McGirt: Gorsuch Affirms “Rule of Law,” Not “Rule of the Strong,” in Key Federal Indian Law Decision

The Court’s ruling yesterday in McGirt v. Oklahoma that the Congress did not disestablish the Creek Reservation in Oklahoma has received some breathless media coverage– a “stunning reaffirmance of the nation’s obligations to Native Americans”; “one of the most consequential legal victories for Native Americans in decades.”  A legally more accurate headline would be, “Court once again applies well-established legal test,” since McGirt reached the same outcome—by a 5-4 vote–as the Court did just four years ago in Nebraska v. Parker, where it unanimously applied what it called “well settled” law to plausibly similar facts. Gorsuch’s opinion in McGirt made even less new law than Parker.  Arguably, all the decision did was decline to craft a different legal standard for when the stakes were high than for when the stakes were perceived to be low.

Gregory Ablavsky
Stanford Law Associate Professor Gregory Ablavsky

This outcome is surprising only if you assume that Native nations won’t win in the Supreme Court when the decision will have significant practical consequences, or that it’s unexpected that the Court will recognize (limited) Native jurisdiction over non-Natives.  Unfortunately, both assumptions are reasonable based on the Court’s recent Indian law cases.  What’s most important about McGirt, then—and why is has been rightly hailed as an important victory for all of Indian country—is that Justice Gorsuch’s opinion wholeheartedly rejects the kind of consequentialist arguments that Native nations’ opponents have routinely employed before the Court to considerable success in recent years.

The question in McGirt was whether Congress had disestablished the Creek Reservation in the process of crafting the state of Oklahoma from what had been the Indian Territory.  The law here is clear: in diminishing importance, Congress looks at the text of the relevant statute, contemporaneous statements, and subsequent demographics and history.  In the 2016 case Nebraska v. Parker, the Court, in a short, straightforward opinion by Justice Thomas, applied this test to Omaha Reservation in Nebraska.  There, the Court found that allotment did not diminish the western portion of the reservation, even though few had regarded it as a reservation since the late nineteenth century and the present-day demographics were almost entirely non-Native; the text, Thomas ruled, was dispositive.  The Court’s unanimous decision attracted little attention or controversy.

In broad strokes, McGirt is Parker on a larger scale. The history of Indian Territory, Oklahoma statehood, and the Creek and other Native nations is, like much Native history in the United States, tangled; if you are interested, you can find an amicus brief that I joined that delves into that complexity here.  But at oral argument, Justice Gorsuch provided an effective and succinct summary of that history.  The late nineteenth and early twentieth centuries were a nadir for federal acknowledgment of Native sovereignty; like most white people at the time, Congress and federal officials hoped and anticipated that Oklahoma’s statehood would eliminate the Creek and other Native nations as separate sovereigns.  (By this point, Anglo-Americans had been predicting that Native peoples would vanish for over a century.  That whole time, Native peoples, who had no intention of disappearing, kept disappointing these expectations). Congress allotted (that is, divided up) Creek lands, eliminated tribal courts, and even anticipated abolishing Creek tribal government altogether—actions typical of the federal government’s heavy-handed intervention into the minutia of Native governance in the era.  Yet, when the time came, Congress arguably failed to follow through: it never enacted a definitive statute that unambiguously extinguished the Creek Reservation as it did for other reservations during the same period.  But many people, especially the state of Oklahoma, simply assumed Congress had eliminated the reservation, and acted accordingly.  At the same time, following subsequent shifts in federal Indian policy, Congress increasingly restored Creek authority under federal law; today the Muscogee Creek Nation of Oklahoma is a thriving government that provides services to thousands of Native and non-Native Oklahomans.

How this history slots into the three-part diminishment framework is one of the principal sources of disagreement between the majority and Chief Justice Roberts, writing in dissent.  Because, as both sides agree, no single statute disestablished the Creek Reservation, Roberts seeks to use the contemporaneous evidence and the aggregate weight of the statutes to find diminishment, an approach that, through a series of slightly snarky footnotes, Gorsuch challenges; they particularly quibble about how to interpret the recent decision in Parker.  Having taught the Parker opinion for a number of years now, I think Gorsuch has the stronger argument: Roberts’s attempt to limit Parker’s statements about the emphasis on text solely to the facts in that case is unpersuasive.  In this instance, Roberts’s much-heralded long game seems to have cut the other way.

Oral argument betrayed that the key issue in the case, however, is not how best to interpret Parker or its predecessor Solem.  It is that Tulsa is not Pender—that is, finding the persistence of a reservation here affirms Creek jurisdiction over much of eastern Oklahoma, including parts of the city of Tulsa, in contrast to Pender, the small Nebraska town at issue in Parker.  Oklahoma’s attorneys repeatedly raised what the Justices at argument called a “parade of horribles”—the myriad ways in affirming the Creek reservation would supposedly disrupt the existing legal order.  In Indian law as in other areas of law, this often gets analyzed under “settled expectations,” seeking to protect individuals’ reliance on the legal status quo.  This might seem value-neutral, except that in Indian law the status quo rarely advantages Native nations.  Throughout U.S. history, whites flagrantly violated federal law to harm Native peoples, but Native peoples rarely had the political, economic, or legal wherewithal in the nineteenth or early twentieth centuries to challenge such violations.  Now that they do, the “settled expectations” of the non-Native residents who benefitted from past illegality mean it’s too late; such a decision would be too disruptive. This reasoning is not just the subtext in many of the Court’s recent Indian law decisions; sometimes it’s the actual text, as in the Court’s 2005 decision City of Sherrill v. Oneida.

Gorsuch powerfully rejects what he calls this “sadly familiar” argument.  First, he notes what should have been obvious but is often overlooked: white settlers were not the only people with settled expectations.  When Oklahoma argued that its residents might be “surprised to find out they have been living in Indian country this whole time,” Gorsuch brilliantly retorted, “But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.”  Second, he condemns such reasoning as “rule of the strong, not the rule of law,” and, in a powerful conclusion, summarizes it as, “Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye.”  “We reject that thinking,” he continues. “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” This is not simply stirring rhetoric; it represents a repudiation of the elegiac yet resigned attitude toward Native dispossession that has marked the Court’s Indian law decisions as far back as Johnson v. M’Intosh.  In this sense, then, Justice Gorsuch’s opinion really is one of the Court’s most important Indian law opinions in many years.

I want to close by noting one piece of slipshod rhetoric I see creeping into the media coverage of Justice Gorsuch’s Indian law jurisprudence: the observation that Gorsuch is the Court’s “only westerner,” an odd bit of geographic determinism that perpetuates the view that Native peoples and issues are a principally “western” concern while actually explaining very little. Justice O’Connor, from Arizona, was an uneven supporter of Native rights, but Justice Kennedy, from California, was a decided foe.  Most striking is Chief Justice Rehnquist.  Rehnquist was not only an Arizonan (and SLS grad, like O’Connor); he was also an amateur western historian who at one point toyed with writing a biography of Isaac Parker, the federal judge who long exercised jurisdiction over Indian Territory.  But Rehnquist turned this knowledge and fascination into Oliphant v. Suquamish, an opinion where Rehnquist indulged his history buffery to reach what many regard as the most harmful decision to tribes of the last half century.  In short, Gorsuch may have deeper knowledge of Indian law than other Justices from his time on the Tenth Circuit, but that hardly explains his distinctive perspective in these cases.  Those should be attributed to the courage of his convictions.