Neil Gorsuch, McGirt v. Oklahoma, and the Emperor's Nakedness
a lesson in federal anti-Indian law
As I showed in my critique of Haaland v. Brackeen, Justice Neil Gorsuch is emerging as a master of masking federal anti-Indian law. He manages to deploy without naming the US claim of domination over Indigenous peoples, hiding the doctrine of ‘Christian discovery’ while relying on it.
Many people are unaware of the domination inherent in federal anti-Indian law. That fact, coupled with a general tendency among public commentators to focus on the bottom line in a court decision and ignore the doctrinal path that the court traces in its opinion, means that Gorsuch can enforce the US claim of domination and get praise for it from liberals who think of themselves as ‘friends of the Indians’.
Today, we look at McGirt v. Oklahoma (2020), another Gorsuch demonstration of how to hide domination in plain sight. So much hoopla and media excitement surrounded the decision that few people realized what the opinion really said.
Other justices have learned to hide the ‘Christian’ in ‘Christian discovery’; see, for example Justice Ruth Bader Ginsburg’s opinion in City of Sherrill v. Oneida Nation (2005) where she referred simply to “discovery”:
Under the ‘doctrine of discovery,’ . . . fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.
In McGirt, Gorsuch relied on “Christian discovery” without even using the word “discovery”! Instead, Gorsuch referred to the claim of domination obliquely, calling it the “significant authority” of the United States “when it comes to tribal relations.”
As Steven Newcomb, a Shawnee/Lenape colleague, has pointed out:
The religious foundation of federal anti-Indian law law “is seldom, if ever, explicit. . . . [It] remain[s] out of sight, below the level of conscious awareness. With few exceptions, [it is] never brought into contemporary discussions of the law.”
Professor Angelique EagleWoman, speaking of Canada and the United States, similarly said:
“What is often glossed over in the property law introductory lesson is the Christian formed ‘doctrine of discovery’ that continues in full force in both countries.”
McGirt began in 1996, when Jimcy McGirt, a Seminole man, was tried and sentenced to life in prison by an Oklahoma state court for a crime he was alleged to have committed against his wife's granddaughter. McGirt demanded to be released from Oklahoma prison. He argued that the alleged crime occurred within the Muscogee (Creek) Nation and that the 1885 Major Crimes Act imposes exclusive federal jurisdiction within "Indian country" over "any Indian who commits …[certain listed offenses] …against the person or property of another Indian or any other person". He said he should not have been tried in a state court.
Oklahoma countered that the Muscogee Creek Nation was not “Indian country”, because the US Congress long ago exercised its so-called “plenary power over Indians” to “disestablish” the Nation.
Gorsuch’s opening line in McGirt, upholding McGirt’s argument, thrilled gullible readers: “On the far end of the Trail of Tears was a promise.”
Gorsuch said the “promise” was that “the Creek Nation … lands in the West would be secure forever… solemnly guarantied… [as a] permanent home to the whole Creek nation… [and that] no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.”
The temptation was great, at least among liberals, to think that McGirt had thus closed the door on the genocidal era of “Indian Removal.” Widespread public pronouncements called McGirt a ‘landmark decision’.
But McGirt didn’t close that door and did not transform federal anti-Indian law. In fact, as we will see, Gorsuch explicitly left the door open for the US Congress to kill the Muscogee Nation “at any time”.
Gorsuch said the Creek Nation still existed as “Indian country”, but only because Congress had not yet exercised its power to kill it. He explicitly affirmed the federal anti-Indian law doctrine of US domination over Native peoples:
This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.
Gorsuch did not directly name the root of this supposed “authority,” but he cited Lone Wolf v. Hitchcock, the 1903 Supreme Court decision that exalted ‘Christian discovery’ into a claim of “plenary power over . . . Indians.” He added a further citation to Emory Washburn’s 1868 Treatise on the American Law of Real Property, which said:
The Christian nations that planted colonies . . . recognized no seisin [ownership] of lands on the part of Indian dwellers.
Perhaps the most amazing fact about McGirt, unrecognized by so many commentators, was that the majority opinion and the dissents in McGirt agreed on the US claim of plenary power over Native peoples! All the justices said that the US Congress can do as it wishes with Native peoples and their lands.
The only difference between the majority and dissents in McGirt was whether Congress had or had not already disestablished the Creek Nation. The majority said no. The dissents said yes.
Gorsuch made the point absolutely clear for the majority:
“Of course, . . . Congress remains free to [take action] . . . about the lands in question at any time. It has no shortage of tools at its disposal.”
In short, McGirt as a whole said Congress either could do “at any time” or already did do the dirty deed of killing the Muscogee Creek Nation.
Furthermore, the technical legal point in the McGirt decision was not about Creek criminal jurisdiction over Jimcy McGirt. It was about federal criminal jurisdiction as opposed to Oklahoma, under the 1885 Major Crimes Act.
What McGirt did was to affirm US jurisdiction (domination) over the Creek Nation, as opposed to Oklahoma jurisdiction (domination). Gorsuch bypassed Muscogee criminal jurisdiction altogether, since that already had been “clearly extinguished” by the Major Crimes Act itself!
Gorsuch admitted that “When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creek to try their own members.” So much for the ‘solemn promises’ at the end of the Trail of Tears.
Anyone who reads the decision closely can see all this. But somehow, the public response to the McGirt decision was like the observers in the folktale “The Emperor’s New Clothes”. They wanted to see what the emperor saw and pretended not to see the emperor’s nakedness. Or, perhaps, they had no confidence in their own eyes. Either way, they avoided seeing.
To help you see, I created a Supreme Court Network Visualization chart of the citation trails connecting Gorsuch’s 2020 McGirt opinion to John Marshall’s 1823 Johnson v. McIntosh opinion that imported ‘Christian discovery’ into US law:
As a consequence of Gorsuch hiding the emperor’s nakedness, the McGirt opinion did not bring about the time when, as Professor Robert Williams predicted in 1986, federal anti-Indian law doctrines of domination, “once revealed, would shame those who cite them.”
I wonder if justice would have been done if Marshal or his 1823 ruling had not existed. I tend to think other ways would have been found to 'go w[r]est.' The rush for 'white gold' (lithium) is also driven by an unsophisticated TINA (There Is No Alternative) principle, it seems to me - environment be damned (unless it can be commodified/weaponized to serve various and nefarious globalist plans - which amounts to mining and digital plantation building 401, right? - and as always, exploiters great and small are often those who wallow in the belief that freedom means to be rid of ancestors, offspring, or land - and who feel entitled to lord it over everybody and everything.
It's vitally important to study and understand and see through systems of domination and their many offshoots, that underpin (or tacitly condone) those behaviours. Thank you, Peter and Steven (2x, Schwarzberg & Newcomb) for all the work you do to enlighten us.
Part of the problem is that in seeking a scrap of justice far too many people buy into a part of federal anti-Indian law in an effort to wring something from an unjust and unconstitutional system. Hence McGirt’s underlying appeal to Kagama which meant implicitly accepting Congressional plenary power over “major crimes” because it accepted the “right” of Congress to declare federal jurisdiction and cease relying on treaties; to “govern them” by acts of Congress instead—implying that these treaties were not signed in good faith with independent sovereign nations but rather were a form of deception. The Constitution declares treaties the “Supreme Law of the Land” but ever since Johnson v. McIntosh in 1823 the Supreme Court has treated them as largely superfluous lies that the Congress and the courts can break if they wish. It’s excuse has been rooted in the doctrine of Christian discovery, but the rank dishonesty and illegality is evident to those who take the Constitution’s text and the intentions of the framers seriously.