On Power and the Law: McGirt v. Oklahoma

Almost every aspect of McGirt v. Oklahoma strains the imagination. On July 9, 2020, over two years after agreeing to resolve the question, the Supreme Court issued in McGirt a landmark ruling for federal Indian law. In that opinion, the Court held that a “huge swathe of Oklahoma,” including “three million acres and [] most of the city of Tulsa,” was recognized by the United States as within the reservation lands of the Muscogee (Creek) Nation…It seems likely that the justices would have preferred to ignore the legal question entirely. But Murphy forced their hand. The Tenth Circuit had crafted an opinion that was correct as a matter of law but led to an unfathomable outcome. It held that the lands at issue, including much of Tulsa, were within an Indian reservation—meaning that Oklahoma did not have jurisdiction over the case. In order to reverse, the Court would need to do more than deadlock. A 4–4 opinion would leave many Tulsans under the jurisdiction of a Native nation and without the benefit of the Court’s reasoning. Simply sitting on the sidelines to prevent the rule of law from becoming sullied by fundamental questions of power and violence was no longer an option…McGirt offered Native people a rare victory before the Court—a sight seldom witnessed in the last fifty years as justices on the Supreme Court have grown increasingly skeptical of federal Indian law writ large. The progressive legal academy has celebrated the decision as a win for Indian Country. But the public and scholarly discourse has yet to capture McGirt’s implications for broader theories of social and racial justice—in part, because the case is written in the technical language of jurisdiction and power rather than in the more legible language of rights. Because deeper lessons about society are often revealed in the breach, this article draws on the occasion of this highly unusual opinion to conceptualize how federal Indian law illuminates the relationship between power and law