This is the first of our two-part analysis on the U.S. Supreme Court’s recent McGirt decision, and how it may affect those within the oil, gas and energy industry. In Part 2, we will discuss potential implications on regulatory powers.

The central holding in the McGirt decision is that the U.S. Congress has never explicitly disestablished the Creek Reservation. According to the Court, once an Indian reservation is established, only Congress can annul—or disestablish—the reservation. Congress’ power in this regard is absolute, and therefore, in theory at least, Congress can disestablish a reservation at any time. Nobody seriously disagrees with Congress’ power in this area. Thus, in McGirt, the question was not whether Congress has the power to disestablish the Creek reservation—everybody agrees that it can. Rather, the question was simply whether Congress had in fact taken the steps to bring about disestablishment. According to the majority opinion, in order to determine if Congress has disestablished a reservation, a court is strictly limited to considering only the statutes enacted by Congress. Although there are no “magic words” that Congress must use in a statute to effect disestablishment, there is nevertheless a “require[ment] that Congress clearly express its intent to do so.” Accordingly, the majority searched the statutes for some clear legislative pronouncement of an intent to disestablish the Creek reservation. After this search, the Court was left empty-handed, for it was unable to locate a statute that sufficiently expressed a congressional intent to disestablish the Creek reservation. The Court, therefore, was constrained to hold that the Creek reservation has never been disestablished, resulting in the inescapable conclusion that the reservation still exists to this day.

Thus, the McGirt Court found that the Creek reservation has been in continuous, uninterrupted existence from the time of its establishment (in the mid-1800s) until the present day. So, the question naturally arises: in what sense does this reservation exist? Perhaps most importantly, does this mean that all the land within the reservation—including the mineral rights associated with that land—should be considered as belonging either to the Creek Tribe itself, or maybe to the various members of the Creek Tribe? What effect, exactly, does the McGirt decision have on private real property rights?

The McGirt decision seems to provide definitive answers to these questions. As noted, the paramount question in McGirt was whether there was a congressional statute that expressly disestablished the reservation. The defendant, the State of Oklahoma, argued that certain allotment acts regarding Native Americans in general, as well as the Creeks in particular, manifested a clear intent on Congress’ part to disestablish the affected reservation land. As a general matter, these allotment acts required Indian tribes to convey to individual members of the tribe all interest in (usually) 160-acre parcels of land lying within the reservation. Accordingly, after this allotment process had been completed, all the land lying within the reservations (with a few exceptions) was owned by private individuals, not by the tribe itself. And although some of these individuals may have been “restricted” Indians, meaning that they could not sell their land to third parties, these restrictions were later either relaxed or removed such that an allottee’s selling of his land to another Indian or a non-Indian was permitted. It was in this manner that much of the land in the Creek reservation passed into the hands of non-Indian owners.

The McGirt Court ultimately found that these allotment acts, and the attendant transference of reservation lands in parcels to private individuals, did not express a clear congressional intent to disestablish the Creek reservation. In so doing, however, the Court explained that there is nothing unusual about “private land ownership within reservation boundaries.” The Court then likened such a situation to the fact that the United States government had also issued individual land grants throughout the West, and that, as a result of these grants, “no one thinks any of this diminished the United States’ claim to sovereignty over the land.” Importantly, the Court continued the analogy by stating that “there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercise governmental functions over land even if they no longer own it communally.”

The Court, therefore, did nothing to diminish or even question the propriety of the allotment acts, which resulted in the private ownership of land within a reservation. On the contrary, it simply found that the forced parceling out of all the lands within a reservation’s boundaries is not the same thing as disestablishing the reservation itself. Consequently, the resulting situation is that the boundaries of the reservation remain, but the land within those boundaries is owned, not by the tribe or the members thereof, but by the legal successors to the original allottees. In other words, McGirt cannot be used to alter in any manner the private property rights of parties, either Indian or non-Indian, who own title to land (including mineral rights) within the still-existing Creek Reservation.


About the Authors:

Anthony Mann is a Senior Attorney at CharneyBrown, LLC. Mr. Mann focuses his practice on Oil & Gas, Mineral and Energy Law and Insurance Law, specializing in coverage opinions.

Jacob Charney is Managing Attorney at CharneyBrown, LLC where he leads the Title/Transaction department. Mr. Charney has extensive experience in Oil & Gas, Energy and Mineral Law and is licensed to practice in both Oklahoma and Texas.