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History of the Creek Reservation

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When Congress passed the Indian Removal Act in 1830 to relocate the Creek tribe west of the Mississippi, they guaranteed a reservation for the tribe through concessions in the Indian Removal Act. [1] The Act provided that the United States could, by means of treaty agreements with the Indian tribes, set aside and exchange western lands for the tribes’ current territory. Importantly, it authorized the President to assure tribes that “the United States will forever secure and guarantee to them, and their heirs or successors, the country so exchanged with them” and provide a land patent for the tribe if they requested it. [2] Thus, the western lands to which tribes were removed became self-governing Indian reservations. The Creek Nation in particular was assigned a reservation in what is today Eastern Oklahoma via the 1833 Treaty and granted legal title and patent to the land. [3] After the Creek Nation lost the Civil War in which it allied with the Confederacy, it ceded significant amounts of land to the United States in the Treaty of 1866, yet Congress reaffirmed the remaining reservation would be “forever set apart as a home for said Creek Nation.” [4]

 

Several decades after the completion of Indian removal from the east of the Mississippi, Congress passed in 1885 the Major Crimes Act (MCA) to address serious crimes committed by Indians. The MCA provided that certain crimes committed by Indians within the boundaries of an “Indian reservation…dependent Indian community…[or] Indian [allotment]” are “within the exclusive jurisdiction of the United States” and would be subject to trial in federal court. [5] Thus, the MCA undoubtedly removed authority from both tribes and states over such matters. [6]

 

While the reservation arrangement was intended to permanently resolve tensions between settlers and Indian tribes by geographically separating them, this did not occur as settlers continued to move westward and past the Mississippi. In 1890, ceded portions of what was once Indian Territory were organized into the Oklahoma Territory under the Oklahoma Organic Act and opened for settlers. [7] In preparation to combine the Oklahoma Territory with the remaining Indian Territory to establish a new state, Congress created the Dawes Commission in 1893 to negotiate with Oklahoma tribes and procure either a cession of remaining reservations or the allotment of tribal land to individual Indians. The Creek were predictably unwilling to cede their land, and instead the Creek Allotment Agreement was reached in 1901 to divide the land into tracts owned by individual tribesmen who were eventually permitted to sell their land. [8] Although this removed fee title from the tribe as a whole and gave title to the owner of each individual parcel of land, there was no formal cession of sovereignty over the land. 

 

The United States further restricted the Creek government and its sovereignty during the allotment period. Not only were all tribal court cases transferred to federal court under the Curtis Act, but presidential approval was mandated for most tribal laws regarding property under the Allotment Agreement. [9] Furthermore, the Agreement scheduled the tribal government and reservation to be disestablished on March 4, 1906 barring Congressional intervention. [10] Even after this reduction in the authority of tribes and allotment of their land, the Creek reservation was never ceded or disestablished by statute and thus remained sovereign territory of the tribe until the 1906 deadline. Had this deadline been met with no further legislation, the Creek Nation would have terminated and its territory been incorporated into Oklahoma. However, Congress never allowed this result to arrive, instead passing the Five Civilized Tribes Act in 1906 to permit the tribal government to remain albeit with further restrictions. [11] Since then, Congress has lifted many restrictions on the scope of tribal sovereignty and passed no statute expressly indicating the Creek reservation or government is abolished.

 

Congress began to establish the State of Oklahoma in June 1906, combining the land and populations of the Indian Territory and Oklahoma Territory and passing the Oklahoma Enabling Act to facilitate a constitutional convention and the creation of a new state. [12] Under this Act, all cases in territorial courts were transferred to appropriate state or federal courts. [13] After statehood, Congress placed allotted tribal land under state jurisdiction and removed restrictions on its sale. [14] Since this time, the State of Oklahoma has claimed criminal jurisdiction over the historical Creek reservation and faced no challenges or legal disputes from the tribe. Despite the lack of a statute clearly declaring the reservation to be disestablished and the continued presence of a Creek Nation tribal government, Oklahoma and the federal government have operated since the state’s inception as if no reservations exist. Even the five Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes, who were removed to Oklahoma and possessed historical reservations there, have stated in testimony to Congress that “there are no reservations in Oklahoma.” [15]

 

