American Indians

Should federal Indian law be textualist?

Todd Henderson on the legal status of Eastern Oklahoma


Last year, the Supreme Court heard arguments, and requested extensive supplemental briefing, in Royal v. Murphy (now called Sharp v. Murphy) a complicated murder case involving federal Indian law. The Court was unable to decide the case last year and so it remains on the docket this year and for that reason alone seems poised to be complicated and quite intricate.

My colleague Todd Henderson teaches Indian Law here at Chicago and we've repeatedly discussed this case, so I wanted to pass along his thoughts about this case, and the problem that the Supreme Court's precedents in this area have created for itself.

Is half of Oklahoma—home to nearly 2 million people, many in the city of Tulsa—an Indian reservation? The Supreme Court will decide this year, and the answer may turn on the text of various statutes and treaties signed over a century ago. The laser-focus the specific words of these laws is a form of legal interpretation known as "textualism"—if the text is clear, so the theory goes, then inquiries into context or consequences is irrelevant. While there is much to be said for such a simple approach, in this case, the Court is being led astray by it.

The jurisprudential story starts in 1984 with a case called Solem v. Bartlett. In Solem, the Court considered whether in opening 1.6 million acres of the Cheyenne River Sioux Reservation to homesteading in 1908, Congress intended to "disestablish" the Reservation in the opened lands. Writing for a unanimous Court, Justice Thurgood Marshall held that it did not. Marshall ignored the fact that Congress—"to a man"—believed that Indian reservations would "cease to exist" within a short time after passage of the Act, concluding "[t]he most probative evidence of congressional intent is the statutory language used to open the Indian lands" rather than what everyone knows they intended.

The statute in question authorized the Secretary of the Interior to "sell and dispose of all that portion of the . . . reservation[] . . . within the following described boundaries. . .." Finding the language somewhat ambiguous as to whether it intended merely to transfer title while keeping the land part of the reservation or to disestablish it as Indian land, Marshall supported the former conclusion with other language in the Act. Specifically, that some of the land was set aside for religious and other purposes for the tribe "reserved as long as needed" and that geological surveys should be done on the land for the benefit of the tribe.

Significant parts of the text pointed to the opposite conclusion. Indians were permitted to purchase land in the area of the reservation "thus diminished" and to harvest timber "only as long as the lands remain part of the public domain." Moreover, land in the opened area was set aside for schools to be operated by South Dakota. At the same time, another act was passed that banned liquor sales in the opened area, something already banned in Indian lands. The Court elided these textual counterweights in passing, while purporting to base the decision on the text.

The real basis of the decision was not the text, but rather the reality of the situation. Textualism was the new, cool thing in law then, and by nodding to it, Marshall likely cemented his majority.

At the end of the opinion, we can see why the case came out as it did. Marshall notes that "two-thirds of the Tribe's enrolled members live in the opened area," that the seat of the tribal government is in that area, and that it is "where most important tribal activities take place." Coupled with the fact that the opening to homesteaders was "a failure," to declare the reservation diminished made no sense. It would take an area that was clearly Indian Country, and make it not simply because of congressional intent a hundred years earlier.

The outcome is sensible, but the analytical test Solemannounced was the opposite of what was really driving the decision. If the spirit rather than the letter of Solemwere followed, the case in Oklahoma would be seen in a much different light. But, an intervening case made matters much worse. So, we need a quick detour to Pender, Nebraska.

In 2016, the Supreme Court considered whether an 1882 Act to sell land occupied by the Omaha tribe diminished their reservation. Justice Thomas wrote for an unanimous Court. As a true blue textualist, Thomas took Solem's pronouncements more seriously than its reality. Examining the text of the Act, he found no words that expressed a desire to diminish the reservation, and found in the logistics of opening the land—the manner in which the proceeds were to be determined and distributed—a suggestion of non-diminishment.

But, unlike Solem, where the facts on the ground today ran strongly in favor of non-diminishment, in Nebraska v. Parker, they ran quickly in the other direction. The Court made clear the obvious absurdity of its result—the Tribe was "absent from the disputed territory for more than 120 years"; "does not enforce any of its regulations" in the area; and it does not "maintain an office, provide social services, or host tribal celebrations or ceremonies" there. In fact, everyone, from Nebraska to the Tribe to the United States treated Pender as not part of the reservation for over a century.

And yet, Justice Thomas declared it so. After all, it was a perfect case to demonstrate his fealty to textualism. Declaring that "justifiable expectations" are not enough—even overwhelmingly clear ones—Justice Thomas wrote that "[o]nly Congress has the power to diminish a reservation." Of course, there was no doubt that this is what Congress intended to do to this reservation, and all others, as even Justice Marshall admitted in Solem. They just didn't use the right words.

