Has Federal Indian Law Finally Arrived at "the Far End of the Trail of Tears"?

• Publication year: 2021

Has Federal Indian Law Finally Arrived at "The Far End of the Trail of Tears"?

Ann Tweedy
University of South Dakota School of Law, ann.tweedy@usd.edu

[Page 739]

HAS FEDERAL INDIAN LAW FINALLY ARRIVED AT "THE FAR END OF THE TRAIL OF TEARS"?^†

Ann E. Tweedy^*

Abstract

This Article examines the United States Supreme Court's July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision may signal a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The Article shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The possible effects of Justice Barrett's replacement of Justice Ginsburg on the Court's future federal Indian law jurisprudence are also explored. The Article concludes with the hope that Justice Gorsuch's majority opinion will foster predictability in the wildly unstable area of diminishment and disestablishment jurisprudence, as well as in other facets of federal Indian law.

[Page 740]

CONTENTS

Introduction................................................................................741

I. The Confounding Jurisprudence of Reservation Diminishment and Disestablishment As a Contrast to the Majority's Sound and Internally Consistent Reasoning in McGirt.....................................................................................746

A. The Confounding Jurisprudence of Reservation Diminishment and Disestablishment..........................................................746
B. The Majority's Reasoning in McGirt..................................754

1. The Canons of Construction in Federal Indian Law and the Fact that Congress, Rather than the Supreme Court, Is the Repository of Plenary Power..................................755
2. Adherence to Precedent................................................760
3. The Respectful Tone of the Decision.............................761
4. Rejecting the Use of Past Legal Wrongs As Precedent 764

C. The Dissent in McGirt......................................................... 766

II. McGirt and the Larger Context of Recent Supreme Court Cases on Tribes and Tribal Rights.....................................768

III. Uncertainty in the Wake of Justice Ginsburg's Death .. 775

A. Justice Scalia's Indian Law Jurisprudence As a Possible Model for Justice Barrett....................................................777
B. Justice Barrett's Participation in Indian Law Cases on the Seventh Circuit and on the Supreme Court ........................ 780
C. Justice Barrett As a Judicial Clerk.....................................782
D. Justice Barrett's Scholarship .............................................. 784
E. Concluding Thoughts on Justice Barrett ............................ 786

Conclusion...................................................................................787

[Page 741]

Introduction

The Supreme Court issued its opinion in McGirt v. Oklahoma on July 9, 2020,¹ ruling in a 5-4 decision authored by Justice Gorsuch that the three million-acre Creek reservation in Eastern Oklahoma had not been disestablished and thus that its historical boundaries remained intact.² Although the case itself resulted from an application for post-conviction relief brought by an individual who had been convicted of child sexual abuse, the reason that it was so closely watched was because Mr. McGirt's argument about Oklahoma's lack of jurisdiction over him depended on the continuing reservation status of the Creek Nation's historical reservation.³

The Indian law bar had nervously anticipated the long-awaited decision.⁴ In a highly unusual turn of events, a predecessor case, Sharp v. Murphy, from which Justice Gorsuch recused himself, was argued in November 2018.⁵ After additional briefing was ordered, the case was held over for reargument in the following term.⁶ The order for additional briefing and the subsequent holding over of the case spurred speculation that the Justices were split 4-4 in Sharp.⁷ The Court

[Page 742]

originally scheduled the argument in McGirt (whose issues mirrored those in Sharp) for April 2020 but then postponed it until May because of the coronavirus pandemic.⁸ Additionally, the Justices' questions and comments during the oral arguments in both cases did not provide a clear indication of which way the Court was leaning, although some saw the argument questions in Sharp as being more favorable to Oklahoma.⁹

Would the Supreme Court's doctrine in the area of diminishment and disestablishment become more incoherent because of a new results-oriented decision, or would the Court hew to the bright line it had recently re-inscribed in Nebraska v. Parker,¹⁰ despite the fact that that the historic Creek Reservation was much more populous—and thus home to many more non-Indians in terms of hard numbers—than the historic Omaha Reservation whose boundaries were held to be intact in Parker? Until well into July 2020, past June 30th (the date at which the Court normally issues its last decisions for the term and then breaks for recess),¹¹ it was anyone's guess.

