“On the far end of the Trail of Tears was a promise.”
Playwrights, novelists, and screenwriters spend entire careers without penning an opening line of such weight and power. Yet this sentence isn’t the epigraph for a new book, nor the first screen for a new HBO miniseries — it’s the start of one of the most well-reasoned and poignant Supreme Court rulings in recent memory.
On the last day of announced decisions from the U.S. Supreme Court in 2020, as most of the political world waited for rulings on President Trump’s tax returns, history was made elsewhere. In a 5-4 decision, the court declared in McGirt v. Oklahoma that a vast portion of Oklahoma is Indian country for the purposes of the Major Crimes Act. The ruling, written by Justice Neil Gorsuch, affirms several cardinal precepts of the American republic: that we are to be governed by laws, not men; that promises should be honored, and that might must never be allowed to triumph over right.
The role of a Supreme Court justice is not to craft legislation or to engineer desired outcomes. Members of the judicial branch serve to see that the U.S. Constitution is properly followed as the supreme law of the land. Its members unelected and appointed for life, the Supreme Court is the ultimate referee, the most prominent umpire separating necessary and proper government actions from those that go beyond conferred constitutional powers or infringe upon the natural rights innate to every American.
When the court sticks to its appropriate responsibilities, much of its business is staid, unglamorous, and rarely inspiring. Yet there are moments, few as they may be, when in the course of interpreting the constitutionality of laws the court can do something profound in the process. McGirt is one of those all-too-rare occasions.
Holding Government to Its Word
McGirt v. Oklahoma entered the docket of the court when Jimcy McGirt, a convicted sex criminal and American Indian, argued the state of Oklahoma was wrong to prosecute him within historical Creek Nation territory. McGirt argued that, as mandated by the Major Crimes Act, crimes involving an American Indian victim or perpetrator within recognized reservation boundaries fall under federal, not state, jurisdiction.
The legal question involved in the case was never the guilt of Jimcy McGirt, undisputed by both sides, but whether the land granted to the Creek Nation holds — and should have always been viewed as retaining — its status as “Indian country.”
The dissenters, led by Chief Justice John Roberts, say decades of congressional and demographic intrusions into eastern Oklahoma sufficiently demonstrate the intent of Congress to disestablish the reservation. Yet, as the U.S. Congress never adopted any single statute that explicitly disestablished or terminated the promised reservation status, the majority of the Supreme Court ruled that 19 million acres of eastern Oklahoma is Indian country for the purposes of criminal prosecutions involving American Indian defendants or victims.
Oklahoma’s ascension to statehood did not erase pre-established reservation land. Indeed, the text of the Major Crimes Act assumes that Indian country may exist within states. Additionally, official reports by the U.S. Department of the Interior labeled the eastern half of Oklahoma a reservation well past the time Oklahoma joined the Union.
Justice Gorsuch puts the matter succinctly: “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
Like all cases of such importance, it’s crucial to read McGirt carefully and in its entirety. There’s a great deal of difference between 27,000 words and headlines or Twitter posts limited to 280 characters, that, needless to say, can fail to accurately capture the full truth.
Non-Indian residents of eastern Oklahoma are not affected by McGirt, which simply shifts the responsibility of major crimes prosecutions committed by American Indians in Oklahoma’s Indian country from the state to the federal government. The decision also doesn’t change land ownership. Private property is not touched, just as I own the property where my house rests and not my state.
Furthermore, Michael McBride, a tribal law specialist from Oklahoma City, does not expect McGirt to be released from prison, believing he will likely be retried with charges brought against him at the federal level.
Justice Remains the End of Government
McGirt should not be read as a newly opened door to reparations for all of America’s real or perceived past sins. Regardless of what should have happened, the U.S. government never promised reparations to freed black slaves or their descendants.
It did, however, promise land west of the Mississippi “shall be solemnly guaranteed to the Creek Indians” as well as a “permanent home to the whole Creek nation” through treaties ratified in 1832 and 1833. Then, as the court explains, in another treaty ratified in 1866, “Congress explicitly restated its commitment that the remaining land would ‘be forever set apart as a home for said Creek Nation.’”
Neither the U.S. government nor conservativism writ large should be in the business of advocating the violation of treaties. As James Madison writes in Federalist No. 51, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” As a fulfillment of justice in giving to those what they have been promised, agreements like the treaties in question, written to last in perpetuity, should be honored.
Conversely, the Constitution does grant Congress the power to fully, explicitly, and brazenly break treaties with Indians in full public view if they so desire and if they have the stomach for it. As the court acknowledged in Solem v. Bartlett, “only Congress can divest a reservation of its land and diminish its boundaries.” Yet what was perpetrated in the tragic case of American Indians of eastern Oklahoma was an assumption that three generations of legal negligence accomplished what Congress could never bring itself to do officially: scheming Indian territory out of existence.
What happened over nearly 90 years wasn’t the case of a small town collectively ignoring a local ordinance prohibiting jaywalking. This was the prolonged and unjust flouting of laws passed by the U.S. Congress and bearing the signature of the president.
Congress Can’t Delegate the Court To Do Its Job
If a sound judicial reading using either an original public meaning or textualist legal interpretation leads to a decision that many find unsatisfactory, then, the root cause to be addressed is always the law itself — at which point the U.S. Congress can either write new legislation or be content with a certain level of public displeasure.
Justices have no constitutional authority to assume the powers of the legislative branch when Congress is too cowardly, feeble, or inept to do its job. Congress can explicitly and properly disestablish any Indian country or reservations it so chooses. Until then, the treaties mentioned in McGirt were officially signed and codified into law, and remain in force despite years of embarrassing hand-wringing and willful blindness.
The harsh truth of the matter is the state of Oklahoma — aided and abetted by the U.S. Congress — allowed non-American Indians to buy land and settle in territory officially demarcated for the Creek by Congress, without shrinking the borders of the reservation. In effect, Congress enabled the violation of the very treaties it crafted and passed. The fact that settlements grew into towns and cities was the result of Oklahoma choosing to ignore the legal boundaries of the Creek’s Indian territory for nearly a century.
When James Madison acknowledges in Federalist No. 10 that “the public good is often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority,” he was offering advice on how the young American nation should not proceed.
Madison was aware that even republics could devolve into the rule of the strong at the expense of the weak. With the McGirt decision, Justice Gorsuch reaffirms a commitment to heed Madison’s warnings — that America should be a country where all of its people receive the same protection of written laws irrespective of power or influence.
Ideas of Right or Wrong
Alexander Hamilton writes that society itself rests on faithfully keeping promises:
The established rules of morality and justice are applicable to nations as well as to individuals; that the former as well as the latter are bound to keep their promises; to fulfil their engagements to respect the rights of property which others have acquired under contracts with them. Without this there is an end of all distinct ideas of right or wrong, justice or injustice, in relation to society or government. There can be no such thing as rights, no such thing as property or liberty; all the boasted advantages of a constitution of government vanish into air.
It is a tragic understatement to say that for more than two centuries, actions at both state and federal levels towards American Indians have failed to live up to the standards of morality and justice outlined by Hamilton.
That said, an unrelenting, concerted dwelling on the errors of the past is counterproductive to the goal of working towards a more perfect union in which we can all live together in peace. Focusing on America’s shortcomings while ignoring her triumphs, virtuous actions, and reconciliatory measures fails to capture the true history of the United States.
“The magnitude of a legal wrong is no reason to perpetuate it.” writes Gorsuch. “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.” Indeed, this is the rationale for overturning Roe v. Wade and Planned Parenthood v. Casey — wrong is wrong, and the passage of time does not turn vice into virtue.
One of the hallmarks of American conservatism is its belief in eternal, objective truths that apply to all men, all times, everywhere. There are such things as right and wrong, good and evil, just and unjust. And, as Justice Gorsuch just reminded the nation, the obligation to do the right thing doesn’t come with an expiry date.
