Justice Neil Gorsuch opened his opinion in the landmark case McGirt v. Oklahoma with a passage that underscored both his understanding of the Muscogee (Creek) Nation’s treaty and removal history and the importance of that history in his decision. After briefly recounting the series of negotiations that led to the Tribe’s removal from their traditional lands in Alabama and Georgia to a new “permanent home” in present-day Oklahoma, Gorsuch stated, “On the far end of the Trail of Tears was a promise” and the Court would “hold the government to its word.” McGirt v. Oklahoma, 591 U.S. 894, 897–98 (2020).
As a Westerner with significant experience in federal Indian law, Justice Gorsuch’s appointment to the Court in 2017 added a depth of knowledge in this area of law that justices, both past and current, largely lacked. None of the judges confirmed after Gorsuch—Justices Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson—matched Gorsuch’s level of expertise. Indeed, few justices have. This has created uncertainty about how the Court will address cases involving tribal sovereignty and Native American treaty rights, which are often at the heart of tribes’ efforts to establish their water rights, protect access to treaty-guaranteed off-reservation resources, and assert jurisdiction over reservation lands and waters.
Among the fundamental tenets of federal Indian law are the so-called Indian canons of construction, under which the courts are supposed to interpret both treaties and statutes affecting tribes “in the sense in which they would naturally be understood by the Indians,” with “ambiguities resolved in favor of the Indians.” Herrera v. Wyoming, 587 U.S. 329, 345 (2019). The application of these canons often requires analysis of the historical circumstances surrounding the negotiation of the relevant treaties, agreements, executive orders, or statutes involved in a particular case.
Despite the Court’s long-held acknowledgment of the Indian canons of construction, how the Court applies these canons—and how it interprets the historical evidence needed to apply them—has varied widely. As Professor Matthew Fletcher has pointed out, justices often have treated these canons “as voluntary,” while some “refuse to respect the canons at all.” Matthew L. Fletcher, Textualism’s Gaze, 25 Mich. J. Race & L. 111, 138 (2020). Even when the Court attempts to apply the Indian canons, many justices have failed to consider how the affected tribes understood the pertinent treaties and other legal instruments at the time they were negotiated and enacted.
Although Justice Gorsuch has shown himself to be “the rare judge who takes seriously the views of Indian tribes in interpreting Indian law,” id. at 111, 114, his appointment alone will not necessarily determine how the Court applies the Indian canons, how it analyzes historical evidence in federal Indian law cases, or whether the Court will more consistently consider the affected tribes’ understanding of the treaties, agreements, executive orders, and statutes at issue in the cases they bring before the Court.
This article reviews four decisions issued by the Court since Justice Gorsuch’s confirmation to assess how advocates can expect the current Court to interpret and analyze the historical evidence that often underpins Native American legal cases. The first two cases—Herrera v. Wyoming and Arizona v. Navajo Nation—involved tribal treaty rights, while the latter two cases—McGirt v. Oklahoma and Oklahoma v. Castro-Huerta—were criminal cases that assessed tribal jurisdiction within reservations affected by allotment. Of these four, tribal interests won two and lost two, with the wins and losses distributed evenly between treaty rights and tribal jurisdiction cases and with all four determined by 5–4 votes.
Following this discussion, the article concludes by noting Justice Clarence Thomas’s attack on the Indian canons of construction in his concurring opinion in the 2023 Arizona v. Navajo Nation decision. Although no other justices joined Thomas’s dissent, his opposition to the canons and to the United States’ trust relationship with tribes bears watching. This is especially true, given the inconsistent ways in which the Court has recently applied the Indian canons and how it has used—or ignored—the historical evidence on which the canons often rely.
