Stanford Humanities Center Interview Follow-Up: The McGirt Decision

For so long the Court has made decisions in federal Indian law cases based not on the terms of treaty agreements as written, but on interpretations of what historical policymakers intended in relation to the tribes.

In McGirt v. Oklahoma, however, Justice Gorsuch powerfully disavows that tradition: “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. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”
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[In my view as a historian], the decision is entirely consistent with the written historical record—it’s clear Congress never de-established the Five Tribes’ reservations—but it’s still rare to see the Court prioritize that evidence over the perceived implications and associated disruptions that recognizing tribal sovereignty may have.

READ THE FULL INTERVIEW HERE