In American Indian law, the most transformative victories seldom arrive with parades. They arrive as sentences: "Congress has not said otherwise." "Because the treaty means what it says." "Because jurisdiction follows the boundary the statute preserved." Those sentences depend on an architecture—expert affidavits, maps, ledgers, and a disciplined order of proof—that turns memory into law. This essay tracks that architecture from Solem v. Bartlett (1984) to McGirt v. Oklahoma (2020), Nebraska v. Parker (2016), Haaland v. Brackeen (2023), and modern treaty cases on fishing, hunting, and taxation. It is not a hymn to courts. It is a field guide for winning with documents.
I. A Holiday Spent Making a Map
In a widely read essay, historian Frederick Hoxie described spending Thanksgiving collating exhibits for a reservation boundary case, then seeing the Supreme Court adopt the rule the exhibits supported: in the absence of a clear congressional statement, allotment-era statutes do not diminish reservations. The case was Solem v. Bartlett (1984). Its doctrine is as elegant as it is conservative: text, then legislative history, then subsequent practice—in that order. It told lower courts to stop letting demography and local assumptions erase Indian Country.
What made Solem possible was not a new moral theory. It was an evidentiary discipline: show the statute; show what Congress did and did not say; show how later conduct cannot rewrite it.
II. Method, not Mood: The Solem Hierarchy
The Solem Court fixed a hierarchy that has since shaped every serious diminishment case:
- Statutory text. Only Congress can diminish a reservation, and it must do so clearly.
- Legislative history and contemporaneous understanding. If the words are ambiguous, what did Congress and agencies say?
- Subsequent demographic and jurisdictional practice. Who lived where and how did officials behave? Relevant—but last.
Why the sequence matters: for decades, states urged courts to treat settlement patterns and county lines as de facto law. Solem refused that invitation. Subsequent practice can confirm a diminishment Congress unmistakably enacted; it cannot create one.
III. From South Dakota to Oklahoma and Nebraska
Three later cases show Solem's reach:
- South Dakota v. Yankton Sioux Tribe (1998) cut against tribes, finding diminishment, but its analysis followed the Solem sequence—a reminder that the method is neutral even when results vary.
- Nebraska v. Parker (2016) unanimously held that Congress had not diminished the Omaha Reservation when it opened land to settlement in 1882; the village of Pender remained Indian Country. The Court's insistence on text corrected a century of local "everybody knows."
- McGirt v. Oklahoma (2020) held that the Muscogee (Creek) Reservation was never disestablished. "Because Congress has not said otherwise, we hold the government to its word." That sentence—at once plain and seismic—rested on thousands of pages of treaties, statutes, maps, and expert historiography. It reset criminal jurisdiction for five reservations covering much of eastern Oklahoma, re-centering tribal and federal authority under the Major Crimes Act.
Each victory required a record more than a mood: treaties and allotment statutes in clean copies, contemporaneous maps, enrollment rolls, surveys, and an expert narrative that taught clerks (and then Justices) how to follow the citations home.
IV. Treaty Rights as Living Law: Fish, Game, and Roads
The same evidentiary discipline animates treaty-rights cases that have reorganized economies:
- United States v. Washington (the Boldt Decision, 1974; reaffirmed many times) re-read 1850s treaties to guarantee Northwest tribes up to half the harvestable fish, relying on anthropologists and historians to reconstruct treaty negotiations and Indigenous practice. Decades later, the "culverts case" (2018) required the state to fix barriers that violated those same treaty rights.
- Minnesota v. Mille Lacs Band of Chippewa Indians (1999) upheld off-reservation usufructuary rights promised in 1837, again with expert history showing that later agreements had not extinguished them.
- Herrera v. Wyoming (2019) reaffirmed Crow hunting rights despite statehood.
- Washington State Dept. of Licensing v. Cougar Den, Inc. (2019) vindicated Yakama treaty rights to travel public highways without discriminatory fuel taxes, with historians and linguists explaining the 1855 treaty's text and the meaning of "in common with."
In each, witnesses supplied the nouns: which treaty, what clause, which map, which minutes. Judges dislike speculation; they crave records.
V. When Criminal Law Learns Geography
McGirt refocused the Major Crimes Act (1885) on a map Congress never erased. After McGirt, Oklahoma prosecutions of certain crimes by or against Native people within reservation boundaries became federal or tribal matters. Critics warned of chaos; the legal system—federal, tribal, state—did what systems do: adjust. Concurrent-jurisdiction debates continue (e.g., Oklahoma v. Castro-Huerta (2022) allowing state prosecution of some crimes by non-Indians against Indians in Indian Country), but the larger point stands: when the boundary is restored, the bureaucracy follows. That is what maps do: they do not merely symbolize authority; they route it.
