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.
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.
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.”
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.
Developing now, Tuesday, Jan. 22, 2019
RUSH TO JUDGMENT – AND ITS LESSONS: The much-discredited BuzzFeed story alleging that President Trump urged former personal attorney Michael Cohen to lie to Congress and the viral video of the encounter between Covington High School students and Native American protestors in Washington, D.C. last weekend have two things in common and one very important lesson… Both were examples of the media’s rush to judgment before the facts surfaced. And both illustrate the media’s hatred of Trump and shows how that anti-Trump bias infects the way they cover the news.
BuzzFeed still stands by its report, even though Special Counsel Robert Mueller has said it was “not accurate.” But as “Media Buzz” host Howard Kurtz points out, the damage had already been done, with several media outlets repeating the erroneous report, drumming the impeachment alarm, seemingly on loop, with the somewhat flimsy caveat “if true.” Pundits and Democratic lawmakers followed in tow, on the airwaves and on social media.
Coverage of the encounter between the Covington students and Native American group – specifically student Nick Sandmann and activist Nathan Phillips – was arguably much worse. Initial coverage, fed by an abbreviated video of the encounter and a rabid social media mob, portrayed Sandmann, a junior, and his classmates as young “MAGA” hat wearing, Trump-supporting racists who were taunting Native Americans and people of color. And people on both the left and the right jumped to condemn the students before a longer video told a different, more nuanced story.
Kneejerk pundits rushed to delete their kneejerk tweets. Some journalists, pundits and celebrities, like actress Jamie Lee Curtis, owned up to their own mistakes in rushing to judgment. But not everyone did. The lesson learned here, as Kurtz writes, is this: “There’s no harm in waiting for more details before denouncing people based on fragmentary information, even if you have to restrain yourself from joining the hot-take crowd.”
A Kentucky high school student accusing of mocking a Native American protester in a viral video spoke out for the first time Sunday night and claimed the video does not show what really happened during the encounter … Nick Sandmann, a junior at Covington Catholic High School, said he was “mortified” to find that so many people believe he and his classmate were taunting African-Americans and Native American protesters with racist chants during an encounter between protest groups on Saturday. “I did not do that, do not have hateful feelings in my heart and did not witness any of my classmates doing that,” Sandmann said.
The students initially were accused of mocking a Native American participant in the Indigenous Peoples March, which coincided with the March for Life. A snippet of video from the apparent confrontation quickly gained traction on social media, with many condemning the students — some of whom were wearing “Make America Great Again” apparel — and other critics calling for the students to be identified and harassed.
The Roman Catholic Diocese of Covington and the high school issued a joint statement apologizing to the activist, identified Saturday as Nathan Phillips. However, the emergence of longer video that appears to show some students being harassed prompted some conservatives to take back their earlier criticisms of the students.
because we are so powerfully rooted to the notion of individuality, in some ways race affronts that. But the real affront is the whole notion of individuality. Individuality, as we think of it, is actually extremely problematic.
MS. TIPPETT: Well, see — yeah, and you make this really fascinating point that — you say that there are two parents to the way we are now; the way we grapple with race, among other things. And one is slavery. Get that. And the other is the Enlightenment and that, in fact, it’s from the Enlightenment that we inherited this idea that the conscious mind could know everything; that we could be reasonable.
MR. POWELL: That’s the American exceptionalism. So the United States became extremely, extremely attached to the notion of individuality and independence. Now think about the groups who were not independent. They were the Africans. They were the Indians. They were women. They were anyone who was not a white male. So the notion, the Enlightenment project, which had this hubris that we could control everything, including the world, when we can’t even really control ourselves.
MS. TIPPETT: And yet, this condition of each of us in isolation, which you associate with whiteness, which is this culture of domination, is not sustainable, and it’s not desirable.
.. MS. TIPPETT: And we’re running into the limits of our ability to convince ourselves that it is desirable.
MR. POWELL: No, there are so many expressions that help us see it. And sometimes people talk about “We need to do things to connect.” And on one hand, that’s right, but on the other hand, it understates what it is. We are connected. What we need to do is become aware of it, to live it, to express it.
