By Melissa L. Tatum, University of Arizona (@mtatumaz) and Jen Hendry, University of Leeds (@mortonjen)

On July 9, 2020, in McGirt v. Oklahoma (591 U.S. ___ (2020)), the US Supreme Court issued what could potentially be one of its most important decisions on Federal Indian law. The decision itself was immediately hailed as a “watershed victory for Native Americans’ long campaign to uphold sovereignty, tribal boundaries and treaty obligations”. In issuing its judgment, the Court held that the Muscogee (Creek) Nation’s eastern Oklahoma reservation had not been disestablished by the US Congress and thus remains intact. The case’s potential significance relates not only to its outcome, however, but also the way that outcome was reached.

Writing for a 5-4 majority, Justice Gorsuch declared, “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”.  On its face, McGirt is a victory for tribal governments, both because the Court held the federal government to its word, and because the judgment affirmed the existence of tribal territory and the lack of state criminal jurisdiction within that territory. This overtly positive reading, however, conceals much deeper issues regarding the Court’s role in the federal system and whether the Court can be trusted to faithfully exercise its powers.

Doubts about the Court’s trustworthiness are a direct result of the fact that, over the past forty years, the US Supreme Court has repeatedly abandoned long-established precedent in cases involving tribal governments and Native peoples. Empirical studies have evidenced that, while tribal governments and Native people won 58% of their cases at the US Supreme Court before 1978, after that date they lost 72% of their cases before that Court. Myriad academic articles have explored this trend, offering a variety of possible motives to explain the Court’s pivot, ranging from the deliberate elevation of US states’ rights, to the misinterpretation of the relevant history, and the issues arising from the intersection of different legal cultures.

Regardless of the motivation, the fact remains that, all too often, the Court has interpreted precedent to the disadvantage of tribes. Frustratingly, that misapplication has been easier to accomplish within Indian law cases than in other more “mainstream” cases, largely because few attorneys are trained in or knowledgeable about Indian law. Many law school graduates are not even aware of the fact that tribal governments exist in the US, much less that they exercise sovereign authority over both Indians and non-Indians. This knowledge gap has created an opportunity for the Court to change federal policy, something that is not constitutionally within the Court’s power.

It is particularly troubling that the Court has exercised this power in cases involving disputes over jurisdiction. Jurisdiction, the authority to regulate individuals and activities, is the core of governmental authority. In a series of cases, the US Supreme Court has held that tribal governments lack criminal jurisdiction over non-Indians, even non-Indians who live and work within their borders (Oliphant v. Suquamish Tribe), that tribal governments lack the ability to apply zoning regulations to land within their boundaries if a sufficient number of non-Indians live there (Brendale v. Confederated Tribes), and that tribal governments have no authority to tax non-Indian businesses located within the reservation boundaries but on land owned by non-Indians (Atkinson v. Shirley). Each of these instances involves a core government function that is taken for granted by state governments. The combination of these cases, when intermixed with federal statutes and administrative regulations, results in the establishment of a complex set of rules defining the powers of tribal government, a set of rules that in 2007 Amnesty International dubbed “a Maze of Injustice”.

A close look at the McGirt case illustrates how the Court has established these rules. The case began in 1997 when the state of Oklahoma convicted McGirt, a citizen of the Seminole Nation of Oklahoma, for serious sex offences. The key issue in the case, however, was not the crime itself but rather the crime’s location. If we mark the location of the criminal activity on a map of the United States, that map would show the crime to be within the boundaries of the state of Oklahoma. Not all land within those boundaries is within the jurisdiction of the state government, however – more than 35 tribal governments exist within Oklahoma’s borders, each of which exercises some authority over a given geographic territory known as “Indian country”. Indian country is a legal term of art and is defined by federal statute at 18 USC 1151 to include all land within the exterior boundaries of a reservation.

Although the rules defining tribal jurisdiction are indeed complex, there are a few areas where the rules are very clear. One of those is the long-standing rule that, absent special permission, states do not possess the authority to prosecute crimes committed by Indians in Indian country. Therefore, if McGirt’s crimes were committed within the bounds of the Muscogee (Creek) Nation’s reservation, Oklahoma had no legal authority to prosecute him for murder. Oklahoma contested this conclusion, arguing that the land ceased to be Indian country over 100 years ago, when Congress disestablished the reservation.

The dispute between Oklahoma and McGirt over the status of the land where the crime occurred required the Court to apply its test for determining whether an Indian reservation had been diminished or disestablished. As clearly articulated and consistently applied in a series of cases beginning in 1984 with Solem v Bartlett and running through to Nebraska v Parker in 2016, that test pointed to only one possible outcome – a determination that the reservation in question existed intact and had not been disestablished.

