the trail; effects and consequences of removal.
  • Recall at least one detail from the class discussion in their written assignment.

Potential Extension of the Lesson

The Indian Removal Maps lesson can be extended to have a place-based resonance for teachers in other parts of the country.  Teachers can research other experiences with Removal in other regions. Removal was a near ubiquitous experience for North American Indigenous communities. Local tribal histories can be highlighted.

Here are links to two examples of regional removal policies in Oregon and California.

 

Lesson Plan #2:  1866 MUSCOGEE (CREEK) TREATY

  • Subject: Government, Diplomacy
  • Nation: Muscogee (Creek) Nation
  • Grade Band: Secondary
  • Region: Midwest, Indian Territory
  • Timeline: Immediate Post-Civil War

Materials

  • Highlighters
  • Journal-making materials
  • Access to technology

Essential Questions

  • What are the motivations behind treaties?
  • How do Indian nations approach treaty-making?
  • Why are treaties between tribal nations and the United States key parts of history?
  • How do you analyze a treaty?
  • How do you determine if treaties are fundamentally fair?
  • How is the 1866 Creek Treaty connected to issues of Muscogee (Creek) sovereignty?

Learning Objectives

Students will be able to:

  • Read and interpret a primary source document.
  • Highlight key passages in a legal document.
  • Place Muscogee (Creek) history in context.
  • Identify legal concepts that are key to the 1866 Muscogee (Creek) treaty.
  • Begin the process of building an argument in their journal.
  • Discuss key elements of treaty-making.
  • Reflect on treaty excerpts.
  • Explore different views about treaty-making.
  • Engage with critical, Indigenous views of treaty-making.

Background

Treaties between the Muscogee (Creek) Nation and the United States stretch back into the beginnings of American history and before. The Creek Confederacy was a formidable diplomatic presence during the Colonial era, forging alliances with agents from the Spanish, French, and British colonial empires (Hahn 2004). Early in the post-Revolutionary era, The United States sought to negotiate relations with surrounding tribal nations. The Treaty of New York (1790) between the fledgling government and the established Confederacy was the first of a chain of written negotiations that documented the coerced minimization of Muscogee political rights and land base, culminating in the 1832 Treaty of Cusseta that relinquished all land east of the Mississippi River.

At the close of the American Civil War in 1866, the Creek nation was again facing social and political upheaval, as well as the continued erosion of their land base. Social division emerged because Creeks had fought on both sides of the Civil War.  An example is George Washington Grayson, a Creek Confederate officer, businessman, and anthropological source for John R. Swanton’s seminal Creek history (Warde 1999). The post-Civil War division among the Muscogee stemmed from previous treaties between Creeks and the United States, treaties that had been broken during the hostilities. A re-negotiation between the United States and the Creek Nation took place in the summer of 1866. The treaty that emerged from discussions created a final division. The Muscogee (Creek) community in Indian Territory was dismantled, geographically divided in half. The eastern half of Creek territory was left in Creek hands while the western half was given to the United States for settlement.

Instruction

  • Assign Homework #2 to be completed before class.
    • Students will conduct an online search for the word Answer the following questions in your journal.
  1. What is the definition of sovereignty?
  2. Expand “Translations, word origin, and more definitions.”
  3. Expand the “similar” definitions for sovereignty. Please list several similar terms for two of the definitions for sovereignty.
  4. Please list four words that have an opposite meaning from sovereignty.
  5. What language is the root origin for sovereignty?
  6. What is the root word for sovereignty?
  7. Estimate when the word sovereignty was most popular.

Critical Framing

Show NMAI video on treaty discussion.

  • Video: Let’s Talk Treaties (3 min. 32 sec.)

https://americanindian.si.edu/nk360/plains-treaties/#staging

In-class activities

  • Have students discuss the video, Let’s Talk Treaties.
  • Students will then read excerpts from the 1866 Creek Treaty.
  • Students will answer questions about the treaty in their journals.
  • Teacher will lead a discussion about the excerpts based on the questions.
  • Last, students will respond to a prompt in their journal.

