The U.S. Supreme Court has historically denied Native Americans the respect owed every human being.

“An ignorant and dependent race.”  “Wards of the nation.”  “Remnants of a race once powerful, now weak and diminished in numbers.”  “Pupils.”  “Communities dependent on the United States largely for their daily food, and for their political rights.”  Such characterizations of “Indian tribes” – ranging from paternalistic, disrespectful, and disparaging, to outright repugnant – can be found repeatedly in nineteenth- and twentieth-century opinions issued by our nation’s highest court.

This condescension towards North America’s Indigenous peoples has been mirrored in the high court’s rulings.  An oft-cited 1885 opinion asserts: “The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.”  Adding injury to its many insults, the Supreme Court presumes that the federal government acts in good faith when it breaches the promises it has made in Native treaties, or totally terminates a reservation: “It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”    

If that statement weren’t repugnant enough, our nation’s top jurists uttered what I consider the ultimate expression of “White Privilege.” Finding itself unable to identify a specific provision in the U.S. Constitution granting Congress, even implicitly, “paramount authority” over Native tribes, the Supreme Court justifies the federal government’s absolute power over the Indigenous population by referring to “the policy of the European nations and the United States in asserting dominion over all the country discovered by them.”  In other words, the USA has the power over, and ownership of, the entire country – including Native American tribes – because that’s what White colonizers do, leaving “the Indians” with, at best, a “possessory right to the soil over which they roamed and hunted and established occasional villages.”

In the eyes of the U. S. Supreme Court, Native tribes are not nations, not states, and not sovereigns, but “unique aggregations possessing attributes of sovereignty”.   Although an 1823 decision had described Indian tribes as “wholly distinct nations” within whose boundaries “the laws of a State can have no force,” the high court soon departed from the “conceptual clarity” of that view, and “acknowledged certain limitations on tribal sovereignty.” 

By 1886, the Supreme Court proclaimed that there exists only two entities with the right of sovereignty, “the government of the United States” and “the states of the Union.”  Indian tribes were relegated to a “semi-independent position … not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations.”  As recently as 1983, a unanimous decision (delivered by Justice Thurgood Marshall) included the following statement: “[W]e have acknowledged that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status, that under certain circumstances a State may validly assert authority over activities of nonmembers on a reservation, and that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.“

Despite this less-than-stellar record, our nation’s preeminent court has congratulated itself for “hav[ing] consistently guarded the authority of Indian governments over their reservations.” What it has done, for certain, is consistently remind Native Americans that Congress possesses the power to take that authority away.

Given the historical context, it was not surprising to see the jubilation among Native Americans and Indigenous rights activists on July 9, 2020, when the U.S. Supreme Court issued its decision – written by Trump-appointee Justice Neil M. Gorsuch – in McGirt v. Oklahoma.  The McGirt ruling – described below – came at a time when the U.S. was experiencing (and, continues to experience) nationwide demands to eliminate systemic racism and discrimination, and Native American communities were being (and, continue to be) disproportionately impacted by covid-19.

An Overview of McGirt

At the heart of the case is the relevance today of a series of mid-1800s treaties between the federal government and the Muscogee (Creek) Nation.  As with countless other Native treaties, the USA had promised the Creeks (the term the English used to reference the Muscogee people) the proverbial moon. 

In exchange for ceding all their land east of the Mississippi river, the U.S. government agreed in an 1832 treaty that “the Creek country west of the Mississippi (located in what is now Oklahoma) shall be solemnly guarantied to the Creek Indians,” that the lands would become the “permanent home to the Creek Indians,” and 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.”  In the Treaty of 1856, Congress promised that within their lands, with exceptions, the Creek Indians were to be “secured in the unrestricted right of self-government,” with “full jurisdiction” over enrolled tribe members and their property.” Similar promises were made in an 1866 treaty, but the original territory set aside as the “permanent home to Creek Indians” was reduced in size, with the federal government paying 30 cents per acre as compensation.  

The question before the court in McGirt was a narrow one.  The criminal defendant, Jimcy McGirt – a member of the Seminole Nation of Oklahoma – argued that the sexual crimes for which he had been convicted by the State had been committed within an existing reservation, and, for that reason, under the federal Major Crime Act (MCA), the federal government alone, and not the State of Oklahoma, had the authority to prosecute him.  No one disputed the fact that Mr. McGirt’s crimes were committed on lands in northeastern Oklahoma located within the boundaries of the reduced Creek reservation as described in the 1866 Treaty.  But Oklahoma argued that the land once given to the Creek Indians is no longer a reservation today, emphasizing, among other issues, that tribe members make up less than 10%-15% of the population of their former domain, and the area, which includes most of the city of Tulsa, had lost its Indian character. 

By a 5 to 4 vote, the Supreme Court rejected Oklahoma’s arguments, and concluded that the lands remained “Indian country,” and, for that reason, the State had no right to prosecute Mr. McGirt for his crimes.  As explained by Justice Gorsuch, while Congress has the constitutional authority “to breach its own promises and treaties,” and may have “diminished the promised reservation, and at times sometimes restricted and other times expanded the Tribe’s authority,” it has never clearly withdrawn the promised reservation.  For that reason, the Supreme Court majority, over a strong dissenting opinion by Chief Justice John Roberts, concluded that it would “hold the government to its words.”

Responses to the McGirt decision

The response to the July 9, 2020 opinion was overwhelmingly celebratory.