So think about segregation. Segregation is a formal way of saying, “How do I deny my connection with you?” in the physical space. Think about the notion of whiteness. So whiteness in the United States, as it came, as it took form, believed that one drop of “black blood” — whatever that is — would destroy “whiteness.” Turns out, whatever that means, most white Americans actually do have black blood. The reason that most African Americans look like me or like Gary is because white blood and black blood’s been mixing up for a long time. And so I think that as we deny the other, we deny ourselves, because there is no other. We are connected.
.. that that movement was as much for the sake of his soul as it was for the sake of people of color.
And it’s worth saying that. To me, that’s one way of talking about your point that we have to talk about whiteness.
.. I was teaching a class at the University of Minnesota, and I was talking about the taking of Native American land. And most of my students were white students, and one student objected; it’s like, “This is a such-and-such class. Why are we studying the history of Native Americans?” And I said, “We’re not. We’re studying the history of America. So, when we talk about the appropriation of Native American land, or when we talk about slavery, we’re not talking about the history of black people, we’re talking about the history of this country.”
.. I don’t care if you came here last week or ten days ago, you can’t understand this country without understanding the institution of slavery. It was pivotal.
.. MR. POWELL: The human condition is one about belonging. We simply cannot thrive unless we are in relationship. I just gave a lecture on health, and if you’re isolated, the negative health condition is worse than smoking, obesity, high blood pressure — just being isolated.
.. How do we make it infectious; how do we — people are longing for this. People are looking for community. Right now, though, we don’t have confidence in love. You mentioned love earlier. We have much more confidence in anger and hate. We believe anger is powerful. We believe hate is powerful. And we believe love is wimpy. And so, if we’re engaged in the world, we believe it’s much better to organize around anger and hate.
And yet, we see two of the most powerful expressions — certainly Gandhi, certainly the Rev. Dr. King
.. And there was a period of time when I was feeling really overwhelmed with a lot of this stuff. And I was talking to my dad, and I said, “Dad, this is just too much. I can’t do it all. I’m trying to do all of this stuff by myself.” And he looked at me; he said, “Well, john, you know you’re not alone.” And I said, “Well, what do you mean, Dad?” He said, “Well, you got God with you.” And I realized, although I don’t organize around God in the way that he does, my mistake was, I thought I had to do it; that “I” was defining it, instead of “we.” So…
MS. TIPPETT: …you were in that white mode.
MR. POWELL: Exactly, exactly.
So I think we should both get out of that white mode and do it together. [laughs]
.. today, the majority of whites today say they’d prefer to live in an integrated neighborhood and send their kids to integrated schools. What they mean by that is a different question, but also the world and demographics of the country are changing. And to live in a white enclave is not to live in the world. And I think it has” — I think you were — this is an interview — “it has a certain deadness to it. It has a certain spiritual corruption to it.”
And you said, “I think most people, white, black, Latino, and otherwise, would like to see something different. We just don’t know how to do it. And we’ve been so entrenched in the way things are. It’s hard to imagine the world being different.” You speak for me, you speak for so many people. This is what we’re up against. I feel like this is what we have to attack first — this inability to see differently.
You told one story about Oak Park, near Chicago. It was just really helpful to me. You said, when we tell stories about, “You integrate neighborhoods, and housing values go down,” and the way we always tell the story is, “Blacks moved in, African-American — people of color moved in.” And the way we could tell the story is, “Whites moved out.” But you talked about how — just this very practical measure that was taken so that the housing values didn’t change. Would you just tell that story? I feel like these little stories are really crucial, as well.
MR. POWELL: And there are really a lot of them. They’re little, and they’re big. So Oak Park is in Chicago. Chicago’s one of the most segregated areas in the country. Cook County has the largest black population of any county in the United States, and a lot of studying of segregation takes place in Chicago. So here you have Oak Park, this precious little community. And there were liberal whites there. And blacks started moving in. And they were saying, “Look, we actually don’t mind blacks moving in, but we’re concerned that we’re going to lose the value of our home. That’s the only wealth we have. And if we don’t sell now, we’re going to lose.”
And it basically said: If that’s the real concern — not that blacks are moving in, that you’re going to lose the value of your home — what if we were to ensure that you would not lose the value of your home? We’ll literally create an insurance policy that we will compensate you if the value of your home goes down.
And they put that in place.
