Yale Law Journal – “We Hold the Government to Its Word”: How McGirt v. Oklahoma Revives Aboriginal Title

This Note analyzes for the first time how McGirt v. Oklahoma could
revive aboriginal-title land claims against the United States and create an
opening for Land Back litigation. It argues that McGirt directs lower
courts to enforce aboriginal title’s congressional-intent requirement strictly
and renews the relevance of an overlooked case from 2015, Pueblo of
Jemez v. United States
. In Pueblo of Jemez, the Tenth Circuit
unknowingly demonstrated how insisting on clearer proof of congressional intent
to extinguish title would implement McGirt’s holding and remove the jurisdictional
bars—sovereign immunity and preclusion—that have prevented aboriginal-title

author. Yale Law School, J.D. 2021. For
their thoughtful comments and conversations, as well as their encouragement, I
am deeply grateful to Tom Luebben, Claire Priest, and Isaac Buck. I also thank
the editors of the Yale Law Journal, especially Eliane Holmlund, for
their incisive editorial suggestions and support.


Although the Land Back movement’s goal—returning land to
American Indians
—is older than the United
States, it has recently gained new momentum.
Land Back efforts include
pursuing fee-simple ownership by American Indians, but other sets of property
rights are also available. Given the variety of American Indian groups and
their unique histories, restoring land requires different legal strategies and
may lead to different outcomes across regions and tribes.

Creativity has characterized the movement’s successes. In
recent years, some tribes have partnered with private nonprofits,
for-profit companies, and
religious organizations

to reclaim stewardship of thousands of acres of ancestral land. Other groups,
like the Yurok and Wiyot Tribes of northern California, have purchased land
Still others have asserted
their stewardship by shaping national land policy through protests and
grassroots organizing.

Land Back has also gained recognition in the legislative and executive
branches: recently, Congress statutorily returned thousands of acres of land to
the Leech Lake Band of Ojibwe
and the Department of Interior (DOI) took steps to facilitate tribal
applications to place land into federal

What role, if any, litigation should play in Land Back
efforts remains unclear, given that the United States has reneged on its legal
obligations to American Indians since the Revolution.
Alongside systemic racism,
forced assimilation, and violent
American Indians have faced
an additional challenge: judicial nonenforcement of their lawful land claims.
And whereas harms against other identity groups in the United States were often
legal when perpetrated, many federal seizures of American Indian land never
As historian and law professor Stuart
Banner has emphasized, protecting American Indian land rights has often required
“persuad[ing] government officials . . . to enforce” their
own rules “as written” rather than to change legal doctrine.

In McGirt v. Oklahoma, the Supreme Court cleared a
new path for Land Back litigation. It did so by enforcing a long-standing legal
rule: only unambiguous proof of congressional intent can extinguish American
Indian tribes’ land rights.

Enforcing the congressional-intent requirement may clear two jurisdictional
roadblocks that have historically barred American Indians from litigating
certain land claims’ merits: sovereign immunity and preclusion. Admittedly,
’s holding addressed a narrow circumstance. It established only that
land promised in federal treaties remains Indian reservation land for the
purposes of a federal criminal statute.
But the Court’s forceful
reaffirmation of the rule that Congress alone has the constitutional authority
to extinguish certain tribal property rights—and that courts may not “lightly
infer such” extinguishment—has far broader implications.
The decision is explicit.
If Congress intends to terminate such rights, “it must say so” clearly.
“[S]aving the political
branches the embarrassment” of breaking the law’s guarantees to tribes “is not
one of [the Court’s] constitutionally assigned
prerogatives . . . no matter how many other
promises . . . the federal government has already broken.”

McGirt relies on the doctrine of “Indian
title.” Indian title is a common-law theory that colonizing European
sovereigns, and their successors by war or purchase, acquired “absolute
ultimate title” to North America’s land through the “doctrine of discovery” at
first contact.
According to the doctrine, American
Indians retained only “Indian title”—the right of occupancy and use
—even though they were on
the land first. Courts justified this distinction through explicit reference to
the racist attitudes of the time: as Chief Justice Marshall would later write,
Indian title was legitimate because American Indians were “fierce savages.”

Despite its origins, the doctrine continues to have vast
ramifications for tribes. Because the sovereign retains ultimate title, Indian-title
land cannot be sold without the sovereign’s involvement.
The sovereign’s authority
over such land exchanges is known as the “right of preemption,” because the
sovereign—today, the United States government—can block or preempt any Indian-title
land transfer.
As a result, some have
described Indian title as “split title” because it confers an incomplete bundle
of rights.

