I am not by any stretch of the imagination a legal scholar, nor do I have a particular specialty in allotment and Oklahoma statehood era Indigenous issues. Being a historian of Indigenous America I am however pretty familiar with the fundamental issues at stake in the McGirt case handed down today by the Supreme Court. The case reaffirmed the sovereignty of the Muscogee Nation in clearly stating that the Muscogee’s were granted a reservation in Indian Territory following their coerced removal from the southeastern United States in the 1830s. That reservation was reduced but not abolished in the wake of the Civil War in which many Creeks sided with the Confederacy. The reservation, and tribal government in general, was fundamentally weakened in the allotment era – during which tribal lands were alloted to individual members and excess lands sold to the highest bidder – and during the run-up to Oklahoma statehood. While the US Congress took steps to effectively abolish the reservation they never actually did so under the assumption that it would just happen naturally – the old vanishing Indian trope. Yet that did not happen and the Creeks retain their territorial sovereignty.
All of this is great, a fundamental assertion of Indigenous sovereignty – something that is recognized but not granted by the federal government. I will leave it to others to fully elaborate on what this means (hint: for the moment not much) but I want to focus on the dissent by Chief Justice John Roberts which was joined by Justices Alito, Kavanaugh, and Thomas (who filed a separate dissent that continued his long campaign of opposing rulings he sees as essentially state cases). The opinion by Gorsuch is clearly written and lays out a compelling argument that Congress got right up to the edge of formally abolishing the territory but never did. The dissent is an embodiment of settler colonialism that at times distorts Indigenous voices to argue its case.
The crux of Roberts' dissent is
“A century of practice confirms that the Five Tribes’ prior domains were extinguished. The State has maintained un-questioned jurisdiction for more than 100 years. Tribe members make up less than 10%–15% of the population of their former domain, and until a few years ago the Creek Nation itself acknowledged that it no longer possessed the reservation the Court discovers today. This on-the-ground reality is enshrined throughout the U. S. Code, which repeatedly terms the Five Tribes’ prior holdings the “former” Indian reservations in Oklahoma. As the Tribes, the State, and Congress have recognized from the outset, those “reservations were destroyed” when “Oklahoma entered the Union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989).
Roberts argues because of the concentrated effort to deprive the Muscogee’s of their sovereignty and the subsequent impacts of this laws the tribe lost control of his territory by natural progression. Congress repeatedly stripped the tribal courts and government bodies of their powers, alloted Indigenous lands and sold millions of acres to non-Natives, and assumed this solved the “Indian problem.” So it is only natural that territory deeply coveted by non-Natives, especially those looking for oil, would develop a population comprised of non-tribal members (especially when we also take into account the government policies that weakened the health and wellbeing of those tribal nations). What Roberts is arguing essentially is the definition of settler colonialism, replacing an Indigenous group with non-Indigenous peoples through means beyond military force. Now that its happened, occurring to Roberts, there is little that can be done, regardless of the limited ability of the Muscogees to respond in the past.
And this is where Roberts becomes deeply problematic in my view. As Roberts notes, allotment commissioners understood their purpose quite clearly, they were tasked with creating a “uniformity of political institutions to lay the foundation for an ultimate common government.” But then Roberts argues the following:
The Creek shared the same understanding. In 1893, the year Congress formed the Dawes Commission, the Creek delegation to Washington recognized that Congress’s “un-wavering aim” was to “ ‘wipe out the line of political distinction between an Indian citizen and other citizens of the Re- public’” so that the Tribe could be “‘absorbed and become a part of the United States.’” P. Porter & A. McKellop, Printed Statement of Creek Delegates, reprinted in Creek Delegation Documents 8–9 (Feb. 9, 1893) (quoting Senate Committee Report); see also S. Doc. No. 111, 54th Cong., 2d Sess., 5, 8 (1897) (resolution of the Creek Nation “recogniz[ing]” that Congress proposed to “disintegrat[e] the land of our people” and “transform” “our domestic dependent states” “into a State of the Union”).
