The Supreme Court Holds The U.S. To A Promise

“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 The case hinged upon whether the Creek Reservation had been withdrawn or disestablished, by Congress in the lead-up to Oklahoma’s admission to the Union in 1907, thus causing Hugh Jackman to sing.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

15 thoughts on “The Supreme Court Holds The U.S. To A Promise

  1. Now someone explain to me why Facebook let me link to THIS post, when it usually says EA violates “Facebook community standards.” Does Facebook like “Oklahoma”? Is it because of Hugh Jackman? Maybe it’s because Congress was grilling the social media censors about free speech.

    Fascinating.
    Assholes….

  2. “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.”

    It’s too bad the liberal justices don’t view the whole of the bill of rights as a promise to citizens with the same reverence.
    It makes me wonder if this was done to poke the eye of the heartland though–would they rule the same way if the territory in dispute was coastal?

  3. It will be interesting to see the application of this ruling in various aspects of Oklahoma law vs. Federal law, and what other permutations of this same doctrine will arise in the future.
    It was my impression that the 1898 Curtis Act assigned all lands formerly held by the Five Civilized Tribes to individual members of the tribes, thus ending the reservation system for these nations. Predictably, much of the land originally assigned by tribal members found its way to ownership by non-tribal members, which was certainly the plan all along. It is hard to see how there can still be a reservation if there are no lands owned by the nations. If the reservations still exist, then a whole bunch of white people are living on them and hold legal title to the land.
    This topic is of interest to me as an amateur Southern historian and one whose farm is located on part of the last eastern cession of land by the Cherokee nation prior to the Indian Removal. I have studied quite a bit of Cherokee history and thought I understood the dissolution of Indian Territory via the Dawes Act and Curtis Act.

    • It was my impression that the 1898 Curtis Act assigned all lands formerly held by the Five Civilized Tribes to individual members of the tribes, thus ending the reservation system for these nations.

      If the reservations still exist, then a whole bunch of white people are living on them and hold legal title to the land.

      When I first read about this case, I thought the premise was absurd, bordering on sheer chaos. My only experience with Indian reservations are two tiny ones in southeastern Connecticut. Both reservations are wholly owned and held in trust for the tribes by the United States, so any crime would be prosecuted by tribal or federal courts.When l read about Oklahoma, I utterly baffled what would happen to millions of non-Indian landowners.

      I suppose then that the CT reservations were similar to the pre-Curtis Act reservations in Oklahoma, and it would be natural to assume that the reservation vanished with the commonly-held lands being divided. So, if the reservation remains, what is it?

      One website I read described the reservation as similar to a county in concept. The county government would have jurisdiction over certain matters within its border, but would share jurisdiction with various cities or towns within its border. The county would own the courthouse and a few public works sites, but the vast majority of the land would be privately owned by residents. Likewise, in the tribal reservation, the non-tribe member’s land ownership would be completely unaffected. The City of Tulsa would not be impacted, as it is a corporate body politic independent of the tribe; similarly county and other local governments would be minimally impacted. The state, county, and cities would continue to collect taxes, and maintain ownership of roads, sewers, and schools. Apparently, there are similar reservations that operate without incident in western North Carolina, that similar contain non-tribal towns and residents.

      The most obvious impact of this ruling in Oklahoma is that when tribal members are accused of a crime within the reservation territory, they must prosecuted in either a federal court, or potentially a tribal court for misdemeanors. I read that the tribes and state prosecutors are working a mechanism to seamlessly transfer suspects to the appropriate jurisdiction. I would suspect that the tribe may be able to preempt some local regulations set by non-tribal governments as well, but most likely only in areas owned by tribe and/or tribe members.

      • Thanks Rich. Jeeze, you can come to the comments here and get great information.

        I’m a little on the cynical side on this decision. Its bottom line effect is that the tribes can make sure their in house child molesters aren’t jailed by white people and they can continue running amok among Liz Warren’s people?

      • Huh?

        So a “member” of a tribe (whatever that even means these days) can commit a crime and be protected from prosecution by the state if it occurs on “tribal land” (whatever that even means these days), but a non-member commits the same crime on the same land and is liable to prosecution by the State of Oklahoma.

        I thought the law guaranteed equal protections…

        • First Paragraph: Right.
          Second Paragraphs: No, because this is the kind of anomaly you get when you allow little nations in your own borders and assume the problem will just go away.

          • Well, it seems to create greater confusions than were present before which can ONLY lead to injustices.

            I don’t see how this doesn’t lead to more court cases defining what can reasonably be considered “tribal lands”.

      • The “Qualla Boundary” Cherokee reservation in North Carolina is a special case. I’m familiar with it and worked s few cases in conjunction with their Tribal Police back in the day. The Qualla Boundary The land was not “reserved” by the federal government; the tribe purchased the land in the 1870s and it was subsequently placed under federal protective trust.[1][2] Individuals can buy, own, and sell the land, provided they are enrolled members of the Tribe of the Eastern Band of the Cherokee Indians.

  4. “It will be harder to bury historic injustice by saying, ‘Well, a lot has happened since.'”

    Yeah. I foresee that this ruling will pave the way for extensive federal takings from all, and redistributions of those takings to some, for”reparations” for the injustices of slavery.

    Watch.

    • There are a number of parallels but there was no promise from the State regarding something akin to a reservation at the end of slavery.

      But then we have this from Jack:
      “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.”

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