“We Hold the Government to Its Word”: How McGirt v. Oklahoma Revives Aboriginal Title
abstract. This Note analyzes for the first time how McGirt v. Oklahoma could revive aboriginal-title land claims against the United States and create an opening for Land Back litigation. It argues that McGirt directs lower courts to enforce aboriginal title’s congressional-intent requirement strictly and renews the relevance of an overlooked case from 2015, Pueblo of Jemez v. United States. In Pueblo of Jemez, the Tenth Circuit unknowingly demonstrated how insisting on clearer proof of congressional intent to extinguish title would implement McGirt’s holding and remove the jurisdictional bars—sovereign immunity and preclusion—that have prevented aboriginal-title litigation.
author. Yale Law School, J.D. 2021. For their thoughtful comments and conversations, as well as their encouragement, I am deeply grateful to Tom Luebben, Claire Priest, and Isaac Buck. I also thank the editors of the Yale Law Journal, especially Eliane Holmlund, for their incisive editorial suggestions and support.
Introduction
Although the Land Back movement’s goal—returning land to American Indians1—is older than the United States, it has recently gained new momentum.2 Land Back efforts include pursuing fee-simple ownership by American Indians, but other sets of property rights are also available. Given the variety of American Indian groups and their unique histories, restoring land requires different legal strategies and may lead to different outcomes across regions and tribes.3
Creativity has characterized the movement’s successes. In
recent years, some tribes have partnered with private nonprofits,4 for-profit companies,5 and
religious organizations6
to reclaim stewardship of thousands of acres of ancestral land. Other groups,
like the Yurok and Wiyot Tribes of northern California, have purchased land
outright.7 Still others have asserted
their stewardship by shaping national land policy through protests and
grassroots organizing.8
Land Back has also gained recognition in the legislative and executive
branches: recently, Congress statutorily returned thousands of acres of land to
the Leech Lake Band of Ojibwe,9
and the Department of Interior (DOI) took steps to facilitate tribal
applications to place land into federal
trust.10
What role, if any, litigation should play in Land Back
efforts remains unclear, given that the United States has reneged on its legal
obligations to American Indians since the Revolution.11 Alongside systemic racism,
forced assimilation, and violent
removal,12 American Indians have faced
an additional challenge: judicial nonenforcement of their lawful land claims.
And whereas harms against other identity groups in the United States were often
legal when perpetrated, many federal seizures of American Indian land never
were.13 As historian and law professor Stuart
Banner has emphasized, protecting American Indian land rights has often required
“persuad[ing] government officials . . . to enforce” their
own rules “as written” rather than to change legal doctrine.14
In McGirt v. Oklahoma,15 the Supreme Court cleared a new path for Land Back litigation. It did so by enforcing a long-standing legal rule: only unambiguous proof of congressional intent can extinguish American Indian tribes’ land rights.16 Enforcing the congressional-intent requirement may clear two jurisdictional roadblocks that have historically barred American Indians from litigating certain land claims’ merits: sovereign immunity and preclusion. Admittedly, McGirt’s holding addressed a narrow circumstance. It established only that land promised in federal treaties remains Indian reservation land for the purposes of a federal criminal statute.17 But the Court’s forceful reaffirmation of the rule that Congress alone has the constitutional authority to extinguish certain tribal property rights—and that courts may not “lightly infer such” extinguishment—has far broader implications.18 The decision is explicit. If Congress intends to terminate such rights, “it must say so” clearly.19 “[S]aving the political branches the embarrassment” of breaking the law’s guarantees to tribes “is not one of [the Court’s] constitutionally assigned prerogatives . . . no matter how many other promises . . . the federal government has already broken.”20
McGirt relies on the doctrine of “Indian title.” Indian title is a common-law theory that colonizing European sovereigns, and their successors by war or purchase, acquired “absolute ultimate title” to North America’s land through the “doctrine of discovery” at first contact.21 According to the doctrine, American Indians retained only “Indian title”—the right of occupancy and use22—even though they were on the land first. Courts justified this distinction through explicit reference to the racist attitudes of the time: as Chief Justice Marshall would later write, Indian title was legitimate because American Indians were “fierce savages.”23
Despite its origins, the doctrine continues to have vast ramifications for tribes. Because the sovereign retains ultimate title, Indian-title land cannot be sold without the sovereign’s involvement.24 The sovereign’s authority over such land exchanges is known as the “right of preemption,” because the sovereign—today, the United States government—can block or preempt any Indian-title land transfer.25 As a result, some have described Indian title as “split title” because it confers an incomplete bundle of rights.26