The McGirt Decision

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In recent years, the question of reservation disestablishment has been revived with the case McGirt v. Oklahoma. [16] In this particular matter, Jimcy McGirt, a Seminole Indian residing in Oklahoma, was convicted in 1997 of first-degree rape by instrumentation, lewd molestation, and forcible sodomy. Mr. McGirt’s crimes took place within the boundaries of the historic Creek reservation, and he was tried in the Wagoner County District Court. Upon the recommendation of the jury, he was sentenced by the trial court to 1000 years and life in prison without the possibility of parole. In 2018, Mr. McGirt moved to overturn his conviction on the grounds that Oklahoma lacked jurisdiction under the Major Crimes Act as he was an Indian accused of offenses within Indian country. The District Court denied his motion, and the Oklahoma Court of Criminal Appeals rejected his appeal. The Supreme Court granted his petition for certiorari and heard arguments on the matter during the October 2019 term. The Supreme Court eventually ruled in favor of Mr. McGirt by a vote of 5-4, with Justice Gorsuch writing the majority opinion and Chief Justice Roberts writing the primary dissent. [17]

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Since Mr. McGirt committed his crimes within what was historically a Creek reservation, the state trial court would only have jurisdiction if the reservation no longer existed. If the reservation still exists, the MCA would give exclusive jurisdiction to the appropriate federal courts, stripping the state courts of jurisdiction over Mr. McGirt’s case and invalidating his conviction. Hence, disposition of the case hinged upon the present status of the historic Creek reservation in Oklahoma. In deciding the matter, the court turned to Solem v. Bartlett and Nebraska v. Parker, which identified the text of a Congressional act, historical context before and developments after its passage, and demographic changes as factors which may indicate legal diminishment of a reservation. [18] Justice Gorsuch’s majority opinion rejected the second and third factors discussed in Solem, arguing factors and practices after a law’s enactment may not be favored or applied “instead of the laws Congress passed.” [19] He also dismissed Oklahoma’s reliance interest concerns regarding the possible reversal of large numbers of convictions, placing greater requirements upon federal law enforcement, and potentially altering the relationship between tribe and state. In ruling for McGirt, Justice Gorsuch opined for the majority that “[b]ecause Congress has not said otherwise, we hold the government to its word” that the land once established as a Creek reservation remains such today. [20]

 

The Chief Justice took a different tact in his dissent, deeming the interests Oklahoma raised in preserving the status quo as worthy of more consideration from the Court. More importantly, the dissent accepted the second and third factors from Solem, arguing that “[e]ven in the absence of a clear expression of congressional purpose in the text of a surplus land Act, unequivocal evidence derived from the surrounding circumstances may support the conclusion that a reservation has been diminished.” [21] The Chief Justice further cites Solem and Parker alongside a line of cases including Hagen v. Utah, Rosebud Sioux v. Kneip, South Dakota v. Yankton Sioux, justifying the use of extratextual factors to indicate reservation disestablishment. [22] In contrast to the Court’s determination that the termination of the Creek reservation was halted by Congress and never actually occurred, the dissent posits that the process of land allotment, stringent restriction of tribal government, and incorporation of the Creek into a new state evidences a congressional intent to disestablish said reservation as confirmed by subsequent practice of Congress, Oklahoma, and the Creek tribe. [23]

 

An Originalist Analysis of Oklahoma's Claim

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Considering the acts of Congress alone, it seems evident that while the tribal government was weakened and its land allotted, such allotment is “completely consistent with continued reservation status” as the Supreme Court’s precedents such as Mattz v. Arnett have recognized. [24] Therefore, the text of the relevant statutes does not expressly declare the disestablishment or diminishment of the Creek reservation, and neither can the text alone be reasonably interpreted to imply this. Similarly, the extratextual historical developments surrounding Oklahoma’s admission, common use of allotment to prepare for disestablishment, and lack of recognition that any reservation existed for nearly a century all suggest the Creek reservation did not survive statehood. Given this contradiction between statutory text and surrounding context, the Supreme Court’s decision poses a rather interesting question of interpretation: To what extent can the weight of extratextual sources supersede or supplement statutory text or lack thereof? Justice Gorsuch’s majority opinion strongly contests that no, extratextual sources cannot be used to usurp the text itself because “[the court’s] charge is usually to ascertain and follow the original meaning of the law before us.” [25] The dissent suggests the opposite; that while the statutory language is “most probative evidence of congressional intent,” the ultimate end is determining “[Congressional] intent to disestablish the reservation” even if this requires supplementing the text with extratextual evidence. [26]

 

This adherence to legislative intent proves a weak method of interpretation. When legislatures draft and enact a statute, they do not enact a general intention or broad objective for the government to aim for and judges to actualize through their applications of said law. Rather, they agree upon and adopt specific language for each statute to set out exact proscriptions and requirements, enacting this text as the law. The collective legislative intent is not the enacted law and it is practically impossible to identify or define. Statutory wording is often drafted by multiple legislators, all with different perspectives and ideas about what the new law ought to be and how it ought to be phrased. It is therefore impossible to apply legislative intent for any end; “[h]ow do you systematically identify what a diverse group of people thought about any particular issue?” [27] Even citing the floor speeches, testimony, or committee reports of legislatures is hardly demonstrative of a collective intent. The only collective intent of a legislature which can be reasonably inferred is intent to enact the statute’s text as written into law, as this is the only intention which the legislature has approved by vote.

