In what is being described as a “landmark” 5-4 decision, McGirt v. Oklahoma, the Supreme Court decided today that Congress never violated a 1866 treaty between the free and independent Creek Nation and the United States by explicitly and unilaterally disestablishing the Creek Nation’s territory, which the Supreme Court called “a reservation.”
We see incoherent sentences about the decision in the news. Take, for example: “In a decision being hailed as a win for tribal sovereignty, the U.S. Supreme Court ruled Thursday that a large portion of eastern Oklahoma remains a reservation.” Question: Given that the treaty with the Creek Nation promised them their own “country,” how is their treaty being upheld when the “country” of the Creek Nation, that was guaranteed to the Creek Nation “forever,” is now being defined as “eastern Oklahoma.”
According to the standard narrative, based on coercion exerted by the United States, the Creek Nation is said to have given up its territory in the east (what is now called Georgia and Alabama), in exchange for their own “country,” set aside for the Creek Nation “forever.” A synopsis of the 1833 treaty reads as follows:
WHEREAS, certain articles of a treaty were concluded at the City of Washington, on the 24th day of January one thousand eight hundred and twenty-six, by and between James Barbour, Secretary of War, on behalf of the United States, and the Chiefs and head-men of the Creek nation of Indians; by which it is agreed that the said Indians shall remove to a country west of the Mississippi river: and whereas the sixth article of said treaty provides as follows:–“that a deputation of five persons shall be sent by them, (the Creek nation) at the expense of the United States, immediately after the ratification of the treaty, to examine the country west of the Mississippi, not within the limits of the States or Territories, and not possessed by the Choctaws or Cherokees. And the United States agree to purchase for them, if the same can conveniently be done upon reasonable terms, wherever they may select, a country . . . ” [emphasis added]
In an 1866 treaty between the United States and the Creek Nation, after the conclusion of the Civil War, we find: “the United States guarantees them [the Creeks] quiet possession of their country.” (emphasis added)
At the outset of his decision for the majority, Justice Gorsuch even acknowledged that the word “country” was used to specify the territory of the Creek Nation. However, he then disregarded that term by stating, “Though the early treaties did not refer to the Creek lands as a ‘reservation,” writes Gorsuch, “similar language in treaties from the same era has been held to create a reservation.”
An Indian reservation that is deemed to be located “within” the State of Oklahoma is less apparently less threatening to the United States than a separate Creek “country,” “no portion” of which “would ever be embraced or included within, or annexed to, any Territory or State.” Again, the question arises, How is the Creek Nation treaty being upheld, and how is Supreme Court “holding the government to its word” when the “country” of the Creek Nation, which was guaranteed to the Creek Nation “forever,” is now being defined as the “eastern” section of the “State of Oklahoma”? How did the treaty-guaranteed “country” of the Creek Nation supposedly “become” any part of the “State” of “Oklahoma”?
Since the “country” of the Creek Nation ought to be “excepted out of and constitute no part of” the State of Oklahoma to this day, how do we explain the current framework? The answer is simple: The Doctrine of Christian Discovery and Domination. As Gorsuch put it: “The federal government issued its own land patents to many homesteaders throughout the West. These patents transferred legal title and are the basis for much of the private land ownership in a number of States today. But no one thinks any of this diminished the United States’s claim to sovereignty over any land. To accomplish that would require an act of cession [by the U.S.], the transfer of a sovereign claim from one nation to another. 3 E. Washburn, American Law of Real Property *521-524.”
My dear friend and intellectual “running partner,” Peter d’Errico, with whom I’ve had a thirty year conversation about these kinds of issues, is professor emeritus at UMass/Amherst where he headed the Legal Studies Department for more than two decades. Being an excellent researcher, he was able to find the Washburn volume. Not surprisingly, it takes us right to the Doctrine of Christian Discovery and Domination.
Leading up to *521 cite by Gorsuch, we first come to *518: “4. Upon the discovery and settlement of this country by [*518] Europeans, there was a kind of ownership of the territory recognized in the native tribes, though there seems to have been no well-defined idea of property in lands on the part of the natives beyond, perhaps, the spot under immediate occupation.” The Washburn text continues:
“5. Nor has any title, beyond the right of occupation, been recognized in hte 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 of lands on the part of the Indian dwellers upon it, and the Indian’s deed was simply regarded as an extinguishment of his claim, and not as passing the soil or free held.”