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As those concerned with freedom and democracy continue to reel in the aftermath of a series of Supreme Court rulings on abortion, gun rights, and school prayer, the decision issued in Oklahoma v. Castro-Huerta written by Justice Brett Kavanaugh regarding state jurisdiction on tribal land has gone largely unnoticed by the larger American public. While such neglect seems all-too-common in an America deeply uncomfortable about the historical treatment of Native peoples and with a media that is often neglectful in its coverage of contemporary issues of importance to Native people, the significance of this decision can hardly be overstated.

In supporting the State of Oklahoma’s claim to jurisdiction in a criminal case involving a non-Native perpetrator of child abuse against a Native victim, in one fell swoop the Supreme Court pushed aside more than two centuries of federal policy and legal precedent. Highlighting the extreme activist bent of the Court’s ruling, Justice Neil Gorsuch called the decision “unfathomable” in his dissent. Further, in the majority’s justification for its ruling, Oklahoma’s own unequivocal divestment of jurisdiction over tribal lands within its borders as expressed in the Enabling Act state officials agreed to with Congress in exchange for the approval of statehood in 1906, was also disregarded.

The Native nations now subjected to Oklahoma state jurisdiction involve those on lands once identified as “Indian Territory” on maps of the United States as late as the early 20th century. Although Native nations such as the Osage, Comanche and Kiowa occupied the territory that became Oklahoma before the arrival of Euroamerican settlers, the effective segregation of Native peoples through the creation of an apartheid-like reservation system imposed by the US government following the Indian Removal Act of 1830 resulted in the relocation of Native peoples into the territory from more than 60 different nations living east of the Mississippi River.

Among these, the most well-known, perhaps, are the nations of the Five Tribes consisting of the Choctaw, Muscogee (Creek), Seminole, Cherokee and Chickasaw. These nations, like many others, were subjected to the trauma and horror of a series of forced relocations that became known collectively as the Trail of Tears, while assured they could live peacefully in a territory set apart for their use “as long as the grass shall grow and rivers flow.” This poetic flourish, popularly associated with the parlance of treaties, meant permanently. Forever.

As vital legal instruments in the maintenance of international relations, treaties were specifically denominated by Article VI of the US Constitution as “the supreme law of the land” (treaties with Native nations not excluded). The distinction between Native reservations and states are reflective of the political standing of Native nations, with treaties signed between them and the United States being consistently upheld over what has now been almost 200-years since those removals. This, while withstanding all manner of disrespect and violation through more than two centuries of intense conflict over the time, much of which being marred by large-scale military campaigns and the imposition of genocidal policies.

Nevertheless, in the face of this history, the status of treaties signed and ratified between the United States and Native nations have been accepted as legally-binding by the Supreme Court as a foundational principle of the rule of law, even if such treaties were not always honored or observed in practice.

As practically all Americans are aware, the mere disregard or the breaking of laws does nothing to invalidate said laws. Such can only be done by the express passage, adoption or the elimination of laws by duly-empowered governmental bodies with the vested authority as granted to them by the people as their elected representatives—some may still remember this process as it was presented on Saturday mornings on Schoolhouse Rock. Yes, it is that basic. Treaties operate in a similar way and as the Court asserted in Lone Wolf v. Hitchcock (1903), can only be abrogated through the expressed actions of Congress.

Drawing on his extensive knowledge and experience with federal Indian law and policy, Justice Gorsuch, with the support of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, expresses shock and disbelief in the Court’s ruling, stating, “now, at the bidding of Oklahoma’s executive branch, this Court unravels those lower court decisions, defies Congress’s statues requiring tribal consent, offers its own consent in place of the Tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding.” The blistering condemnation is not just revealing of Gorsuch’s sincere interests in Native issues, but also a reflection of just how monumental the consequences may be for the future of Native sovereignty and treaty rights across North American.

Despite the assurances Gorsuch put forth in his assertion that the scope of the decision is only applicable to Oklahoma, Kavanaugh went out of his way to specifically reject such limits in branding Gorsuch’s words as mere dicta (individual views and opinions of no legal significance). An aggressive declaration that highlights the broader implications of what Gorsuch calls the majority’s “grim result” in its contempt for such an extensive body of legal precedent. The final result is especially shocking given the recent ruling in McGirt v. Oklahoma (2020) that upheld treaty rights and the stakes involved as a result. Namely what could well be the effective control over the people occupying the remaining parcels of Native lands that were once, it bears reminding, inclusive of the entirety of North America.

