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Colby Cosh: Oklaho! The U.S. Supreme Court's truncation of a state

A snapshot of the way we live now: the U.S. Supreme Court has issued about a half-dozen rulings this week, and the one that reduced the state of Oklahoma to about three-fifths of its former size — although estimates seem to vary — did not get the most attention. The ongoing Trump show is still number 1 in the ratings. In terms of historic or even immediate practical importance, well, we’ll see.

On Thursday the court published its judgment in the case of McGirt v. Oklahoma . McGirt is Jimcy McGirt, a man convicted in state court in 1997 of heinous sex crimes against a four year old. A creative public defender had tried to argue for years in lower courts that, as McGirt was a member of the Seminole Nation and his crimes had occurred on territory set aside in the 19th century for Creek Indians, he was never subject to state prosecution.

He should have been tried, the argument ran, under the federal Major Crimes Act of 1885, which specifies that accusations of serious felonies against Indians in “Indian country” go immediately to federal court. Under an 1856 treaty between the U.S. and the Creeks, the Creek lands were to be a “permanent home” for the displaced nation for as long as it existed (at a time when Aboriginal-Americans were still widely expected to diminish and disappear as a race).

The formalized concept of an Indian reservation did not yet exist, but the theory, then and now, is that some Aboriginal nations have direct relationships, albeit ones of “dependence,” with the federal government. Sometimes it is said that the U.S. is the “suzerain,” the overlord, of otherwise sovereign Indian nations. The Creeks, and the other four “Civilized Tribes” who had been forced into the “Indian Territory” that once covered the eastern part of future Oklahoma, were given strong written promises that they would be held apart from the U.S. states proper and would have jurisdiction over crimes and civil matters on their lands. Only the United States Congress, as a power contracting with sovereign nations, could act to encroach upon this jurisdiction.

In a fashion familiar to anyone who has read even a shred of the history of the American Indian, these promises just kind of got … misplaced. In the early 20th century the Oklahoma tribes were encouraged by Congress to abandon communal property holding and take up individual “allotments” of Indian-held land. This ought not to have changed the underlying nation-to-nation relationship, any more than assigning homesteading parcels to settlers busted up or negated the ultimate sovereignty of the U.S. elsewhere in the American West. But that constitutional framework was more easily ignored once a contiguous bundle of territory began to be bought and sold. (Some of it became part of the city of Tulsa.) This history has helped to make similar allotment action in Canada impossible, whatever advantages it might have.

The key figure in the court’s analysis, in every way, is President Donald Trump-appointed Justice Neil Gorsuch. Gorsuch authored the McGirt decision; he is the court’s strongest expert on matters of “tribal” sovereignty; as a transplanted Coloradan, he is the closest thing to a Westerner on the court; and as a theorist he is considered its ultimate “textualist.” The record of legal relations between Oklahoma and the “Civilized Tribes” was pretty clear to Gorsuch. Congress had never acted specifically with the intention of extinguishing the national rights of those Aboriginal peoples, though it had often circumscribed those rights unilaterally, and could do so in this setting in the future. For now, eastern Oklahoma ain’t quite Oklahoma.

Headlines are saying that the conservative Gorsuch “joined” the most liberal justices on the court (Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer) in delivering an astonishing blow, on a 5-4 vote, in defence of Aboriginal rights. As more than one legal expert has pointed out, it is probably more accurate to say that the liberals joined Gorsuch, whose views on these subjects got an airing during his confirmation hearings.

The grouchy dissent penned by Chief Justice Roberts seems to have impressed almost nobody : it boils down to “Wow, it’s gonna create a lot of hassle if we find in favour of this perv here.” But the U.S. has other tribes whose sovereign status has never been doubted, and who must be dealt with nation-to-nation for many purposes of criminal, civil and administrative law. The trouble in Oklahoma, in Gorsuch’s convincing account, is simply that Oklahoma unlawfully disregarded the Major Crimes Act and the treaties for a long time.

The McGirt decision does jeopardize other state prosecutions of Aboriginal offenders, but federal re-trials would make the potential criminal penalties higher for a lot of people like Jimcy McGirt, so there may not be much exploitation of this “opportunity.”

In the meantime, the decision will prove, to some, that “conservative” judges appointed by Republican presidents can be frustratingly unpredictable. To others, and I think they have a better argument, it will show that relentless textualism, sometimes considered an obnoxious conservative fetish, is a powerful bulwark for the rights of the outnumbered and even the despised.

National Post

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