Reservation Blues
Something monumental happened in the second week of July, something that you might have missed. I get it, there’s a global pandemic going on, and you’re busy arguing with friends and acquaintances on Facebook about mask-wearing and case-counting and whatever else the internet has decided is now a political issue. That’s fine, we’re all preoccupied with something.
But what if I told you that on July 8th, approximately 1.8 million people went to bed in Eastern Oklahoma and woke up somewhere completely different. You’d have heard of that, right?
Well, if you haven’t, you’re in luck, because in this week’s review, we’re going to cover a case called McGirt v. Oklahoma, which was one of the last cases decided by the Supreme Court this term.
On the surface, the case is about the borders of the Muscogee (Creek) Native American reservation in Eastern Oklahoma. But as always, we’re going to look a little bit deeper. This case is going to take us on a long journey back to the early days of our nation, down through some of the darkest and lowest points in our shared history, and out the other side into an uncertain future. Eventually, we’re going to return to the present, to hear the last appeals of a violent sexual predator sentenced to die in an Oklahoma jail. And by the time it’s over, we’ll see how this case has changed the lives of more than 1.8 million people in the American Midwest.
Sound interesting? That’s because it is. Let’s go.
McGirt v. Oklahoma:
Before we start, a quick word about terminology. In reviewing this case, we’re going to have to take a look at one of the most painful periods of American history: the tragic—and, to many, still-ongoing—conflict between the federal government and the various Native American tribes across the country.
Throughout this review, I’m going to use the proper names of those tribes wherever possible. However, many of the federal laws and treaties we’re going to talk about refer to Native Americans generically as “Indians.” I’d prefer to avoid using that or any other offensive term, and I’m going to do so wherever possible, but there are times when it will be necessary to quote from statutes and to take the government at its word. As you’ll see, our government’s lack of respect for Native American history and culture is a theme that runs throughout this story. That said, if the language in this review offends anyone, please accept my sincerest apologies.
Background:
In 1997, a man called Jimcy McGirt was convicted in an Oklahoma state court of three violent sex offenses against his wife’s four-year-old granddaughter. McGirt was sentenced to 1,000 years plus a life sentence. If you’ve never heard of him, you aren’t alone. In fact, none of us would have ever heard of him if not for the creative argument he made when he appealed his sentence.
You see, there’s a federal law in place called the Major Crimes Act (MCA), which says this:
“[A]ll Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny … either within or without the Indian reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.”
Basically, the MCA has three requirements:
(1) the defendant must be an enrolled member of a Native American tribe; (2) the crime committed must be one of the listed crimes; and (3) the crime must have been committed within lands belonging to a Native American reservation.
If all three of those things are true, then a state like Oklahoma loses jurisdiction over the case, which must be tried in federal court. McGirt’s argument was that he was an enrolled member of the Seminole tribe of Oklahoma, and that his crimes were committed on lands belonging to the Muscogee (Creek) tribe. Because of that, he argued, only the federal government had jurisdiction to try him, and his sentence in Oklahoma state court was invalid.
Now, no one disputes that Jimcy McGirt was an enrolled member of the Seminole tribe at the time of his crimes. The question was whether or not those crimes occurred within the borders of a Native American reservation. To answer that question, the lower courts had to look at the boundaries of the Creek reservation in Oklahoma. Let’s take a look for ourselves:
A portion of the map of Native American reservations in the U.S.
(Image courtesy of Presidentman and Wikimedia Commons).
That blue blob at the top of the Eastern half of Oklahoma, that’s not the Creek reservation. No, that’s actually the reservation belonging to the Osage tribe. And before you tell me that there are no other Native American reservations on that map of Oklahoma, I know. You’re right, there aren’t. But why not?
Well, let’s start with the basics: in reality, there are actually five Native American reservations in the State of Oklahoma that don’t appear on the above map. There are reservations belonging to the Creek, Cherokee, Seminole, Choctaw, and Chickasaw. So why don’t we see them on that map? Well, most of the territory we’re talking about hasn’t been treated as a reservation for decades, it’s just been treated instead as property of the State of Oklahoma. There are a bunch of reasons for that, and we’re going to talk about them in a bit, but let’s just recognize that if we were to use the above map to decide this case, Jimcy McGirt would lose.