.. Think about Katrina. So these examples are all around us, and yet, we don’t tell stories about them. Katrina — the face of Katrina, when you remember it, it was blacks stuck on roofs as the water was rising. What’s not told is that Americans, all Americans, gave to those people. It was the largest civilian giving of one population to another in the history of the United States. So here you had white Americans, Latino Americans, Asian Americans, trying to reach out to what they saw as black Americans. They were actually saying — they were claiming: We have a shared humanity. And they actually did a poll asking people if they were willing to raise taxes to rebuild: 70 percent of Americans said, “Yes, we would tax ourselves to help those people.” The pundits and the politicians ignored it, and so that story simply didn’t get told.
.. I put something I call “targeted universalism,” and where we want to get to is not simply what whites have. We actually need to state what is our goal. And then our way of getting there will vary, based on how we’re situated. And different groups are situated differently. So if we just say, “Let’s have our proportionate share of what whites have,” that’s an improvement over where we are now, but it’s not far enough.
we’re talking about what I call a “circle of human concern” — a circle of concern for all life, human life and, I would say, non-human life as well. And in that effort, it’s important to make sure that people of color are really valued and situated and have resources and political and other power that other groups have. But it’s also important to actually continue to be in relationship to whites. I think, ultimately, a healthy world really requires not just a restructuring of what people of color have, but a restructuring of white identity.
.. in the 1960s, Bundy wrote about the “negro problem” at the Ford Foundation, but today, I would write about the white problem. We really need to come to terms with the white problem — not in a negative way, not in terms of white guilt, not in terms of beating up on whites, but really trying to help whites, because we are deeply related, give birth to a different identity.
.. one of the best school systems in the United States was the Wake County school system. That’s the Research Triangle, which has more Ph.D.’s than any other area of the country. It was actually quite interesting, because they took it to the voters, and they said, “Do you want to have this school system which is educationally and economically integrated?” And the voters said, “No.” So then they took it to the politicians, and they said, “This makes sense, which — the voters said no, but would you vote for it as a politician?” And the politicians said, “No.” And then the business community said, “Unless you do something about the school system in Wake County, we’re leaving.” It was actually the business community that pushed it through.
.. “So Dad, why do you think” — because he’s very Christian, I said, “What do you think God is keeping you here for?” And he said, “I guess my last lesson to teach the kids is, how to care for me.” So instead of seeing it as a burden, because he needs care, it’s like, “That’s my last gift to you, is to teach you how to care.” And it really is wonderful.
I went to Stanford. I was one of the co-founders of the Black Student Union at Stanford. And we had a meeting, and in that meeting, we decided that there were definitely some good white people, but not that many.
And it took a lot of energy to find them. The transaction cost of finding good white people was way too high. So we decided, “OK, let’s just stop trying to find these — let’s not relate to white people.” Actually, I didn’t support that position, but that’s where the group went. And I left the meeting. It was about noon, and I was walking across Stanford. And I don’t know if you’ve actually been to Stanford, but the center part of Stanford is very busy, especially at noon, and there’s always people teeming about. And I’m walking back across campus in this area, and there’s nobody there. It’s empty. And all the time I was at Stanford, I’ve never seen that part of the campus like that. And then, there’s this one woman walking toward me.
Again, the physical space where students hang out is actually quite small, so you see students all the time. I’d never seen this woman before, and I never saw her again. And as she’s walking toward me, I notice she’s blind. And she has a cane. And she walks into a maze of bicycles. And I said, “Oh, that’s too bad.” And as she turns, knocks down bicycles, she starts panicking. And I’m thinking, “That’s really sad, but we just made this agreement. It’s not my problem.” I keep walking. She turns again, and she knocks down more bicycles. And finally, I can’t walk past her. And I go over, and I take her out of the maze of bicycles, and then she goes on her way. And I go back to the meeting, and I say, “I can’t do it. I can’t adhere to that agreement.”
And to me, that was one of the defining moments. And I sort of — I’m not a theist, but I wonder, how did the universe send that woman to me, that she helped me to engage and claim my humanity, that took me on a different path? And I think being human is about being in the right kind of relationships. I think being human is a process. It’s not something that we just are born with. We actually learn to celebrate our connection, learn to celebrate our love. And the thing about it — if you suffer, it does not imply love. But if you love, it does imply suffering.
So part of the thing that I think what being human means — to love and to suffer; to suffer with, though, compassion, not to suffer against. So, to have a space big enough to suffer with, and if we can hold that space big enough, we also will have joy and fun, even as we suffer. And suffering will no longer divide us. And to me, that’s sort of the human journey.