In 1893, Congress charged the Dawes Commission with negotiating changes to the Creek Reservation. Congress identified two goals: Either persuade the Creek to cede territory to the United States, as it had before, or agree to allot its lands to Tribe members. Act of Mar. 3, 1893, ch. 209, §16, 27 Stat. 645–646. A year later, the Commission reported back that the Tribe “would not, under any circumstances, agree to cede any portion of their lands.” S. Misc. Doc. No. 24, 53d Cong., 3d Sess., 7 (1894). At that time, before this Court’s decision in Lone Wolf, Congress may not have been entirely sure of its power to terminate an established reservation unilaterally. Perhaps for that reason, perhaps for others, the Commission and Congress took this report seriously and turned their attention to allotment rather than cession.[1]
Missing in all this, however, is a statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. Without doubt, in 1832 the Creek “cede[d]” their original homelands east of the Mississippi for a reservation promised in what is now Oklahoma. 1832 Treaty, Art. I, 7 Stat. 366. And in 1866, they “cede[d] and convey[ed]” a portion of that reservation to the United States. Treaty With the Creek, Art. III, 14 Stat. 786. But because there exists no equivalent law terminating what remained, the Creek Reservation survived allotment.
In saying this we say nothing new. For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.
Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others. It isn’t so hard to see why. 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.
Oklahoma reminds us that allotment was often the first step in a plan ultimately aimed at disestablishment. As this Court explained in Mattz, Congress’s expressed policy at the time “was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing.” 412 U. S., at 496. Then, “[w]hen all the lands had been allotted and the trust expired, the reservation could be abolished.” Ibid. This plan was set in motion nationally in the General Allotment Act of 1887, and for the Creek specifically in 1901. No doubt, this is why Congress at the turn of the 20th century “believed to a man” that “the reservation system would cease” “within a generation at most.” Solem, 465 U. S., at 468. Still, just as wishes are not laws, future plans aren’t either. Congress may have passed allotment laws to create the conditions for disestablishment. But to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.[2]
[1] The dissent stresses, repeatedly, that the Dawes Commission was charged with seeking to extinguish the reservation. Post, at 18, 24. Yet, the dissent fails to mention the Commission’s various reports acknowledging that those efforts were unsuccessful precisely because the Creek refused to cede their lands.
[2] The dissent seemingly conflates these steps in other ways, too, by implying that the passage of an allotment Act itself extinguished title. Post, at 18–19. The reality proved more complicated. Allotment of the Creek lands did not occur overnight, but dragged on for years, well past Oklahoma’s statehood, until Congress finally prohibited any further allotments more than 15 years later. Act of Mar. 2, 1917, 39 Stat. 986.
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Excerpt from the opinion of the court in McGirt v. Oklahoma (2020)
