McGirt v Oklahoma and the Right of Indigenous Peoples to Have Their Treaties Concluded with States Respected: Is the Glass Half-Full or Half-Empty?

The judgment of the U.S. Supreme Court in McGirt v. Oklahoma, saluted as a landmark victory for Native Americans, raises doubts regarding its consistency with international law. While no primary international obligation exists binding states to respect treaties concluded with indigenous peoples, and while it is not possible to assume that such treaties generally have the rank of international agreements, at the same time their unilateral termination would result in the breach of some of the fundamental rights of such peoples protected by rules of customary international law. Among said rights, land rights and the right to autonomy have a special significance. Whereas in terms of practical outcome the McGirt judgment actually gives realization to the internationally established right of indigenous peoples to autonomy, the unconditioned power to terminate treaties concluded with Indian Nations that the Supreme Court has recognized in favor of the Congress actually appears inconsistent with state obligations under international law.