Wampum belt said to have been given to William Penn by Lenape leaders to mark their 1682 treaty with settlers, courtesy of the Philadelphia History Museum.

Wampum belt said to have been given to William Penn by Lenape leaders to mark their 1682 treaty with settlers, courtesy of the Philadelphia History Museum.

Given the highly politicized nature of contemporary American society, and in the wake of decisions handed down in Kennedy v. Bremerton School District, Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen, the result in Huerta is far from an aberration. Taken together, these decisions appear as the opening salvos in a radical realignment (or is it the destruction?) of American law, as well as the role of the Court as arbiter between the federal government and states. Even more revealing and appalling, perhaps, in this judicial shift is the decidedly hostile position it reflects towards constitutional protections of civil and human rights, as if anachronistically thrusting us into the kinds of oppressive societies or alternative histories reflected in George Orwell’s Nineteen Eighty-Four, Margaret Atwood’s The Handmaid’s Tale or Philip K. Dick’s The Man in the High Castle.

It's a reality that would have seemed impossible to many a little over a decade ago after witnessing Barak Obama’s inauguration as President. And maybe that’s part of the problem. The sense of blindness and apathy that can result from a certainty in the belief of America’s trajectory as one defined by progress towards the clear and present threats to freedom and democracy, especially when directed at the freedoms and rights of others.

One could argue whether the Court’s rulings on this slew of recent cases involving school prayer, abortion, gun rights, and now, tribal sovereignty, represent an originalist or constructivist legal intervention, while the more significant factor at work seems to be the dictates of Christian conservatism. As such, the decisions in these recent cases constitute the most radical shift towards legal activism in our lifetimes. The sea change now taking place is even more apparent when considering the disdain for established legal tradition reflected in the language Kavanaugh employs to invalidate the jurisdictional norms reinforced in the opinion put forth by Gorsuch as a fellow conservative in McGirt. In this recent case, Gorsuch roundly rejected Oklahoma’s claims to jurisdiction on tribal lands, condemning previous violations of tribal sovereignty as little more than attempts to “legalize theft.”

Kavanaugh contended that the granting of certiorari in the Huerta case became necessary due to “the sudden significance of this jurisdictional question for public safety and the criminal justice system in Oklahoma.” An exaggerated, if not altogether fallacious claim as has been shown. Kavanaugh goes on to reinforce this justification using the dog whistle of racial and class divisiveness in sounding an alarm about “criminals” receiving lighter sentences in federal courts, while claiming some have already “gone free.”

Sounding more like a propagandist than a Justice of the Supreme Court, Kavanaugh continues with the distortions, stoking fears of an imminent threat of lawlessness and social chaos to define a situation, he contends, has spiraled out of control. These are supposed outcomes that Gorsuch condemns in starkly pointed terms, observing that “the old paternalist overtones” in Kavanaugh’s words “are hard to ignore.”

No documentation whatsoever is offered to support Kavanaugh’s claims, which, according to reports, the state of Oklahoma spent millions in a misinformation campaign to promote anticipating another crack at the Court. That said, his justifications are completely beside the point anyway. The most direct solution to such a problem, if it were to exist, which federal prosecutors also refute, would be for the US government to provide additional resources to adjudicate any backlog of cases. In fact, earlier this year Congress earmarked $62 million in funding to Oklahoma tribes in support of their justice systems to help cover any additional costs stemming from McGirt.

While the federal government has often been remiss in upholding its responsibilities to ensure the safety of Native people in Indian Country, and often egregiously so, the principle of federal jurisdiction has, nonetheless, been foundational to federal Indian law and policy. This is a point Gorsuch consistently emphasizes through an array of historical examples and relevant case law in his dissent.

As neglectful as the federal government has been in their dealings with Native peoples, states, according to Gorsuch, have been even worse in quoting from another decision, United States v. Kagama (1886), upholding the Major Crimes Act that assigned jurisdiction for a set of serious crimes to the federal government, whereby “States” were characterized as “so often the Tribes’ ‘deadliest enemies.’” What’s more, Gorsuch outlines a legal solution for officials in Oklahoma who may feel the need to intercede in the prosecution of crimes on reservation lands committed by non-Natives against Native people by simply following current policies as delineated in Public Law 280, which includes a mechanism by which states must seek tribal consent for this purpose.

These are solutions that Kavanaugh ignores despite repeatedly acknowledging criminal jurisdiction as a standard element of the federal government’s relationship with Native nations. Seizing on this glaring contradiction, Gorsuch asserts that Oklahoma stridently refused to recognize federal law and abide by processes put forth by Congress, instead seeking to assert its authority in a dishonest way by depicting reservations as “lawless dystopias.” With the Court’s decision endorsing the desires of Oklahoma’s executive branch, it is Kavanaugh and the Justices who voted with him, having also “defied legally binding congressional promises,” who may be condemning Native people to that selfsame dystopian future.

