TODAY IN DECLINE: Supreme Court Edition

While we carry on obsessing over a Supreme Court case from 1973 called Roe v Wade, the current court carries on making important decisions that carry weight in the moment and have serious implication for the future. The court also weighs in regularly on important events from the past and few are as telling or important as a recent case that arrived at the court as McGirt V Oklahoma. This case opens the door to review of a period of American history regarding the natives and sheds light on the effects to rectify the treatment of the natives after treatment of slaves had resulted in a cataclysmic war.

We start in the recent past considering the actions of Jimcy McGirt. McGirt was convicted in 1996 of sexually abusing a 4 year-old girl who was the granddaughter of his wife, which explains how he came on to contact with the girl. The Department of Justice explains his conduct as such:

“The defendant touched and penetrated the victim’s genital opening, made contact with her vulva with his mouth, and caused her to touch his penis with her hand with the intent to arouse or gratify his sexual desires.”

In spite of having an Irish last name, McGirt is considered to be a Seminole Indian and he claims that the crime was committed in the Creek Indian Reservation in Oklahoma. In the case that came before the Supreme Court, McGirt’s guilt was not in question, and the experience of the girl he raped was not a factor in the deliberations. What was in question is who had the right to convict and punish McGirt, and if the trial that established as fact what he did and assigned criminal penalties had the right to do so. The state of Oklahoma thought they had the right to punish McGirt but McGirt asserted that the state had no such right, an even though he was guilty of a heinous act upon a defenseless child, his conviction should be set aside. McGirt prevailed 5-4 in his case with Trump appointee Gorsuch writing the majority opinion and Bush appointee Justice Roberts writing the dissent.

In these opinions raises the specter of the past and who rightfully owns the territory of North America and further, if the United States still possesses the will to hold territory it has long thought to be a core part of the nation. The McGirt case is another step in the direction of breaking apart the United States by undermining the very reason the country was created.

The tale begins with the Indian Removal Act of 1830 which was passed in to law when Andrew Jackson was the president. Say what one will about this act, but it had a few things to recommend it compared to the practices of the current federal government.

First, it was named for what it was meant to do: remove Indians. There was no Orwellian effort (Orwell was not yet born and his books not yet written) to give it a cutesy name which hid whatever machinations where present in its thousands of pages. This was no ‘No Child Left Behind’ or ‘Affordable Care Act,’ both of which ran in to the thousands of pages which members of congress openly admit they did not read before voting to make them enforceable law. It also was a congressional act which an executive (President Jackson) signed. That’s democracy in action as opposed to what we have now which is executive fiat rammed through via the administrative state. Currently, President Biden is trying to deputize the Department of Labor to force Americans to get vaccinated. The Indian Removal Act occurred before the administrative agencies bypassed the democratic process and took control of our lives.

Justice Gorsuch begins the process of examining the case of Jimcy McGirt in 1830 when writing for the majority he states:

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty).

Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. 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.”

The treaties referred to here were agreements that grew from efforts to enforce the Indian Removal Acts and the whole conflict carried on for many years. The same process of removal was repeated a few decades later when the unified Americans and their military came in to contact with the western tribes.  The Sioux and the Cheyenne faced similar circumstances as the Creeks. This was a civilizational conflict.

Jimcy McGirt held that the state of Oklahoma had no right to convict him because of his status as a member of a tribe, but who could try him and under what authority is a huge question with substantial implications. Again, Gorsuch writing for the majority:  

“At another level, then, Mr. McGirt’s case winds up as a contest between State and Tribe. The scope of their dispute is limited; nothing we might say today could unsettle Oklahoma’s authority to try non-Indians for crimes against non-Indians on the lands in question. See United States v. McBratney, 104 U. S. 621, 624 (1882).

Still, the stakes are not insignificant. If Mr. McGirt and the Tribe are right, the State has no right to prosecute Indians for crimes committed in a portion of Northeastern Oklahoma that includes most of the city of Tulsa. Responsibility to try these matters would fall instead to the federal government and Tribe. Recently, the question has taken on more salience too. While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion.”

Did you catch that last part? What is at issue is not the guilt of Jimcy McGirt but who owns Tulsa and thousands of square miles of Oklahoma. By ruling in favor of McGirt, the court has let the sovereignty of Oklahoma come in to question and set out a path for both freeing thousands of people convicted of horrifying crimes but also undoing the certainty of property rights for landholders in that part of the United States. Every other law would be undone as well, including all the zoning and pattern of land use laws. Do you want aggressive conservation laws in place? Well, don’t look to Oklahoma, because according to the liberals on the Supreme Court who always vote in a block plus Gorsuch, Oklahoma can’t have environmental laws since they don’t own the land.

