The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In The Atlantic, I criticized Justice Gorsuch's two most prominent majority opinions of the term: Bostock and McGirt. I described his approach as half-way textualism. In Bostock, he purported to be a textualist, but was actually following non-textualist precedent. In McGirt, he purported to follow a non-textualist precedent, but was actually being a textualist.
In the past, the Court looked to many factors to determine whether Congress had disestablished an Indian reservation. But McGirt required far more conclusive, textualist evidence. Mike Dorf describes the test as a "clear statement rule." I think that label works. However, Justice Gorsuch insisted he was simply following precedent. That insistence was no doubt appreciated by the four progressives who joined him. They have long treated stare decisis as the primary force to hold back future conservative rulings. In my view, the progressive quartet that joined the Obergefell majority are permanently estopped from talking about stare decisis. At least in McGirt, they could pretend they were standing by precedent.
Now, the lower courts have begun to interpret McGirt. And they have stated the obvious: it altered precedent.
The Reservation was created by treaty, and it can be diminished or disestablished only by Congress. Congress has not done either of those things. The governing legal framework—at least when the issue was decided in the district court and when we heard oral argument—was clear. Under Solem v. Bartlett, 465 U.S. 463 (1984), we look—from most important factor to least—to statutory text, the circumstances surrounding a statute's passage, and subsequent events for evidence of a "clear congressional purpose to diminish the reservation." Id. at 476. After this case was argued, the Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). We read McGirt as adjusting the Solem framework to place a greater focus on statutory text, making it even more difficult to establish the requisite congressional intent to disestablish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt.
"Adjusted" is code for "overruled."
Judge Hamilton lists other ways in which McGirt altered precedent:
Last, we consider the later demographic history and the United States' later treatment of affected areas, which have "some evidentiary value" and can "reinforce" a conclusion suggested by the text. Neither this court nor the Supreme Court has ever found the requisite congressional intent to diminish based on only this last factor.4
FN4:We read McGirt as adjusting this framework by establishing statutory ambiguity as a threshold for any consideration of context and later history.
And McGirt created tension with circuit precedent:
Our reasoning in Stockbridge–Munsee seems to be in tension with McGirt. We concluded that the key act of Congress "included none of the hallmark language suggesting that Congress intended to disestablish the reservation." We did not identify an ambiguity in the text before concluding that "the circumstances surrounding the act show that Congress wanted to extinguish what remained of the reservation when it passed the act." Id. This approach is consistent with Solem but is in tension with the adjustments to the Solem framework made by McGirt.
Justice Gorsuch should acknowledge where he is deviating from precedent. It serves no purpose to pretend these cases were textualist all along.
Update: Judge Hamilton wrote the majority opinion, not–as I wrote–Chief Judge Sykes. I've corrected that error.