The terms “original Indian title” or, today, “aboriginal title”27 refer to American Indians’ default rights under the Indian-title doctrine to occupy and use land as their ancestors did.28 These rights stem from exclusive, continuous occupancy and use since “time immemorial.”29 Aboriginal title is not to be confused with “recognized Indian title” or “recognized title,”30 which describe land to which the United States has formally acknowledged American Indians’ claim. Recognized title derives from federal action, and what rights it confers depend on the scope of its establishing treaty, statute, or executive order.31
Despite any clarity these definitions suggest, use of these terms has not always been consistent.32 Even the distinction between aboriginal and recognized titles is recent.33 Still, Federal Indian property law has unfailingly assumed that, by default, the federal government possesses the right of preemption over American Indian land.34 McGirt relied on the interrelated concepts of split Indian title and the right of preemption for its premise that the United States defines the scope of “Indian country,”35 as well as to analyze the Muscogee Nation’s36 recognized title claims.37 But the decision’s reasoning and implications extend beyond its specific facts.
For the first time, this Note analyzes McGirt’s ramifications in another context: tribal aboriginal-title claims to federal land.38 The decision has urgent implications for tribes that would litigate such claims against the United States. Like the recognized title at issue in McGirt, aboriginal-title claims are subject to the right of preemption and, therefore, may only be extinguished by a “clear and plain indication” of congressional intent or Congress’s “plain and unambiguous action.”39 But in the past, federal tribunals have been especially willing to infer that aboriginal title was extinguished when land claimed by the United States government was at stake,40 despite only vague or ambiguous evidence of Congress’s intent, such as “scatter[ed]” non-American Indian settlement.41 McGirt rejects such equivocal evidence and requires reversing that practice.
This Note proposes how lower federal courts can and should implement McGirt in the aboriginal-title context. The Supreme Court’s decision in McGirt renewed the relevance of an overlooked Tenth Circuit decision,42 Pueblo of Jemez v. United States.43 Although it predated McGirt, the 2015 Jemez decision anticipated its reasoning and demonstrated how courts can implement McGirt’s command to “hold the government to its word”44—or to its silence—when the United States encroaches on aboriginal-title land. In Jemez, the Tenth Circuit presciently enforced the congressional-intent requirement strictly and on a tract-by-tract basis. As a result, Jemez was one of the few—if not the first—aboriginal-title suits seeking to affirm a tribe’s use and occupancy rights to federal land that has advanced to merits litigation before an Article III court.45
If applied broadly, the Jemez court’s insistence that the United States provide unambiguous proof of Congress’s intent to extinguish aboriginal title for each disputed tract would have momentous effects. It would not only implement the Supreme Court’s message in McGirt, but could also revive aboriginal-title claims to millions of acres of land. The fact that the Tenth Circuit merely enforced long-standing precedent makes its approach even more relevant and scalable. Requiring unambiguous proof of Congress’s intent to extinguish title is not radical. It is what the law already requires. Federal judges need only enforce the standard and presumptions that have long governed aboriginal-title law.46 Ultimately, the fate of any aboriginal-title suit will still depend on a claim’s unique history. But for the first time, tribes that can satisfy the doctrine’s standards at merits litigation would have an opportunity to pursue their claims against the federal government for nonmonetary restitution: land back.
Part I of this Note examines McGirt’s relevance to aboriginal title, while contrasting its enforcement of the congressional-intent requirement in the recognized-title context with courts’ dilution of that requirement in aboriginal-title suits. In Part II, this Note turns to the Tenth Circuit’s decision in Jemez, which unknowingly demonstrated how McGirt’s insistence on clearer proof of Congress’s intent to extinguish could revise the extinguishment dates for many aboriginal-title claims, bring them within the Quiet Title Act’s (QTA) statute of limitations, and provide a new path past sovereign immunity. Part III likewise examines the Jemez decision—but, this time, as a model for applying McGirt’s statute-by-statute search for congressional intent in aboriginal-title cases to avoid doctrinal confusion about the preclusive power of Indian Claims Commission (ICC) claims awards. Finally, this Note’s conclusion explores the possible Land Back opportunities, in the Tenth Circuit and beyond, that McGirt creates when applied to aboriginal-title claims.