Well, hey, we stole the land from the Indians, right? So if a few convicts get set free and a few landowners have their titles clouded, that’s just the price we must pay to bring ‘restorative justice’ to the past.

But wait; not so fast, because Justice Roberts writes for the dissent about just how far we’ve come and how far we went to settle the civilizational clash between the European derived Americans and the natives over the subsequent 190 years. There was an effort to reconcile the nation to the natives and while it didn’t culminate in to a massive bloodletting quite like the Civil War, it was there nonetheless. In his dissent, Roberts also covers much Indian behavior which was a determining factor. The natives, like the slaves, were never passive and without agency; they made choices too and choices have consequences.

Writes Justice Roberts:

“Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt—on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt.”

But it gets a lot more serious really fast. Roberts notes that there are four such reservations in Oklahoma and notes:

“The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.”

Roberts then picks up where Gorsuch left off and recounts exactly how Oklahoma became a state and where the Creeks and the other tribes were to be placed in it. Gorsuch and the liberal block passed right over these important points in history. Roberts agrees that there was a treaty that was to give the Creeks a domain in Oklahoma which was to be “forever secure” but history didn’t end there.

Roberts picks up the story:

“Forever, it turns out, did not last very long, because the Civil War disrupted both relationships and borders. The Five Tribes, whose members collectively held at least 8,000 slaves, signed treaties of alliance with the Confederacy and contributed forces to fight alongside Rebel troops.”

It has long been noted that the natives of North America were transformed by the arrival of Europeans. They traded with the Europeans and picked up many products, such as guns and horses, and one tribe would use the technology of the Europeans to dominate other rival tribes. Slavery was a habit they picked up as well and they did, in fact, own slaves. They also fought for the Confederacy which was a real mistake. They were not then or now, complete innocents in history unable to be held accountable for their choices.

After the war ended with a Confederate defeat, the tribes were compelling to free their slaves and allow them to become tribal members. Further, they were forced, in the same way many white former Confederates were forced, to cede lands and move further west to new lands “forever set apart as a home” for the tribes.

Again, this was not to be for two reasons. First, white settlers moved in to the area and the natives did not dislodge them, though it was their territory. The treaties did not obligate the US government to forever provide border security for the tribes. And second, the natives themselves abandoned the whole purpose of having all that territory which was so they could go on living their native lifestyle. The white settlers built towns and roads and rail lines and they did so on native land which meant that some of the natives wanted a piece of the economic action.

Roberts again:

“Coexistence proved complicated. The new towns had no municipal governments or the things that come with them—laws, taxes, police, and the like. See H. R. Doc. No. 5, 54th Cong., 1st Sess., 89 (1895). No one had meaningful access to private property ownership, as the unique communal titles of the Five Tribes precluded ownership by Indians and non-Indians alike.”

So now, two lifestyles were competing and the native commitment to their previous lifestyle faded. They did exactly as any reasonable person might expect; they divided in to economic winners and losers, just like real people do all over the world. Roberts describes the problem thus:

“Tribes failed to hold the communal lands for the “equal benefit” of all members. Woodward v. De Graffenried, 238 U. S. 284, 297 (1915). Instead, a few “enterprising citizens” of the Tribes “appropriate[d] to their exclusive use almost the entire property of the Territory that could be rendered profitable.” Id., at 297, 299, n. 1 (internal quotation marks omitted). As a result, “the poorer class of Indians [were] unable to secure enough lands for houses and farms,” and “the great body of the tribe derive[d] no more benefit from their title than the neighbors in Kansas, Arkansas, or Missouri.”

So, basically, the enterprising natives economically fused with the settlers to get in on the action and the less enterprising were screwed out of their “forever home.” They were screwed not by the government or the settlers, but by their fellow tribe members.

The solution was to do exactly what had been done in other conflicts, including the long conflict over slavery, which was to simply apply the law equally. It was decided that the natives would become citizens and then they could act collectively or individually as they saw fit.

Roberts finishes the story:

“Attuned to these new realities, Congress decided that it could not maintain an Indian Territory predicated on “exclusion of the Indians from the whites.” S. Rep. No. 377, at 6. Congress therefore set about transforming the Indian Territory into a State.

