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Reading #McGirt and Gorsuch drops some great lines. As I get time over the next few days to read the decision, I may drop some in this thread. Let’s start with the Justice’s opener, “On the far end of the Trail of Tears was a promise.”
“But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing reservations is not one of our constitutionally assigned prerogatives.”
“If Congress wishes to break the promise of a reservation, it must say so.”
“The dissent stresses, repeatedly, that the Dawes Commission was charged with seeking to extinguish the reservation...yet the dissent fails to mention the Commission’s various reports acknowledging that those efforts were unsuccessful...
...precisely because the Creek refuses to cede their lands.”
“No doubt, this is why Congress at the turn of the 20th century “believed to a man” that “the reservation system would cease” “within a generation at most.” Still, just as wishes are not laws, future plans aren’t either.”
“If allotment by itself won’t work, Oklahoma seeks to prove disestablishment by pointing to other ways Congress intruded on the Creek’s promised right to self governance during the allotment era.”
“But the dissent’s account is impossible to reconcile with history and precedent.” Lol the shade
“Thus, while suggesting that the tribal government might end in 1906, Congress also necessarily understood it had not ended in 1901.” —words and their implications matter
“The dissent stresses, too, that the Creek were afforded U.S. citizenship and the right to vote...but Sandoval is not only a case about the Pueblos; it is
[new tweet for emphasis]
A FOUNDATIONAL PRECEDENT RECOGNIZING THAT CONGRESS CAN WELCOME NATIVE AMERICANS TO PARTICIPATE IN A BROADER POLITICAL COMMUNITY WITHOUT SACRIFICING THEIR TRIBAL SOVEREIGNTY.”
Thank you, Justice Gorsuch. (N’Yah’Weh in Shawnee, bc it’s my thread)
A FOUNDATIONAL PRECEDENT RECOGNIZING THAT CONGRESS CAN WELCOME NATIVE AMERICANS TO PARTICIPATE IN A BROADER POLITICAL COMMUNITY WITHOUT SACRIFICING THEIR TRIBAL SOVEREIGNTY.”
Thank you, Justice Gorsuch. (N’Yah’Weh in Shawnee, bc it’s my thread)
“So, once again, the dissent seems to suggest that it’s the arguments in the •next• section that will get us across the line to disestablishment.” —that’s a huge eyeroll in the footnotes. Again, the shade.
“To avoid further confusion, we restate the point. There is no need to consult extratextual sources when the meaning of the statute’s terms is clear.”
“But Oklahoma and the dissent have cited no case in which the this Court has found a reservation disestablished without first concluding that a statute required that result...
Perhaps they wish this case to be the first. To follow Oklahoma and the dissent down that path, though, would only serve to allow States and courts to finish work Congress has left undone, usurp the legislative function in the process,
and treat Native American claims of statutory right as less valuable than others....and treaty rights are to be construed in favor, not against, tribal rights.” 
This whole footnote.
“Oklahoma proceeds on the implicit premise that its historical practices are unlikely to have defied the mandates of the federal MCA. That premise, though, appears more than a little shaky.”
“As it turns out, too, Oklahoma’s claim to a special exemption [to the MCA] was itself mistaken, yet one more error in historical practice that even the dissent does not attempt to defend.”
“To be fair, Oklahoma is far from the only State that has overstepped its authority in Indian country.”
“Unable to answer Oklahoma’s admitted error about the very federal criminal statute before us, the dissent travels far afield (
), pointing to the fact that an Oklahoma court heard a civil case in 1915 about an inheritance...as evidence.”
), pointing to the fact that an Oklahoma court heard a civil case in 1915 about an inheritance...as evidence.”
“And the dissent does not dispute that Oklahoma is without authority under the MCA to try Indians for crimes committed in restricted allotments and any reservation...
All of which highlights the pitfalls of elevating commentary over the law.”
“Holding that the Creek never had a reservation would require us to stand willfully blind before a host of federal statutes. Perhaps that is why the Soliticor General, who supports OK’s disestablishment argument, refuses to endorse this alternative effort.”
“The dissent asks us to examine a hodge-podge of other, but no more compelling, material. For example, the dissent points to later statutes that do no more than confirm there are former reservations in the State of Oklahoma.”
“If anything, the persistent if unspoken message here seems to be that we should be taken by the “practical advantages” of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might.”
“None of these moves would be permitted in any other area of statu- tory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.”
“Chief Justice Marshall, for example, held that Indian Tribes were “distinct political communities, having territorial boundaries, within which their authority is exclusive . . . which is not only acknowledged, but guarantied by the United States.””
“So, once more, it seems Okla- homa asks us to defer to its usual practices instead of fed- eral law, something we will not and may never do.”
“In the end, Oklahoma abandons any pretense of law and speaks openly about the potentially “transform[ative]” effects of a loss today.” CONVENIENCE IS NOT THE PURPOSE OF THE LAW!
“Oklahoma re- plies that its situation is different because the affected pop- ulation here is large and many of its residents will be sur- prised to find out they have been living in Indian country this whole time...
But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.”
And finally:
