In a shock decision, the US Supreme Court recently ruled in McGirt v. Oklahoma, that nearly half the state is actually under the jurisdiction of the Muscogee Indian Reservation. Yet one must wonder if the justices have ever read the Document, which by job definition, they are supposed to interpret.

The majority, led by Associate Justice Neil Gorsuch, propose to create a de facto state, from parts of Oklahoma. But this appears to be illegal – even if the Court thinks such a thing is not possible.

Article IV, Section 3, United States Constitution reads: “New states may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress…and nothing in this Constitution shall be so construed as to Prejudice any Claims…of any particular State.”

As the reader can see, the U.S. Supreme Court is not included as a concerned party, where the discussion turns to the creation of new states.

Justice Neil Gorsuch and his peers argue that there is nothing to worry about and everyone is going to get along just fine, that nothing has really changed. But something has changed. The SCOTUS, even if it has not attempted to create a de jure state from parts of Oklahoma, has arrogated to itself a power to modify the extent of Oklahoma’s sovereignty, in favor of the Muscogee Tribe, creating in effect, a sub-state within that state. As a redefinition of the sovereignty of Oklahoma within its own borders – with neither the consent of its legislature nor Congress – this appears to be equally unacceptable.

The Supreme Court’s conduct in this instance may be an outgrowth of Congress’ past practice of granting ‘federal recognition’ to Indian tribes, just decades ago. Often, this ‘federal recognition’ coincided with strong lobbying by gaming interests to set up casino enclaves, within the newly-minted Indian ‘nations’. Yet it was never intended that Congress should have authority to grant ‘federal’ recognition to Indian tribes, which were members of existing states. In 1789, had the several States suspected that the presence of Indian tribes would allow the U.S. to meddle in their internal affairs, they would not have ratified the Constitution.

It is difficult to say what motivated the conservative justice to vote as he did. Perhaps Gorsuch was motivated by a desire to appear progressive. But such a weakness of character would leave the several states at the mercy of whichever trend the Justices decide to capitulate to. So the states are left to fend for themselves.

As a first step toward affirming its sovereignty, the Oklahoma Legislature can vote to repudiate the findings of the US Supreme Court, in line with the protections of Article IV, Section 3. The last time any state nullified a US Supreme Court ruling was in 1857, in the aftermath of Dredd Scott v. Sanford; in that case, the Court ruled that Scott was the property of Mr. Sanford, though he had escaped to a free state. Several northern states passed laws that declared runaway slaves free, should they make it into their jurisdictions. That in effect negated the Court’s decision. In the current situation, a nullification vote by the Oklahoma Legislature would not only interdict the Court’s over-reach, it would break that aura of judicial infallibility, with which the SCOTUS surrounds itself.

Whether Congress supports Oklahoma or not, the most important thing is that Oklahoma support itself: and that only requires the State Legislature to say “NO” to the U.S. Supreme Court.

Patrick Cloutier

East Hampton, CT

Mr. Cloutier is the author of Mussolini’s War in Spain 1936-1939. Italian Intervention in the Spanish Civil War.

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