Questions about the 1866 Treaty

  • Preamble
  1. When was the treaty signed?
  2. What major historical event just ended?
  3. In your opinion, why would the United States want to renegotiate with the Creek Nation at this time?
  • Article 1
  1. What does the word “perpetual” mean? Please highlight this word in Article 1.
  2. What did the United States guarantee the Creek Nation in return for the Creeks agreeing to remain at peace with all other Indian tribes? Please highlight the answer.
  3. In your opinion, was this a fair deal?
  • Article 3
  1. What happened to the eastern half of Creek Nation at this time? Please highlight the answer in Article 3.
  2. What happened to the western half of Creek Nation? Please highlight the answer in Article 3.
  3. For how long does the treaty say Creeks would hold their eastern lands?
  4. Again, in your opinion, was this a fair deal?

JOURNAL

Students will respond to the following prompt

Please make three connections between the word sovereignty and the 1866 Creek Treaty. Write one paragraph of four sentences exploring each connection.

Differentiated Instruction: Activity Menu 

  • Create an illustrated timeline
  • Use digital media to represent changes in Tribal territory over time
  • Develop a script for a short newscast; if there’s time, produce it
  • Create a poster that represents the lessons’ most vital information in the style of those mid-1800s “Free Indian Land” posters
  • Design a mural
  • Draft a speech; if there’s time, deliver it
  • Organize and promote a protest against unjust policies featured in the lesson
  • Create a dialogue to explore the 1866 Creek Treaty map on the BlackPast blog
  • Develop a video response to the “Let’s Talk Treaties” video

Assessment

Students will:

  • Discuss their impressions of the video, Let’s Talk Treaties.
  • Answer the questions at the top of the treaty.
  • Highlight specific phrases in the treaty text.
  • Participate in a discussion about a specific treaty.
  • Complete the prompt for their journal.
  • Participate in a dialogue with their peers.
  • Analyze a primary source in some detail.
  • Make initial connections about the concept of sovereignty.
  • Approach tribal history with curiosity.

Potential Extension of the Lesson 

This unit has place-based regional modifications. Educators might examine a treaty of relevance to the nearest tribal nation where their schools are located. The Essential Questions at the top of the unit frame teaching approaches to these local and regional treaties.

A strong resource is DocsTeach. DocsTeach hosts over 90 treaties in digital facsimile:  https://www.docsteach.org/documents?filter_searchterm=AND+%22treaty%22+AND+%28%22native+american%22+OR+indian%29&filterEras=&filterDocTypes=&sortby=date&filter_order=&filter_order_Dir=&rt=Ex8XA54xjv6D

 

Lesson Plan #3:  THE SUPREME COURT CASES

  • Subject: Government, Judicial Branch
  • Nation: Muscogee (Creek) Nation
  • Grade Band: Secondary
  • Region: Midwest
  • Timeline: Late-20th and 21st century

Materials:

  • Access to Internet technology
  • Journal-making materials

Essential Questions:

  • How does tribal sovereignty work in practice?
  • What are important concepts in tribal government?
  • What is the conflict between Muscogee (Creek) Nation and the state of Oklahoma?
  • How does tribal jurisdiction work?
  • What are the boundaries of tribal jurisdiction?

Learning Objectives

Students will be able to:

  • Discuss tribal jurisdiction.
  • Identify legal terms and concepts.
  • Examine two court cases.
  • Describe tribal viewpoints of sovereignty.
  • Recall key information from an audio source.
  • Recognize features of the Muscogee (Creek) Nation government.
  • State historical challenges to tribal peoples.
  • Compare and contrast legal reasoning.
  • Reflect on legal foundations of tribal sovereignty.
  • Demonstrate their ability to understand Muscogee (Creek) Nation’s sovereignty. 

Background

Two major cases were brought to the United States Court in the past several years with significant implications for the Muscogee (Creek) Nation.  Rebecca Nagle, in This Land podcast, explores the first case, Sharp v. Murphy, asked the question, Where was the crime at the center of the case committed? More specifically, was the crime committed on tribal lands? The answer was yes. Technically, the crime was committed on the land of the Muscogee (Creek) Nation and was therefore under the jurisdiction of the tribe, not the state government of Oklahoma nor the federal government of the United States (Crooked Media, 2019). A second case brought to the Supreme Court, McGirt v. Oklahoma, also stipulated that a crime had been committed on tribal lands. In the end, the US Supreme Court affirmed the position of the Muscogee (Creek) Nation in both cases because the crimes in question had occurred within and upon tribal lands.

