Oklahoma and the Five Tribes

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of fed­eral criminal law. Because Congress has not said other­wise, we hold the government to its word.” —Opinion of the Supreme Court, delivered by Justice Gorsuch.

This ruling (linked below), somewhat overshadowed by the Court’s pronouncements on Mr. Trump’s tax returns the same day, significantly affects the relationship between the State of Oklahoma and the Five Tribes that have resided there since traversing the Trail of Tears in the 1830s: the Creek, Cherokee, Chickasaw, Choctaw, and Seminole.

The case began with a jurisdictional challenge by Jimcy McGirt, a Seminole man convicted in state court of raping a four-year-old child; it ended with the Supreme Court determining that the Muscogee (Creek) Nation reservation, where the crime took place, had never been disestablished by law and thus remains in existence today. The same logic is likely to apply to the other four tribes, whose combined reservation lands would cover most of eastern Oklahoma, including the city of Tulsa. That area’s population today is about 10-15% American Indian.

The ruling will compel Oklahoma, the federal government, and the Five Tribes to think through the complex federalism that exists where federal, state, local, and tribal authority overlap on the same territory. Its immediate legal effect seems to be that Indians charged with crimes in Eastern Oklahoma will be tried in either tribal or federal courts, rather than state courts, and that all Indians residing on that reservation land may be exempted from some state tax. The State would continue to perform its normal functions otherwise.

There is a feeling of justice fulfilled, in that the ruling affirmed the lasting duty of the United States to uphold its laws and treaty obligations, even where those obligations have been ignored or subverted in the past. Yet there are also issues regarding local governance, particularly in zoning and land use, that could arise from it. Important principles are at play: the right of the Indian Nations to exercise their due amount of sovereignty over those lands, and the right of the area’s (now mostly non-Indian) inhabitants to have a say in their local government.

The parties involved seem to be off to a productive start: federal attorneys, the State, and the Five Tribes have announced that they are all working together on a new legal framework for the area concerned, which they will present to federal authorities in Washington. They have a chance to show our Republic and the world a new model for how the several States and the American Indian Nations can coexist as partly-sovereign entities within our common Union. And the first step may be to show that they can still hold Mr. McGirt accountable for his crimes.

No. 2 – On Federalism

No. 9 – On Citizenship

https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf

Representation for Washington, D.C.

“The Congress shall have Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” —Article 1, Section 8 of the U.S. Constitution.

The bill recently passed by the House of Representatives to confer statehood upon Washington, D.C. proposes a solution to an old problem: that, in the District of Columbia, a great number of U.S. citizens — now more than 700,000 — do not possess a vote in Congress.

It is clear, as a matter of republican principle, that the inhabitants of Washington, D.C. ought to be represented in the government of the Union. Just governance obtains the consent of the governed, and in a republic that consent is obtained through the election of representatives who vote on their constituents’ behalf in the legislature. This logic applies as much to the federal capital as it does to the rest of the country. A city must have permanent residents in order to function; those residents are citizens of the United States; and citizens of the United States ought to be represented in Congress.

Some form of representation for the residents of Washington, D.C., furthermore, appeared to be the Founders’ intent. As James Madison wrote in Federalist No. 43, two years prior to the District’s establishment in 1790:

“And as [the District] is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them…every imaginable objection seems to be obviated.”

More than two centuries later, that intention remains partially unfulfilled. The parts of it that have been realized came but slowly: Washington, D.C. received Electoral College representation with the ratification of the 23rd Amendment in 1961, and was allowed an elected local government with the passage of the District of Columbia Home Rule Act in 1973. Congressional representation, the last remaining part, is long overdue to the permanent residents of Washington, D.C.; and it ought to be provided, in some form, without further delay.

However,

The Founders did not intend the federal capital to be a State. Their reasoning rested on sound logic: that no State ought to have undue influence over the Union by having jurisdiction over the grounds on which the government of that Union convenes. As Mr. Madison also wrote:

“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. …Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the [Union].”

The present bill proposes to address this imperative by creating a new State out of the residential and commercial areas of the city, while maintaining the present federal District in a reduced area comprising the principal federal buildings: the Capitol, White House, and Supreme Court, as well as the Department of State and certain other federal agency headquarters, and the National Mall and its monuments. It would thus in theory ensure Congressional authority over the effectual seat of the federal government, defined as the buildings most essential to that government’s operation.

This solution, to the layman’s eye (such as my own), appears constitutional: Article 1, Section 8 requires only that Congress exercise exclusive legislation over the seat of government of the United States, and that the maximum size of this seat be ten miles square; it does not specify a minimum size, and does not prohibit the reduction of this area, so long as Congress gives its assent.

Yet a practical question arises as to whether a new State of Washington, D.C. that controls most of the existing capital city might nonetheless have undue influence over the federal government, even if its territory does not include the main federal buildings. For instance, federal officials would have no option but to live and pay tax either in that State, or in Maryland or Virginia; the principal federal buildings would likely rely on public services, such as garbage collection, that are provided by the new State; and, as Union Station is outside the reserved enclave, the federal government would not be guaranteed uninterrupted access to a transportation hub.

Or, as Mr. Madison put it:

“This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.”

The inverse of this issue, that a State of Washington, D.C. might itself be unduly dependent on the federal government, and thus unable to exercise the partial sovereignty that statehood entails, also warrants examination. The present District’s water supply, for instance, is controlled by the Army Corps of Engineers. Its economy, moreover, is singularly reliant on the federal bureaucracy — even more so than those of Virginia or Maryland.

The present bill does not fully address those considerations, but instead leaves them to an appointed commission that would be convened only after the bill becomes law.

Furthermore,

The claim that the bill would not require a constitutional amendment seems misleading. Admitting a new State, it is true, only requires a majority vote of both houses of Congress. Yet the admission of Washington, D.C. as a State would necessitate repeal of the 23rd Amendment, which established a special formula for the District’s Electoral College representation. If that Amendment were to remain in effect after a new State is formed from the greater part of the city of Washington, it could be construed as to transfer the present District’s three electoral votes to the residents of the federal remnant — which, insofar as the White House is the only residential building in that enclave, would consist mainly of Presidents and their families. The demerits of giving incumbent Presidents such direct influence over their own re-election are self-evident.

The repeal of the 23rd Amendment would itself have to be a constitutional amendment, as the repeal of Prohibition was. It ought to be timed so as to take effect at the same moment that a new State is formed. The current bill makes no such provision, instead arranging only to expedite Congressional consideration of the repeal.

Alternatively,

It is conceivable for the inhabitants of Washington, D.C. to be accorded voting representation in Congress, as is their due, without the District assuming the reserved powers of statehood, which could undermine Congressional jurisdiction over the federal capital. In a federal republic such as ours, we associate representation with the partly-sovereign status of statehood; yet in the centralized governments of Europe, the subordination of administrative districts to the central government does not preclude their inhabitants’ representation in the national legislature. Such a status would appear to be what Mr. Madison had in mind for the District of Columbia.

Accordingly, contained in these essays (No. 9 – On Citizenship) is a proposal that Washington, D.C. — and, separately, the smaller U.S. territories overseas — be granted voting representation in the House of Representatives as a special district, without being made a State. This proposal was founded on the logic that the House is meant to represent the people directly, whereas the Senate is meant to represent the States; and thus representation in the House need not be contingent on statehood. Such an arrangement would require a constitutional amendment to enact, though it would also allow the 23rd Amendment to remain in place.

Other alternatives appear inadequate. A return of most of the present District to Maryland — which originally ceded the territory — would incur the same considerations of undue influence, and it would require the District’s residents to relinquish their separate political existence, maintained for more than two centuries, which they understandably seem reluctant to do. It would furthermore require the assent of the Maryland legislature, which itself might not be forthcoming. Proposals for residents of Washington, D.C. to count as Maryland residents for representation, while leaving the territory outside the jurisdiction of the State of Maryland, would distort Maryland’s politics and muddy the concept of statehood generally. Bestowing both House and Senate representation on the District without conferring statehood, as the unratified District of Columbia Voting Rights Amendment of 1978 proposed, would confuse the federal aspect of our Union by altering the Senate’s role of representing co-equal and partly-sovereign States.

Therefore,

Washington, D.C. ought either to be admitted as a State if — and only if — a bill doing so can convincingly address the practicalities of undue influence and make its enactment contingent on repeal of the 23rd Amendment; or else voting representation in the House of Representatives ought to be provided for the residents of Washington, D.C. by constitutional amendment, while retaining Congressional jurisdiction over the whole District.

If there are adequate practical means to ensure that Washington, D.C., as the bill proposes, may be admitted to the Union “on equal footing with the other States in all respects whatever,” without undue influence over the federal government, then those means will arise in the course of scrutiny and debate. In considering such solutions, it would be valuable to draw from the experience of the federal government’s dealings with Virginia, to whose jurisdiction Arlington and Alexandria were returned from the District of Columbia in 1847 with the acquiescence of Congress. The Pentagon is located in Virginia, as are the metropolitan area’s principal airports.

To this end, the Senate ought to consider the present bill on its merits, amend it as necessary, and vote on it; and then propose a new bill or constitutional amendment if the present measure fails to pass. If this Senate refuses to debate this bill out of partisan disdain, then the matter ought instead to be taken up by the next Congress.

Finally,

Whether or not this bill, or a variant of it, becomes law, it is worth noting that its sponsors chose a worthy name for the State which would arise from it. Washington, Douglass Commonwealth preserves the form, “Washington, D.C.,” that the city’s residents and all Americans have long been accustomed to; it continues to honor George Washington, who watched over our Republic in its infancy; and it bestows deserved recognition on another great American, Frederick Douglass, who gave our Union, then in its adolescence, the advice it needs to mature with dignity today.

No. 3 – On Representative Government

No. 9 – On Citizenship

Equal Protection of the Laws

Originally posted on May 31, 2020

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” —Section 1 of the Fourteenth Amendment to the U.S. Constitution.

With these words in mind, I have three points to make:

1. It is evident that the 14th Amendment, and thus the Constitution of the United States, is not being uniformly upheld. This is clear in two particular cases and implied in the aggregate.

George Floyd and Ahmaud Arbery were deprived of their lives without due process of law. Whether or not they actually committed the offenses that their killers accused them of is irrelevant; they were never given the chance to defend themselves in court. Mr. Arbery, after his death, seems moreover to have been denied the equal protection of the laws, insofar as his killing was not prosecuted for months. The argument that Mr. Arbery was killed in self-defense because he attempted to seize a weapon does not have moral weight. Mr. Arbery was cornered by armed strangers; he could not be sure of their intention; he himself possessed an inherent right to self-defense. His decision to fight may have been tactically ill-judged, but it was morally justified.

In the aggregate, credible figures have accumulated over the past several years that black men are far more likely than others to be the subject of law enforcement action, and form a disproportionate share, relative to their proportion of the country’s population, of those killed in the course of such encounters. Likewise, they comprise a disproportionate share of prison inmates. This suggests unequal enforcement of the laws, resulting in many instances in the deprivation of life without due process of law, and perhaps also the deprivation of liberty with inadequate due process.

That is not to say that all law enforcement action involving black men, or any other subset of Americans, is unjust. Rather, it is the persistent disproportionality that is suspect. To be comfortable with those aggregate figures, one would have to assume that one type of American is substantially more inclined to criminality than the rest of his countrymen. That assumption is contrary to the principle, fundamental to republican thought, that human nature is universal and constant; and thus the failings of human nature ought naturally to be found in similar proportion across ethnic or racial groups.

Or, as Frederick Douglass put it more than a century ago:

“I want to be understood at the outset. I do not pretend that negroes are saints or angels. I do not deny that they are capable of committing the crime imputed to them, but I utterly deny that they are any more addicted to the commission of that crime than is true of any other variety of the human family.” (“Lessons of the Hour” Speech, January 9, 1894).

This problem, as the date of Mr. Douglass’ speech reveals, is not new. But the fact that it lingers today ought to trouble all patriotic Americans, whose loyalty is due to the Constitution of the United States and the principles it contains.

Nonetheless,

2. Our Republic is not backward or malevolent. It has reformed itself again and again over the years, gradually making moral progress. It has done so because its citizens are free and willing to protest its failings, and to cast their votes in pursuit of its improvement. That fact must not be taken for granted; citizens of many other countries cannot or do not speak out, protest, or vote. It is also why the Constitution must be taken as a whole. Its different parts reinforce each other: upholding the 1st Amendment shall aid the fulfillment of the 14th, and vice versa. The converse is also true: discarding the entire “system” because one part is not working as it should shall only render the deficiency more difficult to solve.

Put differently, a country at any given time is the sum of its people and the principles it is founded upon. Our country’s principles – many expressed in the 14th Amendment – are good. That leaves us citizens, the imperfect implementers of those principles, at fault for its failings. Yet self-hate rarely accomplishes anything. Hard work does. So do not despise your country; expect better of it.

However,

3. Wanton destruction impedes the betterment of our Union. Sympathy with the grievance is not a reason to condone riots. Yes, murder is a more severe crime than destruction of property; but in no way does the murder of some permit or excuse burning the livelihoods of others, especially those who are entirely unconnected to the crime. Rather, rioting is directly contrary to the 14th Amendment: it deprives citizens of life, liberty, or property without due process of law. It is unjust; it must stop.

If it will not stop, but instead must be stopped by lawful authorities, that ought to be done only with proportionate means, without vindictiveness, and without harm to the peaceable protestors who are exercising one of their most fundamental liberties.

This is merely my appraisal of the principles. As this issue plays out on the streets, in the courts, and in the halls of government, it is more complex, more emotional, and more dangerous. But the principles ought nonetheless to guide us.

No. 1 – On Fundamental Liberties

No. 9 – On Citizenship

https://apnews.com/bee77c500c44054c48448d6f1f26