Supreme Court Says Eastern Oklahoma is Indian Country?!

Congress forgot to disestablish a Creek Reservation created by treaty in 1833 and 1856 when it made Oklahoma a state in 1909.

Breaking News from USA Today (“Supreme Court gives Native Americans jurisdiction over eastern half of Oklahoma“):

The Supreme Court ruled Thursday that the eastern half of Oklahoma can be considered Native American territory, a decision the state previously warned could create “civil, criminal and regulatory turmoil.”

The 5-4 decision was written by Associate Justice Neil Gorsuch and joined by the court’s four liberal justices. The justices were considering the issue for the second time after failing to decide a different case last year, when Gorsuch was recused and the court likely deadlocked.

The case concerned an appeal from Jimcy McGirt, a Native American, who claimed his state rape conviction from 1997 should be overturned because Oklahoma lacked jurisdiction. Congress, his lawyer Ian Gershengorn said, never properly terminated the reservation.

During oral arguments in May, the justices reached back to 1907 to determine whether Congress, using imprecise language, failed to disestablish the 1866 boundaries of the reservation.

If so, virtually half of Oklahoma – home to 1.8 million residents and including Tulsa, where President Donald Trump recently held a controversial campaign rally amid a global pandemic – would remain Native American territory. That means Native Americans are subject to federal, not state, laws.

The state’s solicitor general, Mithun Mansinghani, warned that could require the release of more than 1,700 inmates. That didn’t sit well with several justices who feared a chaotic overhaul of long-decided criminal cases.

“What makes this case hard is that there have been hundreds, hundreds of prosecutions, some very heinous offenses of the state law. On your view, they would all become undone,” Associate Justice Ruth Bader Ginsburg told Gershengorn.

“Won’t (residents) be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way?” Associate Justice Samuel Alito asked.

In the earlier case, the U.S. Court of Appeals for the 10th Circuit ruled the state lacked jurisdiction to prosecute a gruesome murder because it happened within 3 million acres belonging to the Muscogee (Creek) Nation. The ruling threatened more than 19 million acres in eastern Oklahoma once inhabited by five Native American tribes.

Again, I don’t have time to read through the reasoning and the USA Today report is clearly a hasty rewrite of the case preview without much reference to the opinion itself.

I’m presuming that the opinion was crafted exceedingly narrowly. Otherwise, it’s the craziest damn thing I’ve ever seen.

UPDATE: Yes, the decision is narrow, applying only to tribal members.

NYT (“Supreme Court Rules in Favor of Oklahoma Indian Claim“):

The Supreme Court on Thursday ruled by a 5-4 margin that much of eastern Oklahoma “remains ‘Indian Country,'” preventing state authorities from prosecuting offenses there that involve Native Americans. [emphasis mine]

The case concerned Jimcy McGirt, a member of the Muscogee (Creek) Nation who was convicted of sex crimes against a child by state authorities in the Nation’s historical boundaries. He said that only federal authorities were entitled to prosecute him.

Mr. McGirt argued that Congress had never clearly destroyed the sovereignty of the Creek Nation over the area, covering about half the state. The solicitor general of Oklahoma took the opposite view, saying the area had never been reservation land.

Again, this is breaking news and nobody outside the Court has digested the opinion fully yet. Still, on its face, it seems a bizarre ruling.

UPDATE 2: Further explanation,

The decision was potentially one of the most consequential legal victories for Native Americans in decades. It was written by Justice Neil Gorsuch, a Westerner who has sided with tribes in previous cases and joined the court’s more liberal members.

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

One presumes Congress will rectify this swiftly. It would be absurd to let this stand.

UPDATE 3: From the syllabus:

For [Major Crimes Act] purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” Pp. 3-42.

(a) Congress established a reservation for the Creek Nation. An 1833 Treaty fixed borders for a “permanent home to the whole Creek Nation of Indians,” 7 Stat. 418, and promised that the United States would “grant a patent, in fee simple, to the Creek nation of Indians for the [assigned] land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them,” id., at The patent formally issued in 1852.

Though the early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, see, e.g., Menominee Tribe v. United States, 391 U. S. 404, 405, and later Acts of Congress—referring to the “Creek reservation”—leave no room for doubt, see, e.g., 17 Stat. 626.

In addition, an 1856 Treaty promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property, id., at 704. Pp. 3-6.

(b) Congress has since broken more than a few promises to the Tribe.
Nevertheless, the Creek Reservation persists today. Pp. 6-28.

(1) Once a federal reservation is established, only Congress can diminish or disestablish it. Doing so requires a clear expression of congressional intent. Pp. 6-8.

(2) Oklahoma claims that Congress ended the Creek Reservation during the so-called “allotment era”—a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Missing from the allotment-era agreement with the Creek, see 31 Stat. 862-864, however, is any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. And this Court has already rejected the argument that allotments automatically ended reservations. Pp. 8-13.

(3) Oklahoma points to other ways Congress intruded on the Creeks’ promised right to self-governance during the allotment era, including abolishing the Creeks’ tribal courts, 30 Stat. 504-505, and requiring Presidential approval for certain tribal ordinances, 31 Stat.But these laws fall short of eliminating all tribal interest in the contested lands. Pp. 13-17.

(4) Oklahoma ultimately claims that historical practice and demographics are enough by themselves to prove disestablishment. This Court has consulted contemporaneous usages, customs, and practices to the extent they shed light on the meaning of ambiguous statutory terms, but Oklahoma points to no ambiguous language in any of the relevant statutes that could plausibly be read as an act of cession. Such extratextual considerations are of ” ‘limited interpretive value,’ “
Nebraska v. Parker, 577 U. S. 481, _, and the “least compelling” form
of evidence, South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 356.