Because of its specific meaning in Federal Indian law, this Note uses the term “American Indian” to refer to the Indigenous peoples of the contiguous United States. Where specific nations or communities are referenced, I use their Indigenous names or, as appropriate, the name by which a federally recognized tribal government identifies. See generally Native American and Indigenous Peoples FAQs, UCLA Equity, Diversity & Inclusion (Apr. 14, 2020), https://equity.ucla.edu/know/resources-on-native-american-and-indigenous-affairs/native-american-and-indigenous-peoples-faqs [https://perma.cc/BC2M-JLCW] (noting that the term “American Indian” has a “specific legal context”).
The fact that I, a person with no Indigenous heritage, am writing this Note is one example of the Land Back movement’s success in spreading awareness. For additional discussion of Land Back, see Andrea Guzman, A Call to Return Land to Tribal Nations Grows Stronger, Mother Jones (Apr. 30, 2021), https://www.motherjones.com/environment/2021/04/land-back-tribal-nations-sovereignty-treaties-white-supremacy [https://perma.cc/RA57-ZDBS].
See, e.g., Nisqually Valley News Staff, Nisqually Land Trust, Nisqually Tribe Purchase 2,200 Acres of Land, Chronicle (May 18, 2021, 3:03 PM), https://www.chronline.com/stories/nisqually-land-trust-nisqually-tribe-purchase-2200-acres-of-land,265577 [https://perma.cc/N6KV-U7L6] (describing the reacquisition of 2,200 acres of land in southwest Washington by the Nisqually Indian Tribe); Emily Weyrauch, Returning Land to Tribes Is a Step Towards Justice and Sustainability, Say Wabanaki, Environmental Activists, Beacon (Dec. 1, 2020), https://mainebeacon.com/returning-land-to-tribes-is-a-step-towards-justice-and-sustainability-say-wabanaki-environmental-activists [https://perma.cc/E6G8-RX7K] (describing the Elliotsville Foundation’s transfer of 735 acres of land to the Penobscot Nation); Mario Koran, Northern California Esselen Tribe Regains Ancestral Land After 250 Years, Guardian (July 28, 2020), https://www.theguardian.com/us-news/2020/jul/28/northern-california-esselen-tribe-regains-land-250-years [https://perma.cc/X3PU-R95T] (describing how the Western Rivers Conservancy, funded by the California Natural Resources Agency, purchased and transferred almost 1,200 acres of Big Sur land to the Esselen Tribe).
See, e.g., Brooke Migdon, Lumber Company Returns Waterfront Property to Native American Tribe in Washington State at No Cost, Hill (Dec. 25, 2021), https://thehill.com/changing-america/sustainability/environment/587152-lumber-company-returns-waterfront-property-to [https://perma.cc/U86C-HMNC] (detailing a lumber company’s return of over 1,000 acres to the Squaxin Island Tribe and describing the action as part of the Land Back movement); Diana Graettinger, Tribe Celebrates Return of Island, Bangor Daily News (2002), http: //www.bigorrin.org/archive71.htm [https://perma.cc/T42W-GGED] (detailing a papermaking company’s return of land to the Passamaquoddy Tribe).
See, e.g., Kaylea Hutson-Miller, Wyandotte Nation to Receive Deed to ‘Sacred’ Site, Joplin Globe (Sept. 14, 2019), https://www.joplinglobe.com/news/local_news/wyandotte-nation-to-receive-deed-to-sacred-site/article_f154f340-3430-5e62-89a3-39b028fa8ad5.html [https://perma.cc/5RPD-NUBX] (describing how United Methodist Global Ministries returned land to the Wyandotte Nation, as it had promised when the Wyandotte were forced from the land some 176 years ago by the federal government).
