Back to Basics: The Supreme Court's Return to Fundamental Principles of Federal Indian Law in McGirt v. Oklahoma Ahead of Equal Protection Challenge to the Indian Child Welfare Act of 1978.

• Author: Russo, Nicole

"[T]he Supreme Court has been inattentive, flippant, and disrespectful of Indian rights, and has seen its task as one of finding arguments that will make actions by the other two branches appear legal. Many 'doctrines' have emerged over the course of 170 years of hearing Indian cases, but the various courts have felt no compulsion to follow precedent, nor have they paid much attention to the historical activities of the federal government toward Indians, often inventing their own version of historical activities of the federal government toward Indians, often inventing their own version of history as they decided each case." (1)

1. INTRODUCTION

   The body of law referred to as "federal Indian law" governs the legal status of Indian tribes and regulates the relationships between tribes, the federal government, and states. (2) This body of law is comprised of constitutional text, treaties between tribes and the federal government, regulations, legislation, and the jurisprudence of the United States Supreme Court. (3) Under Chief Justice John Marshall, the Court established some of the fundamental principles of federal Indian law for navigating these relationships and interpreting these sources of law in the cases commonly referred to as "the Marshall Trilogy." (4) The Supreme Court's application of those principles, however, has become increasingly inconsistent and "haphazard." (5)

   On July 9,2020, the Supreme Court issued its opinion, written by Justice Gorsuch, in McGirt v. Oklahoma, (6) a case referred to as "the most important reservation boundary case in the history of the United States Supreme Court." (7) The Court, in a five-to-four decision, held that the Muscogee (Creek) Nation's land in Oklahoma retained its status as a reservation because Congress never explicitly disestablished it. (8) As a result, the Court determined the federal government, not the State of Oklahoma, had criminal jurisdiction under the Major Crimes Act (MCA) to prosecute McGirt for his crimes committed on the land reaffirmed as part of "Indian country." (9) More broadly, the opinion represents the Court's recognition of tribal sovereignty, the sanctity of treaties, and "holding] the government to its word" in its promises to tribes. (10)

   While McGirt represents a win for Indian interests, the Court will soon address a threat to federal Indian law--in February 2022, the Court granted certiorari to an appeal attacking the constitutionality of the Indian Child Welfare Act of 1978 (ICWA), which the Fifth Circuit Court of Appeals had reviewed en banc in April 2021. (11) The challenge argues in part that statutory distinctions made between Indians and non-Indians constitutes racial discrimination under the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. (12) The stakes could not be higher, as almost all of federal Indian law--including statutes and regulations advantageous to Indian interests--distinguishes between Indians and non-Indians and could be deemed unconstitutional if this challenge ultimately succeeds. (13)

   This Note begins by tracing the Supreme Court's development of the fundamental principles of federal Indian law back to the Marshall Trilogy cases. (14) Next, this Note examines the Court's wavering adherence to these principles, resulting in incoherent Indian law jurisprudence leading up to the McGirt decision. (15) This Note then provides the factual background for the McGirt case and explains the majority's holding and reasoning. (16) Next, this Note provides context to a current threat to federal Indian law: equal protection challenges. (17) This Note asserts that the McGirt opinion represents the Court's return to the bedrock principles of federal Indian law and an opportunity to establish consistency in its jurisprudence as it confronts critical issues of tribal sovereignty in the future. (18) Finally, this Note argues that if the Court maintains its faithfulness to fundamental principles of federal Indian law after McGirt, it should reject the equal protection challenges to the ICWA. (19)

2. HISTORY

   1. The Fundamental Principles of Federal Indian Law

      1. The Special Trust Relationship Between the Federal Government and American Indian Tribes

         Much of federal Indian law revolves around the unique and evolving relationship between the Indian tribes and the federal government. (20) This relationship is "founded upon historic government-to-government dealings and a long-held recognition of Indians' special legal status." (21) The Marshall Trilogy serves as the judicial origin of the trust doctrine that would shape the contours of this relationship and the status of tribes as sovereigns. (22) These three cases are Johnson v. M'Intosh, (23) Cherokee Nation v. Georgia, (24) and Worcester v. Georgia, (25)

