SCOTUS came through for a long-oppressed minority yesterday in McGirt v. Oklahoma:
In a 5-to-4 decision, the court said that Congress “has not said otherwise” and that the land promised to the Creek Nation is still a reservation. [WaPo]
And this means what?
For Oklahoma’s criminal-justice system, the ruling means that federal officers, not state officials, have the authority to prosecute major crimes committed by tribal members. Less certain is how the decision affects the authority of state and city leaders when it comes to imposing taxes, zoning laws and other regulations.
Oklahoma Attorney General Mike Hunter and leaders of five tribal groups issued a joint statement after the ruling indicating they have made “substantial progress toward an agreement” to submit to Congress and the Justice Department that would put in place a “framework of shared jurisdiction.”
In practical terms, what’s the impact? An experienced local attorney thinks Oklahoma may have overstated it:
Thursday’s Supreme Court ruling that the Muscogee (Creek) Nation’s original reservation boundaries were never legally disestablished ranks as one of the most important court decisions in Oklahoma history, according to a Tulsa attorney with extensive experience in federal tribal law.
“I think this is the most important decision in Oklahoma history in terms of sovereignty for the state of Oklahoma and sovereignty for the five tribes,” said Mike McBride III, an attorney with Crowe & Dunlevy. …
The state of Oklahoma claimed in Supreme Court filings in Murphy’s case that thousands of cases would be subject to being overturned if the court ruled against the state, McBride said.
“They really backed off of that (claim) in the McGirt case.” McBride said. “It appears there are considerably (fewer cases) than that.” [Tulsa World]
In my view, and without relevant legal training, it seems to be a victory that will have long term consequences and is a signal victory for the tribes involved.
But what really interested me was a small bit in the ruling. The conservative Justice joining the liberal wing was Justice Gorsuch, and, in the ruling, I have to wonder if he relished writing this rebuttal to the dissenters:
In the end, only one message rings true. Even the carefully selected history Oklahoma and the dissent recite is not nearly as tidy as they suggest. It supplies us with little help in discerning the law’s meaning and much potential for mischief. If anything, the persistent if unspoken message here seems to be that we should be taken by the “practical advantages” of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.
Permitting the fact that there may be large practical consequences to the application of the law modify a decision is a dangerous precedent, and so it’s good to see at least one conservative Justice recognize that permitting an injustice to occur simply because some members of the dominant community might be discomfited was, itself, an injustice.
This decision will reverberate for a long time to come.
