An article in The Nation, November 18, 2022, “It’s Time to Give Indigenous Land Back,” starts out strong, but misunderstands the crucial legal issue.
The strong start is a clear statement that the root of the land issue is a bizarre doctrine by which the US claims to own Indigenous lands:
“A genocidal campaign of conquest—fueled and justified by the Doctrine of Discovery that declared all land not occupied by Christians as terra nullius (nobody’s land)—dispossessed millions of Indigenous peoples from their homelands in the name of the United States’ policy of western expansion and Manifest Destiny.”
The confusion arises when the authors try to interpret US Supreme Court cases about jurisdiction in what US law calls “Indian country”. First, the interpretation misstates what the cases say; second, it gives the impression that “land back” can somehow happen within existing US law, if only the Supreme Court would be friendly. Let’s unpack this.
- The article, referring to the June 2022 Supreme Court decision in Oklahoma v. Castro-Huerta, says:
“Ignoring all precedent, Justice Brett Kavanaugh wrote that states can ignore tribal sovereignty in handling criminal cases of Indigenous citizens on tribal lands.”
In fact, the decision in Oklahoma v. Castro-Huerta did not say the state can prosecute criminal cases against Indigenous defendants. The court said the state has concurrent jurisdiction with the federal government over crimes committed by “non-Indians”; and it expressly side-stepped the question of jurisdiction over Indigenous defendants:
“…Today’s decision recognizes that the Federal Government and the State have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country.9 [emphasis added]
9 “The dissent characterizes the Court’s opinion in several ways that are not accurate. …For example, the dissent suggests that States may not exercise jurisdiction over crimes committed by Indians against non-Indians in Indian country—the reverse of the scenario in this case. To reiterate, we do not take a position on that question.”
Oklahoma v. Castro-Huerta, 213 L. Ed. 2d 847, 142 S. Ct. 2486, 2504 (2022) <https://supreme.justia.com/cases/federal/us/597/21-429/ >
2. The article then says, referring to the July 2020 Supreme Court decision in McGirt v. Oklahoma:
“In the US Supreme Court, there were encouraging signs in sovereign rights cases involving …the rights to criminal jurisdiction on their own land for the Muscogee (Creek) Nation in Oklahoma.”
But the decision in McGirt v. Oklahoma did not say the Muscogee (Creek) Nation has criminal jurisdiction in the case. The court said:
“McGirt’s appeal rests on the federal Major Crimes Act (MCA)…[which] subject[ed] Indians to federal trials for crimes committed on tribal lands….”
“The MCA applies to Oklahoma according to its usual terms: Only the federal government, not the State, may prosecute Indians for major crimes committed in Indian country.”
“When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creek to try their own members. But, in return, Congress allowed only the federal government, not the States, to try tribal members for major crimes. All our decision today does is vindicate that replacement promise.” [emphases added]
McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452, 2459, 2478, 2480 (2020) < https://supreme.justia.com/cases/federal/us/591/18-9526/ >
In short, both cases—the supposedly “bad” one and the supposedly “good” one—were about competing state and federal jurisdictions. Indigenous jurisdiction was set aside or ignored. As I said above, the authors misstate the decisions.
More significant, I think, is that the misstatement of McGirt implies that there is space within US law to support Indigenous jurisdiction—space to get beyond the bizarre doctrine of Christian discovery.
In fact, the McGirt decision explicitly upheld US domination of Indigenous peoples, saying:
“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 decision quoted from the 1903 case of Lone Wolf v. Hitchcock, which used the Christian discovery claim of land ownership to define US “plenary power” over Indigenous peoples:
“The right which the Indians held was only that of occupancy. The fee [title] was in the United States… Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning…” [emphasis added]
Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S. Ct. 216, 221, 47 L. Ed. 299 (1903)
https://supreme.justia.com/cases/federal/us/187/553/
The truth of the matter is that US law has never acknowledged the independent land ownership of Indigenous nations and peoples. Both Castro-Huerta and McGirt are based on the Christian discovery claim of US ownership of Indigenous lands. As McGirtconcluded:
“Congress remains free to [make decisions] about the lands in question at any time. It has no shortage of tools at its disposal.”
Misunderstanding law is not unusual, especially in popular journalism. The problem is acute, however, when the issues involve Indigenous rights, and the writer is supportive of those rights. The writer’s desire to find a sliver of hope in the thicket of US federal anti-Indian law provokes misreading of court decisions that in fact do not support Indigenous rights. The result is a failure of analysis and a fogging of readers’ understanding.
The major theme of the article in The Nation is “land back”—a movement to restore some type of Indigenous peoples’ control over their ancestral lands. The writers are clear that the nature of that control has been only vaguely defined; they say:
“There is ambiguity on the side of the United States and state governments over whether the land returned to Indigenous nations becomes sovereign or simply self-ruled, which would imply the grant of autonomy could be withdrawn by the entity that granted it.”
This ambiguity is shared by many proponents of “land back” because they do not understand the root legal issue—the US claim of land title. This is a widespread misconception.
The key point to understand about “land back” is that true restoration of Indigenous ownership goes beyond a notion of “stewardship” under the US property law system. The issue is not “giving land back,” but decolonizing the land. As Jake Edwards (Onondaga) said, the land never went anywhere; it is still here, as are many Indigenous peoples who are rightful owners of the land. “Land back” means nothing if “Christian discovery” is still valid property law.
As I explain in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022), the doctrine of “Christian discovery” underpins the entire edifice of US laws regarding Indigenous land rights. It is so basic to US law that even supposedly positive decisions, like McGirt, rely on it!
“Land Back” will achieve real success only when the depths of land rights legal issues are fully understood. Lack of clarity, especially if it is coupled with wishful thinking about Supreme Court and other decisions, makes for a lot of hoopla, but it fails to take us further along the path to Indigenous sovereignty in an international framework.