         The first case, Johnson, arose from a land ownership dispute between a non-Indian who bought a parcel of land from a tribe and another non-Indian who subsequently purchased the same parcel from the federal government. (26) The Court invalidated the tribe's sale, reasoning that Native nations had merely an occupancy interest in their land while the U.S. government held superior title. (27) As "occupants," only the tribes' possession and use of their land was to be protected by the federal government, but they were prohibited from transferring title to anyone other than the federal government. (28) Chief Justice Marshall applied the Doctrine of Discovery, a principle that justified the European colonization of the "new" world by granting ownership to a government based on its "discovery" of the land. (29) The Court, however, recognized that tribes retained inherent--albeit limited--sovereignty. (30) In dicta, the Court indicated that tribes are a "distinct people," and this statement served as a predicate for the legal status of tribes and their relationship to the federal government as sovereigns. (31)

         In Cherokee Nation, the Cherokee Nation brought an original action in the Supreme Court seeking an injunction against the State of Georgia for enacting laws designed to "annihilate the Cherokees as a political society" and seize lands solemnly promised to them in treaties. (32) The Court determined it lacked subject-matter jurisdiction to hear the tribe's requests upon deciding that tribes were not "foreign states" under Article III, Section 2 of the Constitution. (33) The Court pointed to the Commerce Clause granting Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes" to demonstrate the explicit distinction between tribes, foreign nations, and states of the union. (34) Nevertheless, Chief Justice Marshall's lead opinion acknowledged the sovereign nature of tribes, calling them "a distinct political society, separated from others, capable of managing its own affairs and governing itself." (35) Chief Justice Marshall compared the distinctive relationship between tribes and the federal government to a "ward to his guardian," a phrase that established the trust relationship at the foundation of federal Indian law. (36) By labeling tribes "domestic dependent nations," Chief Justice Marshall recognized that while under the protection of--and arguably at the mercy of--the federal government, tribes retain limited sovereignty and nation status. (37)

         While the Cherokee Nation was not able to obtain relief from the Supreme Court, the Court addressed the applicability of Georgia law on the reservation the following year in Worcester, a case brought by a non-Indian litigant. (38) The Court held the sovereign-to-sovereign trust relationship existing between tribes and the federal government preempted a Georgia statute such that it "had no force" on the reservation. (39) The Court elaborated upon Chief Justice Marshall's argument for federal supremacy, which was based on the fact that Indian tribes were nations whose sovereignty predated the Constitution and therefore dealings with the United States were governed by international and constitutional law principles. (40)

         While this opinion reflects the Court primarily arguing for supremacy of federal law, Chief Justice Marshall also recognized the inherent sovereignty of Indian tribes. (41) Referencing the trust relationship between tribes and the federal government, Chief Justice Marshall explained, "a weaker power does not surrender its independence--its right to self-government, by associating with a stronger, and taking its protection." (42) This case remains a basis for the fundamental principle of inherent sovereignty: Tribes do not merely possess the rights and powers granted to them by the federal government, but rather retain all sovereign powers and rights not explicitly taken away by the government. (43)

      2. The Plenary Power Doctrine

         Starting in the late-nineteenth century, there was a shift in the Supreme Court's interpretation of the federal trust doctrine informing the relationship between the federal government and tribes. (44) Initially, the doctrine stood for a "special relationship" between tribes and the U.S. government wherein the government had an obligation to protect tribes from state intervention on the reservation, adhere to moral principles and "do the right thing," and follow traditions with respect to tribes. (45) As national policy goals changed dramatically to civilization and assimilation of Indians within settler culture, however, the Court manipulated the trust doctrine principles in the Marshall Trilogy from a source of obligation and protection to a source of plenary federal authority over tribes. (46)

         The plenary power doctrine stands for the principle that Congress has broad, exclusive, and "plenary" authority over both external and internal Indian affairs. (47) The Supreme Court established the plenary power doctrine in United States v. Kagama (48) when it considered the constitutionality of the MCA, which made it a federal...