In a five-four decision, penned by Trump appointee Neil Gorsuch with the support of the four liberal justices, the United States Supreme Court (SCOTUS) confirmed that the Muscogee (Creek) Nation Reservation still exists in eastern Oklahoma, rendering much of the eastern part of the state Indigenous land. The decision affirmed the Reservation in spite of the series of historical attempts to assimilate and eliminate the rights of the Creek Nation. Counsel representing the state and federal government argued that numerous attempts falling short of a clear legislative fiat should be inferred to have extinguished (or “disestablished” in American legal terms) the Creek Reservation. All justices acknowledged the sordid history that saw various American actors wishing and planning to deprive the Creek and other Nations of their Treaty lands. The majority held, however, that “just as wishes are not laws, future plans aren’t either” and firmly rejected the “rule of the strong” position, pitched by Oklahoma, which would allow the factual overwhelming of Treaty rights by settlers and the state and federal government to take the place of clear legislative intention to extinguish them.
While this case has major implications for Aboriginal law, its genesis lies in a pair of criminal cases. The first involved the killing by Patrick Murphy, a Creek citizen, of another Creek, George Jacobs. Mr. Murphy was sentenced to death in the state courts. In an attempt to avoid the death penalty, his lawyers argued that the state courts did not have jurisdiction over the case, because of where it took place: on the Creek Reservation.
The central issue between the parties was whether the Creek Reservation that was established in the Treaties of 1832-33 survived to the present. If that Reservation survived, much of eastern Oklahoma, including parts of the city of Tulsa, would reside within land set aside for the Treaty signatories, including the Creek Nation. This conclusion would mean, in the context of this particular case, that Mr. Murphy’s prosecution, as well as that of Mr. Jimcy McGirt whose case was joined with Mr. Murphy’s, was ultra vires the jurisdiction of the state courts. Only federal courts maintain authority for prosecuting these crimes.
Justice Gorsuch, writing the majority opinion, held that while evidence supported the fact that Congress wished for the extinguishment of the Creek reservation, and had undertaken a number of lesser actions to bring this about, it had failed to “clearly express its intent to do so.” In a particularly pointed remark, Justice Gorsuch held:
Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear. Short of that, legislators might seek to pass laws that tiptoe to the edge of disestablishment and hope that judges – facing no possibility of electoral consequences themselves – will deliver the final push. But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives. “[O]nly Congress can divest a reservation of its land and diminish its boundaries.” [citation omitted] So it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so.
Understanding the historical context is essential to grasping the decision before the Court. The Muscogee (Creek) Nation, as well as their current neighbours in Oklahoma, the Cherokee, Choctaw, Chickasaw and Seminole Nations (known as the “Five Civilized Tribes”), are not indigenous to the state of Oklahoma. Their sacred homesteads lie in the south-eastern part of the United States, in what subsequently became the states of Florida, Georgia, Alabama and Tennessee. As the colonies and settlers grew in the early 19th century, states and the federal government sought to appropriate indigenous lands for themselves. Finding that their policies of incremental encroachment, as well as the long-term goal of assimilating the Indigenous population, were not working enough advantage for the settlers, President Andrew Jackson passed the Indian Removal Act of 1830. The Act authorized the creation of treaties with the Five Civilized Tribes with the goal of extinguishing Indian title and their sovereign self-governance east of the Mississippi River. In exchange for forcibly being removed from their historic lands, the Five Civilized Tribes were promised in a 1832 Treaty unseen swaths of lands in the interior of the continent, in what was called “Indian Territory”. The forced march of tens of thousands of Indigenous persons, young and old, from their ancestral homelands to present-day Oklahoma lasted months, and resulted in the deaths of approximately 3,500 Creeks alone. This forced march is known as the Trail of Tears.
Establishment of the Muscogee (Creek) Reservation
Arriving in “Indian Territory”, the Creek Nation reached what an 1833 Treaty promised to be their “permanent home”. The same Treaty also promised that the federal government would issue land patents in fee simple to the Nation for all the lands within the reservation. In 1852, the US government made good on that promise, formally conveying the lands to the Creek Nation communally, as was the practice in British North America.
The Creek reservation remained without modification until 1866 when, through a new treaty with the US government, the reservation was reduced with compensation paid to the Nation at 30 cents per acre. The majority viewed this post-civil war treaty as further evidence that the Creek reservation was still recognized by Congress and that no intervening acts, including the Creek’s alleged alliance with the Confederacy, had forfeited the promises made in 1832-33. For the majority at least, the Creek reservation survived the 19th century unscathed.