David Hill, Principal Chief of the Muscogee (Creek) Nation, told the New York Times:  “This is a historic day.  This is amazing.  It’s never too late to make things right.”  A commentator at an influential legal blog, Prof. Ronald Mann of the Columbia law school, wrote: “The decision is a stunning reaffirmance of the nation’s obligations to Native Americans.”  The Indian Law Resource Center declared:  “This case is a significant victory for tribes, and a strong reaffirmation of the legal force of Indian nations’ treaty rights, land rights, and right to self-government.”  A July 12, 2020 article in The Atlantic magazine, under the headline “The McGirt Case Is a Historic Win for Tribes,” proclaims, “In the long Indigenous struggle for justice, McGirt v. Oklahoma might be one of the most important Supreme Court cases of all time.” The article’s author – Julian Brave NoiseCat, a member of the Secwepemc and St’at’imc Nations – quotes the lawyer who represented the Muscogee Nation at the Supreme Court, Riyaz Kanji, as predicting that tribal attorneys “will be quoting that decision for the rest of our lives.”  Social media was permeated with declarations of “Native Lives Matter.”

To be certain, there were also subdued voices, as reflected in the following excerpt from the New York Times’ July 9, 2020 report:

“But experts in Indian law said the decision’s effects would be more muted, and would change little for non-Natives who live in the three-million-acre swath of Oklahoma that the court declared to be a reservation of the Muscogee (Creek) Nation.“

“Not one inch of land changed hands today,” said Jonodev Chaudhuri, ambassador for the Creek Nation. “All that happened was clarity was brought to potential prosecutions within Creek Nation.”

In mid-August, WBFO, Buffalo’s npr station, asked John Kane, a Mohawk activist who hosts a NYC radio show and resides on Seneca Nation territory in Cattaraugus County, his assessment of McGirt’s impact on New York tribes. While Kane considered the ruling historic, he shared the following view:

“[The feds] haven’t wavered at all in their view that they have control. Even as we go from a policy of extermination, to removal, to assimilation, determination, and into self-determination the federal government makes it clear, that when they say self-determination they don’t mean the international standard which is essentially consummates to statehood, they mean internal self-determination.” 

Reasons to restrain one’s expectations

I admit to initially being excited on July 9th when I received the “alerts” from the New York Times and Washington Post regarding the McGirt ruling (made sweeter by Gorsuch’s role). But, I am not an expert in Native American law. Now that I have taken the time to read the opinion closely, and to review dozens of the decisions rendered by our nation’s highest court over the centuries, my jubilation has been tempered by the following realities:

First, the issue decided by the Supreme Court was a narrow one. As noted in the Gorsuch opinion, the only question before the court “concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the MCA.”

Second, Mr. McGirt’s case is “a contest between State and Tribe,” NOT a question of the power of Congress to limit tribal sovereignty. The assertion by the five-member majority that, “we hold the government to its word,” does not result in a limitation of federal power, but only to the State of Oklahoma’s authority to prosecute crimes against Native Americans which fall within the provisions of the Major Crime Act.

Third, the McGirt opinion acknowledges, but does not directly criticize, Congress’ major broken promises to the Muscogee (Creek) Nation. At one point it states, “By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may (emphasis added) have breached its promises to tribes like the Creek that they would be free to govern themselves.” Likewise, it states:

“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe. Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.“

Fourth, there is nothing in McGirt that expresses a willingness to hold the federal government “to its word” regarding the multiple ways it has breached the treaty’s promise to the Muscogee (Creek) people of self-governance, or the 1832 treaty’s “solemn guaranty” that the established boundary lines “will secure a country and permanent home to the whole Creek Nation of Indians.” To the contrary, Justice Gorsuch writes, “This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” Not only that, the penultimate paragraph of McGirt reminds the parties (and, the rest of us) that Congress has the authority to undo, if it so pleases, the July 9, 2020 ruling by the high court: “Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal.“

Fifth, let’s not forget that the Supreme Court presumes the federal government acts in good faith when it deals with Native American tribes.

Bottom Line:  Muscogee Creek Nation defeated Oklahoma in McGirt – but Congress still makes the rules and defines the playing field (and, that’s OK with the U.S. Supreme Court).

With All Due Respect,

Art Giacalone

 * Note added 03/21/2021:  Although the McGirt opinion cites to the 1903 decision in Lone Wolf v. Hitchcock when referencing Congress’s “significant constitutional authority when it comes to tribal relations,” the Lone Wolf opinion does not point to any provision in the U.S. Constitution when it states that Congress has exercised its plenary authority “from the beginning.“  Although Lone Wolf characterizes the authority of Congress over tribal relations as a “political” power, it does not call it a “constitutional” power, or point to any provision in the Constitution for such authority.  The expression by the Lone Wolf court of a presumption that, “the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race,” suggests that the U.S. Supreme Court in 1903, and, it appears, in 2020, is basing the power of Congress over “Indian tribes” on the 15^th century “Doctrine of (Christian) Discovery.”  This repugnant doctrine was described by legal scholar Joseph J. Heath, Esq., General Counsel to the Onondaga Nation, in the following fashion: “For two centuries, the Supreme Court has defined the doctrine of Christian discovery to mean that title to Indigenous lands immediately was transferred to the ‘discovering’, or colonizing European, Christian nations when they landed on the shores of Turtle Island (North America). The Indigenous inhabitants were then left with only a ‘right of occupancy.” Albany Government Law Review, Vol. 10, p. 115 (2017).