Key lesson for advocates: pair boundary litigation with operations plans—cross-deputization agreements, case-transfer protocols, victim services funding—so that rights land as services.
VI. ICWA and the Art of Holding a Line
The Indian Child Welfare Act (1978) answered a catastrophic fact: state systems were removing Native children at astonishing rates, often to non-Native homes, severing tribal continuity. ICWA's architecture is procedural (notice to tribes, placement preferences, "active efforts" to prevent family breakup) and jurisdictional (exclusive tribal jurisdiction over child-custody proceedings for domiciled reservation children). In Haaland v. Brackeen (2023), the Supreme Court upheld ICWA 7–2, rejecting constitutional attacks and reaffirming Congress's plenary power in Indian affairs.
What preserved ICWA? A thick record—Congressional findings, social-science data, tribal amicus briefs that spoke with empirical precision—and doctrinal clarity about political (not racial) classifications under Morton v. Mancari (1974). Again, mood mattered less than method: show the problem; show the constitutional hook; show the statutory design; show the results.
VII. Tax, Commerce, and the Everyday State
Indian law does not live only in boundary and foster-care cases. It lives at weigh stations and cash registers:
- McClanahan v. Arizona State Tax Commission (1973) and its progeny drew lines around state taxation of tribal citizens' on-reservation income.
- Wagnon v. Prairie Band Potawatomi Nation (2005) limited tribal claims to off-reservation fuel taxes, while Cougar Den carved space for Yakama treaty travel.
- Bay Mills (2014) reaffirmed tribal sovereign immunity in a commercial context.
- Direct marketing, cannabis regulation, e-commerce, and energy siting now push these doctrines into new terrains. The method remains: text, treaty, history, jurisdictional structure.
The expert's role is practical: accountants to model tax incidence, engineers to map culverts, linguists to translate treaty terms, anthropologists to explain seasonal movement and subsistence patterns. "Witness" means bring the right instrument.
VIII. Archives as Infrastructure
Winning on paper requires having the paper. Tribal historic-preservation offices and libraries have become litigation engines, scanning allotment rolls, probate dockets, correspondence, and survey plats. FOIA (and its state equivalents) unlock agency files otherwise trapped in basements. University partnerships add conservation and metadata muscle; community review boards guard cultural sensitivity.
Best practice looks like this: define the element (e.g., allotment patents 1901–1910; school enrollments 1880s; county probate orders for restricted lands); digitize at archival quality; index people, parcels, and legal events; link to GIS; build user interfaces for lawyers and families. The output is not a "museum." It is a system—one that lets a litigator prove, in a paragraph with citations, that Congress never said what a county claimed it did.
IX. Linguistics and Law: Treaties Speak Specific Languages
Too many cases stumble because English translations of treaties fossilized misunderstandings. Linguists and historians can reconstruct terms in Anishinaabemowin, Sahaptin, or Chinook Wawa that state lawyers treat as colloquialisms. The phrase "in common with," for example, carried sharing norms in 1850s diplomacy that differ from 21st-century parking-lot metaphors. Courts have recognized these differences when shown the record. The task is to make that record routine: depositions of language experts, glossaries with citations to mission dictionaries, and curated excerpts from treaty minutes.
X. The Anthropology of the "Bad Men" Clause
Several 19th-century treaties contain "bad men among the whites" clauses, promising federal prosecution or compensation when non-Natives wrong tribal citizens. These clauses have reawakened as vehicles for damages and accountability. They illustrate the broader theme: clauses dismissed as archaic can become modern remedies when experts track their text, ratification, and application across time. A clever complaint without a ledger dies in motion practice; a "bad men" claim with treatise excerpts and archival letters lives to discovery—and often to settlement.
XI. From Solem to Design: How to Build a Winnable Record
A usable blueprint:
- State the doctrinal test in a single sentence (e.g., Solem diminishment, ICWA placement, treaty scope).
- List the sources you must collect—statutes; session laws; ratified treaty text and minutes; agency circulars; surveyor field notes; allotment maps; probate orders; enrollment/tax rolls; contemporaneous newspapers; missionary diaries.
- Assign each to a team with digitization specs and a deadline.
- Build a "findings of fact" draft while collecting evidence—the draft teaches you what's missing.
- Translate all maps into GIS and tie every parcel to a legal event.
- Write the expert reports early and iterate as new material arrives.
- Stage public education in parallel—op-eds, teach-ins, briefing packets for local officials—so that when the order comes down, the community is ready to implement it.