The true issue in McGirt, therefore, was not whether the government could be held to its word, but rather whether the Supreme Court could be held to its word. Under the common law system in the US, the doctrines of precedent and stare decisis transform prior Court decisions into the Court’s promise, into the Court’s word, that those prior Court decisions will be followed unless some material difference requires otherwise. The fact that the decision in McGirt was reached on a narrow 5-4 vote, when the result was so clearly dictated by existing precedent, should raise real concerns about the idiosyncratic application of this doctrine in this context.

Understanding how a clear legal test which has been consistently applied for more than three decades can result in a 5-4 decision requires a closer examination of that test and the history on which it rests. In the late 19^th century, as the US spread its reach across the North American continent and consolidated its authority in the wake of the Civil War, the federal government radically changed its policy for dealing with the Native peoples within its borders. Throughout its first 100 years, the US dealt with tribes as governments, negotiating treaties to establish, among other things, territorial boundaries. By the late 1800’s, those treaties focused on confining Indians to reservations. The passage of the General Allotment Act in 1887 marked a new era of federal Indian policy, one which sought to eliminate tribal governments and assimilate individual Indians into the larger US populace. One of the ways this policy was implemented was by dividing up reservation lands into individual plots, which were then “allotted” to members of the tribe. Any “surplus” reservation land, that is, land not assigned to an individual member of the tribe, was opened to settlement. The Allotment policy was an abject failure, as it resulted in dire socio-economic conditions on reservations, which in turn placed a tremendous burden on federal resources. Congress officially repudiated the Allotment policy in its 1934 Indian Reorganization Act, but not before opening the borders of Indian country to non-Indians while, crucially, still maintaining those borders.

Ordinarily, opening a government’s borders to immigration would not eliminate governmental authority over those immigrants or the land on which they settled. Despite the Allotment policy’s official repudiation, however, the US Supreme Court has repeatedly used it as a basis for establishing different rules for defining the jurisdiction of tribal governments. What these new rules have brought about is an effective change in status for both tribal governments and tribal citizens: instead of sovereign authorities, tribal governments have been treated more like private clubs, while tribal citizenship has been treated less like membership of a political unit and more like that of a minority group.

In the specific context of tribal jurisdiction, there exists a body of Supreme Court decisions involving disputes over whether actions taken by Congress, often within the context of the Allotment policy, were intended to change the boundaries of a tribe’s reservation, either by reducing those boundaries or by eliminating them. To resolve these disputes, the Supreme Court adopted a test known as the Solem test, which requires that courts examine the relevant statutory language, the historical events surrounding that legislation, and events occurring after its enactment, with the goal of ascertaining Congressional intent to diminish or disestablish the reservation. Importantly, only Congress has the power to reduce or eliminate a reservation, and its intent to do so must be sufficiently clear so as to overcome a presumption against diminishment. Throughout this body of case law, the Supreme Court has specified what Congressional words or phrases are indicative of intent to move the reservation boundaries, and which are insufficient. It has also clearly and repeatedly held, most recently in 2016’s Nebraska v. Parker decision, that diminishment or disestablishment cannot rest solely on events occurring after the passage of the legislation.

In a meticulously documented opinion, Justice Gorsuch, writing for the Court, applied the Solem test and found that the Muscogee (Creek) Nation’s reservation had not been diminished or disestablished, with the effect that Oklahoma did not possess the jurisdiction to criminally prosecute McGirt. While the dissenting opinion, authored by Chief Justice Roberts and joined by Justices Thomas, Alito, and Kavanagh, also purported to apply the Solem test, it did so in a manner manifestly inconsistent with precedent. The dissenters overlooked the lack of the required statutory language and instead relied heavily on events occurring after the enactment of the legislation, contrary to the standard set in Parker. The fact that four justices would so blatantly depart from precedent without either sufficient explanation or justification is very concerning.

Unlike many Supreme Court decisions over the last forty years, however, in McGirt the justices willing to subvert precedent were in the dissent. As part of its careful progression through each step of the Solem test, the majority opinion identified places where the dissenting opinion departed from the correct analysis. The opinion specifically calls out the dissenters, declaring:

… 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 longstanding injustices over the law, both rewarding wrong and failing those in the right.

The immediate result of the case is that McGirt’s conviction will be vacated and he will be released from state custody. Although he cannot be retried by the state of Oklahoma, he can be prosecuted for his crimes by both the federal and tribal governments. More broadly, it is yet to be seen whether McGirt portends a change in direction for the Court and a return to applying the foundational principles of federal Indian law as they existed prior to 1978 and the Court’s apparent undertaking to redefine tribal jurisdiction. The past four decades have already seen a few isolated cases where the Supreme Court has treated tribal governments as the sovereign powers they are considered to be under the federal government’s Indian policy (the most recent being last term’s decision in Cougar Den), but the narrow margin of victory in McGirt leaves room for serious concern that the Court will resume its course of reframing Indian law issues in explicitly racial instead of jurisdictional terms.