In the end, Oklahoma resorts to the State’s long historical practice of
prosecuting Indians in state court for serious crimes on the contested
lands, various statements made during the allotment era, and the speedy and persistent movement of white settlers into the area. But these supply little help with the law’s meaning and much potential for mischief. Pp. 17-28.

[…]

(d) Even assuming that the Creek land is a reservation, Oklahoma argues that the MCA has never applied in eastern Oklahoma. It claims that the Oklahoma Enabling Act, which transferred all nonfederal cases pending in the territorial courts to Oklahoma’s state courts, made the State’s courts the successors to the federal territorial courts’ sweeping authority to try Indians for crimes committed on reservations. That argument, however, rests on state prosecutorial practices that defy the MCA, rather than on the law’s plain terms. Pp. 32-36.

(e) Finally, Oklahoma warns of the potential consequences that will
follow a ruling against it, such as unsettling an untold number of convictions and frustrating the State’s ability to prosecute crimes in the
future. This Court is aware of the potential for cost and conflict around
jurisdictional boundaries. But Oklahoma and its tribes have proven
time and again that they can work successfully together as partners,
and Congress remains free to supplement its statutory directions
about the lands in question at any time. Pp. 36-42.

Again, the ruling strikes me as bizarre. I haven’t read the dissents yet but the mere fact that Oklahoma has been prosecuting offenses in eastern Oklahoma for generations would seem to settle the matter. One would think the Creek Nation would have had some duty to contest the issue before now.

While Congress can easily remedy the issue going forward, simply releasing every Creek Indian convicted by Oklahoma courts seems extreme. Even if federal prosecutors (yes: under the Major Crimes Act, they just become federal cases; they don’t fall under tribal jurisdiction) have the inclination to retry all of those cases, evidence is gone, witnesses have died, and so forth.

UPDATE 4: From Chief Justice Roberts’ dissent:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison. 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, on which the State may not prosecute serious crimes committed by Indians like McGirt. Not only does the Court discover a Creek reservation that spans three million acres and includes most of the
city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%-15% of whom are Indians.

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. The decision today 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.

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. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, _ (2016) (slip op., at 5).

This seems much more plausible than the majority’s reasoning. There’s also this bit of history I somehow did not know until just now:

Forever, it turns out, did not last very long, because the Civil War disrupted both relationships and borders. The Five Tribes, whose members collectively held at least 8,000 slaves, signed treaties of alliance with the Confederacy and contributed forces to fight alongside Rebel troops. See Gibson, Native Americans and the Civil War, 9 Am. Indian Q. 4, 385, 388-389, 393 (1985); Doran, Negro Slaves of the Five Civilized Tribes, 68 Annals Assn. Am. Geographers 335, 346-347, and Table 3 (1978); Cohen §4.07(1)(a), at 289. After the war, the United States and the Tribes formed new treaties, which required each Tribe to free its slaves and allow them to become tribal citizens. E.g., Treaty with the Creek Indians, Art. II, June 14, 1866, 14 Stat. 786 (1866 Treaty); see Cohen §4.07(1)(a), at 289, and n. 9. The treaties also stated that the Tribes had “ignored their allegiance to the United States” and “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them”—including their lands. E.g., 1866 Treaty, Preamble, 14 Stat. 785. Due to “said liabilities,” the treaties departed from prior promises and required each Tribe to give up the “west half ” of its “entire domain.” E.g., Preamble and Art. III, id., at 785-These western lands became the Oklahoma Territory.

[…]

Congress began by establishing a uniform body of law applicable to all occupants of the territory, regardless of race. To apply these laws, Congress established the U. S. Courts for the Indian Territory. Next Congress systematically dismantled the tribal governments. It abolished tribal courts, hollowed out tribal lawmaking power, and stripped tribal
taxing authority. Congress also eliminated the foundation of tribal sovereignty, extinguishing the Creek Nation’s title to the lands. Finally, Congress made the tribe members citizens of the United States and incorporated them in the drafting and ratification of the constitution for their new State, Oklahoma.

In taking these transformative steps, Congress made no secret of its intentions. It created a commission tasked with extinguishing the Five Tribes’ territory and, in one report after another, explained that it was creating a homogenous population led by a common government. That contemporaneous understanding was shared by the tribal leadership and the State of Oklahoma. The tribal leadership acknowledged that its only remaining power was to parcel out the last of its land, and the State assumed jurisdiction over criminal cases that, if a reservation had continued to exist, would have belonged in federal court.

A century of practice confirms that the Five Tribes’ prior domains were extinguished. The State has maintained unquestioned jurisdiction for more than 100 years. Tribe members make up less than 10%-15% of the population of their former domain, and until a few years ago the Creek
Nation itself acknowledged that it no longer possessed the reservation the Court discovers today.

This honestly seems like a slam dunk. It’s not only rather obvious Congress took multiple steps doing what the majority claims it failed to do but we have a century of acquiescence to that fact by the tribes themselves.

That this was absolutely despicable treatment by Congress of the tribes would seem undeniable. But the Court acknowledges today that they have the power to do these things. The value of pretending they did not and upending a modus vivendi that has lasted more than a century is not obvious.

FILED UNDER: *FEATURED, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Northerner says:

    Steal a continent from a people, force them onto reservations, and then kick them off the reservations. Maybe giving back a small part of what was stolen (Eastern Oklahoma) is the least that can be done. Or more practically, giving them the monetary value of that land.

    I’m surprised Ginsburg would take the conservative position (stealing land from Indians was okay and so it didn’t matter how many treaties were broken when convenient) and Gorush would take the progressive position (you should at least go through the motions of justifying the theft).

    Indians have been treated as bad as blacks (even killed by police at a greater per capita rate than any other group), but have received far less attention. Maybe this is a start.