The state of Oklahoma argued that Congress extinguished the Creek reservation in deed, if not precisely words, through its policy of allotment. Allotment was specifically designed to end communal ownership of land in the reservations. In 1893, Congress mandated the Dawes Commission to convince the Creeks to either cede their sixty-year-old “permanent home” or to agree to privatize the lands, paving the way for individual ownership. Facing resistance on the idea of abandoning yet another homeland, the Creeks eventually agreed to allotment, signing the Creek Allotment Agreement in 1901. The agreement not only ended communal ownership of lands but also permitted the individual land-holders to freely sell their lands, including to non-Indians – and many did. The consequence of allotment, likely foreseen at the time, was the Creeks’ dispossession of their promised lands.
Could the Creek reservation survive the privatization of its reserve lands and their eventual purchase by non-Indian settlers? The majority answered in the affirmative, noting that the Allotment Agreement lacked any explicit mention of extinguishment or surrender. Indeed, unlike reserves in Canada, the federal government gave the Creeks the option to receive title in fee simple (which they received in 1852). Clearly then, the notion of the land gaining the quality of a marketable interest was not inconsistent with it being set aside as a reservation.
Most convincingly, Justice Gorsuch wrote that not only was there no clear intention that allotment would disestablish the Creek reservation, but that there is no reason the issuance of land patents and subsequent land sales could or should affect the underlying sovereign title:
The federal government issued its own land patents to many homesteaders throughout the West. These patents transferred legal title and are the basis for much of the private land ownership in a number of States today. But no one thinks any of this diminished the United States’s claim to sovereignty over any land. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another. [citation omitted]. And there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercising governmental functions over land even if they no longer own it communally.
Interference with Self-Government
Oklahoma also relied on other ways the federal government broke it promises to the Creeks to show an intention to extinguish their land. Despite having promised sovereignty within their home boundaries, the American Congress appeared to regret its bargain, and began engaging in a pattern of legislative harassment. In 1898, it abolished the Creeks’ tribal justice system, requiring all civil and criminal matters to be remitted to the US Courts of the Indian Territory. The Creek Allotment Agreement accomplished more than the privatization of lands. It also required that any laws of substance passed by the tribal government required authorization by the President of the United States before becoming law.
The Allotment Agreement further declared the end of all Creek tribal government by 1906 subject to further legislation passed by Congress. Such further legislation came about when Congress adopted the Five Civilized Tribes Act which continued the pattern of circumscribing Creek self-government but did not eliminate it. In fact, the legislation recognized the “tribal existence and present tribal government[t]” and “continued [them] in full force and effect for all purposes authorized by law.”
In 1936, Congress committed a surprising about-face, corresponding with a softening approach to what in Canada has been called euphemistically the “Indian question”. Instead of further encroaching on the Creeks and others, Congress authorized the Creek Nation to adopt a constitution and bylaws which enabled the Creek government to resume many of the functions previously interfered or negated by Congress.
The Creeks embraced the opportunity and continue to have a thriving tribal government with a democratically elected council controlling a budget of over $350 million and employing over 2,000 people. The Creeks also took back jurisdiction over their courts, winning confirmation of their right to do so in Muscogee (Creek) Nation v. Hodel.
How should the Court interpret “extinguishment”?
Oklahoma argued that extinguishment (or “disestablishment”) can be ascertained if the Court engages in a three-prong approach to statutory interpretation:
- Examine the laws of Congress
- Consider contemporaneous events
- Consider subsequent events and demographics
Justice Gorsuch, abiding by the originalist doctrine of Justice Scalia, rejected the second and third prong as attempting to inject “extratextual considerations” into the interpretation of Congressional intent. According to Gorsuch, only the first position merits any consideration with the second or third available only if an unresolvable ambiguity arises that requires clarification.
The majority also raised concern that despite clear precedent establishing that “disestablishment may not be lightly inferred and treaty rights are to be construed in favor, not against, tribal rights”, the dissent’s position would “treat Native American claims of statutory right as less valuable than others” by extending to the states and other potential usurpers a lower bar to prove interference with Treaty rights.
Justice Gorsuch and the majority rejected the “carefully selected history Oklahoma and the dissent recite” to attempt to slide the scales toward extinguishment, instead highlighting the pitfalls of relying on a self-serving narrative that retrospectively justifies the infringement of the Creek’s sovereignty:
How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.
Is Fee Simple Incompatible with a Reservation?
Oklahoma’s final argument before the Court was that the Creeks never, in fact, received a reservation at all. Rather, by electing to receive the fee simple interest in the land, as they bargained for in the 1830s (and finally received in 1852), the Creeks obtained an interest that was less than, or incompatible with, a reservation. The majority rejected this argument on the basis that land “reserved” is a restriction placed on the government and not on the beneficiaries (that is, the Indian recipients): “the land was reserved from sale in the very real sense that the government could not ‘give the tribal lands to others, or to appropriate them to its own purposes’ without engaging in ‘an act of confiscation’”. 
The majority went on to note that the creation of a reservation does not require anything more than the establishment of certain boundaries of land. In fact, a precedent set in 1900 held that fee title is not inherently incompatible with reservation lands.
