Ius & Iustitium is happy to present this guest post by Dr. Jonathan Askonas. Dr. Askonas is an assistant professor of politics at the Catholic University of America and a Fellow at the Center for the Study of Statesmanship.
Last week, the Supreme Court issued a stunning decision in favor of tribal sovereignty in McGirt v. Oklahoma. The case turned on the question of whether the Creek reservation was ever disestablished by Congress, and therefore whether Creek sovereignty was extinguished in favor of the State of Oklahoma. Most of the arguments in the opinion are over whether Congress’s various actions diminishing or infringing on the original rights granted to the Creek were sufficient to count for disestablishment. But underlying the dissenting opinion (that Congress had disestablished the Creek reservation) is a fatal flaw: the collapsing of the distinction between imperium and dominium that is essential to the ius gentium and that is explicitly incorporated into American constitutional law on this very issue.
Written by Chief Justice Roberts, the dissent rests on a basic fact: the Creek Nation today owns essentially no land. From this the dissenters conclude that “Congress destroyed the foundation of sovereignty by stripping the Creek Nation of its territory.” Not so! While there is an intrinsic connection between the control of territory and the ability to order it through law, the common law tradition is built upon a distinction between rights of jurisdiction (imperium) and rights of property (dominium).
In the wake of the collapse of the Western Roman Empire, lawyers, statesmen, and canonists began knitting back together a legal order out of the mishmash of rediscovered Roman law, feudal tradition, and canon law. What emerged was a cohesive continental legal order (ius gentium) adjudicating various claims of rights, ownership, and jurisdiction that emerged out of the patchwork of feudal conquest, barbarian tribalism, and Christian mission work. Within this res publica Christiana, the pope exercised a universal jurisdiction to adjudicate disagreements. Precisely because various political powers were not operating under anarchy but within Christian brotherhood, the occupation of territory by violence could not provide a totalizing legitimacy for the disposal of that land and its people. What emerged as a result, mediated by canon law, were claims of political-legal jurisdiction (imperium) over territories and political communities and various kinds of rights to land and things (dominium). These were, in a sense, a reflection of the universal scope of the Christian republic (which does not depend on which political ruler “owns” the land) and the particular spatial claims of the political entities within it (which do depend on the particularities of territorial control). While the imperium/dominium distinction is often interpreted as the divide between public and private law, it is conceptually not a division of spheres of influence but two aspects of a unified order aimed at the common good.
The distinction between sovereignty and property is not only an enduring element of the ius gentium that forms the basis of the common law tradition. It is explicitly incorporated into US constitutional law through the Chief Justice Marshall’s decision in Johnson v. M’Intosh, on the question of the source and limits of Federal jurisdiction over Native Americans and their land, and whether the Federal government had the authority to regulate intercourse (including land sales) between private citizens or the States and native parties. To address this question, Marshall had to address what the source of American jurisdiction over natives was in the first place. Quoting liberally from international law, he traces the history of the extension of the European legal order over the Americas, from Henry VII’s 1497 charter to John Cabot onwards. He quickly distinguishes between the question of whose legal order might obtain from the question of what rights in property might exist. Within the European legal system, aboriginal inhabitants still had property rights to land that they used and cultivated. And the existence of a supervening European colonial legal system did not annihilate pre-existing native political institutions.
By common law, custom, and treaty, the Federal government maintained sole jurisdiction over native peoples and their land, especially against States or individuals. In treaty after treaty, and in Acts of Congress, American statesmen raised two related but distinct questions: 1) What kinds of rights in property did Native Americans retain? and 2) how could their distinctive institutions of government and habits of culture be accommodated while insuring peace and unity for both Indians and non-Indians?
The first question was addressed by property law and, underlying it, theories of the origin and purpose of property (dominium). There is no merit to the infantilizing idea that Europeans stole Native American property because natives had no sense of property ownership. While natives did not hold property as individuals, they absolutely understood the exclusive use of territory, and fought wars with each other and with European settlers over territory. For that matter, inalienable common property ownership (such as village commons or meadows) was still quite routine in European society. And so, from the first settling of America, European law recognized the rights of “aboriginal title” and native ownership of property. In order to prevent conflict and property theft, the British Crown also, by treaty, forbid any potentially contentious private sales of native land, holding them to be null and void. This authority, which the Federal government inherited, gives Congress the sole authority to dispose of Indian land and title, including the ability to convert tribal title or trusts into individual plots of land, as with the Dawes Act. Much of the history of Native American-Federal relations has been of pressure or coercion to dispose of land, usually by treaty. Playing with a losing hand, many tribes traded their lands for money to be held in trust by tribal government, guarantees and rights from the Federal government, or, as with the Creeks at Indian Removal, for land far away from European settlers which they could own and administer without external interference.
