Domestic Dependent Nations To Co-Stewards: Us Tribal Courts, Fiscal Autonomy, Mcgirt V Oklahoma (2020), And Enforceable Fiduciary Trust Remedies

Domestic Dependent Nations to Co-Stewards: US Tribal Courts, Fiscal Autonomy, McGirt v Oklahoma (2020), and Enforceable Fiduciary Trust Remedies

1. Inherent Tribal Sovereignty: The Marshall Trilogy Foundation and Inherent Self-Government

In United States federal Indian law, the legal status of Native American tribes rests upon the foundational principle of inherent pre-existing sovereignty.^[1] In the historic "Marshall Trilogy"—Johnson v McIntosh (1823), Cherokee Nation v Georgia (1831), and Worcester v Georgia (1832)—Chief Justice John Marshall established that Indian tribes are "distinct, independent political communities, retaining their original natural rights" as "domestic dependent nations".^[2] Crucially, tribal sovereignty does not emanate from a delegated grant of federal or state authority; it pre-exists the United States Constitution and endures unless expressly limited by federal statute or treaty.^[3]

This inherent governmental character stands in stark opposition to the settler-state jurisprudence of Australia, where the High Court in Mabo v Queensland [No 2] (1992) recognized a fragile, non-sovereign concept of "native title" as a mere burden on the radical title of the Crown, while summarily refusing to entertain Indigenous political sovereignty within the Australian domestic legal order.^[4]

2. Sovereign Governmental Machinery: Tribal Courts, Police Forces, and Environmental Codes

Today, the 574 federally recognized Indian Nations in the United States exercise substantive governmental powers that have no equivalent in Western Australia:^[5] Tribal Courts and Police Departments: Native nations operate independent judicial systems (over 400 tribal courts) with civil and criminal jurisdiction, applying traditional tribal statutory codes and customary law, alongside independent tribal police forces exercising sovereign peace-keeping powers.^[6] Fiscal Autonomy and Taxation: Tribes possess sovereign taxation powers, issuing tribal business licenses, collecting severance taxes on oil, gas, and minerals extracted from tribal lands, and generating billions through gaming, sovereign hotels, and agricultural enterprises.^[7] Environmental Regulation (Treatment as a State - TAS): Under federal statutes such as the Clean Water Act and Clean Air Act, tribal nations can apply to the Environmental Protection Agency (EPA) for "Treatment as a State" status, allowing them to establish water quality and environmental standards that legally bind upstream commercial polluters on non-tribal lands.^[8]

In South-West Western Australia, the 2015 Settlement created no governmental machinery.^[9] Bibbullmun elders exercise zero judicial authority, command no police or conservation wardens, possess zero taxation powers, and have zero statutory power to set binding water quality standards for the degraded Derbarl Yerrigan (Swan River) or polluted Bilya waterways.^[10]

3. McGirt v Oklahoma (2020): Supreme Court Enforcement of Unbroken Reservation Boundaries

The most powerful reaffirmation of tribal territorial integrity in modern American jurisprudence occurred in McGirt v Oklahoma, 591 US 894 (2020).^[11] Writing for the Supreme Court majority, Justice Neil Gorsuch addressed whether historical Creek Reservation boundaries established by nineteenth-century federal treaties remained intact, or whether a century of state criminal jurisdiction, non-Indian settlement, and Oklahoma statehood had effectively disestablished the reservation.^[12]

The Supreme Court held decisively that the Creek Reservation was never disestablished:^[13]
Disestablishment of an Indian reservation requires explicit, unambiguous congressional intent codified in statutory text.^[14]
Decades of state practice, administrative encroachment, and the passage of time cannot erase solemn treaty boundaries.^[15]
In the famous opening words of Justice Gorsuch: "On the far end of the Trail of Tears was a promise. ... Because Congress has not said otherwise, we hold the government to its word."^[16]

As a result of McGirt, roughly 43% of the landmass of the State of Oklahoma—including the entire eastern half of the city of Tulsa—was legally recognized as Indian Country, restoring exclusive tribal and federal criminal jurisdiction across historic reservation borders.^[17]

4. The Section 70 Parallel: Unlawful Colonial Repeal vs. Mandatory Congressional Disestablishment

The legal doctrine of McGirt—that solemn imperial and treaty promises cannot be eroded by administrative practice or unauthorized state legislation—provides a decisive parallel for the Bibbullmun Sovereign Nation's historic claim under Section 70 of the Western Australia Constitution Act 1889 (WA).^[18]

When Imperial Britain granted responsible government to Western Australia in 1890, the British Crown insisted upon the entrenchment of Section 70, which legally bound the colonial treasury to pay 1% of gross annual revenues (or £5,000, whichever was greater) into an independent Aboriginal Protection Board in perpetuity.^[19]
When the colonial WA Parliament attempted to repeal Section 70 through the Aborigines Act 1897 and Aborigines Act 1905, imperial disallowance provisions and procedural requirements for royal assent were violated, rendering the repeal legally void and fraudulent.^[20]
Just as Oklahoma attempted for a century to act as though the Creek Reservation had ceased to exist, the State of Western Australia has for over a century acted as though Section 70 was validly extinguished.^[21]
Under the strict statutory construction doctrines of McGirt, the imperial statutory obligation remains unbroken, creating accrued sovereign arrears exceeding tens of billions of dollars owed to the Bibbullmun people.^[22]

5. Enforceable Breach-of-Trust Remedies: Cobell v Salazar ($3.4 Billion Settlement)

In federal Indian law, the relationship between the government and Indigenous nations is governed by an enforceable fiduciary trust duty.^[23] In Cobell v Salazar, 573 F 3d 808 (DC Cir, 2009), lead plaintiff Elouise Cobell filed a historic class-action lawsuit against the Department of the Interior on behalf of over 300,000 Native Americans, alleging that the federal government had for over a century mismanaged, looted, and failed to account for billions of dollars in oil, gas, timber, and grazing revenues generated on Individual Indian Money (IIM) trust lands.^[24]

After fourteen years of ferocious litigation:
Federal courts held the Crown to the highest common-law standards of a private fiduciary trustee.^[25]
The government was ordered to provide a comprehensive historical accounting of every dollar extracted from Indian lands.^[26]
In 2010, the litigation concluded with the landmark $3.4 billion Cobell Settlement, including $1.5 billion paid directly to individual account holders and a $1.9 billion Trust Land Consolidation Fund to buy back fractionated land interests for tribal nations.^[27]

In Western Australia, despite acting as statutory trustee over First Nations lands and imperial welfare funds under the 1889 Constitution and the 1905 Aborigines Act, the state has never provided a fiduciary accounting.^[28] Instead of facing an independent judicial audit like Cobell, Western Australia used the coercive leverage of the 2015 Settlement to demand a blanket legal release from all historical claims, liabilities, and unpaid constitutional debts.^[29]

6. Jurisdictional Comparison Table: US Tribal Sovereignty vs. South West WA Settlement