 

Despite the problems associated with legislative intent, the general purpose of a statute may be identified and utilized in interpretation. Crucial is the distinction that the purpose of a law is not the intent of the law. The law’s purpose in this context refers to what its function or subject is whereas intent describes what the legislature supposedly sought to accomplish with the statute. Such statutory purpose “must be derived from the text” and nothing else, as the considerations of other sources to determine purpose would inevitably return to legislative history. [28] This purpose, if defined precisely to encompass only that which the text does, can be useful in resolving ambiguities such as homonyms. Nevertheless, the function of statutory purpose must be to clarify the text rather than to alter it. Evaluating the text of the Creek Allotment Agreement, its purpose can be said to divide communally owned lands into individually owned parcels and to end the tribal government and reservation in 1906. The text of the Five Civilized Tribes Act, which superseded the Allotment Agreement, indicates a purpose to prevent the end of the government and reservation and the Enabling Act had a purpose of transferring non-federal cases to state court. To reach the dissent’s conclusion that the Allotment Agreement disestablished the reservation extends beyond its textually-derived purpose and into the realm of legislative intent.

 

While no legislative history was cited in the McGirt majority opinion, the dissent cited committee reports and remarks in several places in an attempt to demonstrate an intent to disestablish Indian reservations and replace them with a unified state authority. [29] Although he made repeated references to legislative intent, Justice Gorsuch did not in fact apply it but rather constrained himself to the words of the law, its textually grounded purpose, and the relevant historical events to understand it in context. [30] The Chief Justice’s dissent, on the other hand, repeatedly generalized the purpose of the applicable statutes into a broader purpose of dissolving the reservations to establishing a state. This may very well have been the goal of Congress in 1900, but it was not included in the statutes they enacted. As Lord Scarman explained, “We are to be governed not by [a legislature’s] intentions but by [their] enactments.” [31] Therefore, the focus on legislative intent is misplaced; “[t]he intention of the legislature is a myth” and therefore of no use to judges. [32]

 

The stronger method of interpretation is necessarily text-centered in lieu of intent-centered, for a statute is nothing more and nothing less than the words which comprise it, read reasonably and in context. Hence, “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.” [33] Given the importance of language in legal interpretation, one of the most essential canons of construction is “a verbis legis non est recedendum.” [34] The search for meaning in a statute must begin, end, and center around the text, for any departure from the text is a departure from the law itself. Turning to the text of the Creek Allotment Agreement and other Congressional actions which Oklahoma claims disestablished the Creek reservation, no provision states outright nor does any action imply that this was done. Given the well-documented preparation process Congress undertook before disestablishing a reservation, the Chief Justice was likely correct that the statutes in question formed part of this process and thus Congress’ subjective intent was to eventually disestablish the Creek reservation. This goal is not the law, however, and that which is not written in the statute is part of the law. 

 

Following the established principle of “casus omissus pro omisso habendus est,” courts must leave as unaffected that which the statute does not speak to. [35] As Justice Frankfurter explained, “[w]hatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. [The judge] must not read in by way of creation.” [36] If the role of judges, as the Constitution and greatest precedents of the Supreme Court would indicate, is to “expound and interpret” the laws as Congress has written them, then there is no power to add to the statute or alter its text. [37] Regardless of Congress' intentions or plans for the Creek reservation, these plans were never completed in statute, even if Oklahoma and the Creek tribe operated as if they had been. It is not the role of judges to finish what Congress did not or correct a perceived error on their part. [38] Judges must read the statute fairly, attempting to determine the meaning of its text when it was adopted, without adding to it to reach the aims of the legislature. 

 Both opinions reference throughout that the “[t]he focus of our inquiry is congressional intent” and not the actual meaning of the text enacted. [39] That said, the opinion of the Court remains constrained in the actual text and provisions passed while the dissent attempts to enforce Congress’ broader aims and plans as the law. The Chief Justice raises a valid point that the Court’s position would require the reversal of precedents such as Rosebud, Yankton, Parker, and Hagen, and “[u]nless the Court is prepared to overrule these precedents, it should follow them.” [40] As these cases seem to require an unwise approach to interpretation based on intent, the Court may find it best to overrule them. As Justice Gorsuch explained, since the Creek reservation was duly established and retained its existence despite diminishment, allotment, and restriction on tribal governance, it continues to exist until Congress decrees otherwise. Despite the intent of Congress to end the reservation era in Oklahoma, equating this objective with the statutes passed “would confuse the first step of a march with arrival at its destination.” [41] Because Congress is yet to declare the reservation disestablished, proper application of textualism will find that it remains intact.