See Hallie Golden, ‘Piecing Together a Broken Heart’: Native Americans Rebuild Territories They Lost, Guardian (Feb. 20, 2021), https://www.theguardian.com/environment/2021/feb/20/native-americans-rebuild-lost-territories-real-estate [https://perma.cc/CX57-8JDE] (describing how the Yurok Tribe has reacquired about 80,000 acres of land); Harmeet Kaur, Indigenous People Across the US Want Their Land Back—and the Movement Is Gaining Momentum, CNN (Nov. 26, 2020, 6:24 PM ET), https://www.cnn.com/2020/11/25/us/indigenous-people-reclaiming-their-lands-trnd [https://perma.cc/3DE3-ZR35] (noting that the Wiyot Tribe regained 240 acres of land through a partnership with the city of Eureka).
See, e.g., Indigenous Resistance Against Carbon, Indigenous Env’t Network, and Oil Change Int’l 12 (Aug. 2021), https://www.ienearth.org/wp-content/uploads/2021/09/Indigenous-Resistance-Against-Carbon-2021.pdf [https://perma.cc/YQ55-GDG9] (describing how American Indian protests over the past decade have stalled or stopped twenty-one fossil-fuel projects in the United States and Canada, forestalling emissions equivalent to over twenty-five percent of both countries’ annual greenhouse-gas emissions).
Leech Lake Band of Ojibwe Reservation Restoration Act, Pub. L. No. 116-255, 134 Stat. 1139 (2020); see also Shirley Sneve, Tribes Reclaiming Lands ‘Actually Happening,’ Indian Country Today (Jan. 15, 2021), https://indiancountrytoday.com/news/tribes-reclaiming-lands-actually-happening [https://perma.cc/6W3Y-N6SY] (describing the Leech Lake Band of Ojibwe Reservation Restoration Act).
Interior Department Takes Steps to Restore Tribal Homelands, Empower Tribal Governments to Better Manage Indian Lands, U.S. Dep’t of Interior (Apr. 27, 2021), https://www.doi.gov/pressreleases/interior-department-takes-steps-restore-tribal-homelands-empower-tribal-governments [https://perma.cc/8TM5-KD2V]; Aliyah Chavez, Interior Sets New Path Through Land Maze, Indian Country Today (Apr. 28, 2021), https://indiancountrytoday.com/news/interior-department-makes-land-into-trust-easier [https://perma.cc/7YCD-RLXT]; Valerie Volcovici, U.S. Interior Dept. Moves to Restore Native American Land, Reuters (Apr. 27, 2021), https://www.reuters.com/world/us/us-interior-dept-moves-restore-native-american-land-2021-04-27 [https://perma.cc/5CFC-EUMK]; Rob Chaney, Montana’s National Bison Range Transferred to Tribes, Associated Press (Jan. 18, 2021), https://apnews.com/article/mountains-wildlife-david-bernhardt-missoula-environment-9b033948e6acc5f166ca070487af19f5 [https://perma.cc/67CU-NXA3] (describing how the Department of Interior (DOI) implemented a congressional statute returning Montana’s National Bison Range to the Confederated Salish and Kootenai Tribes of the Flathead Reservation).
The first treaty between the United States and American Indians was a 1778 treaty with the Lenape Tribe, also known as the Delaware Tribe of Indians. See Frequently Asked Questions, Delaware Tribe of Indians (June 26, 2013), https://delawaretribe.org/blog/2013/06/26/faqs [https://perma.cc/H2UX-ZDVH] (explaining that the tribe’s Indigenous name is “Lenape”); Ryan P. Smith, Why the Very First Treaty Between the United States and a Native People Still Resonates Today, Smithsonian Mag. (May 24, 2018), https://www.smithsonianmag.com/smithsonian-institution/why-very-first-treaty-between-us-and-native-people-still-resonates-today-180969157 [https://perma.cc/9P8F-YU82] (describing the treaty). The Continentals contacted the Lenape because they needed passage through the tribe’s territory. Smith, supra. But after the Lenape guided the Continental troops through their land as promised, the Continental Army purportedly assassinated the Lenape’s leader. Smith, supra; see also Hansi Lo Wang, Broken Promises on Display at Native American Treaties Exhibit, NPR (Jan. 18, 2015), https://http://www.npr.org/sections/codeswitch/2015/01/18/368559990/broken-promises-on-display-at-native-american-treaties-exhibit [https://perma.cc/J7HW-ZPRR] (describing an exhibit displaying ratified treaties later broken by the United States).