Several important points were made by the Supreme Court rulings. First, these crimes had been committed on tribal lands because tribal sovereignty had not been, at any time, disestablished by Congress. Also, the Supreme Court decided that the argument that the establishment of Oklahoma statehood in 1907 was equal to the disestablishment of the reservation was unfounded. Therefore, according to the highest court in the land, eastern Oklahoma has been affirmed to be, and in fact always had been, tribal land under tribal jurisdiction. 

Instruction

  • Assign Homework #3 to be completed before class.
    • Students will explore the background to the Muscogee (Creek) Nation cases at the Supreme Court by listening to the This Land podcast, Episode 2, “The Tribe.” Record your answers in your journal.
  • This Land, Episode 2, “The Tribe.”

https://podcasts.apple.com/us/podcast/2-the-tribe/id1464954218?i=1000441047128

  1. (0:00-1:29) According to Kevin Dellinger, attorney general for Muscogee (Creek) Nation, Muscogee (Creek) sovereignty is tied to what?
  2. (1:43-2:45) Summarize Creek removal in two sentences.
  3. (5:27-5:50) According to Dellinger, what is the simplest summarization for the Supreme Court battle between Muscogee (Creek) Nation and the state of Oklahoma?
  4. (7:48-8:23) How does the narrator describe the Muscogee (Creek) Nation tribal complex?
  5. (9:35-10:15) According to the narrator, how long has the Muscogee (Creek) Nation had sovereignty?
  6. (11:24-12:03) According to Lisa Black, attorney for the state Oklahoma, what are the three reasons eastern Oklahoma is not an Indian reservation?
  7. (22:06-22:22) How are reservations created?
  8. (22:25-23:00) According to the narrator, what is the legal question at the heart of this case?
  9. (23:00-32:05) What information surprised you during this part of the podcast?

Critical Framing

Completed Homework #3/ journal on This Land podcast, Episode 2, “The Tribe.”

  • Podcast, This Land, Episode 2, “The Tribe.”

https://podcasts.apple.com/us/podcast/2-the-tribe/id1464954218?i=1000441047128

In-class activities

  • Students will discuss their in-depth analysis of Episode 2 of This Land podcast, “The Tribe.”
  • Full class discussion can include:
    • Challenges with the assignment.
    • Points of clarification.
    • Content analysis.
    • Connections to sovereignty.
    • Opinions about the conflict between Muscogee (Creek) Nation and Oklahoma.
  • Students will then answer questions using two entries from the SCOTUSblog website in their journals.
    • Explain to students that they will use the blog to sketch out several important facts about the two Supreme Court cases dealing with sovereignty and the Muscogee (Creek) Nation.
  • Students are also responsible for responding to a synthesis prompt in their journals.

SCOTUSBlog Questions

https://www.scotusblog.com/case-files/cases/sharp-v-murphy/

  1. What case is this?
  2. What case is linked with this case?
  3. When was the opinion issued?

https://www.scotusblog.com/case-files/cases/mcgirt-v-oklahoma/

  1. What case is this?
  2. What is the holding?

JOURNAL

Students will respond to the following prompt:

What is surprising about the Supreme Court ruling in McGirt v. Oklahoma? What do you think this ruling means for the Muscogee (Creek) Nation? What does the ruling mean for Oklahoma? How has sovereignty been addressed by the Supreme Court decision?

Differentiated Instruction: Activity Menu

  • Create an illustrated timeline.
  • Use digital media to represent changes in Tribal territory over time.
  • Develop a script for a short newscast; if there’s time, produce it.
  • Create a poster that represents the lessons’ most vital information in the style of those mid-1800s “Free Indian Land” posters.
  • Design a mural.
  • Record a podcast.
  • Draft a speech; if there’s time, deliver it.
  • Organize and promote a protest against unjust policies featured in the lesson.

Assessment

Students will:

  • Briefly answer the questions about the podcast.
  • Discuss information presented in the podcast.
  • Recognize and record key information from a legal blog.
  • Interpret legal information in their journals.
  • Explore a contemporary Indigenous perspective of sovereignty in detail.
  • Express their opinions both about their assignment and the assignment content.
  • Locate pertinent information in audio and written formats.
  • Examine the concept of Indigenous sovereignty in connection to specific legal conflicts.
  • Build the foundation of an argument in their journals.

