Questions asked by Justice Neil Gorsuch during a U.S. Supreme Court argument suggest he’s skeptical of Oklahoma’s stance against a criminal defendant in a hugely consequential case implicating the status of American Indian lands.
He made those inquiries on Monday at the outset of the high court’s second week of hearing arguments by phone, livestreamed to a listening public.
If Gorsuch is poised to cast a tie-breaking vote in the dispute, then the viewpoint of President Donald Trump’s first Supreme Court appointee could lead to a monumental ruling impacting both criminal and civil law in the eastern half of Oklahoma.
State and federal officials warn that an adverse ruling could lead to disaster if the justices accept the argument that Oklahoma didn’t have jurisdiction to prosecute American Indian Jimcy McGirt because his crime took place on a reservation.
A law called the Major Crimes Act confers federal jurisdiction for serious crimes involving Indians in Indian country. That raises the question: is the land at issue still the Muscogee (Creek) Nation’s reservation?
Backed by the tribe at the high court, McGirt says yes. Supported by the federal government, the state says it was never technically a reservation to begin with, and if it ever was, it’s since been undone.
With Gorsuch recused in another case last term involving the same reservation issue, the eight-member court couldn’t decide, making him the potential tie-breaking vote. Tribes supported his elevation from the Denver-based U.S. Court of Appeals for the Tenth Circuit and he has sided with their interests in a string of decisions since joining the high court.
The justices have limited time to question advocates during these rare phone arguments, an unprecedented addition to the high court’s term prompted by the coronavirus pandemic. So it was notable when Gorsuch began what little time he had with Oklahoma’s solicitor general, Mithun Mansinghani, by telling the state’s lawyer he had four questions, then taking up a fair amount of time just by asking them.
Their tone and substance suggested Mansinghani would have difficulty convincing him that there’s no reservation. Together with the Creek, four other tribes—the Cherokee, Chickasaw, Choctaw and Seminole—were driven into what’s now Eastern Oklahoma by the federal government along the Trail of Tears in the 1830s.
A ruling recognizing that the Creek reservation still exists could mean those other reservations are intact, too, raising alarms from officials over losing jurisdiction in half of the state and upending already-secured state convictions. In turn, federal officials in Oklahoma worry about being overwhelmed by vast new jurisdiction.
Questioning Mansinghani, who was making his high court debut, Gorsuch criticized the state’s approach to determining whether Congress “disestablished” the reservation, saying he didn’t understand it.
The justice likewise cast doubt on the state’s claims of negative practical consequences if the high court rules for McGirt, a member of the Seminole Nation. He’s facing a life sentence in Oklahoma state prison for raping a 4-year-old girl.
Attempting to repel the Gorsuch fusillade, Mansinghani argued to the avowed textualist and originalist that it’s the state’s approach that’s more faithful to Congressional intent and original meaning.
McGirt and his supporters see this case as a test of Gorsuch’s commitment to those principles, deeming the dispute an easy one in that regard. They point to Supreme Court precedent requiring clear Congressional intent to disestablish reservations, arguing that simply didn’t happen here, however hard Congress might have tried.
Both Mansinghani and McGirt’s lawyer, Ian Gershengorn of Jenner & Block, cited Gorsuch’s prior opinions in trying to make their respective cases, underscoring the significance of his vote here.
In his opening remarks, Gershengorn pointed to a recent opinion Gorsuch wrote involving unanimous jury verdicts, Ramos v. Louisiana, where the justice brushed aside state claims of disastrous criminal consequences.
As he did with Mansinghani, Gorsuch likewise pressed deputy U.S. solicitor general Edwin Kneedler, who argued for the Justice Department in support of the state, with Gorsuch warning against ignoring “the plain terms of the law.”
And though Gorsuch seems poised to rule for McGirt, some of his colleagues are more attuned to the state’s consequence concerns.
Justice Ruth Bader Ginsburg told Gershengorn, “what makes this case hard is that there have been hundreds, hundreds of prosecutions, some very heinous offenses of the state law.” Drawing a different conclusion from the Gorsuch opinion that Gershengorn referenced in his opening, Ginsburg said “the Ramos retroactivity pales in comparison to what is involved here, hundreds of prosecutions, for murder, for terrible sexual offenses.”
Justice Samuel Alito, for his part, worried about the effect of the case on non-Indians.
“Am I correct that more than 90 percent of people who live in the area directly affected by this case are not members of the Creek tribe?” he asked Riyaz Kanji, who argued for McGirt as an amicus on behalf of the Creek Nation.
Kanji said yes, prompting Alito to ask, “Well, what would you say to those people when we—if we decide this case in your—in your favor? Won’t they be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way?”
The Creek Nation lawyer replied that “very little will change for them. Certainly, very little to the bad will change for them. They will largely remain subject to state law. They will benefit in significant ways from reservation status.”
The case is McGirt v. Oklahoma, U.S., No. 18-9526, oral argument 5/11/20.