Solem made the bet, but Parker cast the die. With the Court on record as being willing to declare part of Nebraska an Indian reservation despite no one thinking this for a century and virtually no Indians living there, the value of mining the historical record for other textual loopholes to reestablish reservations was made clear and extremely valuable.

A lawyer for a convicted murderer facing the death penalty in Oklahoma mined this vein. The brutal killing took place in a part of eastern Oklahoma that was once Indian Country—part of the Creek territory—but that had long since been considered part of the state, not a reservation. If Congress did not make clear that the former Indian territory was disestablished when Oklahoma was admitted as a state in 1907, then under Penderand Solem, the land would be Indian Country, and, importantly for the murderer, the federal government would have jurisdiction, not the state. This matters because there is no federal death penalty for murder.

The 10th Circuit Court of Appeals examined eight various federal statutes from the early twentieth century and found "no clear textual evidence [that] Congress disestablished the Creek Reservation." The Supreme Court considered the case last year, but could not reach a verdict—it is scheduled to be reargued this year as Sharp v. Murphy.

At oral argument, Solemand Pendertook center stage. Justice Sotomayor pressed lawyers for the state to show which specific statute contains the text that clearly demonstrates congressional intent to disestablish the Creek Reservation. There is none. As the 10th Circuit showed, compared with other acts to reduce reservation land, the statutes in the Oklahoma case are wanting: "None of these statutes disestablished the Creek Reservation. The State's case for termination of the Creek Reservation thus falters at the first and most important step." That step being the one allegedly established by Solemand given real weight by Parker.

But this decision, and Parker, are based on a flat misreading of Solem. What mattered in Solemwas the facts on the ground and that if the case had come out the other way, it would have worked an injustice on the tribe. Fetishizing the text didn't matter so much in Parker, since it was a town of about 1000 people, but it will have profound impacts in Oklahoma. As Justice Breyer noted during oral argument, the lives of nearly 2 million Oklahomans unaffiliated with the Creek or other Indian tribe will be impacted in a wide range of ways by having their land declared as part of a reservation. While it is true that much of eastern Oklahoma is populated with native communities, the status quo—various townships and land is owned and operated by tribes working hand in hand with non-tribal communities—works pretty well. Reversing the 10th Circuit would not be an injustice, as would have been the case had Solemcome out the other way, but would avoid the risk of an injustice running in the other way.

If the Supreme Court wants to disrupt settled expectations based on old texts written at a time when no one thought Indian tribes would be around in a hundred years and regardless of the absurdity of the results, they certainly have that power. But pointing back to Solemas binding precedent for that proposition is bad lawyering. Solemwas as much or more about practical consequences today than about parsing statutory text.

The Court has done this before. In a 2005 case called City of Sherrill v. Oneida Indian Nation, the Court considered whether large portions of upstate New York were illegally purchased from Indian tribes by the State of New York—a federal law then required the federal government's approval for all land sales by Indians—and thus actually part of the Oneida Reservation. As a matter of text, the case was a clear winner for the Oneida. But, in a highly pragmatic opinion, Justice Ginsburg rebuked the claim.

Today, we decline to project redress for the Tribe into the present and future, thereby disrupting the governance of central New York's counties and towns. Generations have passed during which non-Indians have owned and developed the area that once composed the Tribe's historic reservation. And at least since the middle years of the 19th century, most of the Oneidas have resided elsewhere. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas' long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.

The opinion is more apiece with Solem—with its focus on the conditions on the ground and the "Indian character" of the place—than with Parker, which purports to follow Solem. In City of Sherrill, Justice Ginsburg resists the Court from "rekindling embers of sovereignty that long ago grew cold." This logic seems to apply powerfully to Oklahoma as well.

A final point is worth making. Although if Murphy deems the land in question to be Indian Country it would seem to be a win for the sovereignty of Indian tribes in America, I'm not so sure they should want that result. The day after a decision for the Creek comes down, there will be disputes about a whole range of governance and regulatory matters impacting non-members of the tribe that now controls the territory. In a series of cases, the Supreme Court addressed this problem—being governed or regulated without a vote—and held that the ability of tribes to regulate non-tribal members is limited. If half of Oklahoma is deemed Indian Country, expect there to be many more cases pushing this law further, thus diminishing Indian sovereignty in Indian Country. A more gradual approach might better serve the interests of Indian sovereignty in the long run.

I should add that as somebody with much more textualist sympathies, I am not at all sure that I agree with the cure Todd proposes, even if the diagnosis is correct. But given the difficulties that have been posed by the case, I found Todd's thoughts on the broader context to be very interesting.

