I have some disjointed thoughts on the SCOTUS decision in McGirt this week (Creek Reservation Boundary Case):

1. The opinion was very good, and I give Gorsuch credit for speaking with moral clarity. BUT...Sotomayor has been in the same place on Indian law since she got on Court

2. SCOTUS took 2 full terms to resolve McGirt. The law was actually quite clear, which is the reason it took so long. 4 judges (including Roberts) knew it, but could not reconcile with their own views about what the outcome "should" be...

2 (cont)...so much land, with so many non-Indians, can't possibly still be Indian country. They knew the law said so, but they were too cowardly to affirm that. So they wrestled. And wrestled. And wrestled. For 2 full years they looked for a way out.

3. There are 3 core principles at the foundation of Indian law in America. First, every square inch of land in this country was taken or "purchased" from Tribes. The land is thr consideration in the relationship. Second, the Treaties spell out the terms, and are Supreme law...

3 (cont)...Third, the US didn't "give" Tribes anything. It only took. Tribes were the "givers." Whatever Tribes didn't give up, we kept. If it was taken without consent, it was unlawful and must be made whole.

3. (cont)...McGirt decision rests on these principles. It is a pretty basic application of law on these principles. It is only remarkable in that we haven't seen the SCOTUS do this in Indian law in decades. Almost never in my lifetime (I'm nearly 40 years old)

4. Since Rehnquist, SCOTUS Indian law practice has been almost entirely outcome driven. If Tribes win, change the rules next time.

Indian law peeps go crazy trying to advise clients, because the rules change so much...

4 (cont)...most Indian people in US simply want others to follow the rules we have to follow. Before we talk about anything else, we have to start there. We are resilient peeps, and can adapt. But the goalposts in Indian law always seem to move...

4 (cont)...McGirt is a rare occasion where the goalposts didn't move.

Again, it is astonishing ONLY because we've grown so accustomed to the SCOTUS moving the goalposts.

5. For me, McGirt case highlights a frustrating fact of life for Tribes: still, in 2020, we have to expend vast resources (money, time, attention, and brain power) to simply keep what little we have left, and to affirm legal principles that are clear...

5. (cont)...this has consequences in everyday life for Indian people. Imagine the payoff if we could invest those resources in other things in Indian country.

Every dollar & every moment spent defending clear language in a treaty is a dollar or a moment not spent on our people.

6. In 2020, Indian people simply want the US to honor its word. For the past 130 years, that is almost all of what we've asked. If our country would "just" do that, we could take care of ourselves.

6. (cont)...Now, when the US "honors" its word to Indian people, does it come with costs?

ABSOLUTELY!

But, there was already consideration paid for those costs: every square inch of land in this country, and centuries of accumulated wealth on that land...

6. (cont)...As my grandmother once said: "We've prepaid those costs."

I will add: "In perpetuity."

McGirt is simply a step - small, but remarkable - in the US honoring its word to one Tribe in one instance. Let's keep it going.

7. Final thought: I don't know Judge Gorsuch personally. I'm no fan of his jurisprudence, generally. But, he is showing that he is at least willing to look at the law - not the desired outcome - in Indian law.

I love that...

7. (cont)...That's all we are asking.

The McGirt opinion should be mostly unremarkable.

But, I love the moral clarity of the writing. My favorite part is the Court affirming that, in a self-professed "nation of laws," that might cannot make right.

Amen to that.

[the end]