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  2. Teve says:

    @Northerner:

    The 5-4 decision was written by Associate Justice Neil Gorsuch and joined by the court’s four liberal justices.

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  3. James Joyner says:

    @Northerner: We built a global superpower on the backs of conquest, genocide, and slavery. But we did it over the span of centuries. We’re not simply going to give it back generations later.

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  4. Northerner says:

    @Teve:

    That makes more sense.

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  5. Northerner says:

    @James Joyner:

    I agree about there being no chance of it being given back, which is why I suggested a cash pay-out, similar to what would happen if the land turned out to be private property (ie doesn’t the government typically pay some nominal fee for land appropriation?)

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  6. Mister Bluster says:
  7. gVOR08 says:

    Won’t (residents) be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way?” Associate Justice Samuel Alito asked.

    Like DC.

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  8. OzarkHillbilly says:

    @gVOR08: Touche.

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  9. grumpy realist says:

    I love this decision, which is completely due to the incompetence of certain politicians back in history, plus the “we can seize whatever land we want and not have to worry about the consequences because they’re Indians and aren’t going to complain” attitude. So now almost 200 years later their legal sloppiness is coming back to bite them in the butt. Ha!

    Note that it’s a narrow decision (which doesn’t surprise me.)

    Yeah, it will get fixed….but that “Congress remains free to supplement its statutory directions about the lands in question at any time ” is SCOTUS saying: Congress, this is in YOUR court and quityerbitchin about any embarrassment you may feel. We’re not going to clean up your messes for you.

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  10. Jay L Gischer says:

    I come from a part of the country where there are reservations that are not governed by state law, and it works pretty well. Tribes negotiate with the state for services in return for a fee (in lieu of taxes). There are some wrinkles, but mostly it works.

    My sister was a social worker (she’s now retired) who worked with tribes a lot. That’s right, she worked for the State of Washington, and had lots of dealings with tribes on reservations with sovereignty who had negotiated for services with the state, who were happy to have the state handle most of this stuff, but who would also want to be involved in many proceedings. A complication, but one that worked.

    I’ll bet tribal leadership of the Cherokee would be more than happy to negotiate a settlement of the criminal issues that might arise. This works out quite well in my neck of the woods, we don’t have criminals running around free because they are on a reservation and the state courts don’t apply.

    As far as I can tell, this is an “it’s about time” sort of ruling. They tried to back-door a usurpation of the Cherokee sovereignty, without taking the political heat for it, and it just blew up in their faces. So they can either pass an act dissolving the reservations now, or they can figure out how to negotiate with the Cherokee.

    As Gorsuch says,

    But Oklahoma and its tribes have proven
    time and again that they can work successfully together as partners…

    They will figure this out.

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  11. James Joyner says:

    @grumpy realist: Interestingly, I was just going back through an old post of Doug’s and you made a more succinct version of my lay argument:

    This is gonna be a bit of legal insider baseball-ism, but I think the doctrine of laches may apply here….

    Basically, if you wait too late to complain, you lose. Law of equity thingie. I know it from trademark infringement cases.

    That seemed to be the obvious fallback here.

    @Jay L Gischer: I’m not worried about the longer-term future. I agree Congress and/or Oklahoma and the tribes can sort that out. The issue is with 111 years of eastern Oklahoma being treated as under the jurisdiction of, well, Oklahoma and everybody operating under that good faith assumption. It’s just bizarre to wipe decisions made under that premise out of the sake of being cutesy.

    And what inequity did they solve here? A rapist who was given due process goes free? (And lord knows how many others.)

    Oh, better yet, the Creeks don’t actually get any of their land back. Or even jurisdiction over the Creeks living in eastern Oklahoma. Nope. These cases just now have to go to federal court.

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  12. jpe says:

    (stealing land from Indians was okay and so it didn’t matter how many treaties were broken when convenient

    That’s just black letter law. The issue isn’t whether we can break treaties – we can – it’s whether we attended to the legal formalities in doing so.

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  13. SKI says:

    As someone who has actually now read the opinion, it isn’t bizarre and the initial lead here that “Congress simply forgot” in 1909-ish is flat out wrong based on the historical reality that Congress passed laws dealing with the Creek for decades thereafter.

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  14. HarvardLaw92 says:

    @SKI:

    I’ll agree with SKI here. The law regarding this matter was crystal clear. The language of the opinion isn’t shocking at all. It’s correct. It’s admirably correct.

    What is shocking is that the court was willing to accept the consequences of following the law through to the uncomfortable solution it requires instead of trying to find a back door.

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  15. James Joyner says:

    @HarvardLaw92: But the Chief Justice lays out an incredibly strong argument that Congress very much did what the majority claims they did not.

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  16. HarvardLaw92 says:

    @James Joyner:

    I didn’t consider it to be a very strong argument, to be honest about it. He laid a great deal of “this happened, and that happened, and that happened” along with several variations on how the status quo has been in place for 100 years and changing it invites chaos. He’s trying to construct a concrete disestablishment out of a thousand slights, and it just doesn’t work that way. Congress has to explicitly and clearly express its intent to disestablish. It has never done so.

    How this gets resolved – let’s face it, nobody expects Oklahomas to just cede Tulsa – will depend on what the other 4 do (this same logic affects all 5 of them, not just the Creek), and how willing everybody is to compromise.

    I’ll be honest though, if I were the State of Oklahoma, I’d be waiting for the shoe to drop with respect to casino revenue. That should be the first thing on (or more appropriately, off) of the table for the tribes.

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  17. Jay L Gischer says:

    @James Joyner: While it’s true that many decisions concerning Eastern Oklahoma have been taken in good faith, I dispute that this situation exists because of good faith. I think it’s the result of some very bad faith on the part of some people from 100+ years ago. I expect it was an attempt at a back-door coup intended to usurp the legal status of the reservations. This part of the country was once known as “Indian Territory”, and I always wondered how it stopped being that, and why there wasn’t a story about that.