NEXT: Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover

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  1. Hang on, so we’re having a discussion about whether a precedent about textualism should be interpreted textually or not?

  2. It seems the principle of adverse possession should come into this somewhere. Has it been briefed by any of the parties? The current occupants have certainly been there long enough.

    1. I believe that for Adv Possession to apply, it has to be done against the apparent owner of the property (which everyone agrees was not the Indian tribe(s) until after the case was decided). I think that, post-case, if Indian ownership has been conclusively established, then Ad. Poss, might apply.

      (But Indian Law is a tricky business, and there are literally hundreds of areas of law where things can totally change if you are dealing with Native Americans, or Nat. American land. In my own area of expertise–child abuse/neglect cases–the law totally changes when a party is a member of a recognized tribe. Case goes to a special courtroom, extra notification requirements, a million hoops one needs to jump through before being allowed to adopt an Indian child, etc.) So, it might be that Adv. Poss does not even apply to Indian land. Interesting wrinkle . . . maybe a good episode for my new TV concept: “Law & Order: Real Property!!!”

    2. Came here to ask exactly the same thing. Glad I’m not crazy to wonder about it.

  3. Does Thomas recognize right of conquest? ’cause it may not be crossing the t’s and dotting the i’s, but it’s a pretty time-honored way to take land from someone, and one that congress has used to take land away from Indians, in violation of it’s own treaties with Indians, since we got started.

    1. Interesting question: How many treaties with Indian tribes has the US government made and never violated?

      My guess would be ZERO.

      1. I was always taught that the United States violated every treaty. But that was way back in the 70s, in my 5th grade History class. I have been assuming that “always” was really liberal-speak for ‘almost always, 99+% of the time’ and I’ve been assuming that, if we search hard and long enough, we can find some handful of treaties that we did not violate. But that’s speculation (under the “Broken clock right twice a day” theory of life in general), so who knows? . . . maybe the correct answer indeed is: zero.

        1. If you are including treaties with other foreign nations, that’s broader than my claim.

          The problem largely comes down to the fact that the treaties with the Indian tribes were all or nearly all made in bad faith to begin with. There was never an intent to honor those treaties.

  4. What does he mean that the federal government does not have the death penalty for murder? 18 USC 3591 clearly sets out the federal death penalty.
    I get the point of the defense attorney. If eastern Oklahoma is an Indian reservation, the case should be prosecuted in federal court and the federal government may not seek the death penalty for a whole slew of reasons. But it is incorrect to state that the federal government does not have the death penalty.
    Maybe I’m missing something.

    1. Another federal law requires permission of a member Indian’s tribe in federal death penalty cases, and, the Creek would not give it.

      18 U.S.C. § 3598. Special provisions for Indian country

      Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151 of this title) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.

  5. Is the moral: If you want to totally fuck over Native Americans, make sure it’s written into the law that they are being totally screwed. If that’s not in the language, then–as the party (a) with all the power and (b) who is doing the writing–we are not gonna let you steal the land . . . even if pretty much everyone knew at the time that the intent was to cheat the Native Americans out of their land eventually.???

    I can see how this result (to give back to Native Americans some tiny percentage of land that was taken [almost always, by force or threat of force] away in the distant past) can lead to some perverse results. Like in this case, where probably most people want the state to be able to kill someone who had done horrible crimes. But I am actively cheering for the Indians on the larger issue: Should they get back some of their land? Seems like a wonderful result…even a century or two later.

    1. Eastern Oklahoma is somewhat unique however because the vast majority of of the tribes there are not indigenous to Oklahoma, but indigenous to the Eastern seaboard. They may we’ll have moral claim to a wider area of land, but not really this land.

      And of course neither this case, or any of the other decisions discussed affects tittle to any actual land, it affects jurisdiction, not ownership.

    2. If Indians want to resettle, they should adopt the Israeli model. Migrate legally, purchase land, campaign for independence. I think the US will be far more amicable regarding Tribe law than the Ottomans/UK/Arab League ever were about a Jewish state.

  6. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.

    This sounds like a laches or statute of limitations defense.

  7. Doesn’t standing require some sort of timely pressing of one’s claims? I’d say that waiting 120 years might not be considered timely, at least not in the human conception of time.

  8. The post says “The outcome is sensible, but the analytical test Solem announced was the opposite of what was really driving the decision.” Why do you think that? The opinion said it was the law. Under rule of law, a court is not supposed to violate the law to get the result it thinks right, so we shouldn’t treat Marsrhall as doing that, though to be sure he usually *was* ignoring the law and just looking to the result he wanted. Moreover, the Thomas court in the later case unanimously use the Solem test, and they weren’t driven by trying to get “sensible” results.
    It’s also odd to say that Congress intended to do X but kept writing Y. I don’t want my judges trying to read Congress’s mind and enforcing laws Congress didn’t pass but he thinks they should have. Very possibly Congress thought that a later Congress would pass a law abolishing reservations and was wrong, but that doesn’t mean we should pretend the later law was passed. Indeed, if we were going to play the expectations game, we should conclude that the law allowing homesteading is invalid because Congress didn’t expect there to be a reservation, and all the land should go back to tribal ownership.

