ICYMI: Neil Gorsuch Wrote A Really Good Supreme Court Opinion. Wait, Where Are You Going?
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding"all their land, East of the Mississippi river," the U. S. government agreed by treaty that "the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians." Both parties settled on boundary lines for a new and "permanent home to the whole Creek nation," located in what is now Oklahoma The government further promised that "no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves."

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

(McGirt v. Oklahoma, opinion written by Supreme Court Justice Neil Gorsuch, yes Neil Gorsuch)



We can hardly believe it, ourselves. And we would have told you about it last week, except for how there were 300 other huge Supreme Court cases that came down last week.

Last Thursday was the final opinion day of the Supreme Court's 2019-2020 term, and boy was it something. We finally got the opinions we've all been waiting for in the Trump financial records cases. Oh, and by the way, it turns out almost half of Oklahoma is an Indian reservation.

The case was McGirt v. Oklahoma. At its heart, it was about whether the Muscogee (Creek) Nation still had jurisdiction over the land its people endured the genocidal Trail of Tears to get to.

In a 5-4 decision, the court's liberal bloc was joined by none other than Scalia replacement and Trump appointee Neil Gorsuch. And credit where credit is due, it's a pretty great opinion. So congrats to whoever had Neil "Frozen trucker" Gorsuch writing a genuinely moving SCOTUS opinion on their 2020 bingo card!

Seriously, though, it's an excellent opinion. And to be fair to Gorsuch, he isn't entirely irredeemable, like some Kavanaughs other people; he's actually good on Native rights. As Acee Agoyo noted at Indianz.com, Gorsuch's "experience in Indian law is unprecedented in Supreme Court history[.]" The native Coloradan spent a decade on the 10th Circuit Court of Appeals, which has jurisdiction over Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma. In that time, he ruled for tribal interests nearly 60 percent of the time. In fact, when Gorsuch's nomination was up before the Senate, the Native American Rights Fund wrote a memo noting that Gorsuch had a a pretty good overall record when dealing with Native rights.

Wherein we murder and steal from Native Americans

The underlying question in McGirt v. Oklahoma doesn't sound very exciting: should a man convicted of serious violent crimes have been tried in federal, rather than state court? But what sounds like a dry procedural issue is actually anything but.

The case began with a conviction. In 1996, Jimcy McGirt was convicted of serious sex crimes against a minor and sentenced to 500 years in prison.

The problem? McGirt is a member of the Seminole Nation of Oklahoma and the crimes took place on what he argued was tribal land. And under federal law, state courts have no jurisdiction over crimes committed by tribal citizens in Indian Country; only federal courts can hear those cases.

This raised the issue of what land in Oklahoma still belongs to the Muscogee (Creek) Nation. And to get to the heart of that, we have to go all the way back to the Trail of Tears.

In the mid-1800s, the United States stole the ancestral homelands of Native Americans living in the southeastern part of the country. Trump's favorite president, Andrew Jackson, forcibly removed around 60,000 people from the "Five Civilized Tribes" (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) from their ancestral land. They were then forced to march thousands of miles to what they were told would be their new homeland. Thousands would perish without ever making it there.

In return for stealing their land and genociding their people, we promised the tribes new land in the American West. But, of course, white colonizers can never just live and let live. As the McGirt opinion notes, Congress and the white people of Oklahoma spent decades screwing over Native Americans.

Starting in the 1880s, Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribe members.

According to the state of Oklahoma, the various methods of fuckery used to harm tribes and their citizens disestablished the Muscogee (Creek) reservation. But to that, the Supreme Court said "NOPE."

And to Oklahoma's argument that wypipo might be sad to learn they're living in Indian Country, Gorsuch has a great quip.

Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time. But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.