Decided in May 2019—after Justices Gorsuch and Kavanaugh had joined the Court but before Justice Barrett’s and Justice Jackson’s confirmations—Herrera v. Wyoming addressed the Crow Tribe’s off-reservation hunting rights guaranteed in an 1868 treaty between the Crows and the United States. 587 U.S. at 329. While the Tribe argued that its treaty rights remained in force, the state of Wyoming contended that statehood had impliedly abrogated the Crows’ off-reservation treaty rights, citing the Court’s 1896 opinion in Ward v. Race Horse. 163 U.S. 504 (1896) (holding that Wyoming’s statehood extinguished the Shoshone and Bannock Tribes’ treaty right to hunt). Alternatively, the state argued that the creation of the Bighorn National Forest had rendered those lands occupied under the terms of the 1868 Crow Treaty, thereby negating the Tribe’s off-reservation hunting rights within that area.
Justice Sonya Sotomayor’s majority opinion—which Justices Gorsuch, Ruth Bader Ginsburg, Elena Kagan, and Steven Breyer joined—found that the Crow Tribe’s treaty-guaranteed hunting rights survived both Wyoming’s statehood and the national forest’s creation. As a first step, she assessed whether the Race Horse decision was still valid, finding that the Court’s 1999 ruling in Minnesota v. Mille Lacs Band of Chippewa Indians had effectively repudiated that century-old case. 587 U.S. 329, 342 (1999). Sotomayor’s opinion next held that the 10th Circuit decision relying on Race Horse to find that the Crow Tribe’s off-reservation hunting rights did not survive statehood likewise held no weight. Id. at 344. The opinion then outlined the analytical framework that Mille Lacs required in tribal treaty rights cases, including the need to (1) show clear evidence that Congress intended to abrogate the treaty and (2) assess the treaty’s terms as the Tribe would have understood them at the time of its negotiation. Id. at 344–46.
To undertake this analysis—effectively an application of the Indian canons of construction—Justice Sotomayor relied upon not only the text of the 1868 Crow Treaty but also treaty minutes and other historical documents produced near the time of the treaty. According to Sotomayor, these historical documents showed that tribal leaders had emphasized their need to continue hunting on the lands they were ceding under the 1868 treaty and that federal negotiators continually assured them they could continue to do so. By contrast, the state of Wyoming merely provided a “potpourri” of historical sources to claim, unpersuasively, that statehood “effectively coincided with the disappearance of the wild frontier,” which had allegedly “rendered all the lands in the State occupied” under the treaty’s terms. Id. at 347.
Since the Tribe’s off-reservation hunting rights only extended to lands that were unoccupied, Justice Sotomayor also considered how Crow tribal leaders who participated in the treaty negotiations would have understood the meaning of that term. Applying a Mille Lacs–based analysis, Sotomayor again used historical sources to find that both the Crows and U.S. officials acknowledged a “tie between the term ‘unoccupied’ and a lack of non-Indian settlement.” Id. at 351. In other words, for the Crow Tribe, the term “unoccupied” meant a “lack of settlement” by non-natives. Id. at 351. As such, Justice Sotomayor found Wyoming’s argument that the creation of the Bighorn National Forest had rendered those lands occupied under the treaty unpersuasive.
Unlike Justice Sotomayor’s opinion in Herrera, Justice Kavanaugh’s June 2023 majority decision in Arizona v. Navajo Nation—a case involving the Navajo Nation’s breach of treaty and trust claims against the United States regarding the Tribe’s water rights—included virtually no analysis of historical sources that shed light on Navajo leaders’ understanding of the terms of their 1868 treaty. 599 U.S. 555 (2023). Despite briefly referencing “the treaty’s text and history,” Justice Kavanaugh ignored the many historical sources that showed the importance the Tribe placed on water in establishing their reservation. Id. at 558. Instead, his opinion—which Justices John Roberts, Samuel Alito, Clarence Thomas, and Barrett joined—relied almost exclusively on the text of the 1868 Navajo Treaty to find that it did not require the United States “to take affirmative steps to secure water for the Navajos.” Id. at 558–59.
Justice Kavanaugh made only one fleeting reference to the “historical record” on the last page of his opinion. Here, he claimed that historical sources did not “suggest that the United States agreed to undertake affirmative efforts to secure water for the Navajos” and that the treaty minutes did not mention “any water-related obligations of the United States.” Id. at 569. As such, he concluded that the Court should not “rewrite and update this 155-year-old treaty.” Id. at 559.
