The Tempting of Neil Gorsuch

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.

Has Trump Decided We Will Follow Sweden and Just Not Told Us?

The president brings instability and confusion to a crisis.

Having a pandemic is really bad. Having a pandemic and a civil war together is really, really bad. Welcome to Donald Trump’s America 2020.

If you feel dizzy from watching Trump signal left — issuing guidelines for how states should properly emerge from pandemic lockdowns — while turning right — urging people to liberate their states from lockdowns, ignore his own guidelines and even dispute the value of testing — you’re not alone.

Since Trump’s pronouncements are simultaneously convoluted, contradictory and dishonest, here’s my guess at what he is saying:

“The Greatest Generation preserved American liberty and capitalism by taking Omaha Beach in Normandy on D-Day — in the face of a barrage of Nazi shelling that could and did kill many of them. I am calling on our generation to preserve American liberty and capitalism today by going shopping in the malls of Omaha, Nebraska, in the face of a coronavirus pandemic that will likely only kill 1 percent of you, if you do get infected. So be brave — get back to work and take back your old life.”

Yes, if you total up all of Trump’s recent words and deeds, he is saying to the American people: between the two basic models for dealing with the pandemic in the world — China’s rigorous top-down, test, track, trace and quarantine model — while waiting for a vaccine to provide herd immunity — and Sweden’s more bottom up, protect-the-most-vulnerable-and-let-the-rest-get-back-to-work-and-get-the-infection-and-develop-natural-herd-immunity model, your president has decided for Sweden’s approach.

He just hasn’t told the country or his coronavirus task force or maybe even himself.

But this is the only conclusion you can draw from all the ways Trump has backed off from his own government guidelines and backed up his end-the-lockdown followers, who, like most of the country, have grown both weary of the guidelines and desperate to get back to work and paychecks.

But, in keeping with my D-Day analogy, Trump has basically decided to dispatch Americans into this battle against this coronavirus without the equivalent of maps, armor, helmets, guns or any coordinated strategy to minimize their casualty count. He’s also dispatching them without national leadership — so it’s every platoon, or state, for themselves, maximizing the chances of virus spread between people who want to go shopping and those who still want to shelter in place.

He’s also dispatching them without a national plan to protect the most vulnerable, particularly the elderly, and without setting the example that everyone should wear face masks and practice social distancing whenever they are at work or in a public setting. Finally, he’s dispatching them without a plan of retreat if way too many vulnerable people are infected and harmed as we take to the malls of Omaha and beyond.

Other than all that, Trump is just like F.D.R.

I fear that when these shortcomings become apparent, it could trigger a low-grade civil war between those who will ask their neighbors: “Who gave you the right to ignore the guidelines of the Centers for Disease Control and heedlessly go to a bar, work or restaurant and then spread coronavirus to someone’s grandparents or your own?” And those who will ask their neighbors: “Who gave you the right to keep the economy closed in a pandemic and trigger mass unemployment, which could cost many more lives than are saved, especially when alternative strategies, like Sweden’s, might work?”

A new Mason-Dixon line could emerge between those states led by governors who want to equip their people with the maximum protective gear and safety guidelines and those governors who are keen to reopen their states for business as usual — gear and guidelines be damned.

According to a new poll from Pew Research Center, more than two-thirds of Americans worry that their respective states are reopening too quickly, while pro-Trump protesters have taken to the streets to demand that businesses get people back to work now.

So, I can imagine the possibility of the governor of Maryland, who has been very careful about lifting lockdowns, banning cars coming north on Interstate 95 with Georgia license plates. And this is not just my imagination.

South Dakota Governor Kristi Noem “sent letters Friday to the leaders of both the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe demanding that checkpoints designed to prevent the spread of coronavirus on tribal land be removed” — or risk legal action, CNN.com reported Saturday. The Cheyenne River Sioux Tribe has rejected the ultimatum. Stay tuned.

The tragedy of all of this is that a better president would never have allowed us to get to this edge of pandemic civil strife.

A real president would be simultaneously framing the issues for the nation and then arguing for and guiding us on the least painful course. He’d start by explaining that we are up against a challenge no one in our generation has ever faced — the challenge of a global pandemic in which Mother Nature is silently, invisibly, exponentially and mercilessly spreading a coronavirus among us.