    We do, in fact, sometimes let criminals go free for the sake of rule of law. What is up for debate is whether this lets one guy go, or hundreds? I’m guessing it’s not going to be hundreds.

    If the courts that tried them don’t have jurisdiction, It seems to me that means that they can be tried in a court that does have jurisdiction, since double jeopardy can’t be a factor if the court you previously stood trial before can’t legally impose penalties.

    That’s a lot of work, but it probably isn’t a “let everyone out of prison” moment.

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  18. grumpy realist says:

    @James Joyner: I’d have to write a 50-page legal article going through the history of equity courts in the U.S., but–and HarvardLaw92 please correct me if I’m wrong–but IIRC, um, no. Jurisdictional questions don’t get decided under equity. Also see the Rules of Civil Procedure–basically you can raise a question of jurisdiction at any time, no matter how much it bollixes up a court case. So no, no laches.

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  19. Scott says:

    Last paragraph of the decision:

    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.

    I wonder how many cases in the future will be using that language to right wrongs.

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  20. SKI says:

    @James Joyner: It is actually, legally, a very weak argument – particularly from a group of justices who claim to be textualists.

    Law is clear: only Congress can revoke status and must do so unambiguously. They never did. Not much else to say. Roberts is mostly pounding the table.

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  21. James Joyner says:

    @Jay L Gischer:

    We do, in fact, sometimes let criminals go free for the sake of rule of law.

    And I support doing so in the types of cases where it tends to happen: the state abused its power and violated due process rights. But that’s not the case here. The defendant, a convicted rapist, fully expected that he was under the jurisdiction of Oklahoma law. Decades later, we’re overturning his conviction by pretending that Congress didn’t give that territory to Oklahoma when it was created—which was news to both Oklahoma and the Creeks.

    What is up for debate is whether this lets one guy go, or hundreds? I’m guessing it’s not going to be hundreds.

    I don’t understand under what theory it’s not all Indians tried in eastern Oklahoma.

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  22. SKI says:

    @James Joyner:

    Decades later, we’re overturning his conviction by pretending that Congress didn’t give that territory to Oklahoma when it was created—which was news to both Oklahoma and the Creeks.

    Given the Creeks filed an Amicus brief asking for this result, don’t think it was “news” to them.

    May I suggest you actually read the Opinion. You keep saying things that aren’t accurate.

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  23. Scott says:

    I really don’t have much sympathy for Oklahomans, since they are historically a criminal class. Even their nickname, Sooners, derives from cheaters. Crimes against the Osage are documented in Killers of the Flower Moon: The Osage Murders and the Birth of the FBI. And we all were reminded what happened in Tulsa in the 20s.

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  24. James Joyner says:

    @SKI: I’ve read the opinion. That they joined a novel claim a century-plus after the fact doesn’t change the fact that they’ve lived with this situation without complaint.

    @HarvardLaw92: @SKI: Roberts argues that Congress disestablished the land in question by treaty:

    Treaty with the Creek Indians, Art. II, June 14, 1866, 14 Stat. 786 (1866 Treaty); see Cohen §4.07(1)(a), at 289, and n. 9. The treaties also stated that the Tribes had “ignored their allegiance to the United States” and “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them”—including their lands. E.g., 1866 Treaty, Preamble, 14 Stat. 785. Due to “said liabilities,” the treaties departed from prior promises and required each Tribe to give up the “west half ” of its “entire domain.” E.g., Preamble and Art. III, id., at 785-These western lands became the Oklahoma Territory.

    There’s no argument that we stopped recognizing the Creek nation, just that we took that territory from them.

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  25. HarvardLaw92 says:

    @grumpy realist:

    Whew. Talk about topics which don’t lend themselves to brevity …

    Jurisdiction stems from the sovereign, which in these cases were wrongly determined, albeit it in good faith. Reservations are sovereign territory, neither a part of nor subject to the laws of the state(s) in which they are located, so the State of Oklahoma had no jurisdictional relevance unless such was granted to it by the applicable sovereign. In this case, the ultimate sovereign, the federal government has supplanted the territorial sovereign – the Creek Nation – with respect to certain crimes. There is no role for the State of Oklahoma.

    What we are left with here is an enormous body of people convicted in OK state courts who could reasonably be expected to file habeas petitions. Historically we have applied the doctrine of laches in evaluating such petitions (for example Rule 9a of the Rules Governing § 2254 Cases). A habeas petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

    I think that applies here. It’ll be up to the courts to determine how to sort those petitions out, but I have serious doubts that they’ll be applying laches to deny these habeas petitions.

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  26. HarvardLaw92 says:

    @James Joyner:

    Exactly, which is why we are taking about half of the state of Oklahoma instead of the whole thing. No one is asserting that they have a right to reclaim western Oklahoma. We’re pointing out that they never ceded eastern OK.

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  27. DrDaveT says:

    Yes, the decision is narrow, applying only to tribal members.

    Wait, what? How does that work?

    By that logic, aren’t foreigners on US soil not subject to US law? I thought jurisdiction was geographic, not a question of heredity or citizenship. Diplomatic immunity is the exception that proves the rule.

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  28. Mu says:

    I guess Oklahomans are just as surprised as the Albuquerque residents that found themselves living on the reservation based on a congressional decision to cede 20 square miles or so of land to an Indian tribe based on some map from the 1850 that no one had paid attention to (and that run contrary to the 1 mile around the pueblo rule used for all pueblos in the treaty of Guadeloupe)

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  29. HarvardLaw92 says:

    @DrDaveT:

    Native Americans on reservations are subject only to their tribal sovereignty and the US government.

    This specific decision – that a habeas petition is granted – is very narrow in itself and focuses on a relic stuffed into federal law – the Major Crimes Act – which supplants tribal jurisdiction with respect to a delineated list of criminal offenses to federal courts IF those crimes are committed by a Native American on Native American territory. Guy was convicted by OK. Should have been tried in federal court. Wrong sovereign, habeas granted.

    It’s how they got to making that determination – the practical consequences of their reasoning – that is the much larger issue. To get there, they had to determine that the Creek Nation is still a reservation. Still sovereign territory. Not part of or subject to OK in any way.

    Suddenly 19 million acres of land are effectively no longer a part of the State of Oklahoma. OK no longer has the power to tax the land or people living there. No authority to police or impose justice. Nothing.

    All thanks to one guy who stood up and said “I was tried in the wrong court”

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  30. James Joyner says:

    @HarvardLaw92:

    I have serious doubts that they’ll be applying laches to deny these habeas petitions.

    One would think today’s decision would be the point where the clock starts ticking? I don’t agree with the outcome here but it would be unreasonable to have expected an attorney to raise this issue prior to now.

    @HarvardLaw92:

    Exactly, which is why we are taking about half of the state of Oklahoma instead of the whole thing. No one is asserting that they have a right to reclaim western Oklahoma.

    Ah. I was reading Roberts as saying the ceded land was the entirety of Oklahoma.

    @HarvardLaw92:

    Suddenly 19 million acres of land are effectively no longer a part of the State of Oklahoma. OK no longer has the power to tax the land or people living there. No authority to police or impose justice. Nothing.

    Granting that our entire political system seems broken right now, I can’t imagine Congress not fixing this toot sweet. Hell, I’d be surprised if there weren’t already emergency committee meetings.

    Also: Would ex post facto doctrine apply here? That is, could Congress pass a law saying tribal jurisdiction over all of Oklahoma ended the moment it was created? Obviously, you can’t create criminal laws that punish past action. But wouldn’t this just be an administrative matter?

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  31. jpe says:

    Reservations are sovereign territory, neither a part of nor subject to the laws of the state(s) in which they are located,

    From the 1881 case cited in today’s ruling:

    The State of Colorado, by its admission into the Union by Congress upon an equal footing with the original states in all respects whatever, without any such exception as had been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation

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  32. jpe says:

    I can’t imagine Congress not fixing this toot sweet.

    Well, it’ll be funny to see the reaction by the left. They’re going to freak out if Congress proposes disestablishing the reservation.

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  33. Jen says:

    I can’t imagine Congress not fixing this toot sweet. Hell, I’d be surprised if there weren’t already emergency committee meetings.

    Meh, it only affects two Republican members of Congress–why drop everything? 😀

    I’m being tongue in cheek here, but really I don’t think this is going to be simple.

    Would ex post facto doctrine apply here? That is, could Congress pass a law saying tribal jurisdiction over all of Oklahoma ended the moment it was created?

    Probably getting in waaaaay over my head here, but isn’t Article I/Section 9 pretty clear that no ex post facto laws be passed?

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  34. HarvardLaw92 says:

    @James Joyner:

    One would think today’s decision would be the point where the clock starts ticking? I don’t agree with the outcome here but it would be unreasonable to have expected an attorney to raise this issue prior to now.

    I’d agree with that, yes, although technically speaking we do not impose time limits on habeas petitions as a matter of policy. The remedy for dismissing them based on the doctrine of laches is something that potentially implicates delays of decades, not one of years. That said, they’d need to file while they are still imprisoned, so you’d imagine that time would be of the essence now that the door has been opened.

    Ah. I was reading Roberts as saying the ceded land was the entirety of Oklahoma.

    He was badly trying to use the example of a treaty in which the Creek Nation did cede some of it lands as a justification for alleging that they’d given up the rest by default. To his credit, Roberts didn’t have much to work with, but he gave it his best shot.

    Also: Would ex post facto doctrine apply here? That is, could Congress pass a law saying tribal jurisdiction over all of Oklahoma ended the moment it was created? Obviously, you can’t create criminal laws that punish past action. But wouldn’t this just be an administrative matter?

    No. Per Calder v. Bull, et al, the ex post facto prohibitions in the Constitution only debar retroactive criminal statutes, not civil ones. The optics of screwing Native Americans again after they just won at the Supreme Court? I’m not sure anybody in DC wants that. I’m certain that some sort of arrangement will be reached – but I’m pretty convinced that whatever it ends up being will have to involve the tribes retaining de jure sovereignty. De facto – well, a sovereign can ceede whatever authority it pleases it to cede, but asking it to disavow its sovereignty altogether is a different matter. I expect they’ll fight tooth and nail to keep it. I would.

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  35. SKI says:

    @HarvardLaw92:

    He was badly trying to use the example of a treaty in which the Creek Nation did cede some of it lands as a justification for alleging that they’d given up the rest by default.

    Which is exactly contrary to how things actually work.

    Just remembered that Ludlum wrote a novel about something like this… The Road to Omaha. lol

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  36. sam says:

    The State of Oklahoma, Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations joint statement:

    “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.”

    [Source]

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  37. HarvardLaw92 says:

    @jpe:

    Best I can tell, the Utes ceded sovereignty in the treaty which established their reservation in the first place. I am though, by no means, an expert on the minutiae of 150 year old treaties. A sovereign can cede sovereignty. The Creek did not. Best I can tell the other 4 tribes in Oklahoma didn’t either.

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  38. HarvardLaw92 says:

    @SKI:

    Which is exactly contrary to how things actually work.

    Indeed. If anything about this whole spectacle has caused me grief, it’s the manner in which a justice I both respect and admire debased himself with this facile argument in dissent. It’s beneath him. This is the sort of of gobbledygook I’d expect from Thomas.