The second question concerned the purposes and extent of the legal order itself and its concrete basis in the sovereign authority of a law-giver (imperium). By virtue of the imposition of the European international legal order through “irresistible power” and the signing of treaties to chart their safest course within it, Native American tribes came under the imperium of the British Empire and, assuming its role by treaty, the United States. In exchange for this submission to the legal order of the United States, America’s leaders promised to protect the tribes against foreign powers and encroaching settlers and to promote their prosperity. Native sovereignty was subordinated but not extinguished by these treaties, because it rested on the concrete fact of a distinctive social order and pre-existing tribal government itself. “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights.” (Worcester v. Georgia, 31 U.S. 6 Pet. 515, 519 (1832).) As distinct political communities, they retained the natural right to govern themselves and to seek after the common good of their social order, in this case vouchsafed by treaty. In keeping with the ius gentium and natural law, American recognition of Native sovereignty held that imposing Anglo-American social order would be both destructive and unjust, especially to the extent that Native society already conformed to the natural law. While early American statesman hoped Native Americans would “assimilate” into the nascent political union, they understood it as a long project of education and missionary work in which, again, native self-government was a protection and pre-condition, not a hindrance (in fact, missionaries have historically been great defenders of native sovereignty, against the predations of land speculators and greedy settlers). By the time native sovereignty was being worked out in the courts, American Indians and European settlers had been in contact for hundreds of years, and the “Five Civilized Tribes” were recognized for their advancement in government, education, religion, commerce, and the arts. There was no valid legal or moral reason to deny their sovereignty or self-government.
While the subordinate status of native sovereignty raised all sorts of questions, it was always treated as a separate legal question from that of the ownership of property. American legal thinking was aided by an extensive body of European international law on partial sovereignty. Justice Marshall quotes the international lawyer Vattel on this: “Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are left in the administration of the state.” While partial sovereignty has become rarer in the postwar world, the world is still rife with holdovers from this older mode of law-making. Technically, for example, the territory of Adjara in the Republic of Georgia, remains not a fully sovereign part of that state but a suzerain claim upon Turkish land, complete with special rights secured by the Treaty of Kars (1921). In the United States, Indian sovereignty has been strongly curtailed by Congress, in treaties and acts that apply to specific territories or tribes, as well as to Native Americans as a whole. The Supreme Court’s decision in McGirt does nothing to limit Congress’ power or to provide new rights to sovereignty: it merely holds that what sovereign power remains, remains.
On the basis of the imperium/dominium distinction, US law created special jurisdictional rules for Indians, not necessarily coinciding with lands under native jurisdiction or ownership. For instance, the Federal government originally retained the right to regulate commerce between tribes and American citizens, regardless of where the exchanges actually took place. Even today, tribal criminal jurisdiction depends not only on whether the crime occurs on a reservation but on the tribal status of both the offender and the victim. While these rules may seem unusual in a legal system of presumptive equality between citizens, they are in fact historically common ways of law-making, especially around boundaries between communities. In medieval Europe, different legal rules applied to the various estates, such that (for example) an aristocrat could not be tried by a jury of commoners. Extraterritorial legal agreements were not uncommon, such that a country might reserve by treaty the right to try its citizens who committed a crime in a foreign country. Even today, extradition law, diplomatic immunity, and the military justice system provide examples of legal sovereignty that is determined by the status of persons, and not by territorial jurisdiction.
The disposal or allotment of land is an issue of property rights; where an interest in property has been extinguished, there is almost always compensation given (as in the sale of a plot of land). A change in the rights or powers of Creek government over land by Congress is an exercise of its law-making authority. While the reservation of land from free sale (the source of the term) may have been based on the near-universal method for mediating relations between Natives and Europeans in America, that practice was a product of Indian sovereignty exercised by treaty, and not in any sense a pre-condition of it, as the dissenters in McGirt would imply. And even Congressional actions that effectively forbid the Creek from exercising self-government (though never explicitly ceding Creek sovereignty to Oklahoma) at the turn of the century could not destroy the fact of their ancient political community. So, as the majority holds in McGirt, the extinction of Creek title to land and the stark limitation of tribal authority by Congress cannot in and of itself extinguish Creek sovereignty.
Collapsing the imperium/dominium divide, in America as elsewhere, is often in service of the idea that might makes right: that control of territory is the only condition of moral and political legitimacy. Reserving the ability to dispose of property and of feudal claims was often the basis of early absolutist rejection of the traditional legal order of Christendom overseen by the moral imperium of the Supreme Pontiff. The trampling of aboriginal rights all around the world accelerated as the sparse minimalist understanding of moral order as the foundation of sovereignty (imperium) found in the ius gentium was gradually displaced by arguments about the most efficient and “productive” uses of property (dominium) as the basis of rulership. The absolute nadir of the treatment of Native Americans (and of Indian sovereignty) came not in the colonial period but under the influence of scientific racism in the late 19th and early 20th century, when “reformers” destroyed tribal governments in order to convert natives into “productive” members of society.
If there is one criticism of McGirt v. Oklahoma, it is that the majority must justify its claims with a speculative Originalist reading. It is not an inherently implausible one, but it requires acting as if the majority is simply making a technically specific reading of Congressional action (while ignoring surrounding context) as opposed to a legal decision based on a weighing of ambiguous evidence. Lacking an overarching moral framework which it could assert as a legal argument, the Court must make a substantive mountain out of a procedural molehill. This gives the final decision the form of “discovering” a large Indian reservation in the penumbras and emanations of Congressional acts. What is missing is a connection of Congressional acts to the broader common law tradition on lawful intercourse between nations, including the ius gentium. The categorical distinction of imperium and dominium and the necessity of keeping faith with treaties should create a strong legal presumption on behalf of Creek sovereignty.
Jonathan Askonas