Potential Extension of the Lesson

An extension of this lesson can explore the consequences of the foundational case in tribal law, Oliphant v. Suquamish. In the words of Judge Joseph J. Wiseman, Oliphant v. Suquamish is important because it denies tribes the ability to prosecute non-Indian criminals on tribal lands. The Essential Questions at the top of the unit are an excellent jumping-off point to discuss the effects of Oliphant v. Suquamish on tribal sovereignty.

Here is Judge Wiseman’s summary of the case: “[T]he Court denies tribes criminal jurisdiction over non-Indians who committed crimes within reservation boundaries. The Court held that the power to prosecute nonmembers was an aspect of the tribes’ external relations, part of the tribal sovereignty that was divested by treaties and by Congress when they submitted “to the overriding sovereignty” of the United States. Even though there are no treaties or statutes explicitly forbidding tribes from exercising criminal jurisdiction over non-Indians, the implied limitations on tribal sovereignty arise out of their dependent status. It is up to Congress to decide whether Indian tribes should be authorized to try non-Indians.”

https://www.courts.ca.gov/documents/Key-Federal-Indian-Law-Cases.pdf

 

Lesson Plan #4:  MUSCOGEE (CREEK) NATION STATEMENT  

  • Subject: Government
  • Nation: Muscogee (Creek) Nation
  • Grade Band: Secondary
  • Region: Midwest
  • Timeline: 20th and 21st Century

Materials

  • Completed powerpoint
  • Access to technology
  • Journal-making materials

Essential Questions

  • How do treaties intersect with sovereignty?
  • How can a treaty hold a sacred promise?
  • Why have treaties been upheld (or not upheld)?
  • How and why has tribal sovereignty been ignored or suppressed?
  • Why is sovereignty important to Indigenous people?

Learning Objectives

Students will be able to:

  • Locate key words in an official, tribal statement.
  • Present their own interpretations in relation to the case.
  • Communicate reflections and connections they created about the statement.
  • Discuss details of the statement and the wider case with their peers.
  • Explore the concept of sovereignty as it relates directly to an official statement by a tribal government.
  • Assess the Muscogee (Creek) Nation’s response to the Supreme Court decision.
  • Present official statements made by the Muscogee (Creek) Nation to the Supreme Court decision.
  • Give examples of specific issues raised by the Muscogee (Creek) Nation in relation to the decision.
  • Interpret a statement made by officials of the Muscogee (Creek) Nation. 

Background

The July 9th, 2020, Supreme Court decision on McGirt v. Oklahoma was a monumental case in tribal law. The decision found that the land occupied by the Muscogee (Creek) Nation since the 1830s had endured as a reservation and the tribe held legal sovereignty over an eleven county area in northeastern Oklahoma. The reasoning behind the decision was rooted in a simple fact: Congress had never officially disestablished the reservation. Over the past two centuries, Muscogee sovereignty in Oklahoma had been ignored by the federal government. The Supreme Court acknowledged this sovereignty as a continuing legal reality.

The Muscogee (Creek) Nation’s official statement is an essential piece for several reasons. First, it clearly makes the connection between the reservation, the land, and sovereignty. For the authors of this statement, the territorial boundaries of the reservation explicitly reflect tribal sovereignty. Second, the statement acknowledges the fraught history of the Muscogee people. The wish to honor the ancestors of the tribe while expressing sovereignty is a key concept behind tribal political and social movements in general. Last, the statement expresses a strong collaborative stance between tribal authority and state and federal agencies. These political and legal networks hold a strong interest for tribal nations because they place tribal authority on an equal footing with state and federal governments. This is what tribes call “government-to-government relations,” underlining the level playing field. 

Instruction

  • Assign Homework #4 to be completed before class.
    • Students will make a powerpoint presentation about the official statement made by the Muscogee (Creek) Nation about the Supreme Court decision on McGrit v. Oklahoma.