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  39. EddieInCA says:

    Dr. Joyner…

    I have a question that might seem like trolling, but I assure you it’s not.

    Over the last few days you have posted comments which basically come down to “It’s the law, so you shouldn’t do it, and if you do it, there will be consequences.”

    How do you square that with your opposition to this ruling? I’m having a hard time reconciling those two positions.

    Thanks in advance.

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  40. OzarkHillbilly says:

    Think of the map makers, nobody ever thinks of the map makers.

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  41. James Joyner says:

    @EddieInCA: I think the reasoning here is bizarre and the consequences potentially quite stark for no apparent reason. I’m entitled as a citizen to express that viewpoint. But, unless it’s obviated by Congress or an agreement between the tribes in question and the state of Oklahoma, it’s the law of the land and we have to live with it.

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  42. DrDaveT says:

    @HarvardLaw92:

    Native Americans on reservations are subject only to their tribal sovereignty and the US government.

    That part I got. It’s the converse — the legal status of non-Native people on tribal territory — that I am unclear about. Does the tribe’s sovereignty not extend to non-Natives on their land? Or is all of Tulsa now under tribal law?

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  43. HarvardLaw92 says:

    @DrDaveT:

    There isn’t really a short answer to the question, as it is a mess loaded with a multitude of “it depends” situations, but generally speaking, tribal courts are debarred from exercising criminal jurisdiction over non-Native Americans with the notable exception of domestic violence committed by a non-Native American man against a Native American woman on tribal lands. Tribal courts exercise original jurisdiction for all of those cases. Tribal courts also have the authority to exercise jurisdiction over non-Native Americans with respect to areas in which Congress has authorized them to act, for example control over the sale of alcohol to non-Native Americans, fishing and hunting rights and the enforcement of licensing & tribal regulations thereof, and certain environmental statutes. Notably, however, lack of jurisdiction to prosecute doesn’t necessarily imply lack of jurisdiction to effect arrest.

    That having been said, a non-Native American arrested by tribal police and brought before a tribal court must positively assert the lack of jurisdiction and exhaust his/her available remedies in tribal court before seeking relief in the applicable federal district, so it isn’t a simple get out of jail free card.

    They’re fairly equally debarred from exercising civil jurisdiction, but with two notable caveats – a tribe may regulate, through taxation, licensing, or other means, the activities of non-Native Americans who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Native Americans on fee land within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. The two controlling rulings in this regard are Oliphant v. Suquamish, and Montana v. United States.

    The above is a general depiction of the state of affairs which, to the best of my knowledge, is applicable to Oklahoma. In reality, there are a multitude of different scenarios depending on PL 280 applicability, TLOA status, concurrent agreements between tribes and the federal government, etc., so there isn’t really one single answer that fits every scenario.

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  44. EddieInCA says:

    @James Joyner:

    I still don’t quite understand, but thank you for the response. I’ll think about it some more.

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  45. Jerry says:

    You morons, Gorsuch just removed the American citizenship from over a million people. You know who else did that? Hitler and Stalin. Will he now declare those US citizens to be members of Indian tribes? Will the tribes allow it? Are they now deprived of social security, health care insurance and in state college tuition? My God, the damage that the moronic Harvard law school has done to this country. What a bad joke.

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  46. James Joyner says:

    @EddieInCA: To frame it differently, I care about this decision and about the way the Supreme Court goes about making its decisions precisely because they are the highest court in the land and the final arbiter for what the law is in most cases. (Here, Congress could undo the decision tomorrow if it wished.)

    So, to the extent that I don’t like the ruling, it’s because they’ve made law. A rapist is going free and half of Oklahoma is now not under the criminal jurisdiction of the state of Oklahoma. I think that’s a bad and bizarre outcome—but it’s the law.

    In this particular case, while I agree with Roberts’ reasoning rather than Gorsuch’s (it seems obvious to me that, in making Oklahoma out of tribal territory, Congress intended to make the state sovereign over the entire territory regardless of whether various actions toward that end explicitly stated that, and a hundred and eleven years of history indicates that intent as well) I don’t find it illegitimate. In some cases, it seems rather obvious that they’re making up law out of whole cloth, which I think strains the system by making the public lose confidence in our institutions. (But, the Court is hardly the leader in the clubhouse in that regard.)

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  47. Ebenezer_Arvigenius says:

    @HarvardLaw92:

    Yeah. The whole stuff quoted by James starting with Jimcy McGirt is just breathtakingly bad. There’s not a single legal argument in there beyond “I really don’t like it and it would be so bothersome“.

    If I tried something like that they would laugh me out of court.

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  48. Ebenezer_Arvigenius says:

    @James Joyner:

    it seems obvious to me that, in making Oklahoma out of tribal territory, Congress intended to make the state sovereign over the entire territory regardless of whether various actions toward that end explicitly stated that, and a hundred and eleven years of history indicates that intent as well

    The problem here is the distinction of assuming something already happened and actively making it happen.

    To give an example. If I erroneously believe I bought a house but the paperwork wasn’t done properly I can still try to sell the house. No one could argue that this does not show that I believe to be the owner.

    But it would be very hard to argue that my attempt to sell it was at the same time an affirmation of me wanting to buy it strong enough, that the sales contract would effectively double as a valid buying contract.

    Sure they took steps that clearly showed they believed tribal authority to be in abeyance. However this is not the same as actively abolishing it. They might have wanted that if they had known. But they didn’t.

    It’s possible to argue the reverse. But it’s not a very strong argument absent clear indications.

