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

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 possible effects of Justice Barrett's replacement of Justice Ginsburg on the Court's future federal Indian law jurisprudence are also explored. 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, Justice Barrett, Amy Coney Barrett, canons of construction, Indian canons, Cooley, United States v. Cooley

JEL Classification: R38, Z18