The Supreme Court’s 5-4 decision to recognise much of eastern Oklahoma as a Native American reservation in regards to the Major Crimes Act (MCA) left many celebrating a sovereignty victory for the Muscogee (Creek) Nation, but an archaic foundation of federal Indian law based on decrees from a 15th-century pope remains unchallenged.
The majority opinion, written by Justice Neil Gorsuch, wrote that “once a reservation is established, it retains that status ‘until Congress explicitly indicates otherwise.’ Only Congress can alter the terms of an Indian treaty by diminishing a reservation, and its intent to do so must be clear and plain.”
The insistence on Congressional authority to disestablish reservations gave Mark Charles, a member of the Navajo Nation and independent candidate in the 2020 presidential elections, pause.
“I celebrate with my Creek relatives for their hard-fought victory regarding reservation lands in Oklahoma,” Charles said.
“But this decision doesn’t address the Doctrine of Discovery”, a cornerstone of federal law based on papal decrees that gives Congress the power to disestablish reservations, Charles told Al Jazeera.
The doctrine was established in the 1823 decision on Johnson v McIntosh, the first of three decisions by the US Supreme Court under Chief Justice John Marshall which provided the foundation of federal Indian law.
as a member of the Muscogee Creek Nation with a Mvskoke name & ancestors who were forced to move to Oklahoma during the Trail of Tears and then ultimately made it their home, this ruling means the entire world to me. Natives are owed so much, starting with our land back. https://t.co/vcroaRKv82
— sunēckē (@Sunecke) July 9, 2020
The case involved land transfers in the 1770s, when the Piankeshaw people sold parcels of land to Thomas Johnson, one of the first US Supreme Court justices.
After the US attained independence, the Piankeshaw sold the land to the US government, “which then sold it to William McIntosh”, according to the US National Library of Medicine website.
“In Johnson v McIntosh, the Supreme Court under Chief Justice John Marshall [upheld] the [McIntosh family’s ownership of land purchased from the federal government” the website continued, reasoning that since the land was owned by the US, the Piankeshaw have only a “right of occupancy and hold no title to the land”.
Marshall based his decision on the method colonial powers like Spain justified their expansion throughout non-Christian lands, namely the mission of spreading Christianity throughout the “savage” world, Charles noted.
This notion is based on a series of papal bulls, or decrees issued by popes of the Catholic church. The decrees that would come to form part of federal law date to the 15th century, when the kingdoms of Spain and Portugal began their colonisation efforts throughout Africa and the Americas.
Today the Supreme Court affirmed that a huge swath of land in Oklahoma belongs to Muscogee Creek Nation. This is a huge win for tribal sovereignty.
— ACLU (@ACLU) July 9, 2020
Because Native, non-Christian peoples were considered “savages … we couldn’t own land”, Charles said.
‘Cannot grant what you don’t possess’
Though many in the US may not know of the law or these papal bulls, they have continued to factor into legal decisions throughout the centuries.
Numerous decisions use them as case law references to justify actions against Indigenous people, according to Steven Newcomb, a Shawnee/Lenape legal scholar and author.
Newcomb told Al Jazeera the “claim of a Christian empire going to the promised land to claim a right to take over those lands and claim jurisdiction over the Native peoples” has justified centuries of domination.
The notion was wrong from the moment Christian colonisers set foot in the Americas at the behest of rulers in Europe endeavouring to expanding their religious empires, Newcomb said, and it continues to be erroneous when used in US law.
“You cannot grant what you don’t possess,” Newcomb stressed.
The Supreme Court has upheld the Doctrine of Discovery as recently as 2005, when liberal Justice Ruth Bader Ginsburg cited the 1823 decision in an opinion that stopped the Oneida people from regaining lands in modern-day New York.
JoDe Goudy, of Red Thought, a forum that encourages discussion of Native issues and former chairman of the Yakama Nation who works with Newcomb, told Al Jazeera he was surprised when he found the Doctrine of Discovery while researching court decisions on Indigenous issues.
Goudy said he found the doctrine had been “veiled” in case law over the years, but from 1823 to 2020 the “principle has never changed”.
The Yakama filed a “friend of the court” brief challenging the Doctrine of Discovery in a case before the Supreme Court in 2018 over Washington State’s taxation of a Yakama business.
The business won that case, though SCOTUS did not address the brief’s challenges to the Doctrine of Discovery.
It remains unclear if the most recent Supreme Court ruling will have broader implications, including on the Muscogee (Creek)’s taxing or regulatory powers.
“There’s two questions that were linked together. Is this a reservation? Does the MCA apply?” Joel Williams, a staff lawyer at the Native American Rights Fund and citizen of the Cherokee Nation, said in an interview. “When you answer the first question, it kind of answers the second, as well.”
Even if disputes arise, Congress could do something less drastic than disestablishing the reservation, including delegation of law enforcement authority on tribal lands, as it has done in other cases, Williams explained.
The Muscogee (Creek) did not immediately respond to Al Jazeera’s requests for comment.
According to a joint statement released following the decision, Oklahoma, “the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress towards an agreement to present to Congress and the US Department of Justice addressing and resolving any significant jurisdictional issues raised” following the opinion.
While Gourdy applauded the victory of the Muscogee (Creek), he believes there is more work to be done, including a confrontation of the foundation of federal Indian law.
The Doctrine of Discovery has created a “framework that tells us ‘you can do this, but only in a way we dictate to you’ … It supplants what is the original and free will of the collective body of Native leaders” and established a system of domination.
Goudy hopes the US can confront this framework honestly so citizens can ask themselves, “Do I want to be a part of a US that is based on a system of domination?”