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  49. HarvardLaw92 says:

    @Ebenezer_Arvigenius:

    Indeed. The first thought that ran through my head as I was reading it was “John Roberts wrote this??” Breathtakingly bad and then some …

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  50. SKI says:

    @HarvardLaw92: I lost my ability to be surprised by bad faith/results-oriented hackery on the Court awhile ago…

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  51. @Jerry:

    You morons, Gorsuch just removed the American citizenship from over a million people.

    It would be best not to question people’s intelligence when making wildly incorrect claims.

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  52. @James Joyner:

    it’s because they’ve made law.

    This is something you might consider writing about in the future, as you made a similar statement in a previous post on SCOTUS. My brief response is: no they didn’t. They interpreted existing laws in a way that has the result of creating a policy outcome (something that I think is the inevitable outcome of court rulings in general, and especially of a constitutional court of final appeal).

    They have not written legislation. That had said how existing legislation should be understood.

    And I will note: I have no firm opinion on this ruling. These issues are sufficiently outside my areas of expertise that I am not willing to even try and weigh in at this point.

    The politics nerd in me is intrigued, however, by how this all plays out.

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  53. James Joyner says:

    @Steven L. Taylor: Indeed. While I find the ruling bizarre, eastern Oklahoma suddenly becoming tribal land impacts the non-tribal citizens of eastern Oklahoma marginally, if that. Nobody has lost their land (unless you’re counting the tribal members way back when), much less their citizenship.

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  54. Raoul says:

    The Supreme Court has ruled that if Congress is abrogating a treaty it should explicitly state so. I have no problem with that since it is clear standard. Otherwise, anytime a law is changed, the impact of such on prior laws becomes muddier and muddier. I guess the point is that we hold treaties to high standards.

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  55. Pylon says:

    @James Joyner: Roberts’ decision is not good at all. It’s been roundly ridiculed:

    https://www.lawyersgunsmoneyblog.com/2020/07/neil-gorsuch-cancels-andrew-jackson

    Basically he is trying to let the extreme example and government negligence dictate against the clear effect of a written treaty.

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  56. James Joyner says:

    @Steven L. Taylor:

    They have not written legislation. That had said how existing legislation should be understood.

    I agree that they’ve interpreted legislation here. I think it’s a perfectly defensible, if bizarre ruling. But judicial rulings are law in our system, no? We have common law and statutory law.

    And this ruling has much more impact than just about any statute I can think of. It changes the entire legal relationship of 100,000-odd people with the state of Oklahoma and the Muscogee nation.

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  57. SKI says:

    @James Joyner:

    But judicial rulings are law in our system, no? We have common law and statutory law.

    If all you were doing by declaring they “made law” is stating they issued an opinion – something they do in every case they decide, what was the point of saying they “made law”? Stop digging…

    You think it is “bizarre” but all the lawyers are telling you it was far more legally coherent and sensible than the dissent. Maybe the issue isn’t the opinion.

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  58. James Joyner says:

    @SKI: It was a 5-4 decision that reversed the Court of Appeals’ judgment; it’s hardly a slam dunk.

    Regardless, in the comment in question, I’m simply arguing that the Court’s judgment here constitutes “law.” I don’t think that’s a particularly controversial argument.

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  59. SKI says:

    @James Joyner:

    It was a 5-4 decision that reversed the Court of Appeals’ judgment; it’s hardly a slam dunk.

    It was indeed surprising – mostly because we didn’t think they would do waht was right instead nof what was expedient.

    That said, Roberts’ dissent was horrifically bad at being a coherent or principled legal argument. Have you seen anyone actually defending it? I’ve seen people, like yourself, complaining about the Opinion – mostly in terms that, at their core, boil down to how horrible it is to not screw over the natives again but nothing saying the legal reasoning is wrong.

    Regardless, in the comment in question, I’m simply arguing that the Court’s judgment here constitutes “law.” I don’t think that’s a particularly controversial argument.

    With all due respect, that is complete bullshit. If that was all you were doing, there would have been no reason to say it ion the first place. You were trying to describe it *negatively* by saying that, implying they were overstepping their role. c’mon, James…

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  60. @James Joyner:

    But judicial rulings are law in our system, no?

    It has legal force. I think that the phrase “they’ve made law” has often had ideological/philosophical meaning in the broad debates about SCOTUS rulings. It is akin to “legislating from the bench.”

    As a generic statement, I agree the ruling have the force of law–but what one means about making law is relevant to how one views court behavior.

    I prefer the notion of interpreting existing law in a way that have policy implementation implications. But they haven’t actually written a new law. I know this is somewhat pedantic, but I think it is relevant to several recent conversations about SCOTUS rulings and hence my suggestion that it might make for a fruitful post in terms of your own view of the concept.

    I have my own version of such a post rolling around in my head at the moment.

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  61. James Joyner says:

    @SKI:

    You were trying to describe it *negatively* by saying that, implying they were overstepping their role. c’mon, James…

    Not, not at all. When I make that argument, I tend to say things like “legislating from the bench” or “serving as a sitting Constitutional convention.”

    In this instance, I was explaining what @EddieInCA thought was a contradiction: How can I be a “rule of law” guy with regard to protestors and yet be arguing against a SCOTUS decision. And I was explaining that, while I disagree with the outcome, it is very much the law of the land, with all of the consequences that flow from that, and must be followed.

    Roberts’ dissent was horrifically bad at being a coherent or principled legal argument. Have you seen anyone actually defending it?

    I’ve been looking for the usual suspects (Volohk and SCOTUSBlog, in particular) to weigh in but they hadn’t as of an hour ago.

    I’ve seen people, like yourself, complaining about the Opinion – mostly in terms that, at their core, boil down to how horrible it is to not screw over the natives again but nothing saying the legal reasoning is wrong.

