Supreme Court ruling could rewrite history textbooks

By Bradley Gernand
September 1, 2020

History changed in a single day with the recent U.S. Supreme Court ruling affirming tribal sovereignty in eastern Oklahoma.

In its ruling in the case of McGirt v. Oklahoma July 9, the Supreme Court affirmed the Muscogee (Creek) Nation’s sovereignty by confirming it still occupies a distinct reservation. The court also confirmed that the state has no role to play in the Muscogee Nation in terms of criminal justice—Muscogee tribal courts or federal courts will handle all such cases.

Legal experts say that while the court’s ruling concerned only the Muscogee (Creek) Nation, it may well apply to all Five Civilized Tribes, due to the similarities in their treaties with the U.S. government. The Choctaw Nation’s Treaty of 1866 with Washington, as example, closely resembles the Treaty of 1866 signed by the Muscogees.

In issuing its historic ruling, the Supreme Court has rewritten history.

Oklahoma history textbooks used across the state since statehood say the tribal governments and their domains and sovereignty ended Nov. 16, 1907—Oklahoma’s Statehood Day. How was such an error made and perpetuated through the years? Rather than being fact, was the end of tribal sovereignty simply widely held conventional wisdom, now disproved?

“It appears that way,” says Jim Taylor, the longtime Oklahoma history teacher at Durant High School. “All the textbooks we’ve used over the years have said, in one form or another, that the tribes lost their sovereignty in 1907. This is the first we’ve ever heard that the situation might be different.”

And indeed it is. But first—how did this come about? Quite simply, Congress was ensnared by its own actions.

How Did History Get it So Wrong

In passing the Enabling Act of 1906 paving the way for Oklahoma to become a state, Congress did not terminate the tribal governments, even though that was its original intention. It began working toward this goal as early as 1893, when it kicked off a convoluted process by which the Five Civilized Tribes’ lands were surveyed, platted, their citizens enrolled in a final roll, and their governments put on a bumpy slide toward termination.

Policy in the American federal government ebbs and flows in two- and four-year cycles, corresponding to elections for the U.S. House of Representatives, the Senate, and the Presidency. The government’s policy toward the Five Civilized Tribes was carried out very unevenly in the years following 1893. Congress initially intended closing out the tribal governments in 1906, prior to statehood, but opted to continue small administrations for the tribes in order for their chiefs—appointed by the President, following statehood—to conclude all remaining tribal business. In the case of the Choctaws, this never took place, and the tribe had an appointed chief until the reestablishment of self-governance in 1983.

Congress—caught up and confused by its own complex web of intrigue—never circled back to formally conclude the tribal governments or their domains.

The history books, however, give a different story. Choctaw tribal member Muriel H. Wright—granddaughter of Principal Chief Allen Wright, who led the Nation following the Civil War—became a respected historian in Oklahoma, and firmly believed the Choctaw Nation and the Five Civilized Tribes had been extinguished. Her seminal Oklahoma history textbook published in 1939, and used across Oklahoma for the next two decades, states that the federal government succeeded in its quest to disestablish the Five Civilized Tribes. Many Indians had opposed statehood but had been unable to stop it, she said, with the former Indian Territory being carved into 40 counties of the new state.

Ms. Wright clearly believed in the version of history she shared. So have other historians before and since.

What the History Books Say

In Oklahoma, all textbooks used in public schools are vetted and approved by the Oklahoma Textbook Committee. Four Oklahoma history textbooks are currently approved and available for use by schools. All four are sympathetic to the plight of the Five Civilized Tribes. Unfortunately, all say our tribal governments and sovereignty ceased to exist in 1907.

Oklahoma: Land of Opportunity, published in 2013, remains in use but is being replaced by Oklahoma: Our History, Our Home. It closes out its introduction to statehood by saying that, on Statehood Day in 1907, “Some citizens… did not feel jubilant. In fact, many Native Americans in the new state felt betrayed. A letter from Mary L. Herrod, a Creek Indian, appeared in the Okmulgee Democrat the day before statehood: ‘As Friday the 15th of November will be the last day of the Indian Territory, and after that we will no longer be a nation, some of us feel that it is a very solemn and important crisis in the history of the Indians… Now I’ve lived to see the last step taken, and the Indian does not count any more even in his own territory… I shall never write another letter. I cannot date my letters ‘Indian Territory’, and I shall not write.'” (Page 316.)

Oklahoma: The Sooner State was published in 2020. It describes the closing out of the Indian Territory as follows: “With the Curtis Act or the alternative agreements, their tribal governments were finally abolished and their lands reduced to holdings of 160 acres for each person. They were made powerless and subject to laws which many Native people did not understand.” (Page 205.) A later reference says, “The allotment of Indian lands, the opening of three million acres of tribal lands to non-Indian settlement, and the elimination of tribal governments had left only statehood and citizenship to be completed in the assimilation process. The Hamilton [Statehood] Bill provided the way for those accomplishments.” (Page 228.)

