Wambdi A. Was’teWinyan
In the huge victory of the McGirt v. Oklahoma decision on July 9, 2020, it is finally apparent that when the law is applied even-handedly, without special twists placed on Native Americans, our homelands are forever enshrined in the treaty promises made by and with the United States.
The McGirt decision is justice long overdue with the majority opinion holding the United States to the treaty rights promised to the Muscogee (Creek) Nation for a permanent homeland. The reasoning employed in the decision is the focus of this article as that reasoning overturns decades of indulgence in U.S. Supreme Court decisions twisting the law as applied to Native Americans by inserting extraneous commentary and population statistics to achieve the desired result of taking away tribal lands.
In the McGirt dissent by Chief Justice John Roberts, we witness the four dissenters seeking to stick to the old lines of reasoning that go beyond interpretation of the law and add in other “factors”. Roberts in the early pages of his dissent argues that the Court cannot simply rely on the law passed by Congress, but must also take into consideration “all surrounding circumstances” and the “contemporaneous understandings” of the law and the “subsequent status” of lands and the “pattern of settlement” on those lands to decide if a reservation exists.
In footnote 5, the dissenting opinion pulls out of context words spoken by the Muscogee (Creek) principal chiefs to justify the view that awareness that their tribal lands were under attack was evidence that the lands were no longer tribal. Maligning tribal leaders to justify land dispossession is stooping very low.
But this is exactly what happened in 1975 with the decision in DeCoteau v. District County Court, 420 U.S. 425, and this decision is cited over and over every time there is an attack to the status of a reservation. It is time to set the record straight on this decision and to make a call to action for tribal leaders, organizations, allies in Congress and throughout Indian Country to right this wrong and stop using the Sisseton-Wahpeton Dakota’s allotment of lands in 1891within the reservation to justify holding the reservation was “dis-established” in 1975.
When Cheryl Spider DeCoteau challenged South Dakota social workers for removing her two boys from her custody, she brought an action in state court challenging the state’s jurisdiction on the Sisseton-Wahpeton Dakota’s Lake Traverse Reservation. This was a pre-ICWA removal of Indian children. The state court decision in favor of state jurisdiction was affirmed up through the South Dakota Supreme Court upholding the state actions and denying reservation status due to the allotment act in 1891.
The appeal was then joined with the Eighth Circuit decision, United States ex. rel. Feather v. Erickson, 489 F.2d 99 (8th Cir. 1973), challenging state criminal jurisdiction on the same reservation and holding that the state could not criminally charge on the Lake Traverse Reservation. With exact opposite decisions before the U.S. Supreme Court, the 6-3 decision eventually handed down affirmed the South Dakota Supreme Court and reversed the Eighth Circuit decision in twisted reasoning that veered far from applying the law of Congress.
In the majority opinion in DeCoteau, much is made of reports by the bankers negotiating for the opening of the reservation for allotments and their written statements on what the Indians desired. Tribal leaders sought fulfillment of prior obligations by the United States on scouts’ payments and were willing to consider allotments within the reservation to receive the delinquent payments. All the 1891 Allotment Act did was allow for the purchase of allotments within the reservation. This is the plain reading of the federal law.
This is what the McGirt decision tells us, “If Congress wishes to break the promise of a reservation, it must say so.” In the 1975 DeCoteau case, the dissent by Justice Douglas rightly noted, “There is not a word to suggest that the boundaries of the reservation were altered.” 420 U.S. at 461.
The majority opinion in DeCoteau engaged in asserting extraneous information to find a basis for “dis-establishing” the reservation by downplaying the tribal governmental authority, relying on newspaper accounts clearly not in favor of Tribes, and demographics of non-Indians within the boundaries. For example, the Court incorrectly stated the first tribal constitution as adopted in 1946 when the actual date of the first tribal constitution was 1884. Every tribal constitution to the present-day has stated the jurisdiction of the Tribe extends to the boundaries of the 1867 treaty-established reservation.
Further, the majority opinion cited to a newspaper article from the Minneapolis Tribune dated May 22, 1889 supposedly quoting tribal leaders as stating they did not think the reservation would exist for their lifetime, 420 U.S. at 433-434. Further, the DeCoteau majority early notes tribal members are outnumbered within the boundaries with no citing authority for asserting 30,000 non-Indians and 3,000 tribal members. Demographics in the 1970s have nothing to do with the promises in the 1867 treaty-created reservation.
In the McGirt decision, this kind of “substitution” of stories for laws “highlights the pitfalls of elevating commentary over the law” which the majority rejected as not the right practice in the U.S. Supreme Court.
It is time to course correct the negative consequences from the wrongly decided DeCoteau case and wipe away the injustice of that ruling which continues to be used as a threat over Indian Country. The Sisseton-Wahpeton Dakota have never relinquished our beautiful Lake Traverse Reservation and we call upon the U.S. Congress to rectify the 1975 DeCoteau decision as a judicial error, by passing federal law to re-recognize our reservation boundaries.
Angelique W. EagleWoman, (Wambdi A. Was’teWinyan), is Co-Director of the Indian law program and a law professor at Mitchell Hamline School of Law and has served as a pro tempore Tribal Judge in several Tribal Court systems. As a practicing lawyer, one of the highlights of her career was to serve as General Counsel for her own Tribe, the Sisseton-Wahpeton (Dakota) Oyate. She graduated from Stanford University with a BA in Political Science, received her Juris Doctor degree from the University of North Dakota School of Law with distinction, and her L.L.M. in American Indian and Indigenous Law with honors from the University of Tulsa College of Law. Follow her on Twitter @ProfEagleWoman