{"id":176339,"date":"2020-07-09T19:04:00","date_gmt":"2020-07-10T00:04:00","guid":{"rendered":"https:\/\/www.panix.com\/~msaroff\/40years\/2020\/07\/09\/ok-this-is-not-what-i-expected\/"},"modified":"2020-07-09T19:04:00","modified_gmt":"2020-07-10T00:04:00","slug":"ok-this-is-not-what-i-expected","status":"publish","type":"post","link":"https:\/\/www.panix.com\/~msaroff\/40years\/2020\/07\/09\/ok-this-is-not-what-i-expected\/","title":{"rendered":"OK, This is Not What I Expected"},"content":{"rendered":"
The Supreme Court just ruled that about \u00bd of Oklahoma remains an Indian reservation<\/a>, and so sovereign land, at least to the degree that reservations are sovereign in the United States:<\/div>\n

The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma<\/a><\/i> was that Chief Justice John Roberts didn\u2019t manage to be in the majority in every single 5-4 decision this term. Today, Justice Neil Gorsuch wrote for a majority of five (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Roberts writing for the four dissenters and Justice Clarence Thomas appending a brief solo dissent to assert that the court lacked jurisdiction to hear this case at all. <\/p>\n

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to commit certain major crimes committed by \u201c[a]ny Indian\u201d in \u201cthe Indian country.\u201d The court\u2019s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation. <\/p>\n

The decision is a stunning reaffirmance of the nation\u2019s obligations to Native Americans. It confirms the existence of the largest tract of reservation land in the country, about 19 million acres encompassing the entire eastern half of Oklahoma. The court took almost two full terms to decide this question. It first heard oral argument in a predecessor case, Sharp v Murphy<\/a><\/i> (in which Gorsuch was recused), in the fall of 2018, before restoring Murphy<\/i> to the calendar this term and then, instead of hearing re-argument, granting and hearing oral argument in May on the same question in McGirt<\/i> (in which Gorsuch could participate). (In a one-sentence, unsigned opinion<\/a>, the court today also disposed of Murphy<\/i>, ruling in favor of inmate Patrick Murphy \u201cfor the reasons stated in\u201d McGirt<\/i>.) In substance, the court \u201chold[s] the government to its word,\u201d reaffirming the continuing existence of the reservations that the federal government promised to the Five Civilized Tribes in the 1830s to persuade them to give up their ancestral lands in Georgia and Alabama and walk along the Trail of Tears to the lands at issue. <\/p>\n

As Indian law cases go, the dispute in this one is easy to understand: whether the land once granted to the Creek Nation as a reservation retains that status. The majority of five says that it does, because Congress has not adopted any single statute that explicitly terminates that status; the dissenters say that it does not, reasoning that the total body of congressional intrusions in the area, culminating in the development of eastern Oklahoma as a predominantly non-Native American area, adequately illustrates Congress\u2019 intent to disestablish the reservation. <\/span><\/p><\/blockquote>\n

Gee, what happened to strict constructionism there?   <\/p>\n

Gorsuch begins by documenting the clarity of the historical record establishing the creation of the Creek reservation: a series of treaties and statutes that, among other things \u201csolemnly guarantied\u201d the land to the tribe, \u201cforever set apart as a home for said Creek Nation,\u201d \u201cno portion [of which] shall ever be embraced or included within \u2026 any Territory or State.\u201d <\/p>\n

\u2026\u2026\u2026<\/p>\n

For Gorsuch, though, the allotment process sheds no light on the outcome of the case: \u201cFor years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.\u201d Rather, \u201cthis Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots.\u201d Gorsuch acknowledges that the proponents of allotment hoped that, after the land was parceled out, the reservations eventually would be abolished, but he concludes that \u201cto equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.\u201d <\/p>\n

Finding allotment insufficient to show disestablishment, Gorsuch turns next to the many \u201cother ways Congress intruded on the Creek\u2019s promised right to self-governance.\u201d He discusses those at some length, but, as with allotment, his overarching view is that the various \u201claws represented serious blows to the Creek \u2026 [b]ut, just as plainly, \u2026 left the Tribe with significant sovereign functions over the lands in question.\u201d <\/p>\n

\u2026\u2026\u2026<\/p>\n

There is a notable symmetry in the articulation of a strong voice in support of Native Americans by the only justice with roots in the western part of the nation. Observers of the court know that it frequently has given short shrift to the promises and obligations that Congress has undertaken for Native Americans, and that a decision so firmly vitalizing the nation\u2019s obligations to Native Americans does not come along every year. It will be interesting to watch in the years to come to see whether Gorsuch continues to stake out an interest in the topic.<\/span><\/p><\/blockquote>\n

I do not know what this means from a functional perspective, except that members of the various tribes encompassed by the reservation will not have to be prosecuted in a federal court.<\/p>\n

However, there might be significant changes in the regulatory and tax regimes as a result of this, as well as potential renegotiation of energy leases in the area.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court just ruled that about \u00bd of Oklahoma remains an Indian reservation, and so sovereign land, at least to the degree that reservations are sovereign in the United States: The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma was that Chief Justice John Roberts didn\u2019t …<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[676,499,407,677],"class_list":["post-176339","post","type-post","status-publish","format-standard","hentry","tag-aboriginal-peoples","tag-constitution","tag-justice","tag-treaties"],"_links":{"self":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts\/176339"}],"collection":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/comments?post=176339"}],"version-history":[{"count":0,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts\/176339\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/media?parent=176339"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/categories?post=176339"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/tags?post=176339"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}