Analysis: Why Oklahoma’s historic (and recent) legal arguments to the U.S. Supreme Court are so vital
Published: May 18th, 2020
Oklahoma City – Just a few days ago, the U.S. Supreme Court heard oral arguments in the case of McGirt v. Oklahoma.
Attorney General Mike Hunter, in press comments after the state Solicitor General made powerful arguments in the case, praised his deputy for effective arguments. He was right to do so. (http://city-sentinel.com/2020/05/attorney-general-mike-hunter-comments-following-oral-arguments-in-mcgirt-v-oklahoma-at-the-u-s-supreme-court/).
The High Court finally heard, clearly laid out, the argument to leave eastern Oklahoma under the control of the government of Oklahoma – other than for particular and broadly supported exceptions honoring tribal rights.
Hunter himself sidestepped the argument over whether or not Creek areas pre-statehood were a reservation as generally understood, or a dependent Indian community.
Without rehearsing past grievances about Hunter and the Big Tribes, it is important to understand how significant it was that he allowed Solicitor General Mithun Mansinghani to make the argument right arguments.
Mansinghani argued that for purposes of this case the Creek areas are a dependent Indian community.
Rationally and legally, there is nothing particularly innovative or shocking about that (see below) but let’s be clear: This position has potential to transform an economic juggernaut the state’s Big Tribes have built while advancing their power as a result of faulty decisions at the Bureau of Indian Affairs. Along the way the tribe has manipulated the political and legal class, and much of the state’s private sector leadership, through raw monetary clout.
These tribes have supported Hunter in the past and most likely will still do so in the future. But the McGirt case could shift the tide in Oklahoma, opening the door for more equitable treatment of smaller tribes and nations, and more rational gaming compacts (among other things) between the tribes and the state.
State Solicitor General Mansinghani focused on U.S. Supreme Court precedent in Alaska Native Village of Venetie Triba government v. Alaska (https://supreme.justia.com/cases/federal/us/522/520/) in 1996. He wove into his presentation an old Supreme Court case involving the Creek Nation itself. That case said, in layman’s terms, that when lands are held for tribal members in “fee simple” with the ability to sell (instead of being held for the benefit of such tribes as reservations) the status is, in the end, similar (for purposes of “reservation, or not”) the same as in the rest of Oklahoma for other tribes/nations.
I learned long ago that oral arguments before the U.S. Supreme Court, and for that matter legal briefs, are only part of the drama and texture in significant cases. But saying “only part” does not mean the discussion (which last Monday took 90 minutes, longer than usual) and questioning is mere by-play.
It seems sound to assert that Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg (constituting the “liberal” wing of the court) will deem the argument Mansinghani made as a threshold for deciding the issue.
I believe three or perhaps four of the judges in the “conservative” wing will do the same.
In this and in another important case, Murphy v. Oklahoma, the court majority has been rather publicly, without articulating such, seeking a way NOT to tear Oklahoma apart as a state.
It will be no shock if, contrary to expectations, this is one of those historic 9-0 conclusions that sets a broad framework for Indian law here and at least some other parts of the country.
The thing is: Unanimous Court decisions often mean: Details to follow (i.e. in future litigation).
The argument Mansinghani posited, a fully sound one in terms of law and history, was not advanced in earlier arguments in the Murphy litigation.
Mansinghani is a rising star in tribal law, and why not? Someone had to be willing to state the obvious. Nonetheless, first discerning and then stating the obvious is sometimes an exercise in courage for public officials.
Perhaps because of concerns about federal powers, the Deputy United States Solicitor General Edwin S. Kneedler was unwilling to go as far as Mansinghani did. His analysis favored the idea that Eastern Oklahoma was at one time a reservation, but that that status changed at statehood. Fine so far as it went, but that analysis was/is not enough, in this writer’s view, to reach the judicious result.
That federal view advanced in this matter is inconsistent with Supreme Court precedent on disestablishment of reservation cases as found in Solem v Bartlett. That one involved white settlement in areas intended to be treated as under native control. Complicated, but the High Court held that without language to the contrary, a reservation remained intact.
Applied here in Oklahoma (without taking into account the state’s particular history and the meaning of the treaties and other accords) the U.S. government silence could allow Big Tribes to continue claiming that nearly all of eastern Oklahoma is a reservation, transferring more or less all meaningful jurisdiction away from the State.
Decision-making at the Bureau of Indian Affairs for the last 16 years (longer in some instances) has resulted in the Big Tribes having perhaps six dozen casinos enter trust status for ostensibly non-casino purposes – but were then developed as casinos.
Those lands and those casinos never went through the various requirements and processes in place guiding the purposes for which lands are legally taken into trust (including environmental and other strictures). (https://oklahoman.com/article/2871130/casinos-bia-has-helped-indian-gamblingbrsome-tribes-skirt-land-rules)
Confused? Don’t be. The state of Oklahoma did the right thing, using the right argument, in the right way, and in the right case, at the right time.
If the U.S. Supreme Court agrees (and I believe they will), the future will be brighter for more of Oklahoma’s Native Americans – and for all the rest of us.
NOTE: Patrick B. McGuigan is publisher and editor of The City Sentinel newspaper. He is also the founder of CapitolBeatOK, an online news service.