Chief Justice Roberts, who dissented in McGirt, described the Court’s “well-settled” approach: “We determine whether Congress intended to disestablish a reservation by examining the relevant Acts of Congress and ‘all the [surrounding] circumstances,’ including the ‘contemporaneous and subsequent understanding of the status of the reservation.’” The Court has acknowledged that “explicit language” is not needed for a finding of disestablishment. Roberts explained, “The appropriate inquiry does not focus on the statutory text alone.” Without question, the Court has adopted a framework that favors Congress, to the detriment of the tribes. These precedents put a thumb on the scale of disestablishment.
Julian Brave Noisecat: The McGirt case is a historic win for tribes
This sort of fluid approach is, no doubt, a bitter pill for textualists to swallow. So in McGirt, Justice Gorsuch simply spit it out. Unlike in Bostock, Justice Gorsuch refused to treat the Court’s non-textualist precedents concerning Indian territory as part of the “law’s ordinary meaning.” He did not approach Congress’s entire body of work as the Court has instructed. Over the course of many years, Congress diminished the tribes’ authority, and established a commission to bring the territory under the jurisdiction of the state of Oklahoma. But Justice Gorsuch deemed this evidence too fragmented to establish a unified congressional intent. Rather, he inspected individual congressional actions that concerned the territory in a fragmented, balkanized fashion. Unsurprisingly, Congress did not meet his novel standard for disestablishment. As a result, Justice Gorsuch found that Congress’s 1833 promise to the tribes had not been explicitly repealed, and remained in effect. Congress hadn’t said the magic words. And how could it? Until McGirt, no one knew the precise textual standard that was needed to disestablish a reservation. In this case, Justice Gorsuch’s halfway textualism has literally cut Oklahoma in half.
Let’s put these two decisions in perspective. In Bostock, Justice Gorsuch quietly accepted precedent that paid little attention to text. In McGirt, he quietly rejected precedent that paid little attention to text. In both cases, he erected elaborate textualist structures on top of a foundation well worn by the Court’s prior decisions. And in neither case did he acknowledge the relationship between precedent and textualism. In doing so, I believe the justice erred.
Generally, the Supreme Court will follow the doctrine known as stare decisis, which is Latin for “to stand by things decided.” (I say generally because justices of all stripes can always muster sufficient justification to overrule old decisions.) Textualists, particularly those of an originalist bent, have an especially tough time with stare decisis. In many instances, the text of a statute, or the Constitution, has a meaning that conflicts with the Court’s long-standing interpretation. Or the Court has adopted a method of reading a specific statute that requires consideration of subjective extrinsic factors, such as legislative history or policy concerns. What is a textualist to do? There are three general approaches.