Muscogee (Creek) Nation statement regarding U.S. Supreme Court decision

For Immediate Release

July 9, 2020

OKMULGEE, Oklahoma — The Muscogee (Creek) Nation issued the following statement regarding the U.S. Supreme Court decision on McGirt v. Oklahoma:

“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation. Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries. We will continue to work with federal and state law enforcement agencies to ensure that public safety will be maintained throughout the territorial boundaries of the Muscogee (Creek) Nation.

https://www.mcn-nsn.gov/muscogee-creek-nation-statement-regarding-u-s-supreme-court-decision/

  • Slide 1
    • What are the facts of the statement? Who/when/where/what?
  • Slide 2
    • Please give the context for the statement. What is the statement in response to?
  • Slide 3
    • Please choose one sentence to interpret. Paste the sentence on your slide. Explain what key words are in this sentence. Define these words.
  • Slide 4
    • What is important overall about this statement? Express the importance in words, images, audio clips, poetry, lyrics, memes, symbols, etc.
  • Slide 5
    • Please add your opinion of the statement. Explain your viewpoint briefly in words, images, audio clips, poetry, lyrics, memes, symbols, etc.

Critical Framing

“Muscogee (Creek) Nation statement regarding U.S. Supreme Court decision”

In-class activities

Discuss the sacred aspects of the Muscogee (Creek) Nation statement.

Present four specific key phrases from the statement that have spiritual resonance: sacred promise, protected reservation, honor our ancestors, and established sovereignty.

Students will break into four groups. Each group will be assigned one of the four phrases.

Questions for groups:

  • What are the definitions for the words used in these phrases?
  • What is the context for the word choice?
  • Why do you believe these words were chosen?
  • How does each phrase reflect the Muscogee connection to land?

JOURNAL

Students will respond to the following prompt:

  • How does the official statement by the Muscogee (Creek) Nation directly address sovereignty?
  • How would you interpret the connections made in the statement between sovereignty and territory/land/sacred promises/ancestors/public safety?

Differentiated Instruction: Activity Menu

  • Create an illustrated timeline.
  • Use digital media to represent changes in Tribal territory over time.
  • Develop a script for a short newscast; if there’s time, produce it.
  • Create a poster that represents the lessons’ most vital information in the style of those mid-1800s “Free Indian Land” posters.
  • Design a mural.
  • Record a podcast.
  • Draft a speech; if there’s time, deliver it.
  • Organize and promote a protest against unjust policies featured in the lesson
  • Present full powerpoint presentation to the class.

Assessment

Students will:

  • Complete a powerpoint presentation.
  • Contribute to a class discussion.
  • Write a reflection in their journal.
  • Grapple with Indigenous views of political and legal sovereignty in some detail.
  • Express their views to their peers with clarity.
  • Express themselves in written form with detail.
  • Synthesize information from different assignments.
  • Locate an Indigenous perspective in the Muscogee (Creek) Nation statement.

Potential Extension of the Lesson

An extension for this lesson can examine a comparable tribal statement, one that encompasses viewpoints from a wide-ranging cross-section of Indian communities. This is a statement from 64 tribes that met in Chicago in 1961 to resist the federal policy of Termination. Like Muscogee leaders in the 21st century, tribal activists in the 20th century also clearly expressed a desire for self-determination, recognition, and Indigenous political and cultural sovereignty.

https://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=3&psid=727

 

Lesson Plan #5:  SUPREME COURT OPINION

  • Subject: Government, Judicial System
  • Nation: Muscogee (Creek) Nation
  • Grade Band: Secondary
  • Region: Midwest
  • Timeline: 21st Century

Materials

  • Completed Homework #5
  • Sovereignty journal
  • Access to technology

Essential Questions

  • What is the connection between treaties and the law?
  • What is the relationship between the Supreme Court and tribal nations?
  • How is fairness created through the judicial system?
  • When is fairness not created by the judicial system?
  • How is justice created in the judicial system?
  • When is justice not present in the judicial system? 

Learning Objectives

  • Interpret a legal document.
  • Assess an excerpt of a Supreme Court opinion.
  • Present key facts in a Supreme Court opinion.
  • Analyze and interpret key aspects of the language in the opinion.
  • Reflect directly on the meaning of the Supreme Court opinion.
  • Design a response to the opinion.
  • Discuss their response to the opinion.
  • Compare language in both the opinion and the response by the Muscogee (Creek) Nation.
  • Make connections between a legal document and the concept of sovereignty. 

