Castro-Huerta ruling continues a legacy of broken promises to Native American communities

Reported By: Mollie Bryant for BigIfTrue.org and Brittany Harlow for Verified News Network

(TULSA, Okla.) Two years ago, Tatianna Duncan founded the nonprofit Lucinda Hickory Research Institute in Tulsa to dig into the history of the Muscogee people’s land ownership—and loss of that land.

Starting with her own family’s history, Duncan’s research focuses on the allotment period, when land promised to Native American tribes was opened to white settlers eager to develop what would become Oklahoma.

During her research, Duncan has heard from descendants of Native Americans whose land was stolen by white settlers through a variety of swindles and schemes. One family lost their land by signing an agreement to buy horses and a buggy. They later discovered the document was a contract to sell the property. Another mistook a sales contract for a lease agreement.

Other properties got tied up in a guardianship system that often exploited the Indigenous people whose interests it was supposed to protect, allowing guardians to sell land without the owner’s consent.

Duncan, who said her third great-grandfather originally owned the land where the Gathering Place park sits today in Tulsa, has heard another kind of story—how heirs of the land run have profited from selling their properties.

“We have nothing because everybody took it,” Duncan said. “It’s not just about the money, but it is about that family structure, the passing down of traditions and culture that’s important to any community of people.”

Learning about her family’s struggles has been emotional in ways she didn’t expect.

“I’ve cried a few times and I’m like, ‘Where does that come from?’” she said. “How do you get so emotional about something that you knew existed and about people you never really met, even though they’re your ancestors?”

In June, the US Supreme Court ruled in Oklahoma v. Castro-Huerta that the state has the jurisdiction to prosecute non-Native Americans for crimes committed on tribal land, unraveling a 2020 ruling known as McGirt.

The recent ruling is impossible to disconnect from the United States’ centuries-long relationship with Native American communities—a relationship marked by broken promises, stolen resources, cultural loss, discrimination and violence.

The United States violated many of its treaties with tribal governments over the years. And the federal government has never provided enough support for infrastructure, housing, education, health care or economic development in Native American communities, according to a 2018 report by the US Commission on Civil Rights.

Data on Native Americans is often incomplete, inaccurate or outdated, according to the report. In some cases, the federal government doesn’t track data on Indigenous communities or uses small sample sizes that don’t reflect a diverse group of people’s lives.

The numbers we do have suggest Native Americans rank below most Americans in health outcomes, education and other areas.

Compared to other racial and ethnic groups, Native Americans are more likely to live in poverty, experience unemployment and less likely to graduate from high school.

They’re more likely to be killed by police and tend to receive harsher prison sentences than white, Black and Latino defendants in federal courts.

They’re more likely to experience violence, abuse and sexual assault.

Many reservations also lack the infrastructure to provide access to clean water, plumbing, electricity and the internet.

Loss of land tied to forced assimilation

In 1830, the Indian Removal Act forced the Cherokee, Chickasaw, Choctaw, Creek and Seminole tribes to live in Indian Territory, now modern-day Oklahoma. Half of the Muscogee and Cherokee people died during the journey, known as the Trail of Tears.

Oklahoma has the third largest Native American population in the country and is home to 39 different tribal nations, each with their own story of being forced from their homeland. The trips were difficult, and tribes couldn’t stop to care for loved ones who died on the way.

“Not only are people losing their lives, but we also had to leave them behind without preparing them for their next phase of life in the way that we were taught,” said Tesia Zientek, education director for the Citizen Potawatomi Nation. “So there’s a lot of trauma bound up in those removals from our homelands, but also in that loss of life and loss of the ability to express our ways culturally.”

Indian Territory was gradually opened to white settlers, and by 1890, the US Census showed only 28% of residents there were Native Americans.

Through the Dawes Act that Congress approved in 1887, the federal government began separating tribal lands into parcels called allotments. Native American families eligible for the program could select an allotment, but the program didn’t always work as advertised. For instance, many Cherokee citizens didn’t receive their share, according to “And Still the Waters Run” by Angie Debo.

To the federal government, land that wasn’t tied up in allotments was up for grabs.

Before the Dawes Act, Native Americans controlled about 150 million acres. About 90 million of those acres were sold to white settlers.

With the Dawes Act, the government aimed to assimilate Native Americans into American culture and weaken their tribal ties. The strategy for assimilation included federally-funded boarding schools that separated Native American kids from their communities and divorced them from their culture.

Some historians refer to the allotment system and assimilation as “twin evils.”

“The policy at the time was to try to assimilate these tribes into the prevalent American culture, and this meant boarding schools and that kind of thing for young children because they thought those were the people they could influence the most,” said Larry O’Dell, director of communications and development for the Oklahoma Historical Society.

During the 1800s and early 1900s, funding meant for Native American communities was diluted through grift and other modes of corruption.

“They’ve been underfunded for years and years, and then you had a lot of grift going on,” O’Dell said. “Even in the 20th century with their allotments, guardians would get (Native Americans’) oil rights taken away from them in Eastern Oklahoma.”

Native Americans missing or misrepresented in American history classes

The legacy of the United States’ assimilation strategy illustrates William Faulkner’s adage that the past isn’t past. It’s felt deeply by those who attended Indian boarding schools that the federal government operated or financially supported until 1969.

At least 500 children died while attending the schools, according to a Bureau of Indian Affairs report.

“I don’t think there’s the full understanding of that cultural loss that happened, that shame that surrounds an entire generation, such that there are a lot of people right now who are having to reconnect,” Zientek said.

