Australia markets open in 3 hours 12 minutes

How the Creek Nation Finally Prevailed in Oklahoma

Noah Feldman

(Bloomberg Opinion) -- In a fitting coda to the blockbuster Supreme Court term that ended yesterday, the court decided a major American Indian law case, one that matters for our historical moment of considering systemic racism and the question of reparations. In a 5-4 decision, Justice Neil Gorsuch and the court’s four liberals held that much of the eastern part of the state of Oklahoma remains, legally speaking, a Creek reservation, pursuant to treaties made between the United States and the Creek Nation in the 19th century.

In practice, this means primarily that American Indians charged with crimes committed in this area will have to be prosecuted in federal or tribal courts, rather than Oklahoma courts. Some existing criminal convictions may have to be overturned, and some prisoners may be able to get off death row.

The symbolic significance of the decision, however, goes much further. In his opinion, Gorsuch made a point of emphasizing that government of the United States must keep the promises it has made — and too often broken — to indigenous tribes throughout its history. His opinion began with the sentence, “at the end of the Trail of Tears was a promise,” the promise of reservation land for the Creek Nation. Although it is “clear that Congress has since broken more than a few of his promises to the tribe,” he wrote, nonetheless the promise of the reservation remained in place. Thus, Gorsuch concluded, “We hold the government to its word.”

If this attitude of acknowledging broken promises and fulfilling them were to be adopted by the courts, not to mention by the American public, it would go a long way toward repairing the nearly unimaginable wrongs done to the first peoples of the North American continent over the centuries.

The essence of the opinion was to show that, in treaties concluded in 1833 in 1866, the U.S. government promised the Creek a reservation on the land currently disputed. As a matter of domestic U.S. law, Congress has the power to break the treaties it made. (Yes, I know that sounds horrible. It is.)

Nevertheless, Gorsuch went through the text of all of the statutes passed by Congress in connection to the Creek Nation and showed that none of them openly breached the treaty promise of the reservation.

Of particular interest was Gorsuch’s historically nuanced analysis of the historical era known as the allotment period. During that time, the federal government tried to break up reservations by getting tribes to “allot” individual plots of reservation land to tribe members, who were then frequently encouraged to sell off the land to white purchasers. Those efforts failed to convince the Creek Nation to give up its reservation rights, Gorsuch concluded.

Gorsuch’s opinion relied on the jurisprudential theory known as textualism — the same theory Gorsuch used to conclude that Title VII’s ban on employment discrimination because of sex applies to LGBTQ people. This marks the second time this term that the conservative Gorsuch has taken textualism in an ostensibly liberal direction. Both times he was joined by all the court’s liberals, who are more than willing to adopt this approach to statutory interpretation when it produces outcomes they consider just.

Chief Justice John Roberts joined Gorsuch’s Title VII opinion. But he dissented in the Creek Nation case, joined by the remaining three conservatives. Indeed, this is the only important decision of the entire year in which the nearly all-powerful chief justice was in the minority.

Roberts’s reasoning was telling. He’s deeply committed to precedent, as demonstrated by his opinion this term upholding abortion rights on the basis of respecting the doctrine of stare decisis. Roberts wrote that the Gorsuch decision would upset “a century of settled understanding.” Repeatedly he denounced the opinion for ignoring precedent and altering existing legal relations.

Gorsuch, who was with the conservatives in the abortion decision, has very little interest in precedent. The only justice who cares less about it is Justice Clarence Thomas, whose absolutist originalism frankly rejects the idea that precedent has any weight when the Supreme Court has gotten it wrong in the past.

In the Creek Nation case, Gorsuch’s willingness to ignore precedent in favor of the statutory text produced dividends for American Indians.

Beyond the question of textualism, however, it is possible to discern in Gorsuch’s opinion some actual moral commitment to the idea that the U.S. government should be “held to its word” in its dealings with sovereign American Indian tribes. He characterized the argument on the other side as, “Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye.” In response, Gorsuch made clear that “we reject that thinking.” To decide the case against the Creek Nation, Gorsuch concluded, would be to “elevate the most brazen and long-standing injustices over the law, both rewarding wrong and failing those in the right.”

That’s a lesson we could all do with hearing from the justices — no matter who appointed them.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

For more articles like this, please visit us at bloomberg.com/opinion

Subscribe now to stay ahead with the most trusted business news source.

©2020 Bloomberg L.P.