Tulsa Law School teaches semester long course on McGirt v. Oklahoma (2020)

In 2020, the United States Supreme Court issued a very significant Indian Law case impacting the future of Oklahoma and the Indian Nations in that state. The consequences that have ensued so far, and that are coming in the future, are so important to Oklahoma that a professor at the University of Tulsa College of Law is teaching a semester long class just on this one case. I do not think that very many Supreme Court cases throughout our history have had entire college courses taught on them? Obviously, Roe v. Wade and Brown v. Board of Education, for example, have had greater impacts on the United States and American society at large, but McGirt is surely the most important Indian law case, at least to Oklahoma and the Indian Nations located there, that the Court has issued in well over one hundred years?

The professor at Tulsa Law School is using as the primary textbook the book Professor Ethridge and I wrote – Robert J. Miller & Robbie Ethridge, A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma (University of Oklahoma Press 2023). https://www.linkedin.com/posts/conor-cleary-88944132_today-marks-the-end-of-my-third-year-as-an-activity-7192172093952679937-OtN8

McGirt v. Oklahoma (2020) and the Ongoing Consequences for the Tribes, State, and Federal governments

When the McGirt case was issued by the U.S. Supreme Court on July 9, 2020, I called it a “bombshell” case and the most significant Indian Law case in over 100 years. The past four years has borne out this prediction. The consequences of McGirt continue to reverberate throughout Oklahoma and are seriously impacting the tribal nations, the state, and the United States. The McGirt case was so important because the Supreme Court re-recognized the 3.25 million acre 1866 reservation of the Muscogee (Creek) Nation. On the day before the Court’s opinion, the lands that the Nation (and to some extent the federal government), exercised Indian Law sovereignty and jurisdiction over was approximately 135,000 acres. It was easy to see that this case would lead to significant impacts.

In addition, in the years following, the Oklahoma state courts have applied the analysis of McGirt and have re-recognized eight or nine more Indian reservations many of which are also of enormous size. In fact, the Muscogee, Cherokee, Choctaw, and Chickasaw Reservations in Oklahoma are now something like the 2nd, 3rd, 4th, and 6th largest Indian reservations in the United States! My own tribe’s reservation, the Eastern Shawnee Tribe, was re-recognized by Oklahoma courts just about nine months ago. Our reservation is only 14,000 acres but it is still a major development for my Tribe and for Oklahoma.

The state of Oklahoma is now 46% “Indian Country” under federal law. 18 U.S.C. sec. 1151(a). Subsequently, 1.8 million Oklahomans now live in “Indian Country” and about 90% of those people are non-Indians. Serious questions about jurisdiction and which government has the power to do what, and to whom, will dominate Oklahoma life for the next 50 years if the State and Tribal governments do not engage in cooperative negotiations and contracting/compacting to settle these issues. So far, Governor Kevin Stitt has fought the McGirt decision and not shown a propensity to settle these current and looming issues in a cooperative manner.

In 2023, I co-authored a book on this case with Professor Robbie Ethridge from University of Mississippi – “A Promise Kept: The Muscogee Creek Nation and McGirt v. Oklahoma (University of Oklahoma Press 2023). https://www.facebook.com/share/p/9NS9tQNG4xr3w37t/?mibextid=oFDkn

New law review article on addressing the Doctrine of Discovery in Australia and the United States

My latest article on the Doctrine of Discovery was posted online December 19 by the Michigan Journal of Race and Law. Check it out.

Robert J. Miller & Harry Hobbs, Unraveling the International Law of Colonialism: Lessons from Australia and the United States, 28 Mich. J. of Race and L. 271-344 (2023).

REPOSITORY.LAW.UMICH.EDU

Michigan Journal of Race and Law | Journals | University of Michigan Law School. https://repository.law.umich.edu/mjrl/

The Michigan Journal of Race & Law is a legal journal that serves as a forum for the exploration of issues relating to race and law.

Free zoom conference on 200 years of Johnson v. M’Intosh and the Doctrine of Discovery

On November 9, 10 am – 2 pm MST, you can zoom in for free to a 4 hour conference on the international law of colonialism, better known as the Doctrine of Discovery. The University of New Mexico Law School is hosting myself and 3 other speakers as we examine the impacts of Discovery on contemporary issues facing Indigenous nations. https://lawschool.unm.edu/tlj/tjl-symposium-2023.html

200 years of the Doctrine of Discovery and Johnson v. McIntosh [spelled M’Intosh in the title of the U.S. Supreme Court case]

On November 15, at 1 p.m. EST, Professor Rebecca Tsosie, Professor Richard Monette, and myself will discuss the continuing legacy of the Doctrine of Discovery and Johnson v. McIntosh, and its place in the law school curriculum.

You can register here for the zoom presentation. https://www.aals.org/sections/list/indian-nations-and-indigenous-peoples/200-years-of-discovery/

China uses the Doctrine of Discovery??

China has been making claims to the South China Sea since about 2010 by using some of the elements of the Doctrine of Discovery. China has been claiming sovereignty over the ocean up to 900 miles from its coastline by filling in small atolls and reefs and building military bases and buildings on these artificial islands. China is then, maybe without knowing it, using the Johnson v. M’Intosh (1823) element of “actual occupancy” to claim the South China Sea and is trying to prevent other nations from using the shipping lanes. I’ve written about this interesting development in a couple of blog entries and articles since 2010.  Take a look at today’s New York Times and its map of China’s territorial claims to the ocean.  I suppose the United Nations and various treaties and politics will ultimately settle this dispute and not Johnson v McIntosh! But it is intriguing to see the Doctrine of Discovery at work today!

Blasting Bullhorns and Water Cannons, Chinese Ships Wall Off the Sea https://www.nytimes.com/2023/09/23/world/asia/china-sea-philippines-us.html?smid=nytcore-android-share

Native Americans in Philanthropy and the NCEL podcast

I was honored to appear on this podcast yesterday with the Lt. Governor of Minnesota, Peggy Flanagan. She is a citizen of the White Earth Nation in Minnesota. Have a listen.

Native Americans in Philanthropy and the National Caucus of Environmental Legislators (NCEL) have joined forces to enhance their collaboration.

https://www.linkedin.com/posts/nativegiving_native-americans-in-philanthropy-nap-and-activity-7082481757890994176-_ldZ?utm_source=share&utm_medium=member_desktop

The Indian Child Welfare Act and Haaland v. Brackeen, __ U.S. __ (June 15, 2023)

If you want to hear more analysis of the recent U.S. Supreme Court case that upheld the Indian Child Welfare Act, Haaland v. Brackeen, here is a link to a Scholars’ Circle one-hour podcast. I was on the program with professors Greg Ablavsky of Stanford and Bruce Duthu of Dartmouth. 

Scholars’ Circle – US Supreme Court upholds Native American tribal sovereignty in adoption cases – June 25, 2023

“A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma (2023)” is on the Oklahoma best seller book list

I think it must be quite unusual for an academic book to be on a best seller list? But McGirt v. Oklahoma (2020) is a “bombshell” U.S. Supreme Court case, as I call it, and it continues to be crucial to the future of Oklahoma and the 39 Indian nations located within that state, including my own the Eastern Shawnee Tribe. Check out the best seller list.

https://www.linkedin.com/posts/university-of-oklahoma-press_oklahoma-bestsellers-for-june-25-2023-activity-7079850287443701760-qY3T?utm_source=share&utm_medium=member_desktop

Arizona State University’s Indian Legal Program webinar on the Haaland v. Brackeen fabulous victory.

You can watch for free the June 20, 90-minute webinar ASU Indian Legal Program put on regarding Haaland v. Brackeen.

See more