But that wasn’t McGirt’s argument. No, instead he argued that in deciding the case, the Court should look at the borders of the original reservations in Oklahoma, which, as you can see, look quite a bit different:
The approximate borders of the reservations belonging to the so-called Five Tribes, in 1866.
(Image courtesy of Chipermc and Wikimedia Commons).
But wait, how did those borders change so much between 1866 and today? And what happened to the reservations? Well, that’s where this story really begins.
So let’s jump in the Impartial Review Time Machine and head back to the 1700s, when this country wasn’t a country at all, just a loose collection of states holding tight to the East Coast.
Now, this case is all about Native American reservations, which is a term that has been in use in this country since at least 1758 to describe lands supposedly given by the United States government to a particular Native American tribe. Before we go any further, we should recognize that this whole arrangement is really a complete farce. When the U.S. government started creating reservations, it didn’t own the land it was giving away, any more than you own the air that drifts in through your open window. The land that typically became a reservation was normally land that offered little economic or strategic value to the federal government or its people. And they weren’t giving it away out of the goodness of their hearts. No, what they were really doing was using this barren, desolate land as a way to force Native American tribes out of their ancestral homes and into prisons on the edge of the “civilized” world.
Generally, the arrangement went something like this: early American settlers would arrive in an area suitable for farming, raising livestock, or otherwise living off the land. They would naturally want to settle in these areas, as the fertile lands gave them a better chance at survival. Of course, they often discovered that they weren’t the first people to have the bright idea of settling these fertile lands, and that others—ancestors of what would become the modern Native American tribes—were already living there, in some cases for hundreds or even thousands of years. This, as you can probably guess, normally created conflict, with both sides warring to determine to whom the land belonged.
Let’s pause here and just note that if the land “belonged” to anyone, it belonged to the Native Americans, who had been there for centuries before the settlers arrived.
Now, all of this should sound familiar to anyone who knows their history, so let’s jump forward a bit.
Around the mid-1700s, the Europeans (who would soon become Americans) developed a new strategy for dealing with the Native Americans. They were still willing to slaughter Native Americans at every turn, but they also realized that they could use their growing numbers and technological superiority to their advantage and simply strongarm the tribes at the bargaining table. So they began to effectively purchase Native American lands in the East in exchange for, among other things, territory in the West that the settlers had no interest in. Many tribes resisted, but when America arranged itself into a nation, with manpower, industry, and a modern continental army, this resistance became futile. More and more tribes were slowly pushed out of their lands in the East and relocated out West.
The general routes taken by the Five Tribes during the Trail of Tears, with the tribes’ territories in dark green and the reservations in Oklahoma in yellow.
This whole process reached its lowest point in 1830 with the beginning of the Trail of Tears, during which approximately 60,000 Native Americans were forced to move from their ancestral lands in the Southeastern United States, to unfamiliar and often inhospitable territory West of the Mississippi. The primary victims of the Trail of Tears were the Five Tribes, seen above. The Creek were forced into signing treaties with the federal government that effectively exchanged their lands in the East for new, unsettled territory in the West, a “permanent home to the whole Creek nation,” where “they [would] be allowed to govern themselves.” That quoted language comes from the first treaty between the Creek and the federal government, in 1832, which created the Creek reservation in what is now Eastern Oklahoma.
The original Creek lands in the American Southeast.
The journey to reach these lands though, was a hellish nightmare. Forced on by the U.S. Army, and ravaged by disease, starvation, and the elements, at least 4,000 Native Americans lost their lives along the way. Their reward, at the end of the Trail of Tears, was their own piece of barren land at the edge of civilization that the U.S. government promised would belong to the Creek “forever.”
But of course, the edge of civilization is always shifting, and forever is never quite as long as it sounds.
Selocta, a Muscogee (Creek) chief who protested the American government’s theft of Creek lands.
If you’re at all familiar with our government, you can probably guess what happened next.