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While Gorsuch passionately condemns Kavanaugh’s opinion, his defense of Native rights also comes with an ironic twist. For in following similar lines of reasoning in throwing his support to the majority in the other cases in most recent session noted above, he entangles himself within some of the same logical thickets he so vehemently condemns in Kavanaugh. Examples that, when viewed in their totality, expose a fundamental inconsistency in principles of law, which Justice Kagan pointed out in these decisions, putting Gorsuch in his company even as he unabashedly assails the “astonishing errors” at the core of Kavanaugh’s ahistorical reasoning, which he further calls “baffling” and “staggering.” Indeed, “the Court,” as Gorsuch observes with unintended irony, “marches on,” but with him marching along with them for most of the way.

In the broader purview of federal Indian law and policy, Huerta portends some ominous ramifications as it conjures a heretofore feeble and baseless claim to power into a reality that now threatens the standing of tribal sovereignty. A principle—despite the imposition of numerous oppressive and unjust policies, along with a host of violent actions perpetrated against Native peoples—that the federal government has consistently recognized, at least in words.

Included among this veritable litany of historic violations are the pervasive desecration and theft of Native lands and the forced assimilation of Native children in boarding schools operating under Richard Henry Pratt’s, motto, “kill the Indian, save the man.” Added to these violations are forced adoptions of Native children (reflecting another case on the Court’s docket for the Fall session); the seizure of tribal lands through the policy of allotment, as devised in the Dawes Severalty Act of 1887; and the destructive objectives of Termination and Relocation of the 1950s and 60s. Actions and policies to which this latest injustice is added as a means to undermine Native cultural survivance and dismantle tribal sovereignty, perhaps, solving the so-called “Indian problem” once and for all.

The explicit aim of the Huerta decision, which Gorsuch lambasts as an “egregious misappropriation of legislative authority,” is to hand more power to the states at the expense of Native self-determination, but also the integrity of the Constitution. Moreover, Kavanaugh veils the justification for the decision as a reflection of an earnest concern for the treatment of Native peoples—a claim that seems laughable based on the outcomes. In so doing, he bizarrely asserts that the respect for treaties, the validity of which has been repeatedly upheld by the Supreme Court into the present day and forming the foundation for modern tribal sovereignty were somehow “abandoned later in the 1800s.”

But like numerous fantastical assertions Kavanaugh makes throughout his opinion, little historical support is given for this outlandish historical claim either. Based upon the sheer brazenness of this slash and burn assault on Native rights, it would not be a far leap for this shameless gambit that hands more power to Oklahoma to be seized upon to further erode the jurisdictional distinction between other states and Native nations.

This, regardless of the bedrock principles of Native sovereignty as resting upon the basis of pre-existing rights originating from Native occupancy as acknowledged by the English and codified by the Royal Proclamation of 1763. Principles that were also adopted by the newly formed American government in the period of the early Republic through the Northwest Ordinance of 1787 and the Indian Intercourse Act of 1790.

Out of this historical context, Native claims to land were subsequently recognized by the Supreme Court with specific parameters developed through a set of three decisions written by Chief Justice John Marshall consisting of Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)—known collectively as the “Marshall Trilogy.” In the second of these cases, lands of the Cherokee nation were acknowledged as being distinct from Georgia by its very history. Its status, thus, conceptualized under the notion of “domestic dependent nations,” which was then reinforced in Worcester as being under the protection of the federal government, and critically beyond state jurisdiction.

Francis Davis Millet, The Signing of the Treaty of Traverse des Sioux, 1905, Courtesy of the Minnesota Historical Society.

Francis Davis Millet, The Signing of the Treaty of Traverse des Sioux, 1905, Courtesy of the Minnesota Historical Society.

These landmark decisions have been respected ever since as foundational structures within federal Indian law and policy by the Supreme Court and now face its most serious challenge in Huerta. The passion Gorsuch displays in his meticulous and spirited dissent to Kavanaugh’s opinion aside, which he says, “makes a mockery of Congress’s work from 1834 to 1968,” it is difficult to see how his dissenting view can have much influence given the current bent of the Court.

