What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

Posted in: International Law

In McGirt v. Oklahoma, the Supreme Court of the United States ruled that a substantial portion of the state of Oklahoma—including most of the city of Tulsa—is an Indian reservation of the Creek Nation. Writing for the majority consisting of himself and the Court’s four Democratic appointees, Justice Neil Gorsuch found that two treaties in the 1830s created the reservation, and that while an 1866 treaty reduced its size and subsequent Acts of Congress undercut the tribe’s rights, Congress has never disestablished the reservation. Because Justice Gorsuch reaffirmed the proposition that only Congress—not a state and not the courts—has the power to disestablish a reservation, it remains valid.

There may be less to the holding in McGirt than immediately meets the eye.

Certainly the case does not transfer title of any land currently owned by non-Native persons to the Creek. The precise issue in the case was narrow and technical. A federal statute, the Major Crimes Act, provides that tribal members accused of certain serious offenses occurring “within the Indian country” are subject to criminal prosecution in federal court rather than in state court or tribal court. Accordingly, McGirt’s state court conviction for a gruesome sex crime against a four-year-old girl was set aside. Subject to the statute of limitations and the availability of evidence, he can be retried in federal court.

Yet to focus solely on the Major Crimes Act issue in McGirt would be to miss its larger significance. Insofar as the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, there could be collateral consequences in a great many other contexts. Moreover, Justice Gorsuch’s opinion—beginning with an evocative reference to the infamous Trail of Tears—revealed that as currently constituted, the Court will give claims by Native Americans a sympathetic hearing.

But Congress Can Taketh Away

If the result and most of the reasoning of McGirt thus hold good news for claims of tribes and their members, the case also appears to come with a booby trap. Congress may, if it so chooses, wipe out the Creek reservation or any other reservation through a simple statute. The Constitution’s Supremacy Clause makes the Constitution, laws, and treaties all the supreme law of the land but specifies no priority rule among them. Accordingly, U.S. courts have long inferred one: In a conflict with either a statute or a treaty, the Constitution—as the fundamental law—prevails; but treaties and statutes are on an equal footing, so in a conflict between two or more statutes, two or more treaties, or a mix of statutes and treaties, the last in time takes precedence. As Justice Gorsuch explained in McGirt, Congress has “the authority to breach its own promises and treaties” through new legislation.

The ability of Congress to wipe out a treaty with a statute seems to make a mockery of a core principle of inter-sovereign obligations. Pacta sunt servanda expresses in Latin the fundamental notion that legal agreements, and treaties especially, are binding. Apparently, however, that maxim comes with a proviso: except upon Congress.

Yet matters are not quite that simple. Although a later-in-time statute supersedes a treaty as a matter of U.S. domestic law, the statute can put the U.S. in breach as a matter of international law. To be sure, truly foreign sovereigns may have options in response to a treaty breach that Native American tribes lack. A foreign sovereign can engage in diplomacy. It might have access to an international tribunal. It may be entitled to impose sanctions. By contrast, the U.S. Constitution treats Native tribes as what Chief Justice John Marshall described in the 1831 case of Cherokee Nation v. Georgia as “domestic dependent nations,” who, owing to their dependence, have less capacity to protect their treaty rights than do fully independent sovereigns.

Less does not mean no capacity, however. As illustrated by Marshall’s rebuke of Andrew Jackson and the state of Georgia in Cherokee Nation and Worcester v. Georgia a year later—as well as by Justice Gorsuch’s opinion in McGirt—the Supreme Court stands ready to protect tribal treaty rights against usurpation by states, presidents, and even courts. Insisting that Congress and Congress alone can supersede treaty rights provides substantial protection against powerful actors who might otherwise be inclined to disregard tribal rights.

Meanwhile, as Justice Gorsuch noted in McGirt, the cumbersome process for the enactment of federal legislation set forth in Section 7 of the Constitution’s Article I means that inertia will also typically operate to protect a tribe’s rights. Requiring a clear statement by Congress to disestablish a reservation created by treaty—as the Court required in McGirt—goes a long way towards ensuring that Congress will leave treaty rights intact.

The Stickiness of Rights

Overcoming legislative inertia is difficult in all circumstances, but there is a further reason why it ought to be especially difficult if undertaken with the goal of breaching a treaty with a Native tribe: doing so is patently wrong. European settlers and their successors robbed Native peoples of their lands, committed genocide against them, removed their children, and sought to assimilate them into the dominant culture. However, most of those atrocities occurred in a time of unabashed and official white supremacy that just about every responsible adult other than the current President now repudiates. Given this country’s shameful treatment of the continent’s First Peoples, it is virtually unthinkable that Congress would expressly repudiate treaty obligations to Native tribes and their surviving members.

Wait, you say. Members of Congress care about their constituents, some of whom might in turn favor just policies towards Native Americans but many of whom have other priorities. Am I being naïve in suggesting that Congress would feel a moral obligation to respect treaties with Native peoples?

I don’t think I am. There is substantial evidence that legislators who have the power to override rights will not do so if they must expressly proclaim the violation. Consider Article 33 of the Canadian Charter of Rights and Freedoms, which allows the national Parliament and the provincial legislatures to override fundamental rights as found by the courts for a renewable period of five years by a simple majority vote to enact the override “notwithstanding” the rights violation. In strictly formal terms, one might think that the so-called Notwithstanding Clause makes constitutional rights subject to legislative supremacy, but in fact the Clause has never been used by the national Parliament and, outside of Quebec, has very rarely been invoked by provincial legislatures. The obligation to own rights violations deters those violations.

Lest readers think that experience under the Notwithstanding Clause reflects the special politeness of our neighbors to the north, note a similar phenomenon in the United States. Article I, Section 9 of the federal Constitution recognizes the power of Congress to suspend the writ of habeas corpus. The Supreme Court has indicated that courts will give great (perhaps even complete) deference to a congressional decision to suspend the writ. At the same time, however, in construing acts of Congress, the Court has employed a presumption in favor of judicial review, thereby entertaining petitions that Congress probably would have preferred to be disallowed. And yet, Congress has only taken the extraordinary step of suspending habeas a handful of times in U.S. history, pointedly not doing so even in response to Supreme Court rulings with respect to Guantanamo Bay detainees in the first decade of the twenty-first century.

Why has Congress been reluctant to use its power under the Suspension Clause? The most plausible answer is that, like the Canadian Parliament, the U.S. Congress does not want to expressly state for the court of history that it is authorizing rights violations.

Justice Gorsuch’s opinion for the Court in McGirt refused to deem treaty obligations to the Creek repudiated absent a clear statement by Congress. As a formal matter, that might not seem like much protection, but in operation it is. Thankfully, the members of one of the political branches of the federal government are still capable of feeling shame—which turns out to be a pretty good guarantor of legal rights.

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