Case Commentary: McGirt v. Oklahoma (2020)

Case Commentary: McGirt v. Oklahoma (2020)

By: Andrew Cliburn | Vermont Law School, JD Candidate 2021

November 20, 2020

When the Supreme Court issued McGirt v. Oklahoma1 last summer holding that Congress never disestablished the Muscogee (Creek) reservation—a reservation that encompassed most of modern-day Tulsa, Oklahoma—the reaction was profound.2 Indigenous leaders, lawyers, journalists, and others celebrated the Court’s full-throated affirmance of Muscogee (Creek) sovereignty.3 The majority opinion, authored by Justice Gorsuch, was the latest in an emerging line of Supreme Court cases upholding treaties the North American tribes made with the United States.4

In contrast, the reaction among some of Oklahoma’s non-Indigenous population was decidedly not as positive.5 Some groups in Oklahoma called on Oklahoma’s congressional delegation to introduce legislation to “fix” McGirt.6 Given the widespread reaction and controversy surrounding the case, it is important to understand the question the Court sought to answer in McGirt, and how, precisely, it did so.

The question in McGirt was straightforward enough: did the wrong sovereign convict Jimcy McGirt?7 In 1997, Oklahoma convicted McGirt—an enrolled member of the Seminole Nation—of heinous crimes involving the sexual exploitation of a minor, sentencing him to a draconian 1000 years.8 However, McGirt maintained that his crimes occurred not in Oklahoma, but on the Muscogee (Creek) reservation, and this fact—if true—meant that Oklahoma had no right to try him for these particular crimes. This is so because in 1885, Congress passed the Major Crimes Act (“MCA”), arrogating to itself the sole authority to try certain crimes committed by “Indians”9 in “Indian Country.”10 In 1948, Congress amended the MCA to define Indian Country as, in part, reservations.11 Thus, if McGirt’s crimes really did take place on the Muscogee (Creek) reservation, the wrong sovereign convicted him.

The Muscogee (Creek) Nation and the United States signed a treaty in 1832 guaranteeing the tribe that its reservation “would be secure forever.”12 Soon after, the United States government forcibly marched the Muscogee (and others) in a series of removals from the southeast to what would become the State of Oklahoma 80 years hence.13 These removals are now collectively known as the Trail of Tears.14 In the decades following the tribe’s removal from their homelands, the United States continued to impose new treaty terms on the Muscogee. For example, a new treaty term diminished the reservation boundaries in 1866.15 However, the Court held, at no point was the reservation disestablished by treaty or by an act of Congress.16 In 1871, Congress summarily stopped treaty-making with Native Americans.17

When interpreting treaties with tribes, Courts must apply special canons of construction.18 This is because the relationship between the tribes and the United States is unique.19 For example, grants of land are grants from tribes to the United States, not vice versa.20 Moreover, the United States owes tribes heightened responsibilities generally known as the “trust responsibilities” because—as the Supreme Court long ago held—the tribes are “domestic dependent nations.”21 Moreover, the United States drafted the treaties in English. Consequently, since 1832, the Supreme Court has recognized that it should ordinarily resolve any ambiguities in treaties in the tribes’ favor as a result of a prudential understanding that the tribes were in a subordinate negotiating position.22 Flowing from the contours of this relationship then are a series of interpretive canons the Supreme Court has developed to answer questions arising in Indian Country.

The majority’s answer to the question of whether Congress ever disestablished the reservation was a resounding “no,” and it arrived at this answer using the canon requiring Congress to clearly express itself if it intends to disestablish a reservation.23 Indeed, the Court seemed to go further by discarding factors of the previous disestablishment test developed in Solem v. Bartlett, 465 U.S. 463 (1984).24

This brief summary cannot be the place where one develops the full implications of McGirt. As the reader might intuit by this point, the decision is hard to fully understand without much context. Suffice it to say, federal Indian law is a fascinating, important, and very much alive area of the law.

1 140 S.Ct. 2452 (2020).

2 Julian Brave NoiseCat, The McGirt Case is a Historic Win for Tribes, Atlantic (July 12, 2020),

3 Id.

4 E.g., Herrera v. Wyoming, 139 S.Ct. 1686 (2018) (holding that statutes establishing the State of Wyoming and the Bighorn National Forest did not extinguish treaty-secured aboriginal hunting rights).

5 Barbara Hoberock & Randy Krebhiel, Oklahoma Conservative Group Wants Tribal Boundaries Gone, Tulsa World (Oct. 19, 2020),

6 Id.

7 McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020).

8 Id. at 2459 (Roberts, C.J., dissenting).

9 In this context “Indian” is a legal term of art. A person who is an Indian belongs to a federally-recognized tribe, and as such is entitled to certain benefits flowing from the government-to-government relationship between the tribal nation and the United States federal government. Carol E. Goldberg, et al., American Indian Law: Native Nations and the Federal System 137 (7th ed. 2015) [hereinafter American Indian Law].

10 Congress took this action after the Supreme Court held in Ex Parte Crow Dog, 109 U.S. 556 (1883) that the federal government had no criminal jurisdiction over tribal members. Id. at 85.

11 The MCA also defined Indian Country as “dependent Indian communities” and allotted lands held in trust title outside of reservations. Id. at 150–58.

12 McGirt, 140 S.Ct. at 2459

13 Trail of Tears, Museum of the Cherokee Indian, (last visited Oct. 19, 2020).

14 McGirt, 140 S.Ct. at 2459 (“On the far end of the Trail of Tears was a promise.”).

15 Id. at 2461.

16 Id. at 2474. Though beyond the scope of this summary, Congress possesses—by fiat—the power to unilaterally abrogate signed treaties between the tribes and the United States. This power is known as congressional plenary power. See Hillary M. Hoffmann, Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism, 97 Or. L. Rev. 353, 358 (2019).

17 American Indian Law, supra note 9, at 78.

18 American Indian Law, supra note 9, at 204.

19 See, e.g., Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000) (describing the unique government-to-government relationship between the two sovereigns).

20 American Indian Law, supra note 9, at 204.

21 Cherokee Nation v Georgia, 30 U.S. 1, 10 (1832).

22 Worcester v. Georgia, 31 U.S. 515 (1832).

23 McGirt v. Oklahoma, 140 S.Ct. 2452, 2462–63 (recounting the canon that the Supreme Court will not “lightly infer” reservation disestablishment, that Congress must “clearly express its intent” to disestablish, and collecting cases where Congress’s language did disestablish reservations).

24 See, e.g., Oneida Nation v. Vill. of Hobart, 968 F.3d 664, 668 (7th Cir. 2020) (“We read McGirt as adjusting the Solem framework to place a greater focus on statutory text.”).


About the Author

Andrew came to VLS in 2018 after becoming interested in public lands issues in his home state of Utah. His primary interests are natural resources law, property law, land use law, environmental law, and federal Indian law. He will be clerking for Justice Karen R. Carroll of the Vermont Supreme Court after graduating in May 2021.


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