“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…Because Congress has not said otherwise, we hold the government to its word.”
Thus did Justice Neil Gorsuch begin and end his historic 42-page majority opinion this month in McGirt v. Oklahoma, as the Supreme Court ruled in a 5-4 decision that the Creek reservation in eastern Oklahoma had never been “disestablished” by Congress, and thus the promise made in a series of 18th Century treaties ensured that the territory remains an Indian reservation for the purposes of federal criminal law, and quite probably in other areas as well.
The decision was overshadowed by more politically debated decisions this month, but it may be the most overtly ethical of the Supreme Court’s recent holdings. Among other virtues, it rejects the false logic of Rationalization #52. The Underwood Maneuver, or “That’s in the past.” That one holds that time erases accountability, an attitude useful to the habitually unethical, because “moving on” gives them an opportunity to repeat their unethical and harmful conduct, or worse.
The Underwood Maneuver manipulates the victim of wrongful conduct into forgiving and forgetting without the essential contributions a truly reformed wrongdoer must make to the equation: admission of harm , acceptance of responsibility, remorse and regret, amends and compensation, and good reason to believe that the unethical conduct won’t be repeated. By emphasizing that wrongdoing was in the past, this rationalization all but assures that it is also lurking in the near future.
Potentially half of Oklahoma will be affected by McGirt. The issue was whether the state of Oklahoma could prosecute Indians accused of major crimes in Indian Country, or if, under an 1885 federal statute known as the Major Crimes Act, such offenses were within federal jurisdiction. The case hinged upon whether the Creek Reservation had been withdrawn or disestablished, by Congress in the lead-up to Oklahoma’s admission to the Union in 1907, thus causing Hugh Jackman to sing.
This is 3 million acres in and around Tulsa we’re talking about here.
With the Court holding that the Creek reservation was never disestablished, four other tribes— the Seminole, Cherokee, Chickasaw and Choctaw Nations in eastern Oklahoma— may benefit from similar rulings. Those tribes’ total territory covers 19 million acres where 1.8 million Americans now live, relatively few of whom are Native Americans.
Jimcy McGirt, a member of the Seminole Nation, was prosecuted for the 1996 rape of a 4-year-old Seminole girl in Broken Arrow, a suburb of Tulsa that in Creek territory. He was convicted and sentenced to life imprisonment plus 1,000 years.
In 2018, McGirt filed for post-conviction relief, arguing that his state prosecution was impermissible under the Major Crimes Act because his offense was committed within the boundaries of the Creek reservation. Oklahoma courts rejected his claim, and he appealed to the Supreme Court.
As a judge on the Denver-based 10th Circuit, Justice Gorsuch had consistently ruled for tribal rights. For the 2018-19 term, Gorsuch hired as a law clerk an Oklahoma-born member of the Chickasaw Nation, believed to be the first member of a tribe to serve as a SCOTUS clerk.
Gorsuch was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, the so-called liberal bloc, which vote as a unit far more frequently than the five conservative justices. “While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe,” Gorsuch wrote on their behalf. “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.”
This is an ethical decision, driven by ethical principles. The four conservatives making up the dissenters, in contrast, made a practical argument.
“Today, the court holds that Oklahoma lacked jurisdiction to prosecute McGirt—on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation,” Chief Justice Roberts wrote. “Across this vast area, the state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
In addition, Roberts said, the decision creates uncertainty for any area of government that touches Indian affairs, including zoning, taxation, family law and environmental law. Well I guess the U.S. shouldn’t have made legally enforceable promises that it wasn’t going to keep, then!
Oklahoma—you know, where the wind comes sweeping down the plain?—did not see this coming. “The reality is, I never thought that the court would, in a flash cut fashion, dismantle 113 years of practice,” said the state’s Attorney General. “It is in the state’s and the tribes’ best interest to avoid the uncertainty and chaos brought by the decision.” David W. Hill, the principal chief—wait, I still call him that?-— of the Creek Nation, said that “the Muscogee (Creek) Nation will oppose any legislation that diminishes the Nation’s sovereignty.”
Yes, this is a big mess. However, just because following through on legally enforceable promises will be difficult and inconvenient doesn’t relieve a party of doing so.
Naturally, progressives are celebrating the ruling, though as M. Todd Henderson, a University of Chicago law professor who teaches American Indian law, notes, their joy is hardly consistent with the Left’s current obsession with the history of slavery. The Five Tribes of the Oklahoma brought enslaved people with them on the Trail of Tears and allied with the Confederacy during the Civil War.
Never mind. Only whites are racists. You know that.
All Americans should appreciate the inherent ethical nature of the decision. One of the potential legacies of the McGirt case that may help Native American Tribes is that citing the history and consequences of treaty violations may stop being an effective strategy to undermine their legal rights going forward, concludes Lindsay Robertson, a law professor at the University of Oklahoma and the director of the Center for the Study of American Indian Law and Policy.
“It will be harder to bury historic injustice by saying, ‘Well, a lot has happened since.’”
Pointer and Facts: ABA Journal