People For the American Way

Trump Justices Split in Case on Native American Tribal Sovereignty: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Justices Split in Case on Native American Tribal Sovereignty: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump justices Neil Gorsuch and Brett Kavanaugh disagreed with each other in an important case concerning Native American tribal sovereignty. The July 2020 case is McGirt v. Oklahoma.

An Oklahoma state court convicted Jimmy McGirt, an enrolled member of the Seminole Nation of Oklahoma, of several sexual offenses that took place in an area of Oklahoma which, according to a 19th century treaty, is part of the Creek Reservation. He argued that his conviction was invalid and that he must be retried in state court, pursuant to a federal law that provides that “[a]ny Indian” who commits enumerated crimes within “Indian country” must be tried in federal court. State courts rejected his claims, and the Supreme Court agreed to hear the case.

In a 5-4 decision written by Gorsuch and joined by the Court’s four moderates, the Court sided with McGirt. Gorsuch carefully documented that treaties and statutes “solemnly guaranteed” large amounts of land in northeastern Oklahoma to the Creek Nation, and concluded that the land remains a reservation that is part of “Indian country” for purposes of the law invoked by McGirt. Justice Kavanaugh joined a dissent by Chief Justice Roberts that disagreed.

The ruling was seen as a “significant win for Native American rights” and consistent with Gorsuch’s textualist approach and his pro-tribal rights record before joining the Supreme Court. As with his recent opinion in the Bostock  Title VII case, the McGirt decision thus suggests very little about Gorsuch’s views in other civil and constitutional  rights cases, which commentators have noted remain “quite conservative.”