With Huerta, the Court has made its hostility to Native rights blatant, signally that it is an institution to be avoided at all costs. The best, perhaps, that Native governments and their citizens, as well as advocates for Native rights may be able to hope for as we enter into a new period of extreme legal uncertainty is that the force of Gorsuch’s dissent can come to function in a similar way to that of Justice William O. Douglas’ in Tee-Hit-Ton Indians v. United States (1955). In that case, Douglas wrote in opposition to the extinguishment of ownership rights to the timber of a Tlingit community in Alaska based on their occupancy of the lands from where it was taken and without compensation. In the subsequent case of Menominee Tribe of Indians v. United States (1968), Douglas deployed many of the same arguments and principles offered forth in Tee-Hit-Ton in writing a decision to validate the recognition of Menominee hunting and fishing rights within the state of Wisconsin and despite their tribal status being subjected to termination.

But thirteen years is a long time to wait and Kavanaugh’s blithe dismissal of Gorsuch’s arguments, which are themselves based on a mountain of historical sources, government records, policies and laws, with numerous District and Supreme Court decisions, as irrelevant, seems indicative that only more chaos is to come. This while, as Gorsuch illustrates, it is Kavanaugh who has “assemble(d) a string of carefully curated snippets” to support an opinion founded on little more than a “grab bag of decisions” with no real relevance to the questions of sovereignty and jurisdiction. That such a departure from past practice can be initiated based on the whims of a group of conservative activist judges calls into serious question the very legitimacy of the Supreme Court itself. In Huerta, which Gorsuch further denounces as “an embarrassing new entry into the anticanon of Indian law,” that is precisely what this Court has brought about.

Thus exposed through the paucity of Kavanaugh’s legal justifications, it can be seen for what it is: a gross display of sheer power. One that when combined with the similar lack of restraint and reasonableness as displayed in the other recent cases of the term, will only hasten a further undermining the public’s faith in the justice system and status of American democracy.

Hence, to the series of decisions from the last session that were clearly driven by partisan politics, we can now add Huerta. Although provocative, perhaps, it’s a judgement brashly confirmed by Justice Samuel Alito himself in his recent mocking of critics of the Dobbs decision at an ironically named ‘religious freedom’ conference in Rome.

While the politicization of the Supreme Court we are now witnessing is nothing new, it does seem to take on greater urgency given today’s social context. Furthermore, the sense of gravity that comes from the shock of these recent rulings are given increased consequence within a sociopolitical landscape in which even the violent interference with the democratic process and the invalidation of a federal election fails to bring condemnation from most Republicans.

The responses many Americans are now feeling in the face of such upheavals are also made all the more unsettling when witnessed in real time. With full knowledge of the outcomes of the decisions already rendered, and in consideration of the current makeup of a Court split 6-3 along ideological lines, we should expect continued legal instability and the disruption of established law for the foreseeable future.

One effect of this situation is that these outcomes are now being used to underscore that the importance of elections is greater now than ever before. Yet, at the same time, it also appears that that moment may have already passed after Trump’s selection of three new justices as completely avoidable. Also making the decision of Justice Ginsburg to stay on through Obama’s second term one that has now come back to haunt those who lament the Court’s current ideological imbalance. Yet, it is clear that the Court’s decision in Dobbs was influential in motivating voters to reject conservative efforts in further restricting abortion as the outcome in Kansas clearly shows.

The question Huerta now poses for the Country is will this abridgement of Native sovereignty and treaty rights inspire a similar response out of anger and resistance? Based on the lessons of history and current discussions in the major media on the issue, the prospects for such mobilization doesn’t look promising.

In some ways this seems a reflection of the kind of hyper-individualistic and isolating society we all currently exist in—made worse by the effects of the COVID pandemic. One in which our sense of identification and connection with others on social and political issues has been increasingly defined within the artificiality of self-selecting (and often virtual) interest groups in which we distinguish ourselves based on ever more minute divergences of belief, principle and identity.

Tendencies that have led to the creation of a new social context in which there seems little tolerance for different viewpoints and no interest in compromise. In this reality, difference itself has become more important than agreement, while driving intensified conflict amongst people who in the past would have been natural allies. The result, of course, is the further shrinking of sites of shared concern and struggle, while making us lose track of the bigger picture.

With the descent into an ever more fractured and divisive social existence, we seem to be inching ever closer to the specter of Orwellian authoritarianism. If things continue to spiral, whether such a plunge into this dystopian someplace takes the form of a plutocracy, oligarchy, or theocracy will matter little to most. And although we can only ever guess as to what the future may hold, the past can serve as a useful guide while holding to the hope, even if in vain, that at some point we may learn from that past instead of continuing to repeat it.