Doctrine
disestablishment
Disestablishment means Congress ended a reservation entirely; courts require clear intent from Congress, and McGirt (2020) held the Creek Reservation was never disestablished.
- Definition
- Congress eliminating a reservation entirely.
What happened
Disestablishment is the complete end of a reservation, where diminishment only shrinks its boundaries. The Supreme Court has said that only Congress can do either one, and that doing so requires a clear expression of congressional intent. The Court has also said it will not lightly infer such a breach once Congress has established a reservation.
Some cases do find disestablishment. In DeCoteau v. District County Court (1975), the Court held the Lake Traverse Reservation in South Dakota, created by an 1867 treaty, "terminated and returned to the public domain by an 1891 Act" that ratified a previously negotiated 1889 agreement with the tribe. The syllabus says the Act opened all unallotted lands to settlement and also appropriated money.
More recently the Court went the other way for the Creek Nation. In McGirt v. Oklahoma (2020), the Court wrote that Oklahoma had pointed to no language in the relevant statutes that could plausibly be read as an act of cession, and that the Creek Reservation "persists today." It also said Congress "has since broken more than a few promises to the Tribe" yet that did not end the reservation.
The Court's reasoning in McGirt includes this passage: "wishes don't make for laws." Legislators may wish an inconvenient reservation would disappear, but Congress must actually disestablish it.
Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error
What the sources say, and how this was checked
Well supported by the sources below.
held terminated and returned to the public domain by an 1891 Act
DeCoteau v. District County Court, 420 U.S. 425 (1975), Cornell LIIOnce a federal reservation is established, only Congress can diminish or disestablish it.
McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020), Cornell LIICongress has since broken more than a few promises to the Tribe. Nevertheless, the Creek Reservation persists today.
McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020), Cornell LIIBut wishes don’t make for laws
McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020), Cornell LII
Research notes. DeCoteau is described only through its syllabus and first paragraphs; the tribe's own view was not examined. Rosebud Sioux Tribe v. Kneip (1977) was fetched but not read. The last quoted line from McGirt is the Court's rhetoric, not a legal rule. Oklahoma's later efforts to limit McGirt (including Castro-Huerta) are covered in the criminal jurisdiction record.
Who is doing the work
Native legal and land defense, nationally
- Native American Rights Fund (NARF) Native-led Litigation and legal advocacy for tribal sovereignty, treaty rights, land and resources Give on their site Website
- NDN Collective (LANDBACK Campaign) Native-led LANDBACK campaign (launched 2020; Mount Rushmore closure and return of Black Hills public lands), Indigenous… Give on their site Website
- Indian Land Tenure Foundation (ILTF) Native-led Land recovery and control by tribes and individual Indian landowners Website
- Decolonizing Wealth Project (Indigenous Earth Fund; California Tribal Land Return) Native-led Reparative philanthropy Give on their site Website
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Connections
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Sources
No source is linked to this record yet. That is a gap we are working to close.
- Kind
- Doctrine
- Confidence
- Medium