See, e.g., Herrera v. Wyoming, 139 S. Ct. 1686, 1698 (2019) (“If Congress seeks to abrogate treaty rights, ‘it must clearly express its intent to do so.’ ‘There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”’” (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-03 (1999))); United States v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941) (stating that, with regard to “[e]xtinguishment of Indian title based on aboriginal possession[,] . . . [t]he power of Congress . . . is supreme”).
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 592-93 (1823) (describing the doctrine of discovery’s history and application in the United States); see 1 Cohen’s Handbook of Federal Indian Law § 15.06[1] (2012) (describing the history of “Indian title” and the federal government’s right of preemption).
Johnson, 21 U.S. (8 Wheat.) at 590. The racism inherent to Indian-title doctrine and the concept of split title—the ideas that, today, form the basis of the Federal Indian law trust system—is inescapable. See infra Section I.B (discussing Chief Justice Marshall’s racist justification for aboriginal title in Johnson v. M’Intosh). While this Note’s scope is limited to litigation strategies within the existing Federal Indian law system, other scholars have explored how the federal trust system could be improved. See Kevin Gover, An Indian Trust for the Twenty-First Century, 46 Nat. Res. J. 317 (2006); see also Adam Crepelle, Lies, Damn Lies, and Federal Indian Law: The Ethics of Citing Racist Precedent in Contemporary Federal Indian Law, 44 N.Y.U. Rev. L. & Soc. Change 529, 533 (2021) (arguing that lawyers should reject the federal trust system by refusing to cite the racist cases that established it); Note, Rethinking the Trust Doctrine in Federal Indian Law, 98 Harv. L. Rev. 422 (1984) (examining the weaknesses of the normative underpinnings of the federal trust system, though focusing more on the current system’s inconsistencies and ambiguities than on race specifically).
See 1 Cohen’s Handbook of Federal Indian Law, supra note 21; id. § 15.03 (noting that today, Federal Indian law uses trust concepts to describe the federal-tribal relationship); 25 U.S.C. § 177 (2018) (restricting the transfer of tribal land, regardless of the form in which it is held); see also 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.04[1] (“Land acquired by various methods may be treated similarly for many purposes, such as application of restrictions against alienation [or transfer].”); id. § 15.06[2] (“In general, lands guaranteed to tribes in fee are subject to the restraint on alienation.”). But see infra note 38 (discussing examples of tribes owning land not subject to the right of federal preemption).
Today, the United States’s right of preemption is more frequently described in terms of trust law, where the United States is the trustee of American Indian land. 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.03 (citing Johnson, 21 U.S. (8 Wheat) at 543, and describing how trust law concepts have influenced modern Federal Indian law’s conception of the federal-tribal relationship). But this Note uses common-law terms to reflect its focus on the common-law doctrine of aboriginal title.
See, e.g., Pueblo of Jemez v. United States, 790 F.3d 1143, 1166 (10th Cir. 2015) (discussing the Jemez Pueblo’s “traditional uses” of the Valles Caldera); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 713 (1835) (“Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected . . . .”).
See, e.g., United States v. Santa Fe Pac. R.R., 314 U.S. 339, 360 (1941) (citing occupation from “time immemorial” as establishing aboriginal title); Pueblo of Jemez, 790 F.3d at 1155-56 (quoting Mitchel, 34 U.S. (9 Pet.) at 745); Sac & Fox Tribe of Indians v. United States, 315 F.2d 896, 903 (Ct. Cl. 1963) (stating that, for purposes of the Indian Claims Commission Act (ICCA), aboriginal title “must rest on actual, exclusive, and continuous use and occupancy ‘for a long time’ prior to the loss of the property” (quoting The Snake or Piute Indians v. United States, 112 F. Supp. 543, 551 (Ct. Cl. 1953))).