Congress began by establishing a uniform body of law applicable to all occupants of the territory, regardless of race. To apply these laws, Congress established the U. S. Courts for the Indian Territory. Next Congress systematically dismantled the tribal governments. It abolished tribal courts, hollowed out tribal lawmaking power, and stripped tribal taxing authority. Congress also eliminated the foundation of tribal sovereignty, extinguishing the Creek Nation’s title to the lands. Finally, Congress made the tribe members citizens of the United States and incorporated them in the drafting and ratification of the constitution for their new State, Oklahoma.”

And so, in the end, it turns out that the natives are people like any other and they began to adapt to the modern world, and when they did, the government of the United States made then citizens like any other.

Why, then would Gorsuch and the liberal block ignore this?

Here were come to a critical point so often made but most often ignored which is that culture and narrative is upstream from politics and laws. The narrative now is that the natives and the former slaves and their decedents are victims who were wronged and nothing done in the past to right those wrongs was sufficient and only the gallant crusaders of today are morally up to the task of righting past wrongs. In short, the good white people of today will redeem the bad white people of yesterday. This impulse explains why Gorsuch starts his opinion with a line that would be fitting for a beautiful piece of fiction: “On the far end of the Trail of Tears was a promise.” And who will make good on this promise? Gorsuch, and the crusading liberals. 

Gorsuch and team would, of course, disagree that their majority opinion represents a crusade. They go to great lengths to explain their reasoning and point out, rightfully, the long and tortured history of shifts in legal and procedural practices in both Oklahoma and in the US Congress. It’s compelling to read and the full text is linked below. In this summary, one finds this interesting passage:

“In the end, only one message rings true. Even the carefully selected history Oklahoma and the dissent recite is not nearly as tidy as they suggest. It supplies us with little help in discerning the law’s meaning and much potential for mischief. If anything, the persistent if unspoken message here seems to be that we should be taken by the “practical advantages” of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.”

A body who claims they are righting the rule of force with the rule of law is engaged in a crusade, and in the review that follows, there are more twists and turns that describe lawmakers trying to create a legal framework that corresponds to the more immediate situation. Gorsuch concedes this when he writes: “Unsurprisingly given the Creek Nation’s nearly 200- year occupancy of these lands, both sides have turned up a few clues suggesting the label “reservation” either did or did not apply. One thing everyone can agree on is this history is long and messy.”

Long and messy indeed, and given to get longer and messier as time goes on unless we come to the core fact that the ORIGINAL promise of a “forever home” for the natives was a foolish promise to make. NO ONE, especially no group or tribe, has or should have a permanent title to the land. Life, humans and history doesn’t work that way. Things change and the law has to change with it and that is what Oklahoma was trying to do. It is what the Congress was trying to do when they offered the territory to the Creeks in the first place. But the tribes and the Creeks and the natives everywhere else adapted further and it was the right thing to do to strip them of the second class status of “Indians” which was an incorrectly applied label going back to Columbus, and simply make them citizens and move on.

Every nation on earth was shackled together as part of war, conquest, or the best case scenario, a voluntary sale and purchase. There are no good ways to organize a nation based on perfect consensus. We are an aggressive and fallen species which is a point explicitly acknowledged in Bible many times, including in the Book of Romans where it states: “None is righteous, no, not one.”  Compared to the record of the rest of humanity, the United States and its government went further than any other nation in history to create a fair country and accommodate the different people within it. We did it with slaves, natives, women, gays, Irish, poor white people, and we are overdoing it now with a horrifying child molester named Jimcy McGirt.

McGirt had his conviction in Oklahoma overturned by the court but even the Supreme Court didn’t find that no US laws applied to him and he was convicted yet again in Federal Court. This required that the girl he raped when she was 4 years old testify again at his trial which she did. She is in her twenties now and she forcefully testified about how McGirt’s actions have negatively affected her life. Other children McGirt molested came forward as well. Hopefully, he will never walk free. Had he been executed for the hideous crimes he committed there would have been no appeal and Justice Gorsuch would not have been able to sharpen his pen writing lovely but foolish statements about “promises” that create an emotional appeal but radically undo certainties that previous generations of American labored over decades to create. By questioning the authority of our own laws, we are allowing ourselves to fall backwards into lawlessness and inviting the warfare it will inevitably generate. The barbarism the law was meant to replace is returning in spades. Anyone who doubts this may tally how many children are killed by stray bullets in the once great but now decaying urban centers of the US on any given weekend.

McGirt got fair treatment and then some, but by clouding the idea of ownership in vast portions of Oklahoma, the court has unleashed a beast that we will hear from again.

The complete opinion can be found here:

Click to access 18-9526_9okb.pdf