M. Todd Henderson on Federal Indian Law and the Legal Status of Eastern Oklahoma

Should federal Indian law be textualist?

Last year, the Supreme Court heard arguments, and requested extensive supplemental briefing, in Royal v. Murphy (now called Sharp v. Murphy) a complicated murder case involving federal Indian law. The Court was unable to decide the case last year and so it remains on the docket this year and for that reason alone seems poised to be complicated and quite intricate.

My colleague Todd Henderson teaches Indian Law here at Chicago and we've repeatedly discussed this case, so I wanted to pass along his thoughts about this case, and the problem that the Supreme Court's precedents in this area have created for itself.

Is half of Oklahoma—home to nearly 2 million people, many in the city of Tulsa—an Indian reservation? The Supreme Court will decide this year, and the answer may turn on the text of various statutes and treaties signed over a century ago. The laser-focus the specific words of these laws is a form of legal interpretation known as "textualism"—if the text is clear, so the theory goes, then inquiries into context or consequences is irrelevant. While there is much to be said for such a simple approach, in this case, the Court is being led astray by it.

The jurisprudential story starts in 1984 with a case called Solem v. Bartlett. In Solem, the Court considered whether in opening 1.6 million acres of the Cheyenne River Sioux Reservation to homesteading in 1908, Congress intended to "disestablish" the Reservation in the opened lands. Writing for a unanimous Court, Justice Thurgood Marshall held that it did not. Marshall ignored the fact that Congress—"to a man"—believed that Indian reservations would "cease to exist" within a short time after passage of the Act, concluding "[t]he most probative evidence of congressional intent is the statutory language used to open the Indian lands" rather than what everyone knows they intended.

Read more at The Volokh Conspiracy