    I can’t vouch for the others but my argument is that of Roberts: It was bloody obvious that, in establishing Oklahoma and in every action since, that Congress intended to abolish the tribal control over the area. And also Alito’s “dog that didn’t bark” point at oral argument: the state of Oklahoma has been taxing and arresting tribal members for well over a century. Why was it not contested at the time?

    I’m looking for other analyses but, thus far, the Trump tax cases seem to have attracted most of the attention.

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  62. James Joyner says:

    @Steven L. Taylor: Gotcha. I’m not sure I have a sufficiently firm delineation for a post at the moment. There are clearcut cases where I think the Court has simply made up law, such as the discovery of a privacy right hiding in the shadows, which beget a right to buy birth control pills, which then beget a right to an abortion.

    I’m not even sure what to call this particular case, in that it’s not technically even a statutory interpretation per se rather than a finding that multiple Congressional actions didn’t constitute a sufficiently explicit renunciation of a treaty. For reasons already stated, I think they got that wrong but I have no complaint about their being the arbiter; it’s literally what courts are for.

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  63. HarvardLaw92 says:

    @James Joyner:

    To be honest, the part of all of this that I found the most bizarre was a group of self-proclaimed textualists falling over themselves to create an implied intent that doesn’t exist in either statutory law or the treaties governing this situation. Indeed, they’re arguing against their own precedent, 9-0 no less, in trying to assert that allotment constitutes disestablishment.

    Solem v. Bartlett, which interestingly dealt with this exact same scenario 36 years ago, made all of this exceedingly clear.

    “once a block of land is set aside for an Indian reservation and no matter what happens to the title of the individual plots within the area, the entire block retains its reservation status until Congress explicitly states otherwise”

    There is no ambiguity there. Once the reservation has been established, even if Congress enacts legislation (as it did) forcing the sale of “surplus” reservation land to non-Native Americans, the boundaries of the original block grant do not move an inch unless and until Congress explicitly says “we intend to disestablish / diminish the reservation”. Congress has worked its way through a variety of such land grab schemes where the 5 tribes are concerned, but nowhere in its legislative history has it ever expressed an intent to eliminate the reservations from existence, or to diminish their boundaries.

    Perhaps this is the result of sloppy legislation. It may be the result of a prejudiced belief back in the day that the Native American would successfully assimilate and himself render the reservation meaningless, thereby killing it by neglect and making such explicit langauge superfluous in their opinion. Any number of possibilities can be implicated, but when dealing with something as significant as treaty law between sovereign nations, inference isn’t good enough. Whatever their rationale for doing so, Congress dropped the ball with respect to diminishing or disestablishing the 5 tribes reservations, ergo they have never been diminished and remain exactly as constituted post the explicit ceding of tribal lands in the 1866 treaty. That’s just where it is.

    Roberts, who I am still disappointed with here, is rhetorically saying “the explicit text of treaties doesn’t matter and the explicit text of statutory law doesn’t matter. All that matters is inferred intent.” For a supposed textualist, this is akin to standing there banging his shoe on the table a la Khrushchev. All show, no go.

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  64. James Joyner says:

    @HarvardLaw92: That’s fair. I’m not a hard-core textualist but Roberts certainly claims to be. Further, given his fallback to stare decisis on the most recent abortion case, I agree he should have fallen back on Solem v. Bartlett.

    At the end of the day, it just strikes me that the majority is falling back on a pretty thin technicality in undoing 111 years of history. That’s a long time for Oklahoma to be taxing and jailing sovereign Indians without someone having challenged it in court.

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  65. HarvardLaw92 says:

    @James Joyner:

    And I’d agree, except for the fact that we’re dealing with a population which has, for much of its history, been disadvantaged with respect to equitable power versus a far more powerful adversary on which it increasingly found itself dependent. One could argue (and I would argue) that these tribes were coerced into accepting allotment and the rest of the litany of injustices they’ve had to endure in the first place, so that takes us from a place of “Well, they never said anything about it” to one of “They didn’t dare say anything about it, and nobody in power would have given a flying fk about it if they had”. The unequal power dynamics put us into a position where we can’t presume that acquiescence equates to agreement. Interestingly, Congress passed legislation with respect to other tribes during the same period that did includes explicit language ceding the allotted lands to the state, but failed to do so with respect to the 5 in Oklahoma.

    So we’re left with a group of people who were under duress and essentially powerless to say no to allotment, and Roberts trying to assert that their silence equates to consent. Imagine how (rightly) we’d all be up in arms if the scenario involved a woman raped at gunpoint, and somebody was trying to argue that her completion of the sexual act equated to consent. This isn’t much different in principle. We’d burn the building down.

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  66. James Joyner says:

    @HarvardLaw92: I can certainly see that argument in 1909. But, so far as I can gather, they never attempted to contest this even in a much more hospitable climate that has existed at least the last half-century.

    The US and Oklahoma governments have had a continuous relationship with the tribal leadership, so obviously they never went away as an entity. So what wre they doing? There’s a whole government apparatus operating out of Okmulgie. Over what area had they been exercising sovereignty between the creation of Oklahoma and yesterday morning?

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  67. HarvardLaw92 says:

    @James Joyner:

    It’s difficult to find a current depiction of surface ownership, but I did find these historical depictions of the progress of allotment from the Library of Congress:

    1899

    1902

    In both cases, the orange areas represent tribal lands that were essentially taken from tribal ownership and sold to (mostly white) homesteaders. Per Roberts’s interpretation, they exercise sovereignty over whatever area of the non-orange region in the 1902 map that hasn’t also subsequently been sold off. After this ruling, all of it.

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  68. Dennis says:

    @James Joyner: Huh with Nancy Pelosi at the helm of the House. You are kidding. And with the prospect of a Democratic led Senate. Chickens coming home to roost in OK. The arc bends excruciatingly slow but relentlessly towards Justice.

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