July 2020 Archives

Hello from Tulsa, M.C.N. We're not in Oklahoma any more.

This morning, in a 5-4 decision, America's permanent super-legislature voted, in the case of McGirt v. Oklahoma, to liberate convicted child molester Jimcy McGirt by ruling that all the lands within the 1866 boundaries of the Muscogee Creek Nation continue to constitute an Indian reservation for the purposes of the Major Crimes Act. Under the court's ukase, If a member of an Indian tribe -- any Indian tribe -- were to murder me in my own home, he would be prosecuted and tried in Federal court, not the courts of the State of Oklahoma.

The ruling establishes a definition for Indian Country far different than that which has been applied in Oklahoma for the last 113 years and establishes a precedent that brings into doubt questions of jurisdiction, governance, and ownership that were previously thought to be settled. Neil Gorsuch, the latest disappointment to take a seat as a permanent super-legislator, was joined in his opinion by the four knee-jerk Leftists, who probably were just gleeful at the thought of causing headaches for hundreds of thousands of Trump voters. As in the Bostock decision, Gorsuch blithely dismissed concerns about the implications of the decision beyond the major crimes act.

Beyond the former Creek boundaries, the case has implications for all of eastern and south-central Oklahoma, the land officially designated Indian Territory from 1890 to 1907.

This case was a companion to Sharp v. Murphy, which was argued in the 2018-2019 term, but was scheduled for reargument, because it had reