APPELLATE ISSUES IN AND AROUND INDIAN COUNTRY.

The October 2019 Supreme Court Term was, like most other Supreme Court terms, packed with high-profile cases involving topics as wide-ranging as religious liberty, abortion, the Second Amendment, discrimination based on sexual orientation, and presidential immunity. Like the rest of the world, the Court's usual business was interrupted by the COVID-19 pandemic. After canceling several weeks of arguments in March and April 2020, the Supreme Court commenced telephonic oral arguments in May. (1)

On May 9, 2020, the Court heard oral argument in McGirt v. Oklahoma. (2) The key issue in McGirt was whether a large portion of Eastern Oklahoma constituted the Muscogee (Creek) Reservation for purposes of federal criminal jurisdiction. (3) Interestingly, the Court had heard oral argument on the same issue in November 2018 in Sharp v. Murphy. But instead of issuing a decision during the 2018 Term, the Court returned the case to the calendar for reargument. (4) Justice Gorsuch, who participated in the Murphy case when he was on the Tenth Circuit, recused himself from the case. (5)

The Court's decision in McGirt was issued on the last day of the term. While most Court watchers were waiting to hear how the Court would resolve Trump v. Vance, I had my eyes on McGirt. And while my interest in the Court's decisions is usually academic, the McGirt case was personal. I am Muscogee (Creek).

In 1925, my grandmother was born in Bristow, Oklahoma, which is now properly recognized as part of the Muscogee (Creek) reservation. My Creek ancestors left our ancestral lands for the "Western Creek lands" of now-Oklahoma in the late 1820s, a few years before Trail of Tears. Nearly 100 years later, during the Dust Bowl, my grandmother's family left Oklahoma for California.

My interest in publishing a special issue on appellate issues in Indian country stems not just from my Native heritage. I was surprised by some of the reaction to the opinion. The Oklahoma Governor, Kevin Stitt, launched a "sky is falling" attack on the Court's ruling, (6) as did the Wall Street Journal. (7) Some of the criticism I heard was wildly uninformed. I recall hearing one person complain that tribal judges might be biased because they are elected. My response was to point to the numerous elected state judiciaries that somehow manage to operate without bias.

There are over five million Native Americans and Alaska Natives in the United States and 566 federally recognized tribes. (8) Within these...