The concluding passages of Justice Gorsuch’s majority opinion indicates that much of the difference between the majority and the dissent lies in whether to accede to the “dire warnings” offered by Oklahoma and others if Congress is held to its word and the rights of the Creeks to their reservation are confirmed.
While it may seem incongruous to a Canadian jurist, in the United States the line between reservation and non-reservation are more easily blurred, with major American cities frequently overlapping (without meaningful distinction) onto reservation lands (e.g. Tacoma, WA and Mount Pleasant, MI). These facts clearly encouraged the majority to overcome the fearmongering of Oklahoma and confirm that a promise made must be honoured unless clear intention to breach it is provided. Nothing less will suffice.
Indeed, that fearmongering was immediately belied by the joint statement released by Oklahoma and the Five Civilized Tribes. In that statement, the state and the Nations confirmed their intent to work together and develop a “framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.”
Implications for First Nations in Canada
While Canada and the United States maintain separate legal systems that only occasionally borrow from one another, Canadian Aboriginal Law, in its revitalization after the entrenchment of s. 35 of the Constitution Act, 1982, has incorporated early American cases affirming the sovereign status of Indigenous peoples as its foundation.
McGirt explicitly harkens back to those early cases, affirming the nation-to-nation dialogue that is treaty-making and that the rules for extinguishing Aboriginal rights and title require a clear and express intent to do so. This is also the position of our courts, as confirmed and reaffirmed in leading cases such as Sparrow, Badger, and Delgamuukw that a “clear and plain intention” is necessary.
McGirt goes beyond Canadian jurisprudence by definitively settling the question of whether the presence of fee simple lands extinguishes the underlying Aboriginal Title. Justice Gorsuch found not only that it does not because legislation providing for the privatization of land does not, by itself, satisfy the requirement for a clear and plain intention, but also, because there is nothing inherent in private property that impugns an underlying sovereign title. To think otherwise would undermine the very notion of modern statehood. If the United States – and equally, Canada – can exist despite its citizens owning title to land in fee simple outright, why cannot an Indigenous community? The conclusion of the Supreme Court of the United States is simple: they can, and, in point of fact, they already do.
In Canada, this question has vexed our courts and no definitive answer has been forthcoming. In Chippewas of Sarnia, the Ontario Court of Appeal held that despite the fact that the evidence indicated the Chippewas had been swindled by a land speculator and had not, in fact, surrendered their lands in 1840, it would not, for equitable reasons, set aside the land patent and thereby disentitle existing homeowners from their land. The Court did not consider in the circumstances, whether or not a declaration of Aboriginal Title might be compatible with the private property interests of the contemporary residents of Sarnia, and, as a result, whether or not the title interests of both the First Nation and the homeowners could be maintained.
Presently, a number of cases are pushing Canadian courts to re-engage with the question of private property’s impact on Aboriginal Title, including Giesbrecht v British Columbia (Attorney General) (Vancouver Registry No. S161339); The Council of the Haida Nation v. British Columbia (Vancouver Registry No. L020662); Cowichan Tribes v. Canada (Attorney General) (Victoria Registry No. 14-1027; Ignace v. British Columbia (Attorney General) (Kamloops Registry No. S51952); and, Nuchatlaht v. British Columbia (Vancouver Registry No. S170606).
It is inevitable that the McGirt decision will be suggested to our courts as a potential model for reconciling Aboriginal Title with the fact of colonial and contemporary settlements. The question is whether our courts will accept that premise or accept a logic that permits de facto extinguishment of Aboriginal Title through the mere qualification of land as private property, without the clear and plain intention they have repeatedly required.
 McGirt v Oklahoma, 591 US ___ (2020) [McGirt].
 Ibid at 12 per Gorsuch J.
 Ibid at 28.
 Ibid at 8.
 Ibid at 7-8, citing Solem v Bartlett, 465 US at 470 (1984).
 Trail of Tears. http://www.history.com/topics/native-american-history/trail-of-tears
 McGirt at 4.
 Ibid at 5.
 Ibid, fn. 1 referencing the dissent of Chief Justice Roberts.
 Ibid at 8-9.
 Ibid at 11.
 Ibid at 13.
 Ibid at 14-15.
 Ibid at 16; Muscogee (Creek) Nation v. Hodel, 851 F. 2d 1439 (CADC 1988).
 Ibid at 18-20.
 Ibid at 21.
 Ibid at 21-28
 Ibid at 30.
 Ibid at 30-31, citing Maxey v Wright, 54 S. W. 807, 810 (Indian Terr. 1900).
 Ibid at 37.
 R. v. Sparrow, 1990 CanLII 104 (SCC),  1 SCR 1075 [Sparrow]; R. v. Badger, 1996 CanLII 236 (SCC),  1 SCR 771 [Badger]; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC),  3 SCR 1010 [Delgamukw].
 Chippewas of Sarnia Band v. Canada (Attorney General), 2000 CanLII 16991 (ON CA)