Get ready to stay up late or set your recorder. Nightline page here.
ABC News Turning Point Series – Looking into What America Owes Native Americans.
Monday, October 12 | 4 PM | ZOOM
McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America
In celebration of Indigenous Peoples’ Day, Emory University Professor of English Craig Womack (Creek) chairs a panel discussion titled McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America.
Sarah Deer (Creek), University of Kansas Department of Women’s, Gender, and Sexuality Studies; Barbara Creel (Jemez Pueblo), University of New Mexico School of Law; and Andrew Adams III (Creek), Muscogee Creek Nation Supreme Court; and Professor Womack will explore the implications of the decision regarding the Creek Nation for Oklahoma tribal nations and other parts of Indian Country.
ZOOM registration link for this webinar: https://emory.zoom.us/webinar/register/WN_fY3DxgwFTw-SDJDB_owEbA
This lecture is made possible through the generous financial support of the Hightower Lecture Fund and is co-sponsored by the Native American and Indigenous Students Initiative, the Michael C. Carlos Museum, and the School of Law Health Law, Policy & Ethics Project.
Elizabeth Ann Kronk Warner and Heather Tanana have posted “Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond” on SSRN.
The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the successful operation of the nationwide Keystone XL pipeline. While the Court was clear that its holding was limited to criminal jurisdiction under the Major Crimes Act, the decision nonetheless has broader implications for Indian country, including natural resource development and regulatory framework. Because the oil and gas industry will now have to work with tribes and the federal government instead of favorable state officials, industry officials decry the Court’s decision as being detrimental to the industry. But what exactly will be the impact of the Court’s McGirt decision on the oil and gas industry, and the natural resources development in Indian country more broadly? While the full impacts of the Court’s decision are only beginning to unfold, this Article seeks to answer the questions left hanging by the Court’s decision as they relate to traditional energy development. This Article explores the future impacts of the McGirt decision on traditional energy development. The second Part of the article summarizes the legal background that governs oil and gas development in Indian country. Part three provides an in-depth analysis of McGirt—first, describing its predecessor, Sharp v. Murphy, followed by an explanation of McGirt and its holding. The article concludes by discussing future implications of McGirt, including what it means for oil and gas development going forward as well as collateral effects. The article constitutes an important scholarly contribution as it answers important questions left open after the Court’s decision and explains how the Court’s decision has broader implications for Indian country and natural resource development generally.
Ann Tweedy has posted “Has Federal Indian Law Finally Arrived at ‘The Far End of the Trail of Tears’?”, forthcoming in the Georgia State University Law Review, on SSRN.
Here is the 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.
Dylan Hedden-Nicely & Monte Mills have published “The Civil Jurisdictional Landscape in Eastern Oklahoma Post McGirt v. Oklahoma” in the August 2020 edition of Natural Resources Law Insights (Rocky Mtn. Mineral Law. Found.).
In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:
The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.
The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.
That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.
That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.
At times like this I think that Lady Justice must have a sense of humor.
Here, in the National Law Review.