However, as Justice Gorsuch’s dissenting opinion—which Justices Sotomayor, Kagan, and Jackson joined—makes clear, Kavanaugh’s limited engagement with the historical record surrounding the 1868 Navajo Treaty did not result from a lack of available sources, but rather from an apparent decision not to use those sources in his analysis. Gorsuch’s dissent unequivocally shows that water was central to the Tribe’s desire to return to a reservation within their ancestral homelands. Id. at 591 (Gorsuch, J., dissenting). Among the primary complaints expressed by Navajo leaders during their treaty negotiations was that the water sources at the Bosque Redondo Reservation—to which tribal members had been forcibly removed in the mid-1860s—were both inadequate and unhealthy. Id. at 577–79.
By contrast, tribal leaders told federal negotiators that “the water flows in abundance” within their ancestral territory, a fact that helped them rebuff U.S. officials’ plans to remove them to a reservation in Oklahoma. Id. at 578. The availability of clean water was also a key component of the “permanent home” the Navajo Nation expected to establish under the 1868 treaty. Id. at 590–91. Citing the Indian canons of construction, Justice Gorsuch found compelling evidence in the historical record to show that “the Navajo’s strong desire to return home rested in no small part on the availability of water there,” arguing that “few points appear to have been more central to both parties’ dealings” during treaty negotiations. Id. at 591.
As noted in this article’s introduction, Justice Gorsuch’s landmark decision in McGirt v. Oklahoma—joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—also relied on a deep understanding of the history of the Creek Nation’s treaties and the Tribe’s removal from its ancestral homelands in Georgia and Alabama. At issue in this case was the status of the Creek Reservation to determine proper criminal jurisdiction over a crime committed within its original boundaries. 591 U.S. 894 (2020).
Established under an 1833 treaty, the Creek Reservation underwent reduction by an 1866 treaty and then subsequent allotment in the early twentieth century, which led to the alienation of most lands within its borders from tribal ownership. Id. at 901, 906–07. According to the state of Oklahoma, Congress’s approval of the Creek Allotment Act in 1902, coupled with Oklahoma statehood, had impliedly disestablished the reservation. Alternatively, the state argued that Congress had never created a valid reservation for the Creeks, an assertion that Justice Gorsuch resoundingly rejected. Id. at 894–95.
Under the federal Major Crimes Act, the United States has exclusive jurisdiction over certain crimes committed between Native Americans within Indian country. 18 U.S.C. § 1153(a). Indian country includes “all land within the limits of any Indian reservation[.]” 11 U.S.C. § 1151. To determine whether the state or the federal government had the power to prosecute Jimcy McGirt, an enrolled member of the Seminole Nation, for crimes committed within the Creek Reservation’s boundaries, the Court had to decide whether those boundaries still existed—i.e., whether the crime occurred within Indian country.
Citing the Court’s prior decisions in Solem v. Bartlett (465 U.S. 463 (1984)) and Nebraska v. Parker (577 U.S. 481 (2016)) (which determined whether certain laws had diminished other tribal reservations), Justice Gorsuch wrote that only Congress has authority to disestablish Indian reservations and that it must express clear intent and use explicit language to do so. 591 U.S. at 913–14. Neither the States nor the courts can alter reservation boundaries, absent a clear expression of congressional intent. Id. at 913–14, 929.
To support disestablishment of the reservation, the state of Oklahoma pointed to a series of historical, allotment-era actions by Congress. However, according to Justice Gorsuch, neither the Creeks’ 1901 allotment agreement (which Congress approved in 1902) nor a 1908 law that facilitated the post-allotment sale of reservation lands to non-natives offered any evidence of congressional intent to erase the reservation’s borders. Id. at 905–06. Gorsuch also found unpersuasive the state’s assertion that the Tribe’s interests in its reservation had been impliedly eliminated by either Congress’s 1898 abolishment of the Creek Nation’s courts or the 1902 allotment law’s suggestion that the Tribe’s government might end in 1906 (which ultimately did not occur). Id. at 909–10.
