Oklahoma Asks Justice Barrett To Overrule McGirt

Will ACB cast the fifth vote to return Tulsa to Oklahoma?

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During the October 2019 term, Justice Gorsuch laid two eggs: Bostock and McGirt. I criticized both decisions at some length. For the most part, Bostock has not resulted in any radical changes in policy. Things have been surprisingly smooth. But McGirt has been a policy disaster. Much of Eastern Oklahoma has been thrown into legal jeopardy. Countless convictions have been overturned. And the status of tax, energy, and environmental laws are in flux. We know all too well that Justice Gorsuch is utterly unconcerned with the policy implications of his decisions. When he gets the law right, that fortitude is admirable. When he gets the law wrong, we are all boofed.

The simplest path for Oklahoma is overruling McGirt. And Oklahoma has made that request in a pending cert petition, with Kannon Shanmugam as counsel of record.

This case also presents the question whether McGirt should be overruled. McGirt was wrongly decided for the reasons stated in the chief justice's dissent, and its disruptive effects in Oklahoma are unprecedented. While the Court believed that compromise or congressional action could limit the disruption from its decision, it is now clear that neither is forthcoming. The tribes do not agree among themselves, much less with the state, on the proper path forward, and Congress is unlikely to adopt any proposal not supported by all of the parties involved. Only the Court can remedy the problems it has created, and this case provides it with an opportunity to do so before the damage becomes irreversible.

This petition may as well include Amy Coney Barret's face on the cover. McGirt split 5-4. RBG, who was in the McGirt majority, is no longer on the Court. If ACB votes the other way, Oklahoma will return to the pre-Gorsuch status quo. I think even the Chief Justice would be willing to depart from stare decisis here. There are no reliance interests in a state of legal entropy. McGirt has been in effect for one year, and the decision has radically destabilized the law. If ever there was a candidate for reversal, it is McGirt.

Developments since McGirt have proven the decision fundamentally unworkable. Any reliance interests that have developed in the short time since McGirt pale in comparison to the century of reliance interests that McGirt upset. The case was decided by "the narrowest of margins," over a "spirited dissent() challenging the basic underpinnings" of the majority opinion. Payne v. Tennessee (1991). And the recent nature of the decision entitles it to less stare decisis weight. To stop the damage and save the people of Oklahoma from years of hardship to come, the Court should consider overruling McGirt in this case. The stakes are simply too high to leave that option off the table. For that reason, the Court should grant review on the third question presented, in addition to the questions regarding procedural and equitable bars to post conviction relief under McGirt and the state's authority to prosecute non-Indians who commit crimes against Indians in Indian country. It is hard to imagine a case in which this Court's review is more desperately needed. The state of Oklahoma respectfully requests that the Court grant certiorari and set this case for oral argument as soon as possible.

Decided in June 2020 and overruled in June 2022? This switcheroo might be the quickest SCOTUS self-reversal since Knox v. Lee (1871) overruled Hepburn v. Griswold (1870). There too, the constitutionality of paper money flipped after new Justices were appointed.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. I'm with the Supreme court majority on this one: If duly entered into treaties are going to be repudiated, Congress is going to have to do so explicitly. Not just count on the Supreme court saying, "It was a treaty with Indians, that automatically means it's void."

    Disruptive? Maybe people will pay more attention to treaties in the future.

    1. The more disruptive court decisions, the better. Courts deciding to interpret the law in a certain way because they're squeamish about the result the correct way is anathema to the rule of law.

    2. In the early days of Wisconsin, its Supreme Court declared an entire system of property taxation void and no local governments could collect property taxes until it was replaced.

    3. Brett, the problem I have is a larger one -- we are *all* Americans and hence should all be equal before the law.

      I have a real problem with some people being more equal than others because of their race -- the term that comes to mind is "racism" and we are supposed to be opposed to that.

      Hence I consider treaties which violate the 14th Amendment's Equal Protection clause to be null and void. Regardless of whom they were made with....

      And there is also the "republican form of government" clause -- if we consider the tribes to be their own independent states (and I wouldn't have a problem with that), they still have all the obligations of a state government post Warren Court...

      1. Hence I consider treaties which violate the 14th Amendment’s Equal Protection clause to be null and void. Regardless of whom they were made with….

        How exactly can a treaty between the federal government and an Indian tribe violate the equal protection clause, which by its plain terms only restricts state governments?

