Monday, October 26, 2020
For the past month I have been meaning to blog on the McGirt case from last term. As a member of the Muscogee (Creek) Nation, I had been watching McGirt and another case raising similar issues from the October 2018 term for some time. The case was set to answer a key question--whether much of Oklahoma was still "Indian Country" for purposes of the Major Crimes Act. Or, had Congress disestablished the Creek reservation.
A divided Supreme Court held that the Creek reservation still existed. Justice Gorsuch wrote the majority opinion, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. In short, the Court held that, while Congress can disestablish a reservation, it must do so clearly. And, with respect to the Creek reservation, it hadn't acted to clearly disestablish the reservation.
This case, I think, represents Justice Gorsuch's strong views on separation of powers. In a book review that I wrote of his recent book, A Republic, If You Can Keep It, I noted,
Justice Gorsuch devotes a significant portion of his book to discussing the need to protect the separation of powers and the institutional design of our government as set forth in the Constitution. He also carefully discusses how judges should interpret the Constitution, with a strong emphasis on originalism. In fact, in reading these parts of the book, I wondered if Justice Gorsuch will be an even stronger vote for separation of powers than his predecessor. Time will tell.
Although the review was only recently published, I wrote it much earlier this year, before Justice Gorsuch's opinions in Bostock and McGirt, both of which evidence Justice Gorsuch's theory of separation of powers and statutory interpretation. In that respect, McGirt is not just significant as a matter of Indian Law, it is significant for helping us understand how Justice Gorsuch will approach these issues.
For those interested in McGirt, I moderated a webinar on the case that features my excellent colleagues Prof. Rebecca Tsosie, Prof. Melissa Tatum, and Prof. Barbara Atwood.