The Supreme Court’s decision yesterday in McGirt v. Oklahoma, has garnered a flurry of breathless headlines and commentary describing the court’s decision as “reshap[ing] criminal justice in eastern Oklahoma by preventing state authorities from prosecuting Native Americans.”1 This statement is misleading, as Congress, in the Major Crimes Act of 1885, placed within the exclusive jurisdiction of the federal government the prosecution for felonies such as murder, assault, arson, burglary, or robbery committed by an Indian on reservation territory. Indeed, in affirming the constitutionality of the Major Crimes Act, the Supreme Court found that Indians “owe no allegiance to the States, and receive from them no protection.” United States v. Kagama, 118 U.S. 375, 384, 6 S. Ct. 1109, 1114 (1886). What the majority opinion, authored by Justice Gorsuch and joined by the so-called “liberal” justices, has done is actually quite “conservative.”
The majority opinion proceeds with an analysis of the specific history of the Creek reservation, linking back, with perhaps a bit too much romance, to the Indian Removal Act and “the promise” at the “far end of the Trial of Tears.” McGirt v. Oklahoma, No. 18-9526, 590 U.S. ___, *1 (2020). Justice Gorsuch traces the various treaties and allotment statutes specific to the Creek nation and concludes that since Congress has not explicitly disestablished the Creek reservation (as done explicitly with numerous other Indian reservations), that the territory of the Creek reservation, as delineated by treaty remains intact for the purposes of the Major Crimes Act. This approach is in keeping with almost fifty years of cases determining the reach of the states into Indian sovereignty by looking to “the applicable treaties and statutes which define the limits of state power.” McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 (1973). Like Justice Thurgood Marshall in McClanahan, Gorsuch reads the relevant statutes and treaties “with this tradition of sovereignty in mind” to similarly find that the state, here Oklahoma, has overstepped its lawful authority. No matter how highly Justice Gorsuch thinks of his own fact-intensive approach here, it neither new nor novel. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45 (1980) (“This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.”).
What then are the implications of McGirt, beyond the obvious and serious practical implications for Oklahoma state criminal prosecutions and convictions? Could it be as Chief Justice Roberts, warns in his dissent that “[t]he 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”? I am doubtful. For example, the decision does not touch the decades and even centuries of Supreme Court precedent carefully parsing the continued attempts of the states to levy taxes on economic transactions taking place on Indian reservations. See, e.g., Bracker; In re New York Indians, 72 U.S. (5 Wall.) 761, 771–72 (1866).
The opinion’s reliance on the specific history of the Creeks, particularly with regard to the Indian Removal Act and the Oklahoma Indian Territory, also seem to allow the treaty rights of tribes that have never been removed, such as the Seneca Nation of Indians in New York State, to be easily distinguished away in the next proceeding. Indeed, Justice Gorsuch is explicit that “[e]ach tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.” McGirt v. Oklahoma, No. 18-9526, 590 U.S. ___, *37 (2020).
Thus, McGirt does not represent a seismic shift in the legal analysis of these complicated interlocking sovereignty claims that have been litigated since the founding of the United States. While some have criticized Gorsuch’s opinion for his over-emphasis on a kind of hyper-textualism to the exclusion of other jurisprudential approaches (a recurring theme in his opinions), it is not clear that a judge applying “common-good jurisprudence” would have reached a different result. A common good jurist surely cannot ignore the unique mistreatment and injustice suffered by Indian tribes in the British colonies and later in the United States. Broken treaty promises, coerced renditions of lands through fraud, and even forbidding Catholic priests from providing sacramental and pastoral care to Catholic Indians are only some of the historical tragedies that have been inflicted by both federal and state governments. Indeed, even with its facts-bound holding and limited scope, today’s decision might be viewed as an attempt to restore to the Creek at least some of the rights that Pope Paul III declared due to the indigenous peoples of the Americas in Sublimis Deus (1537), namely that they should be “by no means to be deprived of their liberty or the possession of their property . . . and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property.”
Maria Messina