Tribal Sovereignty Isn't So Fragile
Editor’s Note: This is the second installment in a two-part column. The first installment can be found here.
In 2020, the US Supreme Court ruled in McGirt v. Oklahoma that half of Oklahoma has always been reservation land. Although tribal leaders insisted the decision came as expected, many voices in Indian law expressed their surprise. After all, between 1907 and 2020 the state of Oklahoma policed its eastern half without regard for tribal lands or the treaties demarcating them. Pointing to this, Chief Justice John Roberts seethed in a dissent signed by three of his colleagues that the Five Nations had long since been terminated and that “a huge portion of Oklahoma [was] not a Creek[, Cherokee, Chickasaw, Choctaw, or Seminole] Indian reservation.”
The majority, however, found that the words of treaties outweighed poorly executed policy. A century of wrong, a century of Oklahoma illegally policing Indians, could not invalidate law. As Justice Neil Gorsuch wrote in the opinion, “legislators might seek to pass laws that tiptoe to the edge of disestablishment and hope that judges . . . will deliver the final push. But wishes don’t make for laws . . . If Congress wishes to break the promise of a reservation, it must say so.”
From a historical perspective, this “reversal” was spectacular. Denationalization, the process of legislating Indigenous republics out of existence, began in the mid-1890s and was mostly finished by 1907. This effort coincided with the growth of American imperialism abroad, as the United States exploited the Spanish-American War to take far-flung territories under its rule. But by McGirt’s ruling, the same Congress which was defined by its imperialism overseas, its unprecedented levels of spending, and its open disdain for tribal governments had never succeeded in disestablishing these nations. The Dawes Commission—tasked with wiping semi-independent Native nations off the map—had apparently failed.
The surprise Americans felt to McGirt is part of a long tradition in this country: that is, wildly underestimating the durability of Native sovereignty. Confident but incorrect predictions of Native sovereignty’s demise bounced around the 19th-century American West. In 1871, the editor of the Fort Smith New Era, Valentine Dell, came under fire from Cherokee nationalists for advising his Indian neighbors to “prepare, like wise men, for the event as inevitable as tomorrow’s sun of seeing their territory opened to white immigration.” Dell was one of countless Americans making predictions like this, but there is a useful irony here: he wrote this 36 years before Oklahoma statehood. He died in 1885, as Congress was prepping a General Allotment Act which specifically excluded the Five Nations from any of its sweeping powers. “Tomorrow’s sun” took ages to rise, and Dell stayed forever in the dark.