Oklahoma Gov. Kevin Stitt (R), a citizen of the Cherokee Nation, is seen at the White House on June 18, 2020. A month later, he was asking the Trump administration for regulatory authority over Indian Country in Oklahoma. Photo: Shealah Craighead / White House
So much hoopla surrounded the McGirt v. Oklahomadecision that few people could see what the case really decided.
The decision said the Creek Nation was “Indian country” as defined in federal law and that Oklahoma had no jurisdiction over crimes committed by Native persons in Creek territory. Lots of people were thrilled to read Justice Neil Gorsuch’s opening line, “On the far end of the Trail of Tears was a promise.”
The temptation was great to think McGirt closed the door on the genocidal era of “Indian Removal.” But McGirt didn’t close that door. In the language of federal Indian law, when it said Creek lands are part of “Indian country” it meant they are subject to the US Major Crimes Act. That was the legal question in the case.
Despite the hoopla about a “landmark decision,” McGirtdidnot transform federal Indian law. In fact, McGirt upheld the key federal Indian law doctrine of U.S. domination over Native nations and peoples — the doctrine called “congressional plenary power.” It said the Creek Nation existed because Congress had not (yet) “disestablished” it.
As the majority opinion itself pointed out, it was reaffirming the “plenary power” claim of US domination asserted by the Supreme Court “long ago”:
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.
The majority and dissent in McGirt were in agreement about this fundamental point of law. They both said the US Congress can do as it wishes with Native nations, peoples, and lands. The only difference between the majority and dissent was whether Congress had or had not “disestablished” the Creek nation. The dissent said yes. The majority said no.
To make the fundamental point clear, the majority said Congress could do the dirty deed whenever it wished:
…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.
Anyone who reads the decision can see this, even with rose-colored glasses.
We should, therefore, not be surprised that the U.S. Environmental Protection Agency has stepped through the “disestablishment” door left wide open in McGirt. On October 1, 2020, the EPA, at the request of the governor of Oklahoma, granted the state regulatory control over environmental issues in “areas of Indian country described in the state’s request.”
Governor Stitt and EPA Administrator, Andrew Wheeler, had the audacity to flaunt the McGirtdecision, knowing that it upheld US domination despite its appealing rhetoric. As Wheeler’s letter put it:
…the impetus for the State’s request was the recent decision of the U.S. Supreme Court in McGirt v. Oklahoma…. EPA understands the State’s reference to McGirt as an explanation of the State’s intent substantially to reestablish the geographic scope of the State’s environmental programs as implemented prior to the Supreme Court’s decision….
Some may call this “realpolitik”; some may call it “playing hardball.” It is both. And yet, how exactly does it work? Didn’t McGirt say Oklahoma didn’t have jurisdiction in “Indian Country”? Aha! Re-read above: McGirt said, “Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.” And what “tools” did the EPA and Oklahoma rely on?
They relied on a tiny provision snuck into an innocuous-sounding law passed in 2005, titled “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.” In typical American political style, the title boils down to the catchy acronym SAFETEA. Who but a true cynic would guess there was a little provision in the Act about environmental regulation that applied only to Oklahoma? It was inserted by Senator James Inhofe of Oklahoma, Chair of the US Senate Committee on Environment and Public Works.
The provision was “SECTION 10211. ENVIRONMENTAL PROGRAMS. OKLAHOMA.” Here’s the part the governor and administrator used:
…on request of the State, the Administrator [of the Environmental Protection Agency] shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.
When TYT News reported the EPA had granted Oklahoma the same authority the state had before McGirt, they explained that the EPA “can do this because federal legislation can nullify Supreme Court rulings.” In this case, the legislation was passed 15 years before the ruling, so it’s not quite right to say it “nullified” it. Nonetheless, this is precisely the Achilles heel of McGirt. It was visible to anyone who really read the McGirt decision: “Congress remains free…. It has no shortage of tools….”
The “freedom” of Congress is the unfreedom of Native nations and peoples. The original free existence of Native nations and peoples in their own lands was and is the target of federal Indian law. Federal Indian law, understood to its core — “plenary power” — is federal anti-Indian law, built to seize Native lands. The EPA – Oklahoma deal is only the latest effort.
Casey Camp-Horinek, Environmental Ambassador, Elder, and Hereditary Drumkeeper, Ponca Nation, provided the following statement to TYT:
“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the frontlines and in the international courts, LIFE itself is at stake.”
Life is at stake. And federal anti-Indian law is part of the problem. Despite the fancy rhetoric of “trust relationship” and “government-to-government relationship,” the basic doctrine in federal Indian law is “plenary power.” As the 1903 Lone Wolf v. Hitchcock decision cited by McGirt makes clear, this so-called “plenary power” is an outgrowth of the 1823 federal Indian law property doctrine of “Christian discovery.”
Here’s how Chief Justice John Marshall stated “Christian discovery” in the 1823 case, Johnson v. McIntosh:
The colonists “acquire
Thursday, October 8, 2020
territory on this continent …[under] the principle [of the] right of discovery [of] countries then unknown to all Christian people….“[This is] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. [Marshall’semphasis]
Marshall was emphatic in adopting “Christian discovery” into US law. He said, “The United States…have unequivocally acceded to that great and broad rule….”
Justice Joseph Story, who participated in the Johnson v. McIntosh decision, later put it this way in his Commentaries:
“…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.
“The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”
What more needs to be said? A colonial, racist doctrine of religious supremacy is still at the core of US “federal Indian law.” Native peoples are “merely occupants” not owners in their lands. They have the same legal status as “brute animals.” That is the “law” that still upholds colonizing, extractive industries and governments destroying the world’s ecosystems.
McGirt may have some usefulness to those who will try to block the EPA – Oklahoma deal. The majority said Congress must be “clear” when it “disestablishes” a Native nation. Was the tiny provision hidden in the “Transportation Equity Act” a “clear expression” of the intent of Congress to impose state jurisdiction over Native nations surrounded by Oklahoma? That will be the technical question.
The real question is how much longer America will tolerate a racist religious doctrine as part of its legal system.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.