In the popular understanding, the McGirt opinion is viewed as remarkable for its practical effect—over three million acres in Oklahoma are now understood to be an Indian reservation, despite the fact that many people assumed the reservation to be defunct and merely a relic of history.¹² But, from the viewpoint of a federal Indian

[Page 743]

law scholar, the opinion is remarkable for its straightforwardness and dearth of post hoc rationales.¹³ In other words, the McGirt decision is unusual in contemporary federal Indian law because it is a Supreme Court decision that hews closely to both traditional federal Indian law principles and general statutory interpretation principles, eschewing the approach that many Supreme Court cases have taken from the Rehnquist Court onwards of trying to shut down the exercise of tribal sovereignty wherever possible, no matter how flimsy or novel the proffered justification for doing so.¹⁴ The McGirt decision is also noteworthy for its respectful tone vis-à-vis tribes and tribal sovereignty.

Although the recent addition of Justice Barrett to the Court following Justice Ginsburg's death creates a great deal of uncertainty, the opinion may signal a return to the relatively predictable and well-reasoned federal Indian law jurisprudence that we more commonly saw in Supreme Court cases from the late 1950s to the mid-1970s, as well as in some cases decided in the 1980s.¹⁵ In terms

[Page 744]

of tone, the decision is unusual in that it takes into account fairness concerns from the Creek Nation's perspective,¹⁶ and it enforces as a solemn obligation Congress's historical promises to the Nation. Thus, rather than playing the all-too-common role of "court as the conqueror,"¹⁷ the Court's decision attempts to do justice by applying the relevant legal principles in a straightforward manner, properly recognizing that Congress—and not the Court—has plenary power in the area of Indian affairs.¹⁸ In taking this approach, the Court overtly rejects the oft-recited notion that widespread past injustices inflicted on a tribe and then relied upon by non-Natives make it impossible to rule in favor of a tribe in a contemporary case.¹⁹ The McGirt majority instead proclaims, forthrightly and powerfully, that "[u]nlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law."²⁰

In the context of the Supreme Court's federal Indian law jurisprudence, which had become so unstable and so frequently hostile to tribal rights in recent years that attorneys who represent tribes very

[Page 745]

often would "try to avoid the Supreme Court at all costs,"²¹ the decision, including both its tone and substance, feels like a sea change equal to the magnitude of Obergefell v. Hodges and the historic sex discrimination case Reed v. Reed.²² By way of background, the Obergefell Court's decision in 2015 that the Equal Protection and Due Process Clauses of the Fourteenth Amendment protect an individual's right to enter into a same-sex marriage (as well as a different-sex one) emphatically affirmed that LGBT individuals were deserving of the same legal benefits and protections as others and thereby broke with over a century of precedent disparaging LGBT persons, criminalizing their sexual conduct, and denying them the rights that others enjoyed.²³ And the Supreme Court's dramatic disavowal in its 1971 decision in Reed of the patriarchal notion that the law could, consistent with the Equal Protection Clause, automatically prefer men over women for important roles like the administration of estates destabilized centuries of enshrinement of male privilege in the American legal tradition, including the vestiges of the long-held conception of women as property, and caused our entire legal framework to shift a bit toward equality of the sexes.²⁴

Similarly, the McGirt decision is a powerful affirmation of rights too often ignored and disparaged in the supreme Court and elsewhere in our culture.²⁵ on one level, it is about upholding and enforcing a treaty promise.²⁶ But, by recognizing that the promises the government made in exchange for its heart-wrenching demands were meaningful, the Court also implicitly acknowledges that the Creek Nation's sacrifices—including their brutal, forced relocation to present-day oklahoma, an area far from their traditional territory in the

[Page 746]

southeastern United States—were meaningful as well.²⁷ Thus, as poet laureate Joy Harjo commented, the McGirt decision is actually "about so much more" than the enforcement of a single treaty promise.²⁸ "It [is] about validity...