Argument analysis: For the second time in two terms, justices consider reservation status of eastern Oklahoma

McGirt v. Oklahoma asks whether the eastern half of Oklahoma is an Indian reservation, exempt in important ways from the control of state and local authorities. It would be the most populous reservation in the United States, and it would include the state’s second largest city, Tulsa, as well as many other predominantly non-Indian communities in the area. Among other things, reservation status would require federal (rather than state) prosecution of major crimes involving Indians, and thus would involve a commitment of federal prosecutorial resources and likely call into question numerous recent Oklahoma felony convictions.

The justices heard argument last year on the question in Sharp v. Murphy, but rather than deciding that case with a bench of eight (Justice Neil Gorsuch was recused) they decided to try again this year in McGirt, in which all nine justices could participate.

Justice Clarence Thomas (whose seniority makes him an early questioner in the telephonic regime) seemed to think the actions Congress took to diminish the authority of the Creek Nation over eastern Oklahoma were much more substantial than the actions the Supreme Court considered in earlier cases that required explicit congressional action to disestablish a reservation (the most notable of which are Solem v. Bartlett and Nebraska v. Parker). For example, Thomas (the author of Parker) asked Ian Gershengorn (counsel for the defendant, Jimcy McGirt) if he could “point to any case in which we’ve applied the Solem … framework to a case that does as much as this? … [I]n Parker, we were only dealing with one allotment statute that was disposing of surplus land. Here, we’re dealing with a series of statutes that go both to land, the allotment of land, and to the reduction in the authority of the tribe.”

Thomas raised the same point during the argument of Riyaz Kanji (counsel for the Creek Nation, supporting McGirt), pointedly asking whether Kanji thought that “a tribe can be effectively divested of title to land, to its land and its sovereignty, and still retain the status of reservation?”

And yet again, when speaking to Deputy Solicitor General Edwin Kneedler (representing the federal government, supporting Oklahoma’s argument against reservation status), Thomas observed that “in Solem and Parker, we had clear reservations, and … then you had an effort to dispose of or to alienate surplus land. Here, this is entirely different. Have you seen a case like this in which we have applied the Solem and Parker framework?” Kneedler, who has supervised the government’s Indian litigation for decades, responded that he had not seen such a case.

Justice Samuel Alito offered his own statutory analysis. Among other things, he pointed to an 1897 statute that states, “[T]he laws of the United States enforced in the territory shall apply to all persons therein, irrespective of race.” That statute poses a challenge for McGirt, because he argues that although prosecutions of crimes involving Indians would be a matter of federal law, prosecutions that did not involve Indians would remain a matter of state law. Alito pressed Gershengorn hard on that point, asserting that Gershengorn was “saying that cases at the time of statehood would be treated based on race. How can that be consistent with the 1897 Act?”

That point resonated with other justices. Chief Justice John Roberts, for example, returned to it when he opened questioning of Kanji, commenting:

I’d like to return to Justice Alito’s question. Congress passed legislation at the turn of the prior century saying that the United states laws and the laws of Arkansas … would apply to all persons … irrespective of race. Now, if you prevail, the laws in the eastern half of Oklahoma will be different. The applicable law will be different, dependent upon race. So how is that consistent with Congress’s legislation?

When Kanji responded discursively, Roberts pressed his point: “I would like an answer to the precise question, which is the law would be different in eastern Oklahoma depending upon race, right?”

Several of the justices evinced concerns about the practical consequences of reservation status for eastern Oklahoma. Ginsburg, for example, commented to Gershengorn that “[w]hat makes this case hard is that there have been hundreds, hundreds of prosecutions, some very heinous offenses of the state law. On your view, they would all become undone.” Similarly, she asked Kanji what would “becom[e] of all the state tribal cooperative agreements that we’re told about if the state lacks authority to apply its own law with increased territory.” For his part, Alito asked Kanji whether the “more than 90 percent of people who live in the area directly affected by this case [who] are not members of the Creek tribe [would] be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way.” And Justice Elena Kagan told Kanji that she was “particularly” concerned about the status of “adoptions and foster care proceedings.”

Justice Stephen Breyer did not seem to embrace any of the statutory theories that his colleagues offered, but rather focused on a memorandum written in the 1930s by Felix Cohen, a notable Indian law expert in the Department of the Interior. Cohen’s memo justified the then-current practice of state courts’ trying major crimes that involved Indians. Breyer pointedly asked both Gershengorn and Kanji about their reaction to that memorandum.

Justice Brett Kavanaugh seemed most impressed by the demographic shifts in the area, which had occurred even before the formation of Oklahoma early in the 20th century. In his questions of all four lawyers, he repeatedly emphasized that it would have been quite unusual to have a reservation with such a predominantly non-Indian population. For example, talking to Kanji about tribal courts, he commented that “the other tribes [with reservations and tribal court systems] were not governing a jurisdiction that was predominantly non-Indian, which is what was going on here.”

The argument was not by any means one-sided. For example, Justice Sonia Sotomayor seemed quite swayed by “the treaty language here that resulted [from] the Trail of Tears with the Creek Nation,” in which “[t]hat Nation was wrenched from its homeland, marched to Oklahoma, and then given a treaty as recompense which guaranteed its sovereignty.” For her, if validation of the reservation brought the “parade of horribles” Oklahoma claims, “Congress can come in and change all of that [and] give the state jurisdiction over anything it might be missing.”

Also, near the end of the argument of Mithun Mansinghani, the solicitor general of Oklahoma, Gorsuch rattled off a string of questions that could reflect support for McGirt. Among other things, he asked why demographic changes during the 20th century should be relevant to interpreting statutes passed long before those changes occurred, why the ability of states to work cooperatively with tribal entities doesn’t undermine arguments about the “practical impossibility” of recognizing the reservation, and what it might mean that “we haven’t seen” the “tsunami of cases” we would expect “if there were a real problem here.”

You wouldn’t expect an easy resolution of a problem the justices had to hold over for consideration during a second term. And if the argument here suggests anything, it suggests that the justice have not yet settled on a consensus resolution of this one.