How can a pro-tribal decision (McGirt v Oklahoma) rely so heavily on an anti-tribal decision (Lone Wolf v Hitchcock)?

How can a pro-tribal decision (McGirt v. Oklahoma, 591 U.S. ___ (2020)) rely so heavily on an anti-tribal decision (Lone Wolf v. Hitchcock, 187 U.S. 553 (1903))?

Because the settler state is so contemptuous of its treaties that it can't even be bothered to follow its own rules for breaking them.

In 1867, the Kiowa and Comanche tribes signed the Medicine Lodge Treaty with the United States. They surrendered claims to 60,000 square miles, reserving to themselves 3 million acres, or about 7.5%, in what is now Oklahoma. By 1892, the United States had decided that that fraction was still too much, and asked the tribes to renegotiate the treaty, ceding most of the reservation, but keeping 160 acres each for individual members of the tribes. The Kiowa refused. The negotiators, nevertheless, reported back to Congress that they had been successful and Congress opened up the reservation for white settlement. The tribe sued.

The Court's decision is remarkable for the contempt it shows for both the Kiowa and the promises of Congress. It says that Congress has the power to unilaterally abrogate the treaties because Indigenous people are "wards of the nation."

These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.

In Justice Gorsuch's decision last month he doesn't challenge a word of that. He merely notes that the Mvskoke Creek reservation was never extinguished by Congress, and concludes: 

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

This verbal magic, by which a treaty is no longer a treaty, has been bothering me for a long time. In fact, I find it at the heart of the essay I wrote forty years ago to earn a Masters in history and the article I subsequently published based on that paper. I want to review the opinions of the first two commissioners of the Bureau of Indian Affairs about this question. In most respects, commissioners themselves could not have been more different in their backgrounds. But their views on tribal treaties were remarkably alike.

Eli S. Parker was a member of the Tonawanda Seneca tribe, holding the title Donehogawa, or Keeper of the Western Door, in the Haudenosaunee confederation. As a young man he worked as a translator for tribal leaders in Washington, DC. After completing his legal studies he was denied membership in the New York State Bar on the grounds that he was an Indian. He then studied civil engineering at Rensselaer Polytech and worked on the construction of the Erie Canal. Despite his considerable skills, Parker was rejected from the Army when the Civil War broke out. But he was a personal friend of Ulysses Grant and became his adjutant. With Grant's rise to lieutenant general, Parker became a brigadier general. 

Lately people have made some rather strange assertions about Robert E. Lee, claiming that the general of the Confederate Armies was not a racist. When he met Grant at Appomattox Court House to surrender in 1865 he froze at the door when he saw General Parker sitting at a desk prepared to take meeting notes. Grant had to reassure Lee that Parker was a Native, not an African American, before Lee would enter. 

When Grant became President in 1869 he promised a policy of peace with Indigenous peoples and made Parker his Commissioner of Indian Affairs. He served in that position for two years before his enemies managed to drive him out.

He was followed by Francis Amasa Walker, another breveted brigadier general from the Civil War, but otherwise with a very different background. His dad was a professor of economics at Oberlin, Amherst and Harvard, as well as a Member of the US House of Representatives. Walker used his political connections to get himself named head of the US Census. He later served as president of MIT for fifteen years. He became Commissioner of Indian Affairs as a political maneuver to keep him paid to finish his work at the Census when that became overly politicized and ran overly long. Accusations by his enemies that he was corrupt didn't stop him joining in the (false) chorus of accusations against his predecessor at the Bureau of Indian Affairs.

I will begin with Walker. What was his view of treaties? Only a few years after he left government service he wrote the atrocious The Indian Question. Here is a brief sample:

It should be remarked that there can be no question of national dignity involved in the treatment of savages by a civilized power. The proudest Anglo-Saxon will climb a tree with a bear behind him, and deem not his honor, but his safety, compromised by the situation. With wild men, as with wild beasts, the question whether to fight, coax, or run, is a question merely of what is easiest or safest in the situation given. Points of dignity only arise between those who are, or assume to be, equals. Indeed, nothing is at times so contemptuous as compliance. It indicates not merely a consciousness of strength, but of strength so superior as to decline comparison or contest. Grant that some petty Sioux chief believes that the government of the United States feeds him and his lazy followers out of fear, or out of respect for his greatness: what then? It will not be long before the agent of the government will be pointing out the particular row of potatoes which his majesty must hoe before his majesty can dine.

 I don't know what needs explaining about this. I will just say that he clearly doesn't believe that agreements made with the Sioux deserve to be treated as anything other than momentary necessities, not deserving compliance by "proud Anglo-Saxons."

But what about Parker? He was a Seneca himself. He had been a member of treaty delegations. He had also - repeatedly - experienced the unwillingness of "proud Anglo-Saxons" to accept him professionally, despite his qualifications and accomplishments. General Parker wrote a manuscript autobiography which his nephew, the historian and archeologist Arthur Parker, presented to the Buffalo Historical Society. In it, the Seneca chief made these comments on treaties:

And just here I may mention the absurdity of the United States Government making treaties with the Indian tribes of the country, tribes that number all the way from 500 souls to 25,000. They have all been declared the wards of the Government, and they all live within its jurisdiction, and yet these dependent people are treated as though they were independent, sovereign nations. Every contract or agreement made with them, whether few or many, is subjected to the same form and ceremony of consideration, ratification and proclamation as is a treaty with Great Britain, France or any other great independent power. I, perhaps, ought to be the last person to find fault with such a condition of things. I suppose that I ought to be very proud, I ought to swell out as a turkey-cock, that, with a few hundred ignorant Indians at my back,I can consider myself the head of a strong, independent sovereignty, and treat with the great United States as if I were Russia, or Germany, or China, or Japan. But I have no such feeling. On the contrary I am humiliated. For I know too well the great wrecks of violated Indian treaties that are strewn in the historical pathway of the United States. 

The similarities of this statement with that of Frank Walker are more noteworthy than the differences. Sure, Parker is upset at the history of broken treaties. But his words convey the same contempt: wards, dependent, ignorant. He clearly believed that Congress should not be making treaties with the tribes. Walker found treaties to be acceptable contingencies: no dishonor in making them; none in breaking them, either. Eli Parker considered them a humiliation... dishonoring indeed. Neither considered them binding or a blueprint for a future relationship.

But the tribes have not gone away. The tribes have not surrendered. Maybe Frank Walker imagined that the white Americans possessed "strength so superior as to decline comparison or contest." Maybe Eli Parker believed, as he wrote, that the treaties were like a jug handle with all the benefit and all the power on one side. But the tribes have found power and benefit even in the one-sided decision of Lone Wolf v. Hitchcock. Because Congress couldn't even be bothered to extinguish its post-Civil War treaties with the Creek, Choctaw, Chickasaw, Cherokee and Seminole, they now find that the reservations comprising the entire eastern half of Oklahoma are still in effect. Because Congress couldn't even be bothered to extinguish the treaty rights of the Lakota to the Black Hills of South Dakota, those rights are still being litigated today. (The tribes have yet to accept the cash awarded in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) and the amount has grown with interest to over $2 billion.)