Analysis: Musings on ‘McGirt’, the most significant federal court decision in Oklahoma’s history
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Published: 10-Jul-2020


Note: This essay is adapted and considerably expanded from a quartet of posts on Facebook yesterday.

On Thursday (July 9) the U.S. Supreme Court issued the most significant legal decision in Oklahoma’s history. 

Justice Neil Gorsuch worte, in the majority opinion: “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.” 

He cited the 1832 treaty between the U.S. and the Creek Nation, that “In exchange for ceding ‘all their land, East of the Mississippi river,’ the U. S. government agreed by treaty that ‘[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.’ … 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.”

Outlining the bare essentials of three sex crimes committed by a Seminole Indian, Gorsuch noted that Jimcy McGirt, “has argued in postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. A new trial for his conduct, he has contended, must take place in federal court. The Oklahoma state courts hearing Mr. McGirt’s arguments rejected them, so he now brings them here.”

Gorsuch posed the question: “The key question Mr. McGirt faces concerns that last qualification: Did he commit his crimes in Indian country?” 

When using the term “Indian Country” and putting it in quotation marks, I do not sneer but honor reality. 
Indian Country is not a fiction, it is a fact.  To be clear, in the course of reading the majority opinion and the two dissenting opinions, any interested reader can learn at least quite a bit (but not everything) about the confusing shades of gray that can cloud understanding of the words “Indian County.” 
At the risk of some oversimplification – always a challenge in dealing with consequential matters of law – in many places deemed “Indian Country,” tribes exercise a lot of jurisdiction and day-to-day governance over major aspects of daily life. 
These parts of America are called reservations, in a time-honored sense of the word. There are other places deemed “Indian Country” which are not, however, reservations – but land held in trust by the ultimate sovereign, the government of the United States. 
On these lands, a tribal nation or nations can exercise meaningful but not ultimate control.  

States are allowed to exercise considerable power in non-reservation “Indian Country.” 
The history of Oklahoma has been governed by an understanding (or belief or customary practice_ that the state had no reservations (except perhaps – another challenging matter – Osage County). 
The state of Oklahoma’s laws and policies generally have prevailed in non-reservation Indian Country, subject, however, to evolving compacts between tribes and the state.

In the modern era, renewed sensitivity to tribal sovereignty over many decades has resulted in a methodical slow motion transformation. (The ‘McGirt’ decision, however is likely to yield rapid not slow motion transformation). 
President Richard Nixon triggered a new sensitivity to tribal powers, something many do not note when considering his presidency. He signed more new laws and funding mechanisms benefiting tribes than any predecessor. 

Gorsuch gives his view on the last two centuries of history touching tribal lands in eastern Oklahoma. He puts the burden on Congress to go back and change the practical consequences of innumerable changes in daily life for tribal members and their non-Indian neighbors from 1907 to today. 
In a way, that seems fair, but in another way it is folly. 
After nearly two centuries of evolution in land ownership, many pre-statehood tribal lands developed into privately held lands. 

Regardless of my opinion or that of the four dissenting justices, Justice Gorsuch’s view is now the interpretation of American law. Therefore his majority opinion became must-reading at the moment of its issuance. Joining Gorsuch's opinion were Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor. He concluded his majority opinion, writing:

“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.”

With those words of summation, the 5-4 majority reversed an Oklahoma Court of Criminal Appeals ruling. 

Oklahomans are about to learn – probably in slow motion, but perhaps quickly -- how “wrong” gets defined in Congress, in the state and, ultimately, again, in the courts. 
Lying ahead are difficult and contentious matters, likely to involve not only criminal law but almost certainly property rights. 

Attorney General Mike Hunter’s office has literally argued both sides of important aspects of the issues raised in the McGirt case (and the separate but intertwined ‘Murphy’ case). Forgive me for harboring doubts that he and leaders of Oklahoma’s five major tribes can retain the comity and hopefulness reflected in a release they promulgated jointly yesterday. 
I will be delighted to be proven wrong concerning the deep concerns I have 24 hours after Gorsuch issued his opinion. 

Chief Justice John Roberts wrote a lenthy dissenting opinion. It was fine, as far as it went.
Joining him were Justices Samuel Alito, Brett Kavanagh and (except for one reference) Clarence Thomas (see below). 
The Roberts dissent is lengthy and, like the majority opinion, should be studied carefully. 

