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.