Broken treaties with Native Americans not fixed by Supreme Court ruling

On July 9, 2020, the U.S. Supreme Court handed down its decision McGirt v. Oklahoma, a case to determine whether Oklahoma or the federal government had jurisdiction over a crime committed by a tribal member. Oklahoma contended that it had jurisdiction because the Muskogee (Creek) Reservation, where the rape took place, had long since ceased to exist. The majority opinion, written by Justice Neil Gorsuch, concluded, however, that “At the end of the Trail of Tears was a promise… Because Congress has not said otherwise, we hold the government to its word.”

Around Indian Country, the decision has been heralded as the end of broken treaties, and headlines reported that “Half Of Oklahoma Is Native American Land.” The other four of the Five Civilized Tribes have similar cases that could conclude that their reservations remain intact, as promised nearly two centuries ago. Until then, McGirt v. Oklahoma narrowly applies to only 7 percent of Oklahoma, but presents a myriad of jurisdictional and regulatory questions due to tribes’ unique legal status.

Although tribes call themselves “Sovereign Nations,” they have limited jurisdiction over their lives and lands. Since 1831, when SCOTUS declared tribes to be “domestic dependent nations” creating a relationship with the federal government like “that of a ward to his guardian,” Native Americans have been treated as if they are incompetent and incapable. Indeed, the Burke Act of 1906 remains a part of Federal Indian Law that requires the government to assess whether Indians are “competent and capable” to be landowners.

Regardless of what a reservation’s boundaries are, to this day, tribes do not own their land; the federal government does. In 1823, the Supreme Court decided in Johnson v. M’Intosh that Europeans acquired ownership of the Americas through the “doctrine of discovery.” As recently as 2005, in City of Sherrill v. Oneida Indian Nation of New York, the Supreme Court cited the “doctrine of discovery” directly to undermine Native Americans’ land rights.

Indian lands are held in trust by the federal government as the “guardian” of its “wards.” Because of this trusteeship, Native Americans cannot mortgage their land without first obtaining the secretary of the Interior’s approval. Developing all resources in “Indian Country” requires the same approval. The Southern Ute Tribe of Colorado explained that the tribe’s oil company can typically begin oil production in three months when drilling outside of its reservation, but it takes approximately three years to drill for oil on its reservation due to federal bureaucracy. Due to federal red tape, it is easier for the tribe to drill 10,000 feet below the Gulf of Mexico than on its own land.

In short, federal trusteeship over “Indian Country” is the major reason why 48 percent of reservation homes lack access to safe drinking water, reservation poverty rates are nearly 40 percent compared to 13 percent of the U.S. population, and reservation unemployment rates routinely exceed 50 percent, even prior to COVID-19.

The Supreme Court’s minority, led by Chief Justice John Roberts, reinforces the ward-guardian notion. Justice Roberts opined that recognizing land as a reservation complicates governance. This is true, but only because the Supreme Court and Congress continue to treat tribes as domestic dependent nations rather than full territorial sovereigns. Consequently, tribes do not have total control over their land. Tribes can’t even prosecute non-Native Americans who rape and murder their citizens.

The majority opinion in McGirt may set a precedent for making half of Oklahoma into Indian Country, but the case does not free one Native Nation from the bondage of colonialism or make tribes any more sovereign. If tribes are to be sovereign, they must have jurisdiction, and McGirt did little to clarify what jurisdiction tribes have.

Sovereignty means having freedom from external control — the ability to self-govern. Wardship is the antithesis of sovereignty. These cannot mutually coexist, and in Indian Country, the latter dominates the former.

The United States needs to go beyond declaring what is and what is not a reservation, and it must start unshackling Native Nations from antiquated, economy-killing wardship. After all, tribes have consistently proven themselves more “competent and capable” of governing their land than federal bureaucrats.

By declaring the Muskogee (Creek) Reservation to include all land within the original boundaries set in 1866, the Supreme Court did force the state of Oklahoma to begin negotiating with the Creek Nation and others over how the decision might affect jurisdiction over taxation, zoning, abortion or environmental regulations.

Two centuries of wardship is enough. If McGirt v. Oklahoma shifts the focus of Indian policy to sovereignty built of jurisdiction, it will be a monumental step toward removing racism from Federal Indian Law, to renewing the dignity that Native Americans once had and deserve to have renewed, and to building tribal economies from the ground up.

Terry Anderson is the John and Jean DeNault Senior Fellow at Stanford University’s Hoover Institution. Adam Crepelle is an associate professor at Southern University Law Center and serves as a judge on the court of appeals for the Pascua Yaqui Tribe. He is an enrolled citizen of the United Houma Nation.