See, e.g., Nw. Bands of Shoshone Indians v. United States, 324 U.S. 335, 339 (1945) (distinguishing “recognized” Indian title from “aboriginal usage without definite recognition of the right by the United States” or aboriginal “Indian title”). See generally 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.04[3][a] (discussing the relatively recent development of “recognized Indian title” as a term of art, as well as how it differs from aboriginal Indian title).
Congress ended the treaty-making era in 1871, but earlier treaties continue to define many American Indian land rights today. See Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71 (2018)) (declaring that “no Indian nation or tribe” would thereafter “be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty”). Since 1871, Congress has implemented agreements between the executive branch and tribes through legislation. These statutes have “the same legal standing as treaties” and, likewise, preempt state law under the Constitution’s Supremacy Clause. 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 5.01[2]; Antoine v. Washington, 420 U.S. 194, 197-98, 204 (1975) (holding that a congressionally approved agreement with the Confederated Tribes of the Colville Reservation guaranteeing the right to hunt and fish on ceded land had the same status as a treaty, preempting state licensing and criminal laws). For further discussion of the scope of recognized title, see 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.04[3]; and infra notes 90-105 and accompanying text.
See 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.04[2] (discussing the use of “misleading” terminology in aboriginal-title doctrine and the Supreme Court’s evolving treatment of its terms); id. § 15.04[3][a] (“The language used to define the character of the estate guarantee to an Indian tribe by treaty varied so considerably that any detailed classification would not be useful.”); McGirt v. Oklahoma, 140 S. Ct. 2452, 2461 (2020) (noting that the early United States-Muscogee Nation treaties did not use the word “reservation” because “that word had not yet acquired such distinctive significance in federal Indian law”). Use of “fee” or “fee patent” to refer to tribal land to which the federal government still holds the right of preemption has been especially confusing. Compare 1 Cohen’s Handbook of Federal Indian Law, supra note 21, §§ 15.04[3][a], 15.06[4] (describing treaties that granted land patents “in fee” to tribes, while stating that the federal government retained the right of preemption; and then noting that cases are mixed regarding whether the right of preemption applies to fee lands purchased by American Indian tribes), with id. § 5.04[3][a] (noting that the Supreme Court has used “fee,” “absolute title,” and “absolute ultimate title” interchangeably to refer to the federal government’s right of preemption), and County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 (1985) (“The ‘doctrine of discovery’ provided, however, that discovering nations held fee title to these lands . . . .”).
In fact, the distinction between the two was only recognized in the mid-twentieth century—and then, to clarify that the United States did not have to compensate tribes under the Fifth Amendment for confiscating their aboriginal-title land. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277-79 (1955); see also Nw. Bands of Shoshone Indians, 324 U.S. at 338-39 (distinguishing the two types of title); 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.04[3] (same).
See 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.06[1]; id. § 15.03 (noting that, today, Federal Indian law uses trust concepts to describe the federal-tribal relationship); 25 U.S.C. § 177 (2018) (restricting the transfer of tribal land, regardless of the form in which it is held). Even in some cases where courts determined that tribes held their land in “fee,” the Supreme Court has concluded that the United States retained the right of preemption. See, e.g., United States v. Candelaria, 271 U.S. 432, 443 (1926) (determining that, even though the New Mexico Pueblos hold their land in fee simple, they are still “wards of the United States” and cannot sell their land “without its consent”); see also 1 Cohen’s Handbook of Federal Indian Law, supra note 21, §§ 15.04[1], 15.06[2] (“Land acquired by various methods may be treated similarly for many purposes, such as application of restrictions against alienation” or transfer; “In general, lands guaranteed to tribes in fee are subject to the restraint on alienation.”). But see infra note 38 (discussing examples of tribal fee-simple ownership where the federal government did not hold the right of preemption).
The official name is “Muscogee (Creek) Nation.” But as of 2021, the Nation’s leadership rebranded as simply “Muscogee Nation.” See Keegan Williams, Muscogee Nation Drops Colonial Era Name in Rebranding, Cronkite News (May 6, 2021), https://cronkitenews.azpbs.org/2021/05/06/muscogee-nation-drops-colonial-era-name-in-branding [https://perma.cc/5YX2-WFVK]. I use “Muscogee Nation” because “Creek” was the British name, and the Tribe has always called itself Muscogee. See Michael Overall, The Muscogee Nation Is Dropping ‘Creek’ from Its Name. Here’s Why, Tulsa World (June 12, 2021), https://tulsaworld.com/news/local/the-muscogee-nation-is-dropping-creek-from-its-name-heres-why/article_3bf78738-adcc-11eb-823d-438cbdefaf21.html [https://perma.cc/X6DH-GCCX]. Where treaties, statutes, or opinions refer to the “Creek Nation,” I have substituted “[Muscogee] Nation” for consistency and clarity, except when used in source titles.