Justice Gorsuch also rejected the state’s argument that Solem required the Court to engage in a three-step analysis that considered not only relevant laws and contemporary events but also actions and demographic changes that occurred decades after Congress enacted or ratified the pertinent statutes and treaties at issue. Noting that this third step only applied in situations where ambiguous terms were present, Gorsuch found no evidence of linguistic ambiguity in the legislation affecting the Creek Reservation. Id. at 913.
Despite this, Chief Justice John Roberts’s dissenting opinion—which Justices Kavanaugh, Alito, and Thomas joined—largely agreed with the state’s reliance on post-allotment historical sources. These sources showed, among other things, that Oklahoma had often prosecuted tribal members in state court during the twentieth century, that non-natives had moved rapidly onto Creek Reservation lands after allotment and statehood, and that early-twentieth-century observers assumed the reservation would be restored to the public domain. Id. at 917. Justice Gorsuch, though, deemed none of this evidence helpful in analyzing the meaning of the allotment-era laws affecting the Creek Reservation, especially since none of them contained any ambiguous terms or phrases. Id. at 914, 923–24.
Justice Roberts’s dissent did not agree with the state’s argument that Congress had never created a reservation for the Creek Nation or with its assertion that the Major Crimes Act did not apply to eastern Oklahoma. However, the dissent did join the state in expressing concern about the impacts of the Court’s ruling that the Creek Reservation continued to exist. Justice Gorsuch downplayed such concerns, stating that these “dire warnings are just that, and not a license for us to disregard the law.” Id. at 936. After noting that the United States had promised the Creek Nation a permanent home in Oklahoma, Justice Gorsuch concluded, “If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” Id. at 937–38.
Two years after writing the McGirt decision, Justice Gorsuch found himself on the other side of another dispute involving criminal jurisdiction within the recently confirmed Indian reservation boundaries in northeastern Oklahoma. Unlike in McGirt, the state of Oklahoma’s case against Victor Castro-Huerta involved a crime committed by a non-native person against a tribal member within reservation borders. Since the Major Crimes Act in the McGirt case only applied to tribal citizens who committed crimes in Indian country, the Court in Oklahoma v. Castro-Huerta had to determine whether the federal government had exclusive jurisdiction or if the state of Oklahoma held concurrent jurisdiction with the United States over Castro-Huerta’s crime. 597 U.S. 629 (2022).
Writing for the 5–4 majority, Justice Kavanaugh ruled that the latter was true. Employing a text-based analysis of the laws at issue in the case, Kavanaugh’s opinion—which Justices Roberts, Thomas, Alito, and Barrett joined—found that neither the General Crimes Act nor Public Law 280 had explicitly preempted the state’s power to prosecute crimes committed by non-natives on reservation lands located within state boundaries. Id. at 638–39. Absent any clear preemption of state authority by Congress, the Court determined that the state retained concurrent jurisdiction over non-native crimes in Indian country, which, after McGirt, included more than 40% of Oklahoma’s lands. Id. at 647.
After outlining the text-based reasoning behind the Court’s Castro-Huerta opinion, Justice Kavanaugh then responded to Justice Gorsuch’s dissent, claiming it mistakenly emphasized “the history of mistreatment of American Indians” and the promises made to tribes in nineteenth-century treaties. Id. at 652. As shown above, Gorsuch’s focus on these treaties in his Castro-Huerta dissent tracked with his writings in McGirt and Navajo Nation, as well as with the Court’s long-held adherence to the Indian canons of construction.
As in these other cases, Gorsuch’s dissenting opinion in Castro-Huerta—which Justices Breyer, Sotomayor, and Kagan joined—highlighted tribal understandings of a series of treaties in which the United States promised Cherokee leaders that the lands at issue in the case would remain under tribal and federal, not state, jurisdiction. Under these treaties and subsequently enacted laws, Gorsuch asserted that the United States’ promise that states would have no role in prosecuting crimes committed by or against tribal members in Indian country remained intact. Id. at 661–62 (Gorsuch, J., dissenting). Moreover, unlike Kavanaugh, Gorsuch viewed Congress’s passage of the 1906 Oklahoma Enabling Act as a reaffirmation of this promise since the law required the new state to disclaim any right to tribal lands and stipulated that reservation lands would remain subject to federal jurisdiction. Id. at 662.
