An Indian, a Creek, stands accused of murdering a fellow tribesman. He was arrested on the Creek’s Oklahoma reservation, and with that, he’s demanding that he be tried in Federal court rather than in an Oklahoma State court. The matter of which court should have jurisdiction, which centers on the existence or absence of the Creek Nation reservation in Oklahoma, now is before the US Supreme Court.
The government’s lawyer, US Deputy Solicitor General Edwin Kneedler, declaimed
This would be a dramatic change from the way everyone has understood it for the past 100 years[.]
He continued:
[A]ny crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the US attorney resources, the other resources.
With that he argued—with a straight face—that the government’s convenience is legitimate reason for denying justice. On the contrary: if government agencies lack the resources to do their jobs, it’s Congress’ responsibility to get them the resources, not an individual’s responsibility to surrender his right to justice.
It gets worse, from no less a light than Justice Brett Kavanaugh, especially in light of the fact that Congress has not—ever—abolished the Creek reservation, even as it has, step by step, removed critical aspects of Creek Nation sovereignty on that reservation:
Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?
That’s a breathtakingly Brandeis-ian view of justice from an avowed textualist. It’s better, opined Brandeis—and now Kavanaugh—that the law be settled than that it be settled right. Wow.
Here’s the depth of the injustice that’s being argued should be maintained:
In treaties dating from the 1830s, the US pledged to “secure a country and permanent home to the whole Creek nation of Indians,” yet in following decades it took official and practical steps that stripped them of both power and property.
And, with no hint of irony whatsoever,
[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part. Since Congress never expressly voted to abolish the reservation, attorney Lisa Blatt, representing Oklahoma, pointed to a series of steps that she said effectively did the same thing—abolishing tribal courts, canceling tribal taxes, making tribal law unenforceable, compelling the tribe to sell its property.
And the governments’ lawyers argued further that correcting this long-standing injustice would present chaos to the State and to the Federal governments: that lack of resources mentioned at the outset and, given the size of the Creek reservation compared to the size of Oklahoma, to the manner in which the State would have to enforce its laws.
But this is a cynical distortion of the matter. The chaos already exists in the loss of access to justice for all those decades of years. Certainly, there would be some disruption were the governments involved required to correct their ancient error, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the instability of an arbitrary breakage of it.
That an injustice has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.