The terms “original Indian title” or, today, “aboriginal
refer to American Indians’ default
rights under the Indian-title doctrine to occupy and use land as their
ancestors did.
These rights stem from
exclusive, continuous occupancy and use since “time immemorial.”
Aboriginal title is not to be
confused with “recognized Indian title” or “recognized title,”
which describe land to which the United
States has formally acknowledged American Indians’ claim. Recognized title
derives from federal action, and what rights it confers depend on the scope of
its establishing treaty, statute, or executive order.

Despite any clarity these definitions suggest, use of these
terms has not always been consistent.
Even the distinction between
aboriginal and recognized titles is recent.
Still, Federal Indian property law
has unfailingly assumed that, by default, the federal government possesses the
right of preemption over American Indian land.
McGirt relied on the
interrelated concepts of split Indian title and the right of preemption for its
premise that the United States defines the scope of “Indian country,”
as well as to analyze the
Muscogee Nation’s

recognized title claims.
But the decision’s reasoning and
implications extend beyond its specific facts.

For the first time, this Note analyzes McGirt’s
ramifications in another context: tribal aboriginal-title claims to federal
The decision has urgent implications
for tribes that would litigate such claims against the United States. Like the
recognized title at issue in McGirt, aboriginal-title claims are subject
to the right of preemption and, therefore, may only be
extinguished by a “clear and plain indication” of congressional intent or
Congress’s “plain and unambiguous action.”
But in the past, federal tribunals
have been especially willing to infer that aboriginal title was extinguished
when land claimed by the United States government was at stake
despite only vague or ambiguous evidence of Congress’s intent, such as
“scatter[ed]” non-American Indian settlement.
McGirt rejects such
equivocal evidence and requires reversing that practice.

This Note proposes how lower federal courts can and should
implement McGirt in the aboriginal-title context. The Supreme Court’s
decision in McGirt renewed the relevance of an overlooked Tenth Circuit
Pueblo of Jemez v.
United States

Although it predated McGirt, the 2015 Jemez decision anticipated
its reasoning and demonstrated how courts can implement McGirt’s command
to “hold the government to its word”
—or to its silence—when the
United States encroaches on aboriginal-title land. In Jemez, the Tenth
Circuit presciently enforced the congressional-intent requirement strictly and
on a tract-by-tract basis. As a result, Jemez was one of the few—if not
the first—aboriginal-title suits seeking to affirm a tribe’s use and occupancy
rights to federal land that has advanced to merits litigation before an Article
III court.

If applied broadly, the Jemez court’s insistence that
the United States provide unambiguous proof of Congress’s intent to extinguish
aboriginal title for each disputed tract would have momentous effects. It would
not only implement the Supreme Court’s message in McGirt, but could also
revive aboriginal-title claims to millions of acres of land. The fact that the
Tenth Circuit merely enforced long-standing precedent makes its approach even
more relevant and scalable. Requiring unambiguous proof of Congress’s intent to
extinguish title is not radical. It is what the law already requires. Federal
judges need only enforce the standard and presumptions that have long governed
aboriginal-title law.

Ultimately, the fate of any aboriginal-title suit will still depend on a
claim’s unique history. But for the first time, tribes that can satisfy
the doctrine’s standards at merits litigation would have an opportunity to
pursue their claims against the federal government for nonmonetary restitution:
land back.

Part I of this Note examines McGirt’s relevance to
aboriginal title, while contrasting its enforcement of the congressional-intent
requirement in the recognized-title context with courts’ dilution of that
requirement in aboriginal-title suits. In Part II, this Note turns to the Tenth
Circuit’s decision in Jemez, which unknowingly demonstrated how McGirt’s
insistence on clearer proof of Congress’s intent to extinguish could revise the
extinguishment dates for many aboriginal-title claims, bring them within the
Quiet Title Act’s (QTA) statute of limitations, and provide a new path past
sovereign immunity. Part III likewise examines the Jemez decision—but,
this time, as a model for applying McGirt’s statute-by-statute search
for congressional intent in aboriginal-title cases to avoid doctrinal confusion
about the preclusive power of Indian Claims Commission (ICC) claims awards.
Finally, this Note’s conclusion explores the possible Land Back opportunities,
in the Tenth Circuit and beyond, that McGirt creates when applied to
aboriginal-title claims.