Has Federal Indian Law Finally Arrived at 'The Far End of the Trail of Tears'?

32 Pages Posted: 10 Sep 2020

See all articles by Ann E. Tweedy

Ann E. Tweedy

University of South Dakota School of Law

Date Written: September 2, 2020

Abstract

This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.

Keywords: diminishment, disestablishment, Indian country, treaty rights, reservations, reservation status, criminal law, statutory construction, McGirt v. Oklahoma, McGirt, Sharp v. Murphy

Suggested Citation

Tweedy, Ann E., Has Federal Indian Law Finally Arrived at 'The Far End of the Trail of Tears'? (September 2, 2020). Georgia State University Law Review, Vol. 37, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3684971

Ann E. Tweedy (Contact Author)

University of South Dakota School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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