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Neil Gorsuch Affirms That Treaties With Tribal Nations Are the Law

In upholding the Muscogee (Creek) Nation’s treaty-guaranteed lands, the justices did something simple but unexpected.

Justin Sullivan/Getty Images

The United States Constitution established unequivocally in 1789 that treaties are the “supreme law of the land.” On Thursday, the Supreme Court stood by the nation’s original promise.

Ruling on McGirt v. Oklahoma, a case concerning how reservations are disestablished and the jurisdictional ability for states to charge and convict tribal citizens on sovereign tribal land, the justices held in a 5–4 vote that the Muscogee (Creek) Nation’s reservation is still intact, with Justice Neil Gorsuch authoring the majority opinion. “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.” The ruling is one of the most potentially consequential decisions from the high court on federal Indian law, both in recent memory and historically. It establishes that roughly three million acres of what is now known as Oklahoma have belonged to the Muscogee (Creek) Nation for the past 154 years and reestablishes the nation’s sovereignty over those lands.

Joining Gorsuch were Justices Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan, and Stephen Breyer. Justices Samuel Alito, Brett Kavanaugh, John Roberts, and Clarence Thomas voted in favor of the state of Oklahoma, with Roberts penning the dissent. “A century of practice confirms that the Five Tribes’ prior domains were extinguished,” Roberts wrote. “The State has maintained unquestioned 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 portion of Roberts’s analysis conveniently ignores that the cited population data is the consequence of centuries of genocidal and displacement policies.)

While McGirt was new to this term, the central argument—whether the Muscogee (Creek) Nation’s reservation is still intact—was not. The court initially took up Sharp v. Murphy in 2019 in an attempt to settle the argument but held off on releasing an opinion, instead using the final day of the session to punt the case to the next session. In that case, Gorsuch, the only justice with any serious judicial experience with federal Indian law, recused himself, as he had heard the case when he was still on the Tenth Circuit bench. Until Thursday, it was unclear whether the justices had reached an impasse and needed Gorsuch’s swing vote, or whether they simply desired his Indian law expertise for their argument.

The cases centered on the 1866 treaty that the Creek Nation signed with the United States following the Civil War. At the time, the land it occupied was officially designated as Indian Territory and was home to several tribal nations, including what were known as the “Five Civilized Tribes”—the Creek, Cherokee Nation, the Seminole, the Chickasaw Nation, and the Choctaw Nation. But colonizers illegally flooded into the lands owned and occupied by the Native nations, systematically enacting a reign of violence and displacement. After decades of disregarding the Native nations, Congress declared statehood for Oklahoma in 1906. (In 1905, the tribal citizens of Indian Territory attempted to establish their own separate state, Sequoyah, but were denied by Congress.) During that period of land theft, though, Congress never took the time to disestablish the Creek reservation.

Under the ruling established in the 1903 case Lone Wolf v. Hitchcock, only Congress maintains this power, which Gorsuch acknowledged in his opinion: “To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress.” And as Congress never officially dissolved the Muscogee (Creek) Nation reservation through legislative action, McGirt, like Carpenter, argued that the convictions rendered in their cases were made outside of U.S. jurisdiction because the crimes at issue in the case occurred on Creek reservation land, where state authorities do not have the jurisdiction to arrest tribal citizens. (Even with the ruling, nontribal citizens remain under the jurisdiction of the state and not the tribal nation, as established in the 1978 case Oliphant v. Suquamish Indian Tribe.)

The strongly worded opinion written by Gorsuch was particularly critical of the dissent, in which Chief Justice Roberts repeatedly argued that the reservation had been effectively disestablished even if the measure had not been enacted by Congress. Gorsuch, applying a textualist reading of the Creek Nation’s treaty rights, discarded this counter in multiple footnotes.

“The dissent by the Chief Justice (hereinafter the dissent) suggests that the Creek’s intervening alliance with the Confederacy ‘unsettled’ and ‘forfeit[ed]’ the longstanding promises of the United States,” Gorsuch wrote. “But the Treaty of 1866 put an end to any Civil War hostility, promising mutual amnesty, ‘perpetual peace and friendship,’ and guaranteeing the Tribe the ‘quiet possession of their country.’ Though this treaty expressly reduced the size of the Creek Reservation, the Creek were compensated for the lost territory, and otherwise ‘retained’ their unceded portion.”

The major sticking point for some of the justices during oral arguments concerned the breadth of the McGirt case. The state of Oklahoma repeatedly leaned on the practicality argument, which several justices from both sides of the bench found enticing. Ginsburg voiced her concern that a ruling in favor of Jimcy McGirt, a 71-year-old citizen of the Seminole Nation of Oklahoma who was convicted by the state for committing sex crimes against a minor on Creek land, would overturn thousands of prior convictions—a claim that was dissected and debunked in The Atlantic by Cherokee journalist Rebecca Nagle, who worked on an investigation that found fewer than 10 percent of reviewed cases would need a retrial. Thomas was dubious about whether the same standards could be applied to the case of the Muscogee (Creek) Nation reservation, asking McGirt’s lawyer whether the court had ever ruled on a case “that does as much as this?”

But as Gorsuch proved during oral arguments and again in his opinion, such practical arguments matter little when it comes to applying the letter of the law. His presence was also a testament to the fact that all courts, not just the Supreme Court, need more voices on the bench that understand and appreciate treaty rights and tribal sovereignty. As Nagle noted in the wake of the case, this doesn’t make Gorsuch any kind of great defender of Indian Country. The decision simply followed the law.

There is still a great deal of work to be done to ensure treaty rights are upheld for all tribes—the Black Hills remain illegally in American hands, and Congress has yet to place the Cherokee Nation’s treaty-guaranteed congressional delegate. But it feels prudent to give in to the empowering feeling brought on by seeing a treaty recognized. After centuries of watching American legislatures, courts, and militaries act in service of the nation’s colonizing whims, it is more than relieving to see its institutions not only admit their ill-gotten gains but make an attempt to right the wrong.