That’s right, the American government decided that the land it had East of the Mississippi wasn’t good enough. It started looking across the river at the land it had “given” to the tribes and thinking the grass looked greener. And because it had rifles and cannons and missionaries to spare, it started trying to come up with ways to get that land. It began passing laws to undermine the Creek reservation. These began with what is known as the “allotment era.” During this period, the federal government pressured the Creek (and other tribes) into breaking their lands into smaller areas owned by individual members who could eventually sell that land in the future. As a result, much of what was once land belonging to the Creek reservation has since been sold to non-Native American owners, drastically reducing the size of the reservation.
Around the same time, Congress was pursuing other means to take control of Native American lands. Most of these involved attacks on tribal sovereignty. In 1898, for example, Congress dissolved the tribal court system. Then, in 1906, Congress gave the President the power to replace the Creek chief and transferred control of the tribal school system to the federal government. All of this was part of a calculated plot by Congress to systematically strip the Creek (and all the Five Tribes) of their lands and their sovereignty and see them absorbed into the State of Oklahom.
In many ways, the plan worked. The Creek Reservation slowly became diminished. Many of its lands were sold off to non-Native Americans, and its tribal government saw its power stripped away. The old reservation became a shadow of its former self, though the Creek are still a powerful force in their part of the state.
Despite all that, the reservation was never formally dissolved, even as its lands dwindled and its residents either moved away or died off or were forcibly assimilated into American life.
And that leaves us back where we started, with Jimcy McGirt and the Creek reservation.
Now, both the majority and the dissent agree on a few things:
First, there was a Creek reservation established in Eastern Oklahoma in 1832. That reservation was established by a formal treaty between the tribe and the federal government. Second, that treaty was never formally dissolved. Third, the land belonging to the Creek was slowly stripped away, to the point that the reservation today is much smaller and less autonomous than it originally was.
I want to do things a little bit out of order in talking about the decision in this case. Normally, we go in order and talk about the majority opinion first, but this time I want to start with the dissents. There are two of them. There’s Justice Thomas’ dissent, which is based on a very interesting but very complex jurisdictional rule that I’m not going to get into today (you can thank me later). And then there’s the principal dissent, written by Chief Justice Roberts, which is heavily based on the history we just discussed. Since that history is fresh in our minds, let’s talk about Chief Justice Roberts’ dissent first.
The Dissent:
You can probably guess how this is going to go, right? The main point is this: even if Congress never explicitly dissolved the Creek reservation, its actions over the ensuing years clearly established that it intended to do so. And everyone involved, whether they be members of the Creek tribe, Oklahoma citizens, or members of Congress, essentially acted as if the reservation had been dissolved.
Now, that’s an interesting position for Roberts and the three justices who joined his opinion (Thomas, Alito, and Kavanaugh) to take. If you’ve been following this blog, or the Supreme Court generally, you know that the Court’s conservative justices tend to follow a legal philosophy called textualism. We’ve talked about it before so I won’t rehash it here, except to say that a textualist justice normally confines him or herself to the text of a particular law, and doesn’t look at other external information unless the text isn’t clear. Of course, in this case, we don’t really have much text to go on. We have all the treaties that Congress made with the Creek and we have all the federal laws passed over the last several centuries that deal with reservations, but we don’t have a definitive act that we can look at to answer the question of whether or not a reservation exists.
But the absence of such a law doesn’t mean that textualism can’t be applied in this case. Actually, it’s quite the opposite. The absence of any legislation by Congress, to a textualist, generally means that Congress has not acted, and that the status quo remains undisturbed. So in this case, we might probably expect the textualist wing of the Court to look at the lack of any explicit action by Congress and say something like this:
“Congress knows how to make laws, that’s their job and we’re going to leave it up to them. Until they do, we’re going to leave things the way they are.”
Which would mean, of course, that the Creek reservation still exists in its original form.
But that’s not what happened in this case, and we should think about why. Is it because Chief Justice Roberts and his colleagues abandoned their ideology? Have they given up on textualism?
No, not really.
