Mark Jensen has posted Stricter Scrutiny of Treaty Violations? How McGirt v. Oklahoma and Textualism Could Buttress American Indian Sovereignity on SSRN. Here is the abstract:
The 2020 US Supreme Court decision in McGirt v. Oklahoma recognized surviving rights of the Creek nation in a reservation covering much of eastern Oklahoma. This article analyzes the majority opinion's use of textualism, which relies on close reading of Congressional acts, rather than considerations of policy or equity, to rule in favor of the Creek position. The dissent, ostensibly using the same analytical approach, comes to the opposite conclusion by defending a number of oppressive measures taken by the US Government to displace the Creek. Because the decision was 5-4, with the late Justice Ginsburg in the majority, the future impact of this decision is very much in doubt.