XII. Implementation Is Law
Winning a boundary does nothing if cops and social workers don't know what it means. Cross-deputization agreements create arrest authority across jurisdictions; memoranda of understanding route child-welfare cases under ICWA; grant proposals convert judicial sentences into prosecutors, defenders, and victim-services staff. The witness's work continues after the opinion: teaching agencies the new rule, revising forms, and training frontline workers who inherited a different map.
XIII. The Limits: Castro-Huerta and the Perils of Drift
Not every line holds. In Oklahoma v. Castro-Huerta (2022), a 5–4 Court held that states share concurrent jurisdiction to prosecute some crimes by non-Indians against Indians in Indian Country, cutting against longstanding assumptions. The opinion drew a vigorous dissent that, if paired with legislative fixes, could be cabined. The meta-lesson echoes this essay's theme: when doctrine drifts, return to text. If Congress dislikes Castro-Huerta, it can legislate. If it stays silent, advocates must re-anchor jurisdiction with compacts and cross-deputization—practical sovereignty while Congress catches up.
XIV. Beyond Courts: NAGPRA, DNA, and the Return of Relatives
The Native American Graves Protection and Repatriation Act (1990) created a federal framework for returning human remains and cultural items to tribes. For years, museum practice and scientific resistance stalled returns. The Kennewick Man saga (Bonnichsen v. United States, 2004) epitomized the friction; advances in ancient DNA and renewed consultation eventually led to repatriation in 2017. The witnesses who moved the needle were not only elders and lawyers; they were geneticists, osteologists, and archivists willing to subordinate their curiosity to a people's continuity. NAGPRA's recent regulatory updates tighten deadlines and expand consultation: again, text plus enforcement.
XV. Why This Method Builds Democratic Capacity
A movement that wins by documents teaches citizens to read their state. Tribal governments strengthened by McGirt and treaty wins have invested in courts, police, schools, and clinics. Cross-jurisdictional competence—knowing which box to check, which officer to call, which grant to write—is a democratic skill that outlasts any one case. Young people who staff map rooms and FOIA units learn how a republic turns paper into power. That lesson travels—from reservation to county hall, from tribal archive to statehouse hearing room.
XVI. A Note on Tone: Borges in the Basement
In the stacks, every folder is a short story. A treaty with coffee stains; a surveyor who writes, in neat script, that the creek is not where the previous map placed it; a letter from an allottee asking why the tax bill arrived when the agent promised a trust. The law's poetry lies in how those details—named, cited, and placed on the judge's desk—become sentences that change budgets. We do not need purple prose. We need nouns in order, verbs that do work, and footnotes that do not lie.
XVII. Coda: "Because Congress Has Not Said Otherwise"
That phrase is not romantic. It is a measure of discipline. It says: put your feeling down; pick the statute up. It is also a promise: if a future Congress wishes to change a boundary or a right, it must say so plainly and bear the political cost. The witness's job is to hold the republic to that bargain—with maps, minutes, and a stubborn refusal to let subsequent practice devour text.
Select Bibliography
Primary & Secondary Sources:
- Solem v. Bartlett, 465 U.S. 463 (1984); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Nebraska v. Parker, 577 U.S. 481 (2016); McGirt v. Oklahoma, 591 U.S. ___ (2020).
- United States v. Washington (Boldt), 384 F. Supp. 312 (W.D. Wash. 1974), aff'd and progeny; Washington v. United States (culverts), 584 U.S. ___ (2018).
- Minnesota v. Mille Lacs Band of Chippewa, 526 U.S. 172 (1999); Herrera v. Wyoming, 587 U.S. ___ (2019).
- Washington State Dept. of Licensing v. Cougar Den, Inc., 586 U.S. ___ (2019).
- Haaland v. Brackeen, 599 U.S. ___ (2023); Morton v. Mancari, 417 U.S. 535 (1974).
- Oklahoma v. Castro-Huerta, 597 U.S. ___ (2022); McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973); Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014).
- Charles F. Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (Norton, 2005).
- Robert A. Williams Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the History of Racism in America (Minnesota, 2005).
- Carole E. Goldberg, "Members Only? Designing Citizenship Requirements for Indian Nations," Kansas Journal of Law & Public Policy 50 (2002): 1–40 (for ICWA context).
- Matthew L.M. Fletcher, Kathryn E. Fort, & Nicholas J. Reo, eds., The Invisible Labor of American Indian Sovereignty (Michigan State, 2023).
- National Congress of American Indians (NCAI), briefing papers on McGirt implementation and ICWA.