November 18, 2021

Treaty Law Should Be Readily and Consistently Upheld

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

November is National Native American Heritage Month. This is an opportunity to reaffirm the critical importance of Indigenous voices in the legal profession and of Indian law. There are far too few federal judges who identify as Native American in this country. Indian law is too often marginalized or discounted.

ACS’s mission is to support and advocate for laws and legal systems that improve the lives of all people. This includes not just upholding but strengthening and centering Indigenous Rights. Part of this is raising public awareness of Indian law.

Last year, the Supreme Court ruled in McGirt v. Oklahoma that a sizeable portion of Oklahoma is still Native American land. As Christopher Wright Durocher, our Senior Director for Policy and Program, described McGirt, it may be the most important recent Supreme Court case that you’ve never heard of. As consequential as the ruling in McGirt was, it received little attention compared to other Supreme Court cases.

Christopher joined Professor Maggie Blackhawk and Amb. Keith Harper (Ret.) to discuss McGirt on this week’s Broken Law podcast episode. Professor Blackhawk explained that despite its importance, McGirt didn’t find a new right or articulate some new way to analyze the law. Instead, the impact of McGirt comes from what the Supreme Court opted not to do. The Court declined to ignore or reinterpret existing treaty law dating back to the 19th century regarding the borders of reservation land. It acknowledged that a sizeable portion of Oklahoma has been and still is Native American land. This was monumental because we have seen all too often a willingness by federal courts and the federal government to ignore treaty law or rewrite it to the disadvantage of Indigenous people.

McGirt shouldn’t have been groundbreaking. It should have been a simple case easily resolved because treaty law should be readily and consistently upheld. If you haven’t already, I encourage you to listen to the podcast episode to learn more about McGirt and its enduring impact. And, make sure to check out the show notes for additional information on Indian law, including Professor Blackhawk’s article “On Power & the Law: McGirt v. Oklahoma.”

Indigenous Rights and tribal sovereignty are just two of the many reasons that ACS is committed to truth, racial healing, and transformation (TRHT). Because our laws and legal systems have too often and still are being used to entrench and perpetuate inequality and injustice. As the country’s foremost progressive legal organization, we are committed to the overdue legal transformation necessary to achieve laws and legal systems that actually improve the lives of all people, including Indigenous peoples. This means advocating for Indigenous Rights, for respecting tribal sovereignty, and finally recognizing tribal nations as a third sovereign in this country, in addition to states and the federal government. You can read more about ACS’s work on TRHT here.