Neil Gorsuch shocks us all (and John Roberts reminds us he's a conservative Republican)

It took the Supreme Court a while to get here. The justices first heard arguments in Sharp v. Murphy, another case raising the same issue, in 2018. Gorsuch was recused from that case because he had ruled in it while on the 10th Circuit. The Court never issued an opinion in Sharp, probably because it was going to be a 4-4 tie. Instead, SCOTUS granted cert in McGirt, allowing the justices to take a look at the issue with the full Court.

And I can't believe I'm saying this, but thank goodness for Neil Gorsuch!

Noting that "Oklahoma is far from the only State that has overstepped its authority in Indian country[,]" Gorsuch takes the states to task.

In the end, only one message rings true. Even the carefully selected history Oklahoma and the dissent recite is not nearly as tidy as they suggest. It supplies us with little help in discerning the law's meaning and much potential for mischief. If anything, the persistent if unspoken message here seems to be that we should be taken by the "practical advantages" of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.

The majority also took the time to remind us why it's important that states don't get to decide on their own to get rid of tribal land.

Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did. A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the "supreme Law of the Land." It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.

There's been a lot of talk this term, especially the last few weeks, about the man who gutted the Voting Rights Act a few short years ago secretly being John Roberts, The Liberal. In McGirt, Roberts reminds us that he is, in fact, a gross conservative Republican and there's a reason George W. Bush appointed him.

Roberts doesn't even really attempt to justify his view with anything as silly as legal analysis. Rather than attack the majority's reasoning, the Chief Justice focuses on what he perceives to be problems with the outcome, whining about potential confusion in state and local issues "from zoning and taxation to family and environmental law[.]" And, according to Roberts,

None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation.

Clarence Thomas, who joined almost all of Roberts's dissent, also felt the need to chime in with his own one-paragraph dissent to say "SCREW YOU, PEOPLE ASSERTING SO-CALLED 'RIGHTS.'"

I agree with the Chief Justice that the Court misapplies our precedents in granting petitioner relief. Ante, at 6–38 (dissenting opinion). But in doing so, the Court also overrides Oklahoma's statutory procedural bar, upsetting a violent sex offender's conviction without the power to do so. The State of Oklahoma deserves more respect under our Constitution's federal system.


Over the tears spouted by the four dissenters, Gorsuch reminds us that tribal sovereignty is not a novel concept.

In saying this we say nothing new. For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument. Remember, Congress has defined "Indian country" to include "all land within the limits of any Indian reservation ... notwithstanding the issuance of any patent, and, including any rights-of-way running through the reservation." So the relevant statute expressly contemplates private land ownership within reservation boundaries. Nor under the statute's terms does it matter whether these individual parcels have passed hands to non-Indians.To the contrary, this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.

It isn't so hard to see why. The federal government issued its own land patents to many homesteaders throughout the West. These patents transferred legal title and are the basis for much of the private land ownership in a number of States today. But no one thinks any of this diminished the United States's claim to sovereignty over any land. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another. And there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercise governmental functions over land even if they no longer own it communally.

Tribal sovereignty wins for once!

This case is a huge victory for tribal citizens and tribal rights.
Jonodev Chaudhuri, Muscogee (Creek) Nation ambassador, noted that, for the Muscogee (Creek) people, this was about much more than criminal jurisdiction:
Many folks are in tears. Despite a history of many broken promises, as is true with many tribal nations, the citizens feel uplifted that for once the United States is being held to its promises.

And like McGirt's attorney, Ian Gershengorn, said,

Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation — and the court today correctly recognized that that this reservation endures[.]
Oklahoma's state and tribal governments are already working together to implement the decision. On Friday, five tribes and the state of Oklahoma released a joint statement saying:
The State, the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by the U.S. Supreme Court's decision in McGirt v. Oklahoma.

The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.

The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.
There is a lot of terrible stuff going on right now. But at least this one time, justice has prevailed.

You know what? I'll let Justice Gorsuch have the last word on this one.

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe's authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

Many thanks to the Native American Journalists Association for this excellent reporting guide on the case!

Here's the [shockingly good] opinion!

[ NAJA / Courthouse News / Joint Statement / Indianz.com ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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