Elizabeth Reese on McGirt: “Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma”

In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:

The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.

The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.

That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.

That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.

At times like this I think that Lady Justice must have a sense of humor.