And, unlike a human foe, you can’t defeat Mother Nature, negotiate with her or spin her. All you can do is adapt in the least harmful way possible to whatever she throws at you. And when it’s a pandemic, it means there are only hellish moral and economic trade-offs — no matter which path you choose. Too closed, she’ll kill your jobs. Too open, she’ll kill your vulnerable.

The job of leadership is to choose the path that offers the most sustainable way to balance lives and livelihoods and then create and stick to the conditions that make it workable.

So, as I said, China has chosen the pathway of locking down and then opening its economy, but with strict social distancing, masks everywhere and highly intrusive testing, tracking, tracing and quarantining anyone with coronavirus to prevent further spread — while it waits for a vaccine to create herd immunity.

Sweden has chosen moderate social distancing, keeping a lot of its economy open, while trying to protect the most vulnerable and letting those least vulnerable — those most likely to experience coronavirus either asymptomatically or as a mild or tough flu — continue to work, get the virus and develop immunity to it. Then, when enough of them are immune, they can sound the all-clear for the vulnerable. That’s Sweden’s strategy, but it is too early to say it’s the right answer.

If you listened to Trump last week you heard a president who was all over the place. One day he talked as though he wanted to follow Sweden in getting a lot of people back to work, even if many more will get infected by coronavirus. Another day, he boasted that we’re testing just like China — only more so. Another day he disputed the need for testing at all.

In brief: Trump talks like China, envies Sweden, prepares for neither and insists that his strategy is superior to both.

But the fact is he is not prepared to impose the kind of strict surveillance tracing and quarantining system that makes China’s reopening work. And he is not ready to consider strategies — like moving vulnerable people living in crowded homes to empty hotels or surrounding every nursing home with a public health testing units — that might make a Swedish-style opening less dangerous.

So, I fear that we are heading for a roiling mess. Our coronavirus infections will be exacerbated by Trump’s incompetence, while our hyper-political partisanship will be fed by his malevolence. After all, his whole political strategy is to divide us into red and blue, Republicans and Democrats, open-now advocates and go-slow advocates. That’s the only politics he practices.

In sum, Covid-19 is sapping our economic and physical health, while Trump is undermining our institutions and national unity. We desperately need a vaccine — and a 2020 election outcome — that can give us herd immunity to this virus and this president.

How Elizabeth Warren Learned to Fight

She was Betsy to her mother, who expected her to marry. Liz to fellow high school debaters, whom she regularly beat. Now, the lessons of an Oklahoma childhood are center stage in the presidential race.

OKLAHOMA CITY — It was 1962 in Oklahoma City and Liz Herring, a new student at Northwest Classen High School, was feeling insecure. She was good at school, had skipped a grade, and now, as a skinny freshman with glasses and crooked teeth who had grown up in a town south of the capital, she was hungry to fit in.

She joined the Cygnet Pep Club to show her school spirit and the Courtesy Club to help visitors find their way around the school. She became a member of the Announcers Club, reading messages over the school’s central sound system. But it was the debate club where she really found herself. At a time when Home Ec and preparing for marriage were priorities for young women, debate was a place where they could compete on equal ground.

She loved learning about the big topics of the day — Medicare, unions, nuclear disarmament. She began carrying around a large metal box with hundreds of index cards with quotes and facts written on them.

She was competitive and had extraordinary focus and self-discipline, spending hours after school each day practicing. Joe Pryor, a high school friend and debate teammate, remembers her “ruthlessness in preparation.” By the time they were juniors, he said, “she was just flat out better than me.”

Christ Means “Anointed”

In 1969, I was sent as a deacon to work at Acoma Pueblo, a Native American community in western New Mexico. When I got there, I was amazed to discover that many Catholic practices had direct Indigenous counterparts. I saw altars in the middle of the mesas covered with bundles of prayer sticks. I noted how the people of Acoma Pueblo sprinkled corn pollen at funerals just as priests did holy water, how what we were newly calling “liturgical dance” was the norm for them on every feast day. I observed how mothers would show their children to silently wave the morning sunshine toward their faces, just as we learn to “bless ourselves” with the sign of the cross, and how anointing people with smoldering sage was similar to waving incense at our Catholic High Masses.