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By Joseph J. Heath, Esq.Onondaga Nation General Counsel

On Thursday, July 9th, the Supreme Court decided a treaty rights case–McGirt v. Oklahoma–which is being call a “landmark” case.The NY Times said it is “seen as a watershed victory of Native Americans’ long campaign to uphold sovereignty, treaty boundaries and treaty obligations.”

This memo will briefly explain the case and some of the more clear and helpful statements/rulings; and then compare this decision to the harmful rulings in Sherrill and in the dismissal of the Nation’s Land Rights Action.

It may well be that with Gorsuch playing a very positive role on Indigenous rights cases, that progress can be made for Onondaga land rights.


Jimey McGirt [a Muscogee citizen] was convicted in state court of serious criminal offenses, but the fundamental question in the case was: “Did he commit his crimes in Indian country, as defined in the federal Major Crimes Act?“He had challenged his state court conviction, arguing that it was Indian country and that the state did not have jurisdiction.

“Indian county,” is defined as including, among other things: “Any land within the limits of any Indian reservation”; but Oklahoma claimed that the territory was no longer a reservation, because they claimed that it had been disestablished.

In the 1832 Treaty with the Creeks: US guaranteed that the Muscogee right to the lands in Oklahoma “shall be continued to said tribe of Indians, as long as they shall exist as a nation and continue to occupy the country hereby assigned to them.”

Gorsuch 1 was the swing vote in this 5 to 4 decision and he wrote the majority opinion, in which he applied the long standing rule: “Only Congress can divest a reservation of land and diminish its boundaries.”This holding was that the Muscogee reservation is intact and has not be disestablished, despite all the state’s claims–[which are the same as NY’s arguments against the Haudenosaunee.


The decision opens with this sentence: “On the far end of the Trail of Tears was a promise.”; as a reminder that the Muscogee were induced to agree to the Treaty and to be moved to Oklahoma, by the US promise of a permanent reservation west of the Mississippi.The decision systematically and clearly rejected every argument raised by the state, and there were many.The state had argued that “historical practices and demographics, . . . are enough by themselves to prove disestablishment.”

Essentially, the state claimed that because the reservation had been broken up by allotment and because so many white land owners now owned most of the parcels, that this effectively meant that the reservation no longer existed. Oklahoma had pointed to “the speedy and persistent movement of white settlers onto Creek lands.”

The Court firmly rejected these arguments and in so doing said:

A.“Today we are asked whether the land these treaties promises remains an Indian reservation for purposes of federal criminal law.Because Congress has not said otherwise, we hold the government to its word.”

B.“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of the promises to the Tribe.”

C.“So it’s no matter how many other promises to a tribe the federal government has already broken.It Congress wishes to break the promise of a reservation, it must say so.”

D.“In the end, Oklahoma abandons any pretense of law and speaks openly about the potentially “transform[ative]” effects of a loss today.”

E.“In any event, the magnitude of a legal wrong is no reason to perpetuate it.” 

F.“More importantly, dire warnings are just that, and not a license for us to disregard the law.”

G.“[M]any of the arguments before us today follow a sadly familiar pattern.Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye.We reject such thinking.” 

H.“Unlawful acts, performed long enough, and with sufficient vigor, are never enough to amend the law.”

I.“To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”


On October 19, 2012, one week after oral argument on Columbus Day, the Circuit gave these excuses when it affirmed the dismissal:

“Three specific factors determine when ancestral land claims are foreclosed on equitable grounds:

  1. The length of time at issue between on historic injustice and the present day;

  2. The disruptive nature of claims long delayed; and

  3. The degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the the plaintiffs’ injury.”

When we compare these now somewhat discredited excuses, it is clear that nothing in the Constitution says that treaties are no long valid simply because they are old; that “disruption” is not sufficient to break treaty promises; and that white settlers moving in does not disestablish a reservation.


As promising as this decision is, deeply racist problems remain in US law.Left unsaid by Gorsuch was his, and the court’s, unquestioned acceptance of “plenary power”, by which the federal government claims to have complete authority over Indian nations, including the right unilaterally break treaty promises.There is no legitimate basis for this, but it remains US law.


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Further Videos


Joseph J. Heath, "The Good, The Bad & The Ugly In Mcgirt V. Oklahoma," Doctrine of Discovery Project (14 August 2020), https://doctrineofdiscovery.org/law/resources/event/doctrine-discovery-domination-mother-earth-pandemic/.

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