The McGirt Case Is a Historic Win for Tribes

For federal Indian law, this might be the Gorsuch Court.


Mari Hulbutta, my friend and suitemate from college—we were both members of the Native American student group—couldn’t sleep Wednesday, the night before the Supreme Court issued its decision in the landmark Native-treaty-rights case, McGirt v. Oklahoma. Hulbutta is a citizen of the Chickasaw Nation and a descendant of the Muscogee Creek and Seminole Nations, all in present-day Oklahoma. The McGirt case centered on whether Jimcy McGirt, a Seminole man found guilty of sex crimes, could be tried by the state of Oklahoma. McGirt contended that because his offenses occurred on lands guaranteed to the Muscogee Creek Nation in an 1866 treaty—one never legally extinguished by Congress—only federal authorities could prosecute his case. The state of Oklahoma has no jurisdiction on Indian land. Tribes can prosecute most crimes involving Native Americans in their own courts. Major crimes, such as murder, manslaughter, and kidnapping, rise to the federal government. The Muscogee Creek became involved with McGirt’s litigation because it had broad implications for their treaty rights, sovereignty, and jurisdiction. Tangentially, the case also involved the Cherokee, Choctaw, Seminole, and Chickasaw tribes, all relocated on the Trail of Tears from what is now the American South to eastern Oklahoma. “I wasn’t sure which way it was going to go,” Hulbutta told me by phone Thursday. “I was thinking about the decision and wondering what it was going to mean for my family and Muscogee relatives.”

Hulbutta recently graduated from Columbia Law School and is studying for the California bar. For many Native people, becoming a lawyer is kind of a thing. Congress has ratified more than 370 treaties with Native nations—treaties that the United States Constitution describes as the “supreme Law of the Land.” But it has broken just about every single one. That’s a lot of injustice, which makes for a lot of work for a lot of Native attorneys. “Honestly, growing up in Oklahoma as a Native person was one of the biggest drives to go to law school,” she explained. “Up until today, it was unclear how I could even describe my tribal lands to people.”

In the long Indigenous struggle for justice, McGirt v. Oklahoma might be one of the most important Supreme Court cases of all time. The decision, 5–4 in favor of McGirt and the tribe, acknowledges that Congress has never extinguished the reservation lands set aside for the Muscogee Creek Nation in 1866. Or, put more plainly, 19 million acres composing 47 percent of the state of Oklahoma—an area that’s home to 1.8 million people—is still Native land. Writing the majority opinion, Justice Neil Gorsuch grasped the gravity of the ruling. “On the far end of the Trail of Tears was a promise,” he wrote in an opening line sure to reverberate through Indian law and history. “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” That the government must keep its promises and follow the law should hardly be controversial. Yet for the treaty rights of Indigenous nations to finally be recognized—by an appointee of Donald Trump, no less—is bracing, perhaps even startling, to me and other Native people, given how long the United States has denied tribes their dignity, and how this administration has elsewhere attempted to turn back the clock.

At least with respect to Indian law, several tribal attorneys told me, this Supreme Court might just be the Gorsuch Court. Tribal attorneys “will be quoting that decision for the rest of our lives,” Riyaz Kanji, the lawyer who argued the McGirt case on the tribe’s behalf, told me. “The Court is not going to be in the business of taking away tribal rights without congressional intent anymore.” He added, “I’ve cried a lot today.”

What is most intriguing is the way the Court arrived at this decision. Gorsuch, a westerner with experience in Indian law, who is no liberal, applied a conservative textualist approach to the reading of treaty law and statutes. The result: A legal theory that has been marshaled to combat abortion rights and gay marriage delivered the most significant and favorable Supreme Court decision for tribes in the 21st century. Amid a national reckoning for racial justice brought on by the Black Lives Matter movement, who could have predicted that?

Probably not the attorneys representing the deep-red state of Oklahoma. In oral arguments, the state’s counsel leaned heavily on the implication that a ruling in favor of McGirt and the tribe would fundamentally disrupt business as usual: Murderers, rapists, and other criminals would be let loose, they suggested, because the state that had convicted them would not have had the authority to do so. Taxes would go unpaid. Regulations would lose their teeth. Countless laws, they reasoned, have been written and enforced with the assumption that the old treaty lands and governing authority of the Muscogee Creek Nation were history. The United States is, to a large extent, built on that haughty colonial presumption, after all.

While in law school, Hulbutta drafted amicus briefs for Sharp v. Murphy, a Supreme Court case that similarly hinged on the question of whether Congress had disestablished the Muscogee reservation or whether the tribe and federal government, not the state, maintained criminal jurisdiction over those lands. After Gorsuch recused himself, that case ended in a 4–4 deadlock last year. (The Cherokee journalist Rebecca Nagle has a wonderful podcast about it.) Hulbutta remembers listening to the state attorneys’ fearmongering about how non-Native lives would be uprooted and controlled by a tribe—scared, perhaps, that the Muscogees, Cherokees, Choctaws, Chickasaws, and Seminoles would do to Americans what Americans had done to them, an expression of the American id fit for a Jordan Peele flick. “It helped remind me that Native people and advocates on behalf of tribes and other Native interests have a lot to do in the realm of educating others,” she recalled.

Hulbutta traced her own family story to the far end of the Trail of Tears for me. Her Muscogee Creek great-grandmother, Katie McCosar, was born in Oklahoma Indian territory after her parents were removed from their homeland in what is now Alabama. When she was a little girl, McCosar and her brother were taken to an Indian boarding school, designed to “kill the Indian, and save the man,” in the words of the Army captain who founded the system. When she was 9 or 10, McCosar and her brother ran away, back to the Muscogee Creek Nation. She later married a medicine man named George. They lived on the family allotment, 180 acres, with no car, and spoke not a lick of English—only the Muscogee language. Hulbutta’s mother was abandoned by her own mother and raised on her grandmother’s land until she was 6. She remembers walking with McCosar three or four miles into town, translating so that her grandmother could buy groceries. “She instilled in my mom the importance of never selling or leasing our allotment,” Hulbutta told me. “We might not have many other resources, but we do have that land. Our ancestors worked very hard to get that land, and that was the promise on the other side that we should keep with us for time immemorial.” Hulbutta’s full name—Mari Kate Hulbutta—honors her great-grandmother. “That’s part of why this opinion is so important on a personal level.”

Hulbutta’s history—and that of so many other Native people—is what Gorsuch and the Court affirmed. In the short term, the decision means that McGirt will likely be retried in federal court, where other Native people prosecuted by the state for crimes committed on Creek land may also have their cases reviewed. Tribes and state and local governments will strike new agreements to address issues such as criminal jurisdiction, gaming, and tobacco sales, among others. It will be easier for the Muscogee Creek to bring land back into trust. Some Native people might even protest paying state taxes, arguing that they reside on a reservation where the state has no taxation authority. The Oklahoma congressional delegation will, according to attorneys familiar with these issues, work with tribes to draft legislative text to clarify boundaries of land and jurisdiction. Congress has broken treaties for most of its existence. Someday soon, it may have to help make them work. But in the era of divided government, who knows how long that will take. For now, what’s really changed is that, for the first time in decades, tribes might just get a fair day in court. As a result, Hulbutta will have a much simpler time describing where she comes from: Indian territory.

“I am hopeful about what [Gorsuch] has to say in the future; at this point I would consider him an ally to tribes,” she said. “But I wouldn’t put too much faith into any single one of the U.S. Supreme Court justices.”

“At the end of the day, it would be hard for any Native person to trust the United States Supreme Court,” I responded, with a laugh.

“Yeah,” Hulbutta replied. “Exactly.”