McGint

In the less prominent but possibly more far-reaching Supreme Court case today, the Supreme Court held (5–4) that a member of the Seminole tribe could not be prosecuted for serious sexual offenses by the state of Oklahaoma because the land on which the crime allegedly occurred, along with roughly half of the state, is a Creek reservation which was established by Congress and has never been disestablished.

The decision is more limited in scope than it sounds, because Oklahoma retains the power to try non-Indians for crimes committed against other non-Indians on reservation land; the plaintiff is only immune because there’s a federal law which confers federal jurisdiction, not state jurisdiction, on crimes committed by Indians, against Indians, on Indian land.

But in another sense, the decision creates a huge jurisdictional mess. If half of Oklahoma is still reservation land, what does that do for, say, mineral rights in that territory — — shouldn’t the tribe have regulatory power and a right to royalties for extraction from its lands? The can of worms is large enough that I had expected the Court to decide the other way *simply to avoid the can of worms*.

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The reasoning is this:

* In a series of treaties, Congress solemnly promised the Creek that, if they moved from their home in the east to a new home in the west, they would have perpetual sovereignty over their new home in the west
* The treaties did not use the term ‘reservation’, but that term wasn’t in common use at the time, and the court has held that other contemporaneous treaties which *also* did not use the term ‘reservation’ nevertheless acted to create a reservation as the term was later understood.

* a lot of the promises to the Creek have since been violated
* but do those violations mean the reservation was disestablished?
* courts have held since the start of the twentieth century that *only an explicit act of Congress* can disestablish a reservation or adjust its borders
* congress never officially disestablished the reservation and has continued throughout to recognize the tribal government
* congress did whittle away at the tribe’s powers and allocate some to the state, but that isn’t enough; other tribal powers remained, and besides, the reservation was never formally disestablished

> The federal government promised the Creek a reserva-tion 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 famil-iar pattern. Yes, promises were made, but the price of keep-ing them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes towithdraw its promises, it must say so. Unlawful acts, per-formed 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.

it’s a pretty simple argument. most of the opinion is devoted to refuting other arguments: that the law moving Indian v. Indian cases to federal court never applied to Oklahoma, that Congress never established a reservation, that the state-formation era reduction in tribal power implicitly disestablished the reservation, that the sale of tribal land to non-tribesmen in fee simple ended tribal sovereignty. (the opinion outright mocks that last argument, arguing that if the sale of US owned land to settlers in fee simple didn’t diminish US sovereignty, then of course the sale of tribal land in fee simple didn’t diminish tribal sovereignty).

The primary dissent, written by Justice Roberts and joined by Justices Thomas, Alito, and Kavanaugh, disagrees: it is obvious to them that the proper way to interpret Congressional actions in the state-formation era is that Congress was disestablishing the reservation *even though they didn’t explicitly say so*.

In some ways, this is presented as a debate about how to interpret text. “Congress didn’t explicitly say so!”, the majority argues, “and so it didn’t”. “But if you look at the surrounding context, it’s obvious that they *intended to*”, the dissent rejoins, “and we can tell from the way everyone behaved after state formation that they all believed Congress *had*”. “But we don’t look to intent unless there is ambiguity in the text, and there isn’t any ambiguity in the text!”, the court responds.

The irony here of course is that a five member majority including all of the court’s liberals is saying that we only look at the intent behind the text if there is ambiguity in the text and that Congress has to explicitly act in order to disestablish a reservation, while a four member minority consisting entirely of the court’s conservatives is saying that regardless of the explicit text, we need to look at the context and the intent of the authors.

This is not consistent with the *usual* positions these blocs take on the process of interpretation. I suspect that something else is at work here. I don’t think I have enough information to speculate about it, but *both blocs* seem to be endorsing reasoning which ordinarily they would not support, and it’s always suspicious when that happens