Sorites Paradox and the Challenge of Originalism in McGirt v. Oklahoma

The complicated relations between Native Americans and the United States took an interesting turn on July 9, 2020, when the U.S. Supreme Court released its ruling in McGirt v Oklahoma (2020). The respondent, Jimcy McGirt, was convicted of raping his wife’s four-year-old grandchild and sentenced to one thousand years in addition to life in prison by an Oklahoma state court. [1] However, McGirt later claimed that because his crimes were committed on Creek Reservation Land secured by an 1832 treaty between the U.S. Government and the Creek (Muscogee) Nation, Oklahoma could not prosecute him. Instead, he was subject to federal criminal prosecution pursuant to the Major Crimes Act of 1885, which states that an Indian who has committed a grave criminal offense on reservation land “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” [2] In effect, McGirt’s state court conviction would no longer apply, releasing him back into civil society and awaiting a retrial in federal court.

A divided Supreme Court ruled five to four in favor of McGirt. Justice Neil Gorsuch delivered the opinion of the Court, arguing that after an 1866 treaty with the Creek Nation, there was never any act of Congress that “dissolved the Creek tribe or disestablished its reservation.” [3] The implication of this decision is that the Oklahoma reservation still exists and allotment practices beginning in the early twentieth century had no effect on the reservation.  However, Chief Justice John Roberts dissents, “the Court has profoundly destabilized the governance of eastern Oklahoma” by “preferring to examine only individual statutes in isolation” rather than a culmination of treaties that resulted in the eventual allotment of native land to outsiders—an action viewed by both natives and the United States at the time as the death of the reservation according to Roberts. [4] Consequently, Chief Justice Roberts believes the Court’s decision upsets traditional originalist standards of approaching Indian Canon Law as established and recognized in notable cases like Worcester v. Georgia (1832) and Nebraska v. Parker (2016). In the context of McGirt, this interpretive debate raises a philosophical predicament similar to the Sorites Paradox and brings up disagreements regarding the proper “originalist” approach to “Indian Canon Law.” The controversy lies in the way that statutes and treaties are read by judges, and whether these interpretations coincide with the way they were originally intended to be understood. 

“Indian Canon Law,” as a legal category, developed following the Supreme Court’s 1832 landmark decision Worcester v. Georgia in which the majority affirmed that the Cherokee Nation constituted “a distinct community occupying its own territory, with boundaries accurately described” that was both sovereign and dependent on the United States. [6] In post-Worcester cases, four “Indian law canons of construction” (as enumerated by Professor Felix Cohen, an American lawyer and legal philosopher, in Handbook of federal Indian Law) emerged and provided a framework for determining a tribe’s rights to autonomous government and self-rule. [7] These canons require that while considering a decision regarding a treaty or a matter that may impact Indian self-government, judges must “(1) interpret Indian treaties ‘as the Indians would have understood them,’ (2) construe them ‘liberally . . . in favor of the Indians,’ (3) resolve all ambiguities in the Indians’ favor, and (4) preserve tribal property rights and sovereignty unless a contrary intent is clearly stated.” [8] However, when dealing with statutes and treaties written centuries ago, identifying the way that Indians would have interpreted a text at the moment of its adoption is tricky given the linguistic, cultural, and temporal barriers to establishing a clear historical context. [9] Thus, courts often rely on the last three canons in order to infer the tribe’s original interpretation of the agreement in question. [10]

Yet, this approach is riddled with interpretive problems. Indian history is a subject of enormous controversy. Scrutinizing texts to determine a specific historical reality is a complicated matter that may result in the favoring of one statute over another. Judges can misinterpret a text’s role within a general historical trajectory, with devastating political consequences in the present day. For example, in the case of allotment of native land, a historical development central to McGirt, two major acts of Congress affected the development of eastern Oklahoma: the 1866 United States treaty with the Creek Nation and the General Allotment (Dawes) Act of 1887. [11] [12] Both of these acts displaced natives and led to the migration of settlers into eastern Oklahoma. On the modern day reservation land, there are currently 1.8 million residents, out of whom “only 10%-15%... are Indians.” [13] These demographics resulted, in part, from the 1866 treaty and the Dawes Act. 