McGirt analyzes several treaties and congressional statutes. First, an 1832 treaty that guaranteed “[t]he [Muscogee] country west of the Mississippi” to the Muscogee Nation. McGirt, 140 S. Ct. at 2459 (quoting Treaty with the Creeks, Mar. 24, 1832, art. XIV, 7 Stat. 366, 368). Second, an 1833 treaty with “the whole [Muscogee] Nation of Indians” that promised the United States would “grant a patent, in fee simple, to the [Muscogee] nation of Indians for the [assigned] land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned them.” Articles of Agreement with the Creeks, Feb. 14, 1833, pmbl., art. III, 7 Stat. 417, 418, 419; see McGirt, 140 S. Ct. at 2459. Third, an 1856 treaty that promised “no portion” of Muscogee lands would “ever be embraced or included within, or annexed to, any Territory or State” and that the Muscogee Nation would have the “unrestricted right of self-government” with “full jurisdiction” over their members and property. McGirt, 140 S. Ctat 2461 (quoting Treaty with Creeks and Seminoles, Aug. 7, 1856, arts. IV, XV, 11 Stat. 699, 700, 704). Fourth, an 1866 treaty that sold the Muscogee Nation’s land to the United States at thirty cents per acre. McGirt, 140 S. Ctat 2461 (citing Treaty Between the United States of America and the Creek Nation of Indians, June 14, 1866, art. III, 14 Stat. 785, 786). The decision also cites congressional statutes or statements referring to the “[Muscogee] reservation.” See, e.g., id (citing Act of Mar. 3, 1873, ch. 322, 17 Stat. 626; 11 Cong. Rec. 2351 (1881); and Act of Feb. 13, 1891, 26 Stat. 750).
Accordingly, issues relating to individual aboriginal title or individual American Indian land ownership are beyond this Note’s scope. For more discussion of individual aboriginal title, see Cramer v. United States, 261 U.S. 219, 229-30 (1923)Because this Note focuses on land where Congress can extinguish a tribe’s claim, instances of tribal fee-simple ownership and direct transfer of land not subject to the right of preemption are also beyond its scope. See, e.g., Mark Walker, Flooding and Nuclear Waste Eat Away At a Tribe’s Ancestral Home, N.Y. Times (Nov. 13, 2021), https://www.nytimes.com/2021/11/13/us/politics/tribal-lands-flooding-nuclear-waste.html [https://perma.cc/M4ZR-4NL7] (detailing the Prairie Island Indian Community’s efforts to put land it purchased in fee-simple into federal trust in Michigan); Monica Whitepigeon, Illinois House Resolution Supports the Return of Lands to Prairie Band Potawatomi Nation, Native News Online (Oct. 21, 2021), https://nativenewsonline.net/sovereignty/proposed-to-return-of-illinois-lands-to-prairie-band-potawatomi-nation [https://perma.cc/RM36-Z8D3] (describing how, since 2006, the Prairie Band Potawatomi Nation has purchased 128 acres of its ancestral land and, and since 2014, has been trying to place that land in federal trust); Richard Read, Washington Tribe Saves Snoqualmie Falls Land, Held Sacred, From Development, L.A. Times (Nov. 2, 2019, 4:01 PM PT), https://www.latimes.com/world-nation/story/2019-11-02/snoqualmie-tribe-sacred-falls [https://perma.cc/6WGH-3PMB] (describing how the Snoqualmie Tribe purchased sacred land directly from the Muckleshoot Indian Tribe in Washington state). Finally, while this Note discusses tribes that have been federally recognized, “Indian tribe” has had a broader meaning historically. Accordingly, this Note’s adjectival use of “tribe” or “tribal” to describe certain legal claims does not automatically connote federal recognition. Rather, it references a group of American Indians who identify as a legal unit, in recognition of Federal Indian law’s evolving descriptive conventions. See, e.g., Candelaria, 271 U.S. at 442 (noting that “Indian tribe” was used during the nineteenth century “in the sense of a body of Indians of the same or a similar race, united in a community under one leadership or government” (internal quotation marks and citation omitted)); see also 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 5.02[3] (describing the scope of federal power to recognize tribes and how the judiciary has determined that groups are tribes for the purpose of interpreting federal statutes).
United States v. Santa Fe Pac. R.R., 314 U.S. 339, 353, 346 (1941). For discussion of extinguishment and the congressional-intent requirement for recognized-title claims, see 1 Cohen’s Handbook of Federal Indian Law, supra note 21, § 15.06[1] (“Only the United States can extinguish original Indian title.”); and McGirt, 140 S. Ct. at 2462 (“To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. But that power . . . belongs to Congress alone.” (citation omitted)).
Except where voluntarily waived, sovereign immunity has largely insulated the federal government from legal accountability for its encroachments on American Indian aboriginal-title land. By contrast, tribes’ assertions of title to privately or state-held lands have been more successful. In some cases, the United States has even intervened on tribes’ behalf—although not necessarily with the outcome that the tribes wanted. See, e.g., Santa Fe Pac. R.R., 314 U.S. 339 (suing on behalf of the Hualapai Tribe to enjoin the Santa Fe Pacific Railroad Company from encroaching on their aboriginal title); United States v. Platt, 730 F. Supp. 318 (D. Ariz. 1990) (asserting a prescriptive easement over private land on behalf of the Pueblo of Zuni); United States v. Atl. Richfield Co., 435 F. Supp. 1009 (D. Alaska 1977) (suing the State of Alaska and over 140 corporations and private parties on behalf of Alaskan American Indians of the Arctic Slope to argue that a congressional statute did not extinguish aboriginal title, though the Inupiat Community of the Arctic Slope intervened to claim broader damages).
Only two articles do more than reference the case in a footnote. The first includes it in an analysis of the Valles Caldera National Preserve and public land-management policy. See Melinda Harm Benson, Shifting Public Land Paradigms: Lessons from the Valles Caldera National Preserve, 34 Va. Env’t L.J. 1 (2016). The second discusses it to argue that “aboriginal rights” promote sustainable communities, compared to fee-simple ownership. See John W. Ragsdale Jr., Time Immemorial: Aboriginal Rights in the Valles Caldera, the Public Trust, and the Quest for Constitutional Sustainability, 86 UMKC L. Rev. 869, 878 (2018). Only one case has engaged with Pueblo of Jemez substantively rather than merely citing it for the legal standards it recites. United States v. Abouselman, 976 F.3d 1146 (10th Cir. 2020) (holding that Spain’s passive administration of a water system had not extinguished three Pueblos’ aboriginal water title).
790 F.3d 1143 (10th Cir. 2015). Since Pueblo of Jemez, the Tenth Circuit has affirmed that, to extinguish aboriginal title, Congress must act both affirmatively and unambiguously. See Abouselman, 976 F.3d 1146. In Abouselman, the Tenth Circuit held that Jemez Pueblo’s aboriginal water rights were unextinguished. Id. at 1159 (concluding that where Congress acted affirmatively, but its intent to extinguish was not “clear and plain,” aboriginal title was not extinguished).
Abouselman had a three-day evidentiary hearing before a magistrate judge but involved aboriginal water title, not aboriginal land title. See Abouselman, 976 F.3d at 1150. The litigation involving the Alabama-Coushatta Tribe of Texas against the United States is also distinguishable. Alabama-Coushatta Tribe of Texas v. United States, No. 3-83, 2000 WL 1013532 (Ct. Cl. June 19, 2000) (concluding that the Tribe had established aboriginal title, albeit to a smaller portion of the disputed land). Though the Court of Claims found that the Tribe’s aboriginal title was not extinguished by the Spanish, Mexican, or Texan governments, see id. at *44-53, it concluded that the United States had breached its fiduciary duty to the Tribe and awarded damages rather than considering the Tribe’s continued occupancy and use rights, id. at *78.