The strangest aspect of US federal Indian law is its imperviousness to critique. Imagine that you were reading an article by lawyers before 1954 (Brown v. Board of Education) discussing how to fit their Black clients into the ‘separate but equal’ doctrine. There were such lawyers, until Thurgood Marshall and his team pushed through them and made the successful challenge that overturned the racist law.
Despite repeated demonstrations that the doctrine of “Christian discovery” is the foundation of the US claim of ownership of Native lands and dominion over Native peoples, federal Indian law practitioners act as if their job is only to guide clients through the bizarre maze built around that doctrine (“trust relation,” “plenary power,” “government-to-government,” “domestic dependent nation,” etc.). Federal Indian law has not yet found its Thurgood Marshall.
Professors Elizabeth Ann Kronk Warren and Heather Tanana provide an example of the maze-way practice in INDIAN COUNTRY POST-MCGIRT: IMPLICATIONS FOR TRADITIONAL ENERGY DEVELOPMENT AND BEYOND (September 2020). They begin by saying:
The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision in the past 50 years, if not the century. In McGirt, the U.S. Supreme Court upheld a Tribal nation’s treaty rights….
This is the common misconception circulating among the federal Indian law bar celebrating McGirt as a decision that upheld Creek Nation Treaty rights. McGirt did say the Creek Nation continues to exist despite “serious blows” from “brazen and longstanding injustices” at the hands of the US government. But the decision arrived at this conclusion on the basis of the anti-Indian law doctrine of “congressional plenary power.” McGirt said the Creek Nation exists because the US Congress has not (yet) “disestablished” it.
Justice Gorsuch’s opening words for the majority opinion fanned wishful thinking that something fundamental changed with the decision. He said, “On the far end of the Trail of Tears was a promise.” The temptation to think McGirt closed the door on the genocidal era of “Indian Removal” is alluring. But Gorsuch didn’t close that door. In the language of federal Indian law, all he said was that Creek lands are part of “Indian country” because they have not been “disestablished” and are therefore subject to the US Major Crimes Act.
The question in McGirt was whether Jimcy McGirt, a Seminole man, had been properly tried in Oklahoma courts for a crime he was alleged to have committed against his Creek wife’s granddaughter. The Major Crimes Act act imposes federal jurisdiction within “Indian country” over “[a]ny Indian who commits” certain offenses “against the person or property of another Indian or any other person.” On the basis of its holding that the Creek Nation is “Indian country,” McGirt overturned Jimcy McGirt’s Oklahoma conviction.
Note that the Major Crimes Act itself was a breach of Creek Treaty rights (as Gorsuch pointed out). This alone suffices to show that the McGirt decision was not an unqualified upholding of Treaty rights. In fact, McGirt was not about Creek jurisdiction, but about federal jurisdiction.
To explain why the Creek Nation still exists, Gorsuch relied on the US doctrine of “congressional plenary power” over Native nations. He cited the infamous 1903 case, Lone Wolf v. Hitchcock:
To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. 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. Lone Wolf v. Hitchcock (1903).
Gorsuch then concluded that the majority found no “clear expression of the intention of Congress” to “disestablish” the Creek Nation. The dissent was upset, claiming to find multiple congressional acts disestablishing the Creek. The McGirt majority and dissent agreed on the fundamental anti-Indian doctrine itself.
Gorsuch drove the point home when he assured Oklahoma and other non-Creek “interests” that they need not worry about possible adverse effects of the decision. He said:
…[W]e do not disregard the …concern for reliance interests. It only seems to us that the concern is misplaced. Many other legal doctrines—procedural bars, res judicata, statutes of repose, and laches, to name a few—are designed to protect those….
And of course, …Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.
The “many other legal doctrines” and the congressional “tools” are, like the “plenary power” put forth in Lone Wolf, all derivatives of “Christian discovery.” Gorsuch hid that fact in a cryptic citation to the 1868 Treatise on the American Law of Real Property by Emory Washburn. The Treatise discusses “the discovery and settlement of this country by Europeans.” It describes how Native land ownership was denied by Christian colonizers:
Nor has any title, beyond the right of occupation, been recognized in the native tribes by any of the European governments or their successors, the Colonies, the States, or the United States. The law in this respect seems to have been uniform with all the Christian nations that planted colonies here. They recognized no seisin [ownership] of lands on the part of Indian dwellers upon it.