  9. “In a series of cases, the Supreme Court addressed this problem—being governed or regulated without a vote—and held that the ability of tribes to regulate non-tribal members is limited. If half of Oklahoma is deemed Indian Country, expect there to be many more cases pushing this law further, thus diminishing Indian sovereignty in Indian Country.”

    I can think of a good compromise – rule that the disputed area belongs to the Creek Nation, but the Creek Nation must bestow birthright citizenship – and thus a vote in tribal elections – on anyone born in Creek territory.

  10. When there is a text, all law must be textualist or its not “law”, its feelings.

  11. Given the repercussions, how about the Court decide the case based on the law as written, but stay the effective date of the decision for six months to allow Congress to take the Indian’s land properly and to mandate that for all purposes, the land shall be treated as if it had been taken back in the day.

    By taking this approach the Court is not rewriting the statute, Congress gets what it wants (regardless of whether it acts), and we get six months of people losing their minds on Twitter about colonialism and whether Congress should fix it.

  12. I think Professor Henderson misdiagnoses the problem with the Solem line of cases. It’s not textualism that causes the absurd results, it’s the extreme form of the rule of lenity that the Supreme Court applies to the interpretation of Indian treaties. The rule is that any and all ambiguities must be resolved in favor of the tribe, regardless of what a fair textualist reading of the treaty would say. While I’m somewhat sympathetic to this presumption, as it’s not like the federal government was dealing in good faith at the time, let’s not pretend textualism has anything to do with the unfortunate situation we now find ourselves in.

  13. Kazinski, “And of course neither this case, or any of the other decisions discussed affects tittle to any actual land, it affects jurisdiction, not ownership.”

    that’s how I read it also

    placeholder (if i might address you by your first name), “stay the effective date of the decision for six months to allow Congress to take the Indian’s land properly and to mandate that for all purposes, the land shall be treated as if it had been taken back in the day.”

    the latter seems ex post facto to me.

    numa (ditto) “It’s not textualism that causes the absurd results, it’s the extreme form of the rule of lenity that the Supreme Court applies to the interpretation of Indian treaties.”

    this seems plausible, but if there are indeed other contemporaneous federal statutes that specifically provide for the removal of land that is offered for homesteading or land actual deeded out as such from reservations then the lack of such language here does beg a textual question. Now it does seem that the textual clues in Solem was clearly resolved by reference to reservation land ” thus diminished” as it begs the distinction I have just made. Was the diminishment made by the offering of an acceptance by a homesteader. IF the latter, because the offering went largely untaken the question seems much smaller but not one that is decided because of that context but because “diminishment” didn’t take place until a change in title.

    Of course there could be rule of convenient administration that says such an approach would create a difficult to administer patchwork of title and jurisdiction, but that is connivance as much as convenience. I haven’t read these statutes or cases, which I will try to do, but wanted to note the possibility that diminishment upon title transfer was effectively a common law process that was referenced for the sake of wood gathering or other rights in Solem. Of course this common law would need cross between state and federal jurisdiction or require evidence of comity in its application. If such an actuality or metaphor undergirds a century of settled expectations, I might have anticipated Thomas to recognize this after first saying what the rule was according to the text.

    Another hint unargued in Todd’s notes is that indians were invited to purchase land as well. I agree this goes to a contextual argument but that seems to me to be a relevant and fundamental change because the textbook (meaning elementary school textbook) version is that reservations were held collectively. This seems to be another clue that the issue on diminishment was not the context much discussed by Todd regarding these cases of whether the area was largely indian or white, or whether there were cultural remnants or reservations (sorry) of indian life and practic in the area but whether it was held collectively or individually.

    Here you might suggest that the assumption of non-diminishment in the face of individuated ownership is lenity so I circle back to your formulation. given that mine is a grade school understanding if I think a highly relevant distinction between understandings of traditional indian/federal jurisdiction and state property law, i leave it to Todd to argue whether i shave with occam’s razor or know just enough to be dangerous.

  14. OMG why can’t comments be editted on here. the number of times my fingers have reversed “of” and “or” and it was particularly relevant is approach something like 2x where x is the number of comments i’ve ever made.

    should read: Was the diminishment made by the offering OR an acceptance by a homesteader.

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