The Justice’s textualism hands half of Oklahoma to Indian tribes.
In case you missed it, the Supreme Court on Thursday established an Indian reservation on three million acres of land in eastern Oklahoma. Wild. The 5-4 decision in McGirt v. Oklahoma could significantly affect Sooners, and it is also worth noting because it shows how Justice Neil Gorsuch’s textualist jurisprudence is careening in some odd directions.
In 1997, Jimcy McGirt was convicted by the state of Oklahoma for molesting, raping and sodomizing his wife’s four-year-old granddaughter. He later challenged his state conviction under the 1885 Major Crimes Act, which holds that “[a]ny Indian who commits” certain crimes within “the Indian country” must be tried in federal courts.
Mr. McGirt claimed he was a member of the Seminole Nation and committed the crime on land Congress reserved as a “permanent home to the whole Creek Nation” in an 1833 treaty. Since Congress never enacted a law explicitly reneging on the treaty, he said the land belongs to the Creeks. Justice Gorsuch and the four liberals agreed.
“Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution,” Justice Gorsuch writes for the majority. “Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear . . . But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.”
But as Chief Justice John Roberts explains in a dissent joined by the other three conservatives, Congress disestablished the Creek reservation through a series of laws. For the past century, the Court has determined whether an Indian reservation persists by examining Congress’s acts and “all the [surrounding] circumstances.”
Context is important. Lo, the Creeks and other tribes in the southeastern U.S. held 8,000 slaves and allied with the Confederacy. After the Civil War, the U.S. signed new treaties with the tribes declaring they had “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them” including lands.
Congress in subsequent decades leading up to Oklahoma’s statehood dismantled the tribal governments and courts, stripped tribes of taxing authorities, extinguished the Creek Nation’s title to the land and made members U.S. citizens. “The congressional Acts detailed above do not evince any unease about extinguishing the Creek domain, or any shortage of ‘will,’” the Chief writes.
In the century before the McGirt case, the Creek Nation never contended in court that a reservation existed on the sprawling land. Yet now they and other tribes by virtue of the Court’s reasoning may hold title to the entire eastern half of Oklahoma including the city of Tulsa—home to 1.8 million people.
Past convictions for crimes committed on the land may now be thrown out, the Chief points out, and the decision creates “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
Justice Gorsuch sweeps aside these precedents and reliance interests because Congress has never expressly written a single law that disestablished the reservation. This sounds a lot like his misapplication of textualism in his Bostock opinion redefining biological “sex” in the 1964 Civil Rights Act to encompass gender identity and sexual orientation. Textualism looks like a tool to get the judgment he wants.
The Chief Justice doesn’t put it this way, but it’s clear he thinks that Justice Gorsuch in McGirt has turned textualism into an idiosyncratic vanity project. The Court’s liberals are making the most of it, and good luck with the consequences, Oklahoma.
Minnesota Pipeline Replacement Threatens a Repeat of ‘Standing Rock’
The centerpiece of the House GOP tax package is an extension of last year’s tax cuts beyond their 2025 expiration date; that is unlikely to draw enough Democratic votes to become law. But Mr. Brady said he hoped the new retirement bill will attract bipartisan support.
.. Emergency savings are a big focus of this year’s House Republican effort.
Rep. Kenny Marchant (R., Texas), said the bill could include a universal savings account, funded with posttax dollars but with tax-free earnings and more flexible withdrawal rules than existing retirement accounts.
.. The Line 3 project, which would carry crude oil from Alberta, Canada, across Minnesota to a terminal in Wisconsin on Lake Superior, is a replacement of a pipeline built in the 1960s. Enbridge said the existing pipeline requires as many as 900 repairs over six years. It has reduced capacity on the current line to 390,000 barrels a day, from 760,000 barrels a day, out of safety concerns.
.. “It feels like a gun to our head that somehow compels us to approve a new line because of the risks of that existing pipeline,” he said.
.. His main argument is that Minnesota’s refineries would get enough oil without a new pipeline, a conclusion reached by a state Commerce Department study. “There’s just simply no need for this,” Mr. Plumer said.
Standing Rock Indian Reservation
in 1874 General George A. Custer and his 7th Cavalry entered the Black Hills and discovered gold, starting a gold rush. The United States government wanted to buy or rent the Black Hills from the Lakota people, but led by their spiritual leader Sitting Bull, they refused to sell or rent their lands. The Great Sioux War of 1876 was a series of battles and negotiations that occurred between 1876 and 1877, with the Lakota Sioux and Northern Cheyenne warring against the United States. Among the many battles and skirmishes of the war was the Battle of the Little Bighorn, often known as Custer’s Last Stand, the most storied of the many encounters between the U.S. army and mounted Plains Native Americans. It was an overwhelming Native American victory. The U.S. with its superior resources was soon able to force the Native Americans to surrender, primarily by attacking and destroying their encampments and property. The Agreement of 1877 (19 Stat. 254, enacted February 28, 1877) officially annexed Sioux land and permanently established Native American reservations. Under the Agreement of 1877 the U.S. government took the Black Hills from the Sioux Nation.[3]
In February 1890, the United States government broke a Lakota treaty by breaking up the Great Sioux Reservation, an area that formerly encompassed the majority of the state. It reduced it and divided it into five smaller reservations.[4] The government was accommodating white homesteaders from the eastern United States; in addition, it intended to “break up tribal relationships” and “conform Indians to the white man’s ways, peaceably if they will, or forcibly if they must”.[5] On the reduced reservations, the government allocated family units on 320-acre (1.3 km2) plots for individual households.
Although the Lakota were historically a nomadic people living in tipis, and their Plains Native American culture was based strongly upon buffalo and horse culture, they were expected to farm and raise livestock. With the goal of assimilation, in the late 19th and early 20th centuries, they were forced to send their children to boarding schools; the schools taught English and Christianity, as well as American cultural practices. Generally, they forbade inclusion of Native American traditional culture and language. The children were beaten if they tried to do anything related to their native culture.
The farming plan failed to take into account the difficulty that Lakota farmers would have in trying to cultivate crops in the semi-arid region of South Dakota. By the end of the 1890 growing season, a time of intense heat and low rainfall, it was clear that the land was unable to produce substantial agricultural yields. As the bison had been virtually eradicated a few years earlier, the Lakota were at risk of starvation. The people turned to the Ghost Dance ritual, which frightened the supervising agents of the Bureau of Indian Affairs. Agent James McLaughlin asked for more troops. He claimed that spiritual leader Sitting Bull was the real leader of the movement. A former agent, Valentine McGillycuddy, saw nothing extraordinary in the dances and ridiculed the panic that seemed to have overcome the agencies, saying: “The coming of the troops has frightened the Indians. If the Seventh-Day Adventists prepare the ascension robes for the Second Coming of the Savior, the United States Army is not put in motion to prevent them. Why should not the Indians have the same privilege? If the troops remain, trouble is sure to come.”[6]
Thousands of additional U.S. Army troops were deployed to the reservation. On December 15, 1890, Sitting Bull was arrested for failing to stop his people from practicing the Ghost Dance.[7] During his arrest, one of Sitting Bull’s men, Catch the Bear, fired at Lieutenant “Bull Head”, striking his right side. He instantly wheeled and shot Sitting Bull, hitting him in the left side, and both men subsequently died.[8][9]