Washburn concludes, “The sovereignty and general property of the soil …were claimed …by right of discovery.” He footnoted this sentence with a reference to Johnson v. McIntosh, the 1823 case where the Supreme Court adopted “Christian discovery” into US property law (thereby also creating “federal Indian law”).
With all this in mind, let us review some assertions in the Warren / Tanana discussion of McGirt.
- “In McGirt, the U.S. Supreme Court upheld a Tribal nation’s treaty rights….”
As we have seen, McGirt upheld treaty rights subject to ‘congressional plenary power.’
- “…Indian country can continue to help meet the energy demands of Americans into the foreseeable future.”
‘Meeting the demands of Americans’ has been the prime purpose of federal Indian law from the start, when the ‘resource’ was land itself.
- “…Tribal communities have not always benefited from conventional energy development. While in theory oil and gas royalty revenues should strengthen tribal economies, in the past, Tribes have received below market rates. Fossil fuel production enterprises have also been connected to increased violence against Native women and environmental degradation. Indeed, Tribes continue to face negative health implications from uranium mines long closed.”
“Not always” is a disingenuous way of saying “never,” especially in light of the remainder of the paragraph. Moreover, “in theory … should strengthen tribal economies”; what “theory”? “Trust” doctrine”? More on that in a moment.
- “…[T]he McGirt decision reinforces …the ability of Tribes to …hold other actors accountable….”
McGirt offers no way for Native nations to hold Congress accountable.
- “Tribal sovereignty is at the heart of Indian law. … [but] they are subject to federal power. …Under the trust doctrine, the United States has a duty to act in good faith in its dealings with Tribes, much like that of a trustee and beneficiary.”
This platitudinous language is typical in federal Indian law, masking the ambiguities, contradictions, and confusions that abound in the field. Justice Clarence Thomas is right: federal Indian law is “schizophrenic” (US v. Lara, 2004). The phrase “much like” covers a multitude of federal Indian law deviations from regular (non-Indian) trust law, which Justice Samuel Alito summarized this way: “Congress may style its relations with the Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private parties at common law” (US v. Jicarilla Apache Nation, 2011).
- “Jurisdiction in Indian country is a fluid concept….”
“Fluid” is a way to avoid saying “unreliable, fickle, capricious, and erratic.” As Justice Thomas put it, “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously” (Lara).
- “The Court provided the following guidance…: ‘To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. 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.'”
They quote this “guidance” from the McGirt decision with no apparent awareness that this presumption of “congressional plenary power” contradicts their assertion that the decision “upheld treaty rights.”
- “The Court affirmed that only Congress can diminish reservation boundaries….”
Again, they show no apparent awareness that such a claim of congressional power is wholly antithetical to “upholding treaty rights.” Federal Indian law practitioners are fond of saying “only Congress” has “plenary power” over Native nations, as if that somehow removes the domination inherent in the doctrine. Would a Black person have been mollified by being told “only the driver can make you move to the back of the bus”?
- “The Court does go on to explain that… legal remedies exist to protect established interests… —procedural bars, res judicata, statutes of repose, and laches, to name a few….”
Yet again they quote enfeebling language from McGirt without batting an eye, as if it does not undermine their assertion about “upholding treaty rights.” The “established interests” here are the non-Creek interests.
- “Given Congress has plenary authority in Indian country, it certainly possesses the authority to disestablish reservations in Oklahoma, as Justice Gorsuch hinted at in his opinion.”
They take “plenary authority” as a “given” rather than as something to be criticized. Moreover, Gorsuch did more than “hint”; he made a strong assertion of “plenary power”: “[O]f course,…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.”
- “…[A]ny examination of tribal authority should start with the presumption that the tribe in question possesses sovereignty, unless the tribe has been divested of its sovereignty by the federal government.”
This (il)logic is typical in federal Indian law. To say one “should start…unless…” is to say that one starts at the beginning unless the beginning has been superseded by something subsequent, which then converts the subsequent condition into the starting point. This circuitous logic avoids acknowledging that federal Indian law displaces the historical “starting point” — the original free existence of Native nations — with a subsequent condition — the doctrine of Christian discovery. To acknowledge this would be to say the emperor has no clothes. Now you see it now you don’t.