Thursday’s landmark decision on treaty rights from the U.S. Supreme Court included input from Mitchell Hamline’s Indian Law Impact Litigation Clinic.
The ruling, McGirt v. Oklahoma, affirmed that a large part of eastern Oklahoma remains a reservation for the Creek Nation, because Congress never passed legislation that explicitly abrogated the reservation created through an 1833 Treaty. Justice Gorsuch’s majority opinion stated that “many 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 that thinking. If Congress wishes to withdraw its promises, it must say so.”
Professor Colette Routel
“This is the most significant court win for Indian country in probably the past 40 years,” noted Colette Routel, co-director of Mitchell Hamline’s Indian Law Program. “I am elated and overwhelmed.”
Routel co-authored two amicus briefs with Bethany Berger from the University of Connecticut School of Law, on behalf of the National Congress of American Indians (NCAI). Students who participated in the Indian Law Impact Litigation Clinic provided assistance by gathering historical documents at the National Archives in Washington, D.C., conducting legal research used in the brief, and answering questions that arose during preparation for oral argument. The Court cited the NCAI brief in its opinion.
Specifically, the ruling cited the brief when discussing the fact that many towns and cities already live inside tribal reservations across the country. The brief, in short, rejected warnings that the nature of cities and towns in eastern Oklahoma would fundamentally change.
“The Creek Reservation [in Oklahoma] alone is hardly insignificant, taking in most of Tulsa and certain neighboring communities in Northeastern Oklahoma,” the opinion noted. “But neither is it unheard of for significant non-Indian populations to live successfully in or near reservations today. Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time.
“But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.”
NCAI’s brief noted examples like Tacoma, Wash., which is partially inside the Puyallup Reservation and Mount Pleasant, Mich., which is within the Saginaw Chippewa Tribe’s Reservation.
“Predominantly non-Indian cities… can thrive within reservation boundaries,.” the brief noted.
Colette Routel teaches and writes in the areas of Federal Indian Law, Natural Resources Law, and Property. She taught at the University of Michigan Law School, Wayne State Law School, and Hamline University’s Law School before joining William Mitchell College of Law in St. Paul, Minn., as a full-time professor in 2009. She has been a professor at the combined Mitchell Hamline School of Law since it was formed in 2015.
In addition to Routel, Mitchell Hamline’s Indian Law Program includes Professor Angelique EagleWoman, a citizen of the Sisseton Wahpeton Oyate, who was recently hired as a tenured professor and Co-Director of the Indian Law Program.
More on the ruling from Indian Country Today.
Read the McGirt ruling here. (see page 37 for the reference to Routel’s brief)
Read Routel’s brief on behave of NCAI here.
Learn more about the history of the McGirt case in this podcast called “This Land.”