“The Story of Oklahoma,” published in 2020, provides an extensive write-up. It describes allotment as a “harsh process for dividing the tribes’ lands and abolishing their governments without their consent.” It noted that each of the Five Civilized Tribes reached separate agreements with the Federal Government, saying, “Details varied from one agreement to another, but all provided essentially the same terms: the allotment of the national lands and the end of the tribal governments.” After the land was allotted and citizens enrolled, “the tribal governments would end. Oklahoma’s five Indian republics would disappear.” Central to this arc of history, it says, is this: “Towering above all those complications was one plain truth: Oklahoma’s Five Tribes were losing the sovereignty that had been promised to them for as long as the grass grew and the waters ran.” (Pages 194-196.)

This is not the first time Oklahoma’s history textbooks have fallen short of the task. Many failed to mention the Tulsa Race Riot of 1921, in which a state government commission later reported that over 300 blacks were killed, 1,200 homes were destroyed and 200 were looted. An angry white mob torched a hospital, library, school and churches. The African-Americans living in the affected area were descendants of Muscogee (Creek) freedmen. Oklahoma history textbooks generally did not carry accounts of it for many years.

History Class: Not Just Textbooks

Oklahoma follows a fairly standard model for making textbooks available to public schools. The textbooks are commissioned, produced, and sold by the publishing houses which publish them. The Oklahoma Textbook Committee, which is appointed by the governor and supported administratively by the Oklahoma Department of Education, vets prospective textbooks for their eligibility according to set standards.

Three publishers produce the four Oklahoma history textbooks currently approved for use. Individual school districts select the textbooks they wish to use from the list of approved books and purchase them from the publishers. But these are not your father’s textbooks: the schools also purchase online access to a complimentary trove of multimedia content designed to engage students, expand upon the textbooks, and respond to breaking events.

The state textbook committee closed out its most recent six-year approval cycle for history textbooks in November 2019. Having approved the textbooks in use for the next six years, the committee will not review them again for approval or reapproval until November 2025.

The three publishers are aware of the Supreme Court decision and plan on taking different measures to address it. Tom Quaid of the Oklahoma History Press, which publishes two of the four approved books, notes that the state textbook committee’s last six-year adoption process concluded only nine months ago, and his publishing house has been selling and promoting its books since the committee’s vote. Quaid says his publishing house will add the Supreme Court case to the online version of its book and website, and altered its print run. Quaid publishes the popular Oklahoma: The Sooner State as well as the provocatively and realistically titled book, Oklahoma: Uniquely American.

Tommy Lankford, president of Clairmont Press, which publishes Oklahoma, Land of Opportunity, and the book which is replacing it, Oklahoma: Our History, Our Home, reports, “Our new Oklahoma history textbook has been written and is currently being sold.” Lankford says once it is confirmed that all Five Tribes are affected by the recent Supreme Court decision, “we will make changes to the digital materials to reflect that.” (Choctaw tribal leaders believe this may be months or over a year away.) It is too late to alter the text of the newly published book, Lankford says, but “future editions will also reflect the recent change and include all affected tribes.”

Dale Bennie, Director of the University of Oklahoma Press, publishes “The Story of Oklahoma.” Bennie, like Quaid and Lankford, says updating the online content available to students will be key, in the short- to medium-term, to giving teachers and students new information to work from. His publishing house commissioned a consultant to help them prepare the material.

Jim Taylor of Durant High School, notes that while the textbooks are designed to support a full year of instruction, Oklahoma history classes across southeastern Oklahoma are generally only one semester in length, with the next semester being a different subject. At his school, Oklahoma history is taught in the fall semester, meaning his students began using the newly out-of-date textbooks in August and are using them now.

Taylor, and others, say it’s a relief the publishers are able and willing to correct the historical record being presented to Oklahoma’s school students. They also acknowledge the business needs of the publishers involved, noting that existing print runs of thousands of books can’t be wished away overnight, nor can new textbooks be commissioned, compiled, produced and approved within any time frame that meets the current need.

The question is, what will carry us from now through the next several months—and particularly the fall semester, which is already underway?

Bennie, of the University of Oklahoma Press, with his consultant’s help, updated the online materials available to students using his textbook. The new online passage notes that Congress, in passing the Curtis Act of 1898 to begin the process of dividing and allotting tribal lands, intended dissolving tribal governments and clearing the way for statehood. “But did the reservations in fact end once the land was all allotted? Or, in legal language, were the reservations disestablished by the time Oklahoma became a state?” The new passage answers the question and walks the students through the twists and turns that led to McGirt v. Oklahoma—and whatever follows.

Quaid, of Oklahoma History Press, also intends taking quick action and has volunteered to work with the Choctaw Nation to help determine what the new online content might be. The Choctaw government has provided Quaid with historical information and content, fully documented, for his review, in support of his efforts. “I was born in Durant, raised in Wilburton, and taught at Southeastern,” he says. “I am very aware of the importance of Choctaw heritage and culture… We want to get this right!”