What the dissent is really arguing is that even though the acts of Congress are the most important considerations, it’s dangerous and irresponsible to essentially ignore centuries of history, as well as the potential consequences of the Court’s ruling.
Chief Justice Roberts looks at this case and he sees a long stretch of time during which the Creek reservation was not treated like a reservation by anyone. Not only that, but he looks at the actions of Congress during this period and he sees the government taking a series of deliberate steps to eat away at the Creek reservation. The breaking up and selling off of tribal lands, the dissolution of the tribal courts, the theft of the tribal school system. Chief Justice Roberts looks at these and sees a Congress that is actively trying to destroy the Creek reservation. What he’s saying, then, is that even if Congress never explicitly dissolved the reservation, it’s clear from their actions that that’s what they were trying to do, and the Court should give effect to that.
In addition to all that history, the Chief Justice is concerned with the consequences of the Court’s ruling. He’s thinking of the bureaucratic nightmare that might arise if a huge portion of a U.S. state suddenly became, in essence, property of a different sovereign nation. I mean think about it: you probably cringe inwardly whenever you think about dealing with the government in any capacity. You break out in cold sweats when you think about filing your taxes; you feel nauseous thinking about the lines at the DMV. You’re not alone, incidentally.
Now imagine if the Supreme Court popped its head in one day and said that the town you live in, along with dozens of others, didn’t belong to your home state anymore but actually belonged to some foreign country (let’s say Iceland, nobody hates Iceland). You can imagine the kinds of problems that might arise, can’t you? Iceland would suddenly become responsible (in theory) for a whole range of things, including law enforcement, zoning, taxation, and a whole judicial system. Can you imagine what the line for the DMV would be like then?
Iceland says pay your taxes.
Of course, a lot of these concerns are hypothetical. Nobody actually knows what’s going to happen now that the Creek reservation has been formally recognized again. It’s very possible that the Creek and the State of Oklahoma reach an agreement to keep business as usual, and nothing much changes for the people who have suddenly discovered that they are living on Creek land. But no one is really sure, and Chief Justice Roberts’ position is that that uncertainty could have been avoided, with no real loss to anyone, if this case was decided a different way. In some ways, it’s his job as Chief Justice to think this way. He’s the head of the Court, and its legacy will be his legacy, so he’s obviously concerned with the consequences of its actions. But how much should Justices consider the consequences of their rulings? Is there a circumstance where the consequences become more important than the rule of law? I’m not here to offer you any opinion on that, but the question is an interesting one.
Now, one thing we do know is that criminal justice is going to change on the Creek reservation. People like Jimcy McGirt who were improperly convicted in Oklahoma courts may now have a simple means to get their sentences overturned. And the whole criminal justice system in that area of the country is going to become much more heavily controlled by the federal government. But, as we’ll discuss in a minute when we talk about the implications of this case, this may not be as big a deal as you’d initially think.
Keep it in mind though, and let’s turn to the majority opinion.
The Majority Opinion:
The majority opinion basically comes down to a few main principles.
First, Congress alone possesses the power to regulate the relationship between the various tribes and the federal government. That much is clear from Article II, which gives Congress joint authority (with the President) to make treaties with foreign nations. Second, because only Congress and the President can make treaties with foreign nations, it follows that only Congress and/or the President can dissolve treaties with foreign nations. Third, unless Congress and/or the President explicitly dissolves a treaty, it remains in place, no matter what happens in the intervening years.
You can see where this is going too, right? Congress gave the Creek Indians that land in Eastern Oklahoma and it did so by ratifying a series of formal treaties. These treaties were never formally revoked, even though the government essentially tried for a century to drive the Creek out of the lands it had given them. Because of that, the original treaty remains in place and the land it gave to the tribe remains a part of the reservation. Jimcy McGirt wins.
Ok, you might be thinking, but what about the consequences? And what about all those people who have been living on a reservation for years without knowing it? What about all the administrative and governmental problems this might create? Surely those things matter.
