The joker is wild

Today, the Supreme Court navigated its way through disputes about the disclosure of President Trump’s financial records without doing much harm (in my view, at least). However, the Court issued a real stinker in a case that was under my radar — McGirt v. Oklahoma.

By a 5-4 vote, the Court decided that much of Oklahoma is “Indian country” for the purpose of prosecuting crimes committed by Indians. Justice Gorsuch joined the four left-liberals and wrote the opinion.

Gorsuch’s idiosyncratic “textualism” has become the joker in Supreme Court litigation (Justice Scalia’s sound textualism wasn’t). Today, the joker was wild.

The case involved Jimcy McGirt. He was convicted of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. The State of Oklahoma imposed what amounts to a life sentence on this pervert.

The Court majority didn’t dispute the obvious justice of this sentence. However, it found that it contravenes federal law, as set forth in the Major Crimes Act. This Act provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” Rape is not among the enumerated crimes.

The question, then, was whether McGirt, a Seminole Indian, committed his crimes in “Indian country.” The location where he committed them was once a Creek Indian reservation. However, it is no longer one. Congress disestablished any such reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. Nonetheless, Judge Gorsuch and the four left-liberals concluded that McGirt committed his crimes in Indian country.

Chief Justice Roberts’ dissenting opinion heaps well-deserved ridicule on the majority’s ruling:

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.

In reaching his radical ruling, Justice Gorsuch spends considerable time recounting the sad history of this country’s treatment of Indians, including the Creeks. As Kent Scheidegger says, “there is no doubt that huge breaches of treaties with Indian tribes occurred in previous centuries.” However, it’s not the Supreme Court’s job to right these wrongs; nor are the wrongs in any way righted by tossing the conviction of a despicable rapist who happens to be an Indian (a Seminole, not a Creek).

I agree with Scheidegger that, while an argument can be made for separate legal systems for territories that remain Indian reservations, “having a separate system for people who are otherwise assimilated into our general society solely on the basis of their ancestry is contrary to our most fundamental principles.”

Nor, as the Chief Justice’s dissent shows, is this result required by a proper application of textualism. As he says, “at the very least, the statutes [in question] leave some ambiguity, and thus “extratextual sources” ought to be consulted.

With this opinion and the one finding, contrary to decades of understanding, that gay, lesbians, and transgender individuals are protected from employment discrimination by the 1964 Civil Rights Act, Justice Gorsuch has given conservatives good reason for concern about how he will rule in the coming years.

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