The Yale Law Journal

May 2022

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

Federal Indian Law

abstract. 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 litigation.

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 Indians1—is older than the United States, it has recently gained new momentum.2 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.3

Creativity has characterized the movement’s successes. In recent years, some tribes have partnered with private nonprofits,4 for-profit companies,5 and religious organizations6 to reclaim stewardship of thousands of acres of ancestral land. Other groups, like the Yurok and Wiyot Tribes of northern California, have purchased land outright.7 Still others have asserted their stewardship by shaping national land policy through protests and grassroots organizing.8 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,9 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.11 Alongside systemic racism, forced assimilation, and violent
removal,12 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 were.13 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.14

In McGirt v. Oklahoma,15 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.16 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, McGirt’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.17 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.18 The decision is explicit. If Congress intends to terminate such rights, “it must say so” clearly.19 “[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.”20

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.21 According to the doctrine, American Indians retained only “Indian title”—the right of occupancy and use22—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.”23

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.24 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.25 As a result, some have described Indian title as “split title” because it confers an incomplete bundle of rights.26

The terms “original Indian title” or, today, “aboriginal title”27 refer to American Indians’ default rights under the Indian-title doctrine to occupy and use land as their ancestors did.28 These rights stem from exclusive, continuous occupancy and use since “time immemorial.”29 Aboriginal title is not to be confused with “recognized Indian title” or “recognized title,”30 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.31

Despite any clarity these definitions suggest, use of these terms has not always been consistent.32 Even the distinction between aboriginal and recognized titles is recent.33 Still, Federal Indian property law has unfailingly assumed that, by default, the federal government possesses the right of preemption over American Indian land.34 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,”35 as well as to analyze the Muscogee Nation’s36 recognized title claims.37 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 land.38 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.”39 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,40 despite only vague or ambiguous evidence of Congress’s intent, such as “scatter[ed]” non-American Indian settlement.41 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 decision,42 Pueblo of Jemez v. United States.43 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”44—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.45

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.46 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.