Well, yes and no. Because as we discussed, these sorts of questions and concerns are not typically something that textualists like Justice Gorsuch consider unless doing so is strictly necessary. That is, a textualist like Justice Gorsuch is not going to look at external considerations (like the consequences of a ruling, or the history of a particular law) unless the ordinary meaning of law (or absence of a law) is unclear. Instead, he’s going to try to focus only on the text, and to give the words (or lack thereof) their plain meaning.
As we sometimes do, let’s imagine that we happened to run into Justice Gorsuch out in public somewhere, at a restaurant or a movie theater. He’s not wearing his robe or his wig (just kidding), he’s just hanging out. Maybe he’s wearing jeans and a t-shirt. He’s not a Supreme Court Justice, he’s just a guy who listens to people argue for a living. Now, let’s imagine we asked him to explain this opinion to us, in the simplest terms. If we did that, cool, hip, casual Gorsuch might say something like this:
“You know, this is the first time anyone’s ever come up to me in public and asked about Native American reservations. Forgive me, I’m a little shocked. My point is this: the Supreme Court’s only job, in this case, and really in any case involving federal law, is to interpret what Congress did and did not do. So, in this case, it’s not our job to look at what happened on the reservation over the years or how the land that Congress gave to the Creek ended up being used or straight up taken away from them. It’s also not the Court’s job to try to look into the future and predict all the problems that might or might not arise following our ruling. Maybe we’d do something like that if Congress’s actions were vague or unclear. But they aren’t. Congress knows how to create reservations and it knows how to destroy them. In this case, Congress gave the Creek a reservation and it never formally got rid of it.
Case closed.”
Conclusion:
I want to talk for a moment about the implications of this case. The holding, of course, is that the Creek Reservation was never dissolved. When we look back in 15 years, that’s probably what we’ll remember.
And for Jimcy McGirt, the implications of that holding are actually pretty minor. It’s fairly likely that he’s going to get a new trial, in federal court this time, under the Major Crimes Act. And I don’t know enough about his case to accurately predict the outcome, but I think it’s safe to say that one way or another, he’s almost certainly going to die in prison for his crimes. The only question is whether he’s going to do it in the custody of the federal government or the state of Oklahoma.
But on a larger scale, the consequences of this case are potentially enormous, but also pretty much unknown. The problem is that we have no real frame of reference. We’ve really never seen a policy change quite as sudden and sweeping as this before. To give you some idea of the scope, there are now 19 million acres of land in Oklahoma (including large parts of the city of Tulsa) that are now officially part of the Creek Reservation. 1.8 million people went to bed on July 8th, thinking that they lived in Oklahoma, and woke up on July 9th to find that they lived on the reservation. So, just in terms of people’s day to day lives, that’s a huge change.
But also, it’s worth noting that there are approximately 326 Indian reservations across the whole of the United States. They range in size from the 16 million acre Navajo Nation Reservation to the 1.32 acre Pit River Tribe cemetery. Any or all of these reservations could, in theory, be subject to the same sort of analysis that the Court used in this case, which could expand or constrict their borders.
A full, unofficial map of reservations in the U.S.
(Image courtesy of Presidentman and Wikimedia Commons)
And that’s all without even talking about the potential administrative problems. As I mentioned in the Iceland example, it’s worth thinking about how the Creek tribe is going to handle the responsibility that comes with all this territory and all the people that live on it. The Creek are one of the largest and most powerful tribes in America, but the cost of administrating all that land is potentially immense. And yet, as Justice Gorsuch points out in his majority opinion, it is very likely that the Creek and the State of Oklahoma will simply continue to do what they have been doing for the last hundred years: existing in a state of peaceful coexistence, making agreements for the mutual benefits of their citizens. If this is the case, then there may not be a great deal of change for the citizens of the State of Oklahoma who now find themselves living on Creek land.
But still, what about all the people like Jimcy McGirt that we mentioned earlier? What’s going to happen to them?
Well, as I mentioned, many of them may now be able to challenge their sentences, and that might make some of us uneasy. But it’s worth noting that the number of defendants who can make use of this ruling is probably not as large as we might think. Remember, the MCA only applies to people like Jimcy McGirt, registered members of Indian tribes who committed serious crimes on Indian land. So that narrows the pool. And even if these defendants managed to successfully challenge their sentences, that doesn’t necessarily mean that they would end up being released. More likely, they would get, at best, a new trial in federal court, where sentences for certain crimes (like possession of drugs or illegal weapons, for example) are often much more severe. Many of these defendants may simply decide to serve out their sentences, instead of potentially exposing themselves to these harsher sentences.
All of that is to say that when it comes to the consequences of this case, we don’t really know, and we may not know for a long time. It’s tempting to look at the massive policy shift in this case and assume the worst, but we have no way of knowing for sure what lies around the next corner. What we do know is that this case has, in an instant, changed the lives of more than 1.8 million people. Those changes may be massive shifts, or they may be something smaller and less perceptible, like ripples on a pond. Such wholesale changes are rarities in Supreme Court case law, and so too is the recognition that comes along with this case, the recognition of a proud and storied history that began before many of our ancestors ever set foot on this continent, that continued through the first interactions between the settlers and the indigenous people, that reached its lowest point along the Trail of Tears, and that continues to this day, tarnished and battered, but unbroken. We are all a part of that history and whether it makes us proud or ashamed or determined to make a change, we have a chance today to recognize the part we play in creating a different future.
Talking Points:
As usual, time to hit some talking points so you can wow those friends of yours who watch the news and think they know what they’re talking about.
This case looks like a dispute between the Creek tribe and the State of Oklahoma, but what it’s really about, on a factual level, is a man named Jimcy McGirt.
McGirt was sentenced in Oklahoma state court to 1,000 years imprisonment, plus a life sentence, for sex crimes committed against his wife’s four-year-old granddaughter.
McGirt argued that because he was an enrolled member of the Seminole Nation when he committed the crimes, and because the crimes occurred on Creek lands, federal law required that he be tried in federal court.
The question in the case was whether the Creek reservation still existed, or whether it had been dissolved (or “disestablished,” for you word nerds) by Congress.
The Creek reservation was first recognized in 1832 by a treaty between the Creek and the U.S. government.
That treaty required the Creek to give up their ancestral lands East of the Mississippi—in Alabama, Tennessee, Georgia, and Florida—and move West to what is now Eastern Oklahoma.
This treaty, and the subsequent exodus, became a part of one of the most shameful chapters in American history, the Trail of Tears.
Soon after the Creek settled in their new land, the government came calling again, trying a number of subtle means to get rid of the Creek reservation and take back the land.
But Congress never officially dissolved the Creek reservation.
Still, the practical borders of the reservation have been dwindling for years, and now more than 1.8 million people (overwhelmingly non-Native American) live on what was once reservation land. This land has not been treated like a reservation for many years.
The majority opinion states that since the government gave the Creek a reservation and never formally dissolved it, the reservation still exists, with the original geographic boundaries. This is a fairly strict textualist holding.
The principal dissent argues that the history and circumstances of the land show us that even if Congress did not explicitly dissolve the reservation, that is what it was trying to do.
The implications of this decision are still largely unknown, though Jimcy McGirt will likely get a new trial in federal court.
What do you think?
How much does history play into the equation?
How much should the Court concern itself with the potential consequences of its rulings?
Why This Case Matters to YOU:
Well, if you live in Eastern Oklahoma, specifically around the Tulsa area, this opinion obviously impacts you, though the full range of consequences aren’t really clear just yet. And if you live on or around a reservation, this decision is an important one, as it may appear in future cases involving the borders of reservations across the country.
For the rest of us, this decision is a reminder of the sad, tortured history of our country. But it is also a reminder that our future remains unwritten. We can’t change the past, but we can change what happens going forward. And this case, like so many others is a reminder that cooperation, rather than division, is the path of least resistance. Whether any of that will happen remains to be seen, but this decision is full of opportunity.
That’s all for now. As always, don’t forget to stay up to date by following the blog on social media using the links above, and feel free to contact me directly via the Contact page with all your comments, concerns, and unsolicited political opinions. You can also sign up for the bi-weekly Impartial Review Newsletter using the link on the Contact page. Until next time.