October 25, 2020

Volume X, Number 299


October 23, 2020

Subscribe to Latest Legal News and Analysis

Centuries-Old Native American Treaty Upheld, SCOTUS Says Oklahoma Land Remains Part Of Creek Nation Reservation


  • U.S. Supreme Court decides it will “hold the government to its word” that land in Eastern Oklahoma guaranteed to Native Americans in centuries-old treaty is still part of the reservation 

  • Even though the government disregarded the treaty at times, those actions did not undermine the treaty’s overall validity

  • Because Congress never explicitly withdrew the promised reservation, that Oklahoma land is still part of a reservation for the Creek Nation and four other tribes

On July 9, the U.S. Supreme Court decided in McGirt v. Oklahoma that it would “hold the government to its word” and confirmed that land throughout eastern Oklahoma reserved for the Creek Nation since the 1800s is Native American territory. 

This case, which arose under the Major Crimes Act, asserts that promises Congress made under centuries-old treaties with Native Americans must be preserved. 

Justice Neil Gorsuch wrote on behalf of the 5-4 majority, which held that Congress never disestablished the land in question as a reservation, and that it is the federal government, not the state government, which can prosecute major crimes committed by tribal members on tribal land.

The Supreme Court’s decision that government actions that at times ignored the treaty did not undermine the treaty’s promises is highly significant – solidifying that “federal treaties and statutes are still the supreme Law of the Land.”

In ruling that the Creek Nation’s reservation remains Indian country, and was not disestablished despite the fact that Congress “sometimes restricted and other times expanded the Tribe’s authority,” the court sided with the appeals court. Two 19th Century treaties had promised the Creek people their reservation in exchange for the Creek being pushed out of their homeland. Though Congress did “diminish” the reservation at times, Justice Gorsuch wrote that “the federal government promised the Creek a reservation in perpetuity…over time.”

He continued, writing that “Congress has never withdrawn the promised reservation,” and the majority’s holding reflects the fact that “once a federal reservation is established, only Congress can diminish or disestablish it” with “a clear expression of congressional intent.”

This ruling has significant implications for jurisdictional disputes in criminal cases involving tribal members, and most significantly, what counts as tribal land, which may have substantial consequences for tribal sovereignty. Five tribes – the Creek, Cherokee, Choctaw, Seminole and Chickasaw – hoped for a ruling that would respect the sovereignty of their land in Eastern Oklahoma, which is almost 19 million acres.

In addition, the ruling opens the door for addressing promises from other treaties over disputed tribal territories, possibly altering the balance of state and tribal land throughout the United States. The Supreme Court holding the government to its promises to the Creek people is a historic victory for tribes, and it emphasizes the importance of holding Congress accountable for the promises it makes.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 198



About this Author

Erika Weiss, Barnes Thornburg Law Firm, Grand Rapids, Tribal Law and Litigation Attorney

Erika Weiss is an associate in Barnes & Thornburg’s Grand Rapids office and a member of the Litigation Department. Ms. Weiss provides organizational and strategic guidance to the firm’s litigation clients. She has experience in commercial litigation, business law, securities litigation and American Indian tribal law.

Prior to joining Barnes & Thornburg, Ms. Weiss worked for a firm representing tribal governments and tribal entities. She provided general counsel legal services to tribally owned businesses and assisted tribes in...

Jeff Davis Native American Law and Policy Attorney Barnes & Thornburg Grand Rapids, MI
Of Counsel

Jeff focuses his practice on a variety of matters affecting tribes in Michigan and nationwide, including treaty rights, taxation, gaming, and economic development. He has been involved in numerous federal trials and has briefed and argued a multitude of cases before the U.S. Court of Appeals for the Sixth Circuit.

Jeff, who is a member of the Turtle Mountain Band of Chippewa, worked with the U.S. Attorney and his staff to maintain an effective government-to-government relationship with each sovereign nation, including assisting the tribes in the improvement of their law enforcement and judicial systems. In addition, Jeff worked on a variety of federal, state, and tribal matters that resulted in working agreements between the three sovereigns.

Notably, Jeff spent more than 20 years as an assistant U.S. Attorney in the Western District of Michigan. As assistant U.S. Attorney, he served as a tribal liaison to 11 federally recognized tribes in the Western District of Michigan.

Prior to his time in public service, Jeff was an attorney in private practice. He also taught federal Indian law as an adjunct professor at Detroit Mercy School of Law.


  • Construction
  • Litigation
  • Native American Law and Policy
  • White Collar and Investigations