Roberts distilled his reasoning with these final words, as is the custom in judicial opinions:
“As the Creek, the State of Oklahoma, the United States, and our judicial predecessors have long agreed, Congress disestablished any Creek reservation more than 100 years ago. Oklahoma therefore had jurisdiction to prosecute McGirt. I respectfully dissent.” 

The chief justice began the four-member dissent with this summation, outlining the impact of the majority decision: 

“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.” 

Both Gorsuch and Roberts are intelligent human beings, as are each and every one of the justices. 
To understand the anxiety many intelligent people now feel read the above paragraph a second or third time. 

The Roberts dissent in ‘McGirt’ – more attentive to text and legal history than some other of his pronouncements -- continued:
  
“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.”

The U.S. Supreme Court decision in ‘McGirt v. Oklahoma’ is, for the state of Oklahoma, existential. The 5-4 majority opinion throws the legal jurisdiction of much of the state into question. 
I agree with the four dissenters.
 
However, only Justice Clarence Thomas reasoned correctly through the facts and the briefs presented in this consequential and sadly historic case.  (Before drawing on certain aspects of the Thomas dissent in the present case, I should mention that he wrote an important decision in favor a small tribal nation elsewhere in the United States.) 

In his ‘McGirt’ dissent, Justice Thomas captures the jurisprudence I honor – the tradition of the late Judge Robert Bork, Supreme Court Justice Antonin Scalia, and Thomas himself. There are shades of difference among the trio, but most of time, I agree with their reasoning about important matters of law. 

Justice Thomas  wrote in his McGirt dissent: 
“I agree with the chief justice that the former Creek Nation Reservation was disestablished at statehood and Oklahoma therefore has jurisdiction to prosecute petitioner for sexually assaulting his wife’s granddaughter. ... 
“I write separately to note an additional defect in the Court’s decision: It reverses a state court judgment that it has no jurisdiction to review. ‘[W]e have long recognized that “where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.”’” 

Thomas reasoned that “Under this well-settled rule, we lack jurisdiction to review the Oklahoma Court of Criminal Appeals’ decision, because it rests on an adequate and independent state ground. … The Court might think that, in the grand scheme of things, this jurisdictional defect is fairly insignificant. After all, we were bound to resolve this federal question sooner or later. See Royal v. Murphy, 584 U. S. ___ (2018). But our desire to decisively ‘settle [important disputes] for the sake of convenience and efficiency’ must yield to the ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere.’ Hollingsworth v. Perry, 570 U. S. 693, 704–705 (2013) …  Because the Oklahoma court’s ‘judgment does not depend upon the decision of any federal question[,] we have no power to disturb it.’ Enterprise Irrigation Dist. v. Farmers Mut. Canal Co., 243 U. S. 157, 164 (1917). …  
“I agree with the chief justice that the Court misapplies our precedents in granting petitioner relief. ... 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. Therefore, I respectfully dissent.” 

U.S. Rep. Tom Cole, R-Oklahoma, has long sought to lock into place certain advantages that have, over time, been granted through case law and administrative fiat to the major tribes, most important to the Chickasaw Nation, the most powerful of the tribal entities based in Oklahoma. 
These advantages have, methodically over decades, locked in unfair advantages for the Big Tribes vis a vis the smaller tribal nations. 
Litigation over a clash between the Chickasaw and Comanche is still active in the federal judiciary.

A new version of what analysts call the “land fix” is pending in the present Congress. 

Here, in a little less than 1889 words, I have provided a broad outline of the McGirt case, not hiding my convictions. 
The best way for any reader to decide how she or he feels is not to linger in anger or joy, but to study the Supreme Court’s historic ruling. Just remember, it was 5-4. And there have been times that passionate dissents become the basis for new majorities. 

The majority and dissenting opinions for ‘McGirt v. Oklahoma’ can be viewed here: https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf 

Note: Publisher of The City Sentinel newspaper and founder of CapitolBeatOK.com, an online news service, Pat McGuigan is the author of three books and editor of seven, including ‘Crime and Punishment in Modern America (1985). His stories and commentaries on Oklahoma’s Indian Country including reporting on the efforts of the late Archie Hoffman. McGuigan won first place in Diversity news from the Society of Professional Journalists, Oklahoma Pro Chapter, for his 2012 reports on Hoffman’s efforts to restore the land around Fort Reno, in western Oklahoma, to the Cheyenne & Arapaho Tribes.  [On July 27, a handful of grammatical errors were corrected in this report. No analytical assertions were revised.]

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