Background

The Supreme Court decision in McGirt v. Oklahoma is significant for many reasons. The excerpt presented in the homework assignment for Lesson Plan #5 is the first two paragraphs of the opinion, written by Justice Gorsuch. Overall, the excerpt is a poignant and direct vindication of tribal sovereignty.

For some context, here is a statement from the noted expert in tribal law, Matthew L.M. Fletcher, published on the American Bar Association website:

“The long history of Supreme Court decisions in Indian law has cemented several guiding principles. First, Congress has plenary power in the exercise of its Indian affairs duties. Second, the United States owes a duty of protection to Indian nations and tribal members akin to a common law trust. Third, Indian nations retain inherent sovereign powers, subject to divestiture only by agreement or by Congress. Fourth, state law does not apply in Indian country absent authorization by Congress. Finally, Congress must clearly state its intention to divest tribal sovereignty.

“The history of Indian law in the Supreme Court opens with the Marshall Trilogy—Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). The Trilogy, primarily authored by Chief Justice John Marshall, established federal primacy in Indian affairs, excluded state law from Indian country, and recognized tribal governance authority. Moreover, these cases established the place of Indian nations in the American dual sovereign structure that still governs today.”

Instruction

  • Assign Homework #5.
    • In Homework #5, students will make a PowerPoint presentation as a response to an excerpt from the Supreme Court opinion in McGirt v. Oklahoma.

JIMCY MCGIRT, PETITIONER v. OKLAHOMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF OKLAHOMA [July 9, 2020]

JUSTICE GORSUCH delivered the opinion of the Court.

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 “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.

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

  • Slide 1
    • What are the facts of the Supreme Court opinion? Who/when/where/what?
  • Slide 2
    • Please give the context for the opinion. What case is the opinion on?
  • Slide 3
    • Please choose one sentence to interpret. Paste the sentence on your slide. Choose 2 key words/phrases in this sentence. Define these words/phrases.
  • Slide 4
    • What is important overall about this Supreme Court opinion? Express the importance in words, images, audio clips, poetry, lyrics, memes, etc.
  • Slide 5
    • Please add your reflection of the opinion. Explain your viewpoint in words, images, audio clips, poetry, lyrics, memes, etc.

Critical Framing

Critical framing provided by Lesson Plan #4.

“Muscogee (Creek) Nation statement regarding U.S. Supreme Court decision”

An international perspective is provided by the statement generated by the UN seminar on Indigenous rights that took place in Canada in 1996.

In-class activities

  • Students will go around the room and discuss at least one of the slides from their homework. It is not necessary for the students to stand and give a formal presentation.

Students can explain:

  • The facts of the opinion.
  • Questions they have about the opinion.
  • Questions about specific language in the text.
  • The context and background for the opinion.
  • The different sides of the conflict.
  • Which specific sentence they chose to interpret.
  • Their interpretation of the sentence they chose.
  • The key words/phrases they chose to define.
  • The definitions for their key words/phrases.
  • The overall importance of the opinion.
  • The big picture for the opinion.
  • Which multi-media they chose to express the importance of the opinion.
  • The source for their multi-media.
  • The background of their media source.
  • Their viewpoint on the opinion.
  • The multi-media they chose to represent their own viewpoint.
  • The source for this media.
  • The background of their media.

JOURNAL

Students will respond to the following prompt:

Interpreting legal documents can be challenging. What language in the Supreme Court opinion is not clear to many of us who are not trained in legal language? Can you sketch, guess, or estimate what this language means? What phrase/sentence in the Supreme Court opinion is clear? What makes this language clear? Is this a fair decision? Why or why not? Has justice been served by this decision? How would you determine whether the decision is fair or just? 

Differentiated Instruction: Activity Menu 

  • Create an illustrated timeline.
  • Use digital media to represent changes in Tribal territory over time.
  • Develop a script for a short newscast; if there’s time, produce it.
  • Create a poster that represents the lessons’ most vital information in the style of those mid-1800s “Free Indian Land” posters.
  • Design a mural.
  • Record a podcast.
  • Draft a speech; if there’s time, deliver it.
  • Organize and promote a protest against unjust policies featured in the lesson.
  • Present their full powerpoint presentations to the class.
  • Investigate and define legal terms
    • For example: petitioner, writ of certiorari, appeals, Justice Gorsuch, Stat./statute.
  • Explore definitions of fairness, justice, just, judicial system, equity .

