High Court No Longer A No-Go As Tribal Reservation OK'd

Law360 (July 9, 2020, 10:06 PM EDT) -- The U.S. Supreme Court's decision Thursday that the Muscogee (Creek) Nation's eastern Oklahoma reservation still exists for criminal jurisdiction purposes cemented Justice Neil Gorsuch's status as a pivotal supporter of tribal rights, and of treaty rights in particular, to the degree that tribes can nurture hopes in the high court after decades of fearing the worst at its hands.

Justice Gorsuch's opinion for a 5-4 court majority overturned Jimcy McGirt's Oklahoma state court convictions for child sexual abuse, ruling that the Creek tribe's treaty lands are still a reservation for the application of the Major Crimes Act and that McGirt should been prosecuted by the federal government for crimes within the reservation.

While the tribe's victory was a close one, Justice Gorsuch's backing of the Creek tribe's treaty right to its historical reservation in the face of the state's long assertion of authority at the tribe's expense — and his willingness to go toe-to-toe with a dissenting Chief Justice John Roberts — shows that a Supreme Court long hostile to tribes may be turning their way, experts say.

"For a long time, maybe the last 20 years, the consensus has been that tribes should be careful at the Supreme Court," said Forrest Tahdooahnippah, a partner with Dorsey & Whitney LLP and an enrolled member of the Comanche Nation of Oklahoma.

"All of that is going to have to be rethought, because I think this court with its current composition is going to be favorable to tribal issues, and those representing tribes are going to be more likely to seek review," he said.

Mary Kathryn Nagle of Pipestem Law PC, who is counsel of record on an amicus brief by the National Indigenous Women's Resource Center and other organizations and tribal nations supporting the Creek tribe, said the decision marks "a really watershed moment, to see what's possible with Justice Gorsuch there now."

The Supreme Court has been a forum tribes have actively sought to avoid since at least 2001, when the National Congress of American Indians and the Native American Rights Fund launched their Tribal Supreme Court Project in the wake of decisions from the court that curtailed tribal taxation power and jurisdiction over non-Indians.

But Justice Gorsuch's McGirt opinion — following earlier votes in favor of tribes in treaty rights cases — "treats treaties seriously" as the supreme law of the land, said Kristen A. Carpenter, director of the American Indian Law Program at the University of Colorado Law School.

"That should not be remarkable, but it was the exception rather than the rule for so many years that those of us in Indian law are almost surprised when the Supreme Court holds the United States to its promises," she said.

Justice Gorsuch's understanding of Indian law, stemming from his background in the West and experience as a Tenth Circuit judge, could "inform his understanding of the facts and the law even beyond the treaty context," Carpenter added.

Yet Justice Roberts' vigorous dissent shows just how far Gorsuch stands from his conservative colleagues on treaty rights, as he was unable to bring any of them around to his text-centered approach to resolving the case, attorneys say.

"You see them sparring on nearly every page of their separate opinion," said Troy A. Eid of Greenberg Traurig LLP, who took part in a brief from former U.S. attorneys backing the Creek tribe, calling the two justices' exchanges "unusually sharp."

"It's almost like the majority and the dissenters are looking at two different cases," Eid said, with Justice Gorsuch deciding the proper sovereign to rule in a particular case and Justice Roberts "looking at the future of treaty rights in the U.S. and what happens if we reopen all these treaties on the civil and criminal level of jurisdiction."

The two justices clashed over the proper application of the test established in the high court's 1984 Solem ruling for determining whether a tribal reservation has been disestablished. Justice Gorsuch focused on the text of federal laws to find that they never eliminated the reservation, and the chief justice argued that taking a broader view of the history of the state shows that the reservation has long been understood to have disappeared.

While Justice Gorsuch didn't really do anything new with his application of the Solem test to the McGirt case, Nagle said, he brought an "infusion of intellectual rigor" to the Indian law issues involved and defied the court's longstanding tendency to find ways to curb tribes' authority.

One passage that stood out from Justice Gorsuch's opinion showed his unwillingness to allow the state to benefit from infringing on the tribe's rights — or to allow the high court to encourage that, attorneys say.

"Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished," Justice Gorsuch wrote, referring to the dissent and Oklahoma's arguments. "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."

Elizabeth A. Reese of the University of Chicago Law School, who is enrolled with Nambé Pueblo, said, "That just encapsulates exactly the kind of strong rebuke of a long history of Indian law being subject to tremendous inconsistency in the way that its doctrines have developed, and the way the court has applied those doctrines over the last 200 years." 

Justice Gorsuch's stance may have been shaped by recent protests and ongoing reassessments of how racial inequality is confronted in the United States, according to Hogan Lovells partner Hilary Tompkins, a Navajo Nation member and former U.S. Department of the Interior solicitor.

"There's been an awakening in the country, and I think Justice Gorsuch is influenced by that awakening in a positive way, to follow the rule of law and honor tribal treaty rights," she said.

The practical impacts of the decision in Oklahoma are still unclear, as Justice Gorsuch focused the decision on the Major Crimes Act, while also acknowledging it could have broader effects for civil and regulatory jurisdiction.

The decision, which should apply to the reservations of the Cherokee, Chickasaw, Choctaw and Seminole nations as well as the Creek reservation, will mean a big change for Oklahomans, according to A.J. Ferate, of counsel with Spencer Fane LLP.

"What this comes down to is it revises the history of Oklahoma as we have understood it," said Ferate, who worked on an amicus brief for the Oklahoma Independent Petroleum Association supporting the state in a related case. "There has essentially been no view or belief that reservations have continued to exist over the last hundred years. We have not functioned in that way, nor have the tribes."

Although the McGirt ruling focused on criminal jurisdiction, there are "a whole lot of federal regulatory elements that would flow from that that will have to be dealt with," Ferate said, adding it's a "brave new world" in the wake of the decision.

But Justice Roberts' concerns about jurisdictional problems in Oklahoma, closely echoing the state's own, are "divorced from three important realities," said Reese of the University of Chicago Law School. "One is tribal governments themselves, what they're like and capable of. Two, the relationships that exist between tribal governments, the state and the feds and their capacity to work out complex jurisdictional overlap. And three, the reality of federal Indian law concerning both criminal and civil jurisdiction."

In particular, tribal jurisdiction over non-Indians is already constrained in many ways by earlier Supreme Court decisions, attorneys say.

If tribes do come out ahead in more treaty rights cases at the Supreme Court, time will tell if Justice Gorsuch's rosier view of the power of intergovernmental cooperation or Justice Roberts' less optimistic view will win the day.

In the meantime, score one for cooperation, experts say: The state of Oklahoma and the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations announced shortly after the decision that they already "have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice" that would resolve any jurisdictional questions raised by the ruling.

"It's complicated, but tribes and states have been continuing to work these issues out every day," said Pipestem Law's Nagle. "And it's certainly not an unprecedented quagmire that no one knows how to address."

--Editing by Jill Coffey and Emily Kokoll.

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