Some Native American activists say students in Oklahoma public schools have yet to receive an adequate education on the history of Indigenous communities, including the use of boarding schools.

Land run reenactments, a tradition in Oklahoma’s elementary schools, are one example of a history lesson whitewashing reality. During the events, students dress in pioneer garb and commemorate the land run with a race and a picnic.

Some school districts, including Oklahoma City Public Schools, have banned the long-standing practice that Sarah Adams-Cornell, a Choctaw Nation of Oklahoma citizen, likens to a celebration of genocide.

“That perpetuates this myth that there was no one or nothing on this land before white settlers came, and it absolutely does a disservice to our students and to our Indigenous community,” said Adams-Cornell, founder of Matriarch, a nonprofit that advocates for Native American women.

She disputes that kids are too young to learn about injustices Native Americans have experienced.

“They are fully capable of understanding these concepts, and it’s important that we talk about it at an early age because I believe when we’re building these foundational understandings as children, that is the time to talk about some of these really big issues,” Adams-Cornell said.

A shifting jurisdiction and accountability concerns

After the Castro-Huerta ruling, the Muscogee (Creek) Nation said in a statement that during Oklahoma’s “long, pre-McGirt history of illegal jurisdiction on our reservation, (the state) routinely failed to deliver justice for Native victims.”

Native American women are more likely than women in other racial and ethnic groups to experience violence. More than 80% of American Indian and Alaska Native women have experienced violence in their lifetime, and 56% have experienced sexual violence, according to a study from the National Institute of Justice.

“Our ultimate fear is that this (ruling) is going to decrease safety for Native women,” said Karen Kaniatobe, education coordinator for the Native Alliance Against Violence.

Amid an epidemic of missing and murdered Indigenous women, many offenders are non-Natives. In a survey of Indigenous women who have experienced violence, most said the perpetrator wasn’t Native American, according to the National Institute of Justice.

“We have a diverse population of people here, and sometimes it feels like in our own backyard we’re invisible, even though there’s evidence of Native people everywhere,” Kaniatobe said. “I think that the invisibility, the data, the lack of coverage in the media, all of that contributes to the dehumanization of Indian people, and it makes it easier for people to commit crimes or acts of violence against Native women.”

The Bureau of Indian Affairs estimates that about 4,200 cases involving missing or murdered Indigenous women remain unsolved.

“(The Castro-Huerta ruling) absolutely is going to impact the crime rate (against) Indigenous people when people know they are less likely to be held accountable because of a whole host of reasons—people not seeing Indigenous people as worthy of investigation, being shorthanded and just not being made a priority,” Adams-Cornell said.

This year, Congress reauthorized the Violence Against Women Act and expanded it to allow tribes to prosecute non-Native people for sexual assault, stalking, sex trafficking and other offenses committed on tribal land.

“In determining who has the right to prosecute, does that mean cases are going to fall through the cracks?” Kaniatobe said. “As far as sexual assault, those are hard to prosecute anyway, or prosecutors are reluctant to pick up those cases. … It’s complex and nuanced, but in the end, for a victim seeking justice, it’s frustrating and disappointing, discouraging, disempowering.”

How one tribe reconnects members with their culture

The ruling reminds Adams-Cornell that tribal community work and organizing have always “filled in the gaps” when federal or state protections are lacking.

“It’s even more important that we have more spaces for Indigenous women in the community to come together to be able to build support systems, that we are able to counteract some of the fallout that’s going to be happening,” she said, “because the government has never been there to support us. More accurately, we’ve had to survive the government.”

Reclaiming and celebrating their culture is one way Native American communities are exercising resilience.

The Citizen Potawatomi Nation is a woodlands tribe that lived in the Northeastern United States, Canada and the Great Lakes region before the removals pushed the group into Kansas and then Indian Territory in Oklahoma.

“Because culturally our homelands were in this Great Lakes region, the food we ate, the type of housing that we made, the medicines we used from plants, the weather that we were used to, our clan animals—all of these parts that are so inextricably tied to our culture, they don’t exist this far down south,” Zientek said.

Over the years, the Citizen Potawatomi Nation has developed several programs and events to help members strengthen their tribal identity.

For almost 20 years, a group of students have participated in a six-week program that immerses them in the tribe’s culture and government, with the goal of fostering a new generation of leaders.

The tribe also hosts an annual event where its members can learn about their culture, language, crafts and connect with each other.

Potawatomi tribal nations from around the United States and Canada also meet during an annual gathering hosted by a different tribe each year, allowing members to share how they’ve maintained their culture.

A few years ago, Zientek attended the gathering held in Walpole Island in Ontario, Canada.

“There are tribal medicines that are grown there that don’t grow anywhere else in the world, and that is land that has never not been Potawatomi,” Zientek said. “It’s really powerful to step on that land and know that it’s always belonged to our tribal ancestors and that those people are still caring for that space.”

When things feel like they’re moving a step forward and another step back, Kaniatobe reminds herself that progress is being made, even if it’s measured in millimeters.

“And we always remember that it was the collective strength of all the Native women who came before us that have empowered us to use our voices to increase safety for Native women now,” she said.

Contact BigIfTrue.org editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.

This article is part of a collaborative project with Verified News Network, a news organization in Tulsa. It was funded by the Oklahoma Media Center with support from the Native American Journalists Association.

BigIfTrue.org is a nonprofit news site based in Oklahoma City. Our mission is to report stories that envision a more equitable world and energize our readers to improve their communities. Donate to support our work here.

This story is also part of VNN's Community Voices series, dedicated to reporting diverse perspectives of social issues.