Assessment

Students will:

  • Complete a powerpoint presentation.
  • Contribute to a class discussion.
  • Write a reflection in their journal.
  • Practice working with a legal document in depth.
  • Identify key elements in a legal document.
  • Make connections between justice, fairness, and legal outcomes.
  • Communicate their findings in some detail.
  • Express their views to their peers.
  • Express themselves in written form in some detail.

 

Lesson Plan #6:  DEBATE AND THE MEDIA

  • Subject: Government, Media
  • Nation: Muscogee (Creek) Nation
  • Grade Band: Secondary
  • Region: Midwest
  • Timeline: 21st Century

Materials

  • Notecards
  • Sovereignty journals
  • Access to technology 

Essential Questions

  • How have Indigenous nations been covered in the media?
  • How are media narratives created?
  • Why are media narratives powerful?

Learning Objectives

Students will be able to: 

  • Compare and contrast news media.
  • Analyze different media narratives.
  • Categorize information about a media story.
  • Critique media presentation.
  • Compile research.
  • Craft an argument.
  • Organize materials.

Instruction

– Assign Homework #6.

  • Students will research different media viewpoints of the Supreme Court ruling to McGirt v. Oklahoma.
  • Students will visit four media websites (Fox News, NPR, CNN, and Indianz) and reflect on the message of each article.
  • Students will answer the following question in their journal:
    • According to each of these articles, what is the most important issue with the Supreme Court ruling?
  1. “Supreme Court rules Oklahoma state prosecutors cannot handle criminal cases in tribal land,” Fox News.
  1. “Supreme Court Rules That About Half Of Oklahoma Is Native American Land,” NPR
  1. “Supreme Court rules broad swath of Oklahoma is Native American land for purposes of federal criminal law, CNN.

Critical Framing

  1. “No ‘surrender’: Muscogee (Creek) Nation stands firm on sovereignty after historic Supreme Court win,” Indianz.

In-class activities

  • Debate Preparation/Debate
    • Students are divided into four groups: Supreme Court, Muscogee (Creek) Nation, state of Oklahoma, and media.
    • The debate will discuss the issues surrounding McGirt v. Oklahoma.
    • Each group will be responsible for preparing questions for the other teams.
    • Groups must also create arguments to answer the questions they anticipate.
    • Students can prepare for the debate by creating notecards from the information in their journals, as well as from the primary sources, podcasts, and websites from the unit.

Differentiated Instruction

Lesson Plan #6 is intended to flex over several days. Multiple days of homework and/or in-class activities can be dedicated to preparation for the debate.

Both advanced and emerging learners can be encouraged to move at their own speed through their debate preparation. Advanced learners can create a script of questions and answers. Emerging learners can be tasked with creating a single group PowerPoint, highlighting major issues or concerns for their group, instead of preparing questions. During the debate, each group could present their single powerpoint at the beginning of the debate.

Assessment

Students will:

  • Write a response in their journals.
  • Create notecards based on their previous assignments.
  • Design and present a Powerpoint p
  • Discuss context, issues, and reasoning behind the McGirt v. Oklahoma case.
  • Collaborate with peers.
  • Interview peers.
  • Respond to a line of questioning.
  • Anticipate specific arguments.
  • Compare and contrast media narrative in some detail.
  • Analyze both the visual and textual elements of media.
  • Pinpoint key differences or similarities between different media.
  • Provide robust information based on research.
  • Present an argument in great detail.

Potential Extension of the Lesson

An extension to this lesson is to review one or more of the Essential Understandings, from the start of the unit, as a takeaway for the students. Students can review the Essential Understanding and see which ones they especially want to embrace.

The two core Essential Understandings are Adaptation and Government-to-Government Relations. Both understandings reflect the values and practices that ground the Muscogee (Creek) Nation journey to modern sovereignty, one shared by tribal nations coast to coast and beyond.

 

Primary Sources for Unit

Blogs 

Maps

Podcasts

Videos

Bibliography