        1. How exactly can a treaty between the federal government and an Indian tribe violate the equal protection clause, which by its plain terms only restricts state governments?

          Forget it, N-a-s; it's EdTown.

  2. From Blackman's linked article:

    Congress hadn’t said the magic words. And how could it? Until McGirt, no one knew the precise textual standard that was needed to disestablish a reservation.

    How about, "Reservation X is hereby disestablished?"

    ISTM that the state is complaining about the consequences of the decision more than about its legal basis.

    1. Considering how much screaming there would be if treaties started actually being honored, it is good that Gorsuch is inflexible when he is in the right, as he is so obviously here.

    2. What about abandonment of reservations?

      In Maine (and likely elsewhere) there were entire *towns* which were abandoned as a result of the carnage of the Civil War -- all the young men were dead, all the women married men from elsewhere and moved to live with their new husbands, and then the older generation either died or drifted away.

      I once spent several months trying to track down ownership of land that now sits under a shopping mall, IANAA but as I understand it, because no one had claimed it (or paid taxes on it) for so long, no one owned it.

      1. IANAA but

        Why oh why can't you just stop with the first word? (Yes, I mean initialism, not word.)

  3. “We know all too well that Justice Gorsuch is utterly unconcerned with the policy implications of his decisions. When he gets the law right, that fortitude is admirable. When he gets the law wrong, we are all boofed.”

    What even is this thought? It’s good and praiseworthy to ignore policy implications when you say he’s right but bad when you say he’s wrong? But also it’s always bad that Kav and Roberts acknowledge the implications and human stakes whether or not they’re right or wrong?

    1. It's not expressed very clearly so I'm not sure that it's what Prof. Blackman was trying to say, but I suppose that when a judge who can't be influenced by policy concerns gets the law wrong, the mistake will tend to have more severe consequences than when a judge who sometimes changes the outcome for policy reasons makes a legal error (assuming, of course, that the judges analyze the policy considerations correctly).

      1. assuming, of course, that the judges analyze the policy considerations correctly

        Very big assumption.

  4. How often does a Court reverse itself within a couple of years?

    1. Hold that thought for a few years.

  5. "We know all too well that Justice Gorsuch is utterly unconcerned with the policy implications of his decisions. When he gets the law right, that fortitude is admirable. When he gets the law wrong, we are all boofed."

    Your problem is that he got the law right, and you happen to not like the law. Or are you going to claim that treaties aren't laws?

  6. Countless convictions have been overturned.

    I realize this is hyperbole, but it seems inapt here, since Oklahoma should have a 100% accurate count of how many convictions have been overturned.

    1. The cert petition says that "over 3,000" applications have been filed, "over 150" defendants were released (more than half of whom were immediately taken into federal custody), and the remaining postconviction proceedings have been stayed pending the outcome of this very case.

      Those don't really seem like numbers that should overtax your counting ability.

  7. That level of flip-floppery would be handy authority when an enlarged Supreme Court takes the bench.

    Carry on, clingers.

    1. That's in the cards anyways, with Supreme Court packing. As each party expands the Supreme Court when they get control of Congress and the White House, eventually the Supreme Court will be the size of Britain's House of Lords, and command similar authority.

  8. Could we give it all back to the Native Americans, and then blame them for slavery, endless wars, climate change, etc.?

  9. As a pragmatist, no I don't think one should be able to use a forgotten treaty to disrupt a century of proceedings. I think McGirt was wrongly decided and insufficiently concerned with the effects of that.

    That being said, its law now, so deal with it I guess. The easiest thing would be limit it to criminal law. Also how has congress not acted here? No actually thought it was a reservation before, so why shouldn't they disestablish it?

    1. Congress HAS acted here. The Senate ratified the treaty. That's acting.

      1. Brett, the Treaty of Paris which ended the Revolutionary War required the US to compensate Loyalists for our confiscated property -- and we never were....

        1. The Treaty didn't, actually: "It is agreed that Congress shall earnestly recommend it to the legislatures of the respective states to provide for the restitution..." but that was it.
          The Treaty did promise to stop future confiscations of Loyalist properties, though. It that what you were thinking of?

  10. Imagine how messed up the monetary system would be if Hepburn v. Griswold was never overruled? Makes the think that these things aren't permanent, and can always be corrected.

    1. We'd have a better monetary system if Hepburn v. Griswold weren't overruled because fiat money is the worst monetary system.

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