On the most recent episode of Amicus, Dahlia Lithwick assembled a panel of legal luminaries to pore over the Supreme Court term that came to a close last week. One of the cases discussed by the panelists—Berkeley Law dean Erwin Chemerinsky, Fordham University Law School professor Zephyr Teachout, and Slate writer Mark Joseph Stern—was McGirt v. Oklahoma, the landmark decision about tribal lands in Oklahoma that hasn’t gotten a lot of attention. Read a transcript of that part of their conversation, which has been edited and condensed for clarity, below.
Dahlia Lithwick: Can we talk about McGirt, because it’s another case that’s going to fly under the radar, I fear, and it is quite an astounding tour de force by Justice Neil Gorsuch, who seems to have a real deep understanding and affinity for Native American tribal land rights. Can somebody talk us through it?
Erwin Chemerinsky: What’s involved here is a very large part of Eastern Oklahoma that’s traditionally been tribal land. It’s covered by a treaty with the tribe. And the question is whether a tribal member can be prosecuted in state court—in this case, it was a prosecution for murder—or whether, pursuant to a federal statute and the treaty, the prosecution has to be in federal court. And the Supreme Court, 5–4, said, In light of the treaty and the federal statute, the prosecution has to be in federal court.
This has enormous implications, at least for Eastern Oklahoma, because it’s going to then mean that tribal members are going to have to be prosecuted in federal court for all of their crimes. I think the interesting question is going to be where else are there treaties like this?
The only thing I’d add here is Congress could change that federal statute and then return these cases to state court. And that’s a point that Gorsuch made in his opinion as well.
Gorsuch’s concluding paragraph in McGirt says, “The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. 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. If Congress wishes to withdraw its promises, it must say so. 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 long-standing injustices over the law, both rewarding wrong and failing those in the right.” Holy cow. I think a lot of my friends who do Indian law would say, Thank God for that statement. It’s been a long time coming. Mark, do you want to talk for a second about Gorsuch and why it is that this is a soft spot for him?
Mark Joseph Stern: I don’t know if I have an answer to why, but it’s certainly a pattern we’ve seen. And in fact, when Gorsuch was nominated to the Supreme Court, some of his biggest boosters were tribes, because they looked at his record on the 10th U.S. Circuit Court of Appeals and saw that he had a very strong record on tribal rights and respecting reservations and holding the government to its promise and treaties with Indian tribes. And I think they made a good bet there because Gorsuch has consistently joined with the four liberals on tribal cases, this case included. This decision was no surprise.
And I’m not entirely sure why. Perhaps it’s because he’s a Westerner, and he is very much a self-styled Westerner, right? We know that Gorsuch loves to present himself as a man of the West in all ways and with great authenticity. But he writes about tribal rights the way that Justice Anthony Kennedy wrote about gay rights or the way that Justice Ruth Bader Ginsburg writes about reproductive rights. He obviously has extraordinary sympathy for these tribes, particularly those that have been screwed over by the government. And I think this kind of sits at the heart of his textualist jurisprudence, where he gets to read these treaties that the government made and say, Hey, we see that the U.S. government has been violating these treaties for 100-plus years. We get that the government wants to keep doing that, but you guys signed a contract and you need to stick to your word. And that is a very powerful idea that has been unfortunately foreign to the Supreme Court for many years. I don’t know that we’ve had a five-justice majority as sympathetic to tribal rights as we have today ever in the history of the Supreme Court.