So far, 2020 has been quite the year.
President Donald Trump continually attracts news coverage, until even he was upstaged by the novel coronavirus’ departure from China. Black Lives Matter rose up, protestors burned police precincts, and “defund the police” became a politically-viable policy position.
Confederate monuments have been (rightly) removed. But how were “ murder hornets” only a thing for a week? And, not to be outdone, police in Tennessee have warned about “meth-gators.” That latter one may be a bit tongue-in-cheek, but Japanese bears have undisputedly learned to use nunchucks.
“Eventful” is probably an understatement.
With all that — and more — going on, you may have not seen what happened in Washington with Native Americans. No, I’m not talking about the football team formerly known as the Redskins.
I’m talking about McGirt v. Oklahoma.
Plenty of popular ink has been spilled surrounding some of the Supreme Court’s other cases this past term. Subpoenas over Trump’s records created rancor, even though they had seven justices — including Ruth Bader Ginsberg and Brett Kavanaugh — in the majority. Abortion cases garnered their fair share of political attention.
But McGirt v. Oklahoma is a pretty compelling story. Jimcy McGirt was a convicted sex offender in Oklahoma. However, he is a member of the Seminole Nation, so he claimed the state could not legally prosecute him. In 1885, Congress passed a law known as the “ Major Crimes Act” that said any Indians committing certain crimes “ within the Indian country” must be tried in federal court.
Compelling background, right?
The wrinkle for McGirt concerned the definition of “Indian country.” Our nation’s history with Native Americans is complex, to say the least.
Going back to 1832, Congress made a treaty with the Creek Nation. The United States received the land of the Creeks east of the Mississippi while guaranteeing them their lands to the west. Those lands are now in Oklahoma.
I’ll jump to the punchline. In a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court of the United States held that 19 million acres — essentially the entire eastern half of Oklahoma — remained “Indian country” for the Creek Nation. So McGirt could not legally be tried by the state of Oklahoma; federal authorities would now need to charge him.
Gorsuch wrote, essentially, that Congress had legally ratified the treaty and would be held to it. If they wish to change it or the underlying statute, that is their prerogative, but they must actively do so. A valid treaty, however old, deserves enforcement.
It is also telling that Gorsuch was the author of the “ LGBT” cases this term. Again, he wrote that Congress’ duly-enacted statutory text should be applied. Which led to the “liberal” result.
This is great perspective to keep as we head towards what seems as if it will be the worst part of 2020: the general election. Even with the primary over, the onslaught of ads attacking Susan Collins and bolstering Sara Gideon has not abated. And outside groups will undoubtedly try to make the Supreme Court painfully political in their attempt to win a Senate seat.
But it is the legislative branch of government which makes law. Gorsuch — confirmed by Sen. Collins, attacked by Gideon — recognized that. If Congress passes a bad law, so be it; that is their prerogative. Yet it is not for the courts to override the foolishness of legislators, but rather incumbent on legislatures to go to work and attempt to make better laws.
Although this process may be slow, Gorsuch reminds us “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”
The same should hold true as we approach November. Political acts, performed vigorously through the remainder of election season, will hopefully not turn the Supreme Court into a mere political battleground. If they do, that will be the worst outcome of this crazy year.
Michael Cianchette is a Navy reservist who served in Afghanistan and in-house counsel to a number of businesses in southern Maine. He was a chief counsel to former Gov. Paul LePage.