Surprised To Find Them There

There are neat parallels, where assumed supremacy left old property rights intact, in both McGirt v Oklahoma, the case where East Oklahoma is recognized as a Muscogee (Creek) Indian reservation, and Mabo v Queensland No 2, where ‬Australian native title was first recognized.

In both cases the court held that the relevant power could have extinguished title at any time by passing a new law. But the government never got around to it, so the court found the balance of continuity lay with the original, indigenous claim.

In the Australian case, Queensland parliament had the power, and there was no explicit treaty. So it turned on recognizing something like ordinary title property rights based on continuous occupation from before British settlement, and that they were not changed by transfer of the sovereign power.

In Oklahoma, Congress, ie the US federal government, had the power, there was an explicit treaty, and the case turned on rights of self-government not being undermined by sale of ordinary property title within the granted reservation.

The success of these moments of self-determination depend on an inherent tensions in conservatism: fidelity to old written law versus preservation of settled arrangements versus interests that happen to hold power today. Conservatism’s devotion to history is also its vision of the future: the idea that certain old practices and values, perhaps hard to explicitly name, are part of the world to come.

You see this in both cases. The arguments in Mabo include a long history of different forms of property title across the world. McGirt rests on originalist fidelity to the legal text, argued by the conservative Justice Gorsuch. Note too that justice and self-determination here emerges from the messiness of the law: the legislative remnants of a colonial project not carried to its logical rectilinear endpoint.

Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time. But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.

– Neil Gorsuch, McGirt v Oklahoma