After recounting this history, Gorsuch called Kavanaugh’s majority opinion an “ahistorical and mistaken statement of Indian law.” Id. at 667. He then argued that the Court had misapplied preemption rules, failing to recognize that these general rules did not apply in federal Indian law and that the Indian canons required the Court to resolve ambiguities in the laws and treaties at issue in favor of tribes. Id. at 668–69. In direct opposition to Kavanaugh’s holding that Congress had to explicitly preempt Oklahoma’s authority over criminal jurisdiction, Gorsuch argued that the reverse was true, writing, “Tribal sovereignty means that the criminal laws of the States ‘can have no force’ on tribal members within tribal bounds unless and until Congress clearly ordains otherwise.” Id. at 668.
According to Gorsuch, the Court’s opinion in Castro-Huerta ignored both the United States’ treaties with the Cherokee Nation and “a mountain of statutes and precedents,” all of which showed that Oklahoma lacked power to prosecute crimes against tribal members in Indian country until it amended its own laws and secured tribal consent. Id. at 684. As such, Gorsuch viewed Kavanaugh’s opinion as “an embarrassing new entry into the anticanon of Indian law.” Id. at 684.
Looking forward, the future of the Court’s federal Indian law jurisprudence will likely depend on whether recently appointed Justices Barrett and Jackson join either Gorsuch or Kavanaugh in forthcoming Native law cases that come before the Court. Meanwhile, the rift between Justices Gorsuch and Kavanaugh over such cases could widen if Kavanaugh or others on the Court adopt the approach to the Indian canons of construction urged by Justice Clarence Thomas in his 2023 concurring opinion in Arizona v. Navajo Nation.
Although he joined the 5–4 majority’s decision against the Navajo Nation’s breach of treaty and trust claims, Thomas wrote a separate opinion “to highlight an additional and troubling aspect of this suit.” 599 U.S. at 570 (Thomas, J., concurring). According to Thomas, the case reflected recent rulings that invoked the federal government’s “amorphous” trust relationship with tribes that extended beyond the explicit, trust-based duties owed to Native Nations under specific treaties and statutes. Id. at 572.
Justice Thomas identified the Indian canons of construction as a particular area of concern, claiming that they were not appropriately grounded in the federal government’s trust relationship with tribes and that the reasoning for their application to statutes affecting Native Americans was dubious. Id. at 572. At a broader level, Thomas questioned the trust relationship itself, arguing that it lacked authority in the U.S. Constitution and that it had limited, if any, historical roots outside of Supreme Court opinions from the first half of the nineteenth century. Id. at 573.
Although no other justices joined Thomas’s concurring opinion in Arizona v. Navajo Nation, his attack on the Indian canons is worth monitoring because Native American treaty rights and tribal sovereignty cases typically hinge on how (or whether) the Court applies these canons. It is likewise important to analyze how the Court uses (or ignores) historical evidence in future Indian law cases, while also assessing whether the justices are relying on such evidence to gain insight into how tribes understood the treaties and laws at issue, as required by the Indian canons. As shown in the examples above, the Court often has used historical sources that are not contemporaneous with the relevant treaties and statutes and that focus on non-native parties’ perspectives.
In the coming years, it will be essential for Native American law practitioners to keep a watchful eye on the Court to determine whether it is moving closer to Justice Thomas’s negative view of the Indian canons and the federal trust responsibility or towards Justice Gorsuch’s historically based, pro-tribal-sovereignty approach. Historical evidence is critical to deploying the Indian canons of construction, but which side’s history gets heard by the Court remains an open question. This is especially true with a Court that not only is closely divided on federal Indian law issues but also has traditionally lacked an understanding of tribal history and its importance.