Particularly probative is the understanding of Pleasant Porter, the principal Chief of the Creek Nation. He described Congress’s decisions to the Creek people and legislature in messages published in territorial newspapers during the run-up to statehood. Following the extinguishment of the Nation’s title, dissolution of tribal courts, and curtailment of lawmaking authority, he told his people that “[i]t would be difficult, if not impossible to successfully operate the Creek government now.” App. to Brief for Respondent 8a (Message to Creek National Council (May 7, 1901), re-printed in The Indian Journal (May 10, 1901)). The “remnant of a government” had been reduced to a land office for finalizing the distribution of allotments and would be “maintained only until” the Tribe’s “landed and other interests … have been settled.” App. to Brief for Respondent 8a. He reiterated this understanding following the Five Tribes Act of 1906, which stated that the tribal government would “continue in full force and effect for all purposes authorized by law.” §28, 34 Stat. 148. While the Court believes that meant Congress decided against disestablishing the reservation, see ante, at 14–15, Chief Porter saw things differently. From his vantage point as the contemporaneous leader of the government at issue, Congress had temporarily continued the tribal government but left it with only “limited and circumscribed” authority: The council could “pass[ ] resolutions respecting our wishes” regarding the property “now in the process of distribution,” but the council no longer had any authority to “mak[e] laws for our government.” App. to Brief for Respondent 14a (Message to Creek National Council (Oct. 18, 1906), reprinted in The New State Tribune (Oct. 18, 1906)). Apart from distributing the Nation’s property, Chief Porter maintained that “all powers over the governing even of our landed property will cease” once the new state government was established. App. to Brief for Respondent 15a; see also S. Rep. No. 5013, 59th Cong., 2d Sess., pt. 1, p. 885 (1907) (Choctaw governor mourning that his “only” remaining authority was “to sign deeds”).
The Creek remained of that view after Oklahoma was officially made a State through the Enabling Act. At that point, the new principal Chief confirmed that it was “utterly impossible” to resume “our old tribal government.” App. to Brief for Respondent 16a–17a (Address by Moty Tiger to Creek National Council (Oct. 8, 1908), reprinted in The Indian Journal (Oct. 9, 1908)). And any “appeal to the government at Washington to alter its purpose to wipe out all tribal government among the five civilized tribes” would “be to no purpose.” App. to Brief for Respondent 16a. “[C]ontributions” for such efforts would be “just that much money thrown away,” and “all attorneys at Washington or elsewhere who encourage and receive any part of such contributions do it knowing that they can give no return or service for same and that they take such money fraudulently and dishonestly.” Id., at 17a.
All of that is true, most of the tribal leaders at the time acknowledged their political status had changed, which it did thanks to Congressional laws. In the Moty Tiger speech Roberts quotes, Tiger states that the tribal government had passed, but also instructs his people to “hold on to your lands and homes. The best and most potent influence in this republic today is the home and landowner.” Tiger was deeply concerned with legal scams – and maybe some well-meaning lawyers who oversold what they could deliver, but most were scammers – who promised to restore treaty rights if members sent them money. In light of the situation in 1908 Tiger rightfully asserted the best way for his tribe to retain their sovereignty was through possession of the land, and debt would weaken that.1
Furthermore, Muscogees continued to assert principles of governance over themselves within the limited scope offered to them by the federal government. For one example, in 1913 tribal members petitioned Woodrow Wilson to remove Moty Tiger from office. The group meant in Wetumka, discussed the matter (which is the summary I found was ill-defined), voted on the matter and selected delegates to visit Wilson and deliver their petition. In other words they continued to recognize the political organization of the tribe and conducted political business through what should have been their inherent sovereignty to decide who led them.2
Roberts was a history major as an undergrad (and even thought about doing a history Ph.D before law school) but his use of primary sources here is disingenuous. None of this gets to the simple questions presented here: did Congress formally dissolve the reservation. Many people assumed as much but Gorsuch provides a clear annunciation of the fact that while Congress got close to the line it never stepped over and it should not be in the purview of the Court to step over that line over one-hundred years later. Furthermore its past time the Court did the correct thing and upheld Muscogee sovereignty, acknowledging the wrongs of previous government policies that illegally stripped the nation of reservation claims.