Indian Country

The U.S. Supreme Court ended its term today with a 5-4 bombshell decision that much of Oklahoma remains “Indian country” for the purpose of prosecuting crimes, even though it hasn’t been that in reality for a century. The Court also decided two politically charged cases regarding subpoenas for President Trump’s financial records.

The beneficiary of the Court’s decision in McGirt v. Oklahoma, No. 18-9256, is Jimcy McGirt. As summarized in Chief Justice Roberts’ dissent, McGirt was convicted of “molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter.” The State of Oklahoma quite rightly imposed what amounts to a life sentence for three reasons: as justice for this despicable crime, to ensure he never does it again, and as a strong message to other perverts who might be contemplating similar acts against other defenseless children.

The clear justice of the present day must yield, says the majority, to what it sees as the clear meaning of acts of Congress. That would no doubt be true if the meaning were really clear. But is it really that clear that “Indian country” in the Major Crimes Act means any ground that has ever been designated by Congress as an Indian reservation and never expressly disestablished, even if that ground is no longer a reservation for any other purpose? Does the State of Oklahoma really lack jurisdiction to protect its people from crimes committed by anyone who is a registered member of any Indian tribe, even though for all other purposes he is living in non-Indian territory, protected by and subject to the same laws as everyone else?

The Chief Justice does not find the law so clear (or so absurd):

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).

Under those precedents, we determine whether Congress intended to disestablish a reservation by examining the relevant Acts of Congress and “all the [surrounding] circumstances,” including the “contemporaneous and subsequent understanding of the status of the reservation.” Id., at ___ (slip op., at 6) (internal quotation marks omitted). Yet the Court declines to consider such understandings here, preferring to examine only individual statutes in isolation.

Applying the broader inquiry our precedents require, a reservation did not exist when McGirt committed his crimes, so Oklahoma had jurisdiction to prosecute him. I respectfully dissent.

There is no doubt that huge breaches of treaties with Indian tribes occurred in previous centuries. But both the perpetrators and the victims of those outrages are long since dead. This case is not about the Trail of Tears or any of the people who perpetrated or suffered past outrages. This case is about a defenseless little girl and the monster who committed an unspeakable crime against her.

In 1776, our Founders declared it to be “self-evident that … all men are created equal.” The country was a long way from that ideal at the time, to be sure, but it stated a national aspiration. The nation was “dedicated to the proposition,” as Abraham Lincoln said four score and seven years later. Another five years after that, the principle of equal protection of the laws was written into the Constitution.

An argument can be made for separate legal systems for those territories that remain Indian reservations, but having a separate system for people who are living in and otherwise assimilated into our general society solely on the basis of their ancestry is contrary to our most fundamental principles.

The opinion of the Court notes that “Congress remains free to supplement its statutory directions about the lands in question at any time,” i.e., fix the problem that today’s decision creates. It should do so pronto. Given the present state of Congress, though, I am not optimistic that it will. Many in Congress believe that virtue signaling about long-ago injustices is more important than protecting defenseless children today.