This demographic situation in contemporary eastern Oklahoma presents a practical version of Sorites Paradox. One version of the paradox is that of the sand heap in which the premise that “one million grains of sand makes a heap” leads to a regression in which a grain of sand is subtracted each turn and the pile of sand remains a heap each time until only one grain of sand remains. [14] This yields two contradictory statements: “no number of grains make a heap” and “any number of grains make a heap.” [15] Extending this conclusion to McGirt, when the reservation started permitting non-Indians to settle, at what point was the reservation no longer an Indian reservation? Although the Dawes Act “opened up” the reservation to settlement by outsiders, was this an attempt by Congress to diminish the reservation to the point of irrelevance without officially abolishing the reservation?

Solem v. Bartlett (1984) was a case involving the South Dakota Cheyenne River Sioux Reservation’s status under the Cheyenne River Act, which allowed the United States to sell parts of the reservation. The Court concluded, “in the absence of some clear statement of congressional intent to alter reservation boundaries, it is impossible to infer from a few isolated and ambiguous phrases a congressional purpose to diminish the Cheyenne River Sioux Reservation.” [16] According to the Court, even though some “diminishment” may have occurred, there was no confirmation that Congress explicitly intended to do so. In McGirt, the majority opinion qualifies this point of view, affirming that the 1901 allotment agreement for the Creeks continued “the Legislature’s general practice of taking allotment as a first, not final, step toward disestablishment and dissolution.” [17] The majority suggests Congress attempted dissolution of the native reservations but was unsuccessful. Disagreeing with both opinions, Chief Justice Roberts explains in his McGirt dissent that the influx of settlers resulted in economic discrepancies and segregation between white settlers and Indians in Oklahoma. [18] Congress thus “eliminated the foundation of tribal sovereignty, extinguishing the Creek Nation’s title to the lands,” rendering tribe members citizens of the United States who later participated in the formation and ratification of the constitution of Oklahoma. [19] 

The first two decisions view allotment as a practice that did not dissolve the Creek Nation while the third opinion views allotment as the relinquishment of a distinct national tribal identity and autonomy. Individual judges may deliberately or inadvertently adopt a particular statutory interpretation that aligns with their political views. Consequently, McGirt indicates the need for a serious inquiry into the difficulty of objective historical analysis and the impartial interpretation of texts in Indian Canon Law.

Edited by Jessica Lin and Tiffany Jing

[1] McGirt v. Oklahoma, 591 U. S., at ___ (2020) (Roberts, C.J., dissenting) (slip op., at 1).

[2] Major Crimes Act, U.S. Code 18 (1885) §1153 (a).

[3] McGirt 591 U. S., at ___., (majority opinion) (slip op., at 17).

[4] id at ___,___ (Roberts, C.J., dissenting) (slip op., at 1, 2).

[6] Worcester v. Georgia 31 U.S. 515, 561 (1832).

[7] “Indian Canon Originalism,” 126 Harvard Law Review 1, 1100 (2013) (quoting Cohen’s Handbook supra note 6, § 2.02(1), at 119–20.).

[8] id

[9] id at 1104

[10] id at 1104

[11]  D. N. Cooley and Elijah Sells, (1866) U.S. Treaty With the Creek Nation, Blackpast (2007), online at https://www.blackpast.org/african-american-history/u-s-treaty-creek-nation-1866/ (visited August 3, 2020).

[12] U.S. Congress, 1887 Allotment Act, 49th Congress, 2nd sess., February 8, 1887. 

[13] McGirt 591 U. S., at ___., (Roberts, C.J. dissenting) (slip op., at 1).

[14] Dominic Hyde and Diana Raffman, “Sorites Paradox,” The Stanford Encyclopedia of Philosophy 1, 2 (2018) https://plato.stanford.edu/archives/sum2018/entries/sorites-paradox/. 

[15] id

[16] Solem v. Bartlett 465 U. S. 463, 478 (1984).

[17] McGirt 591 U. S., at ___., (majority opinion) (slip op., at 14).

[18] id at ___ (Roberts, C.J., dissenting) (slip op., at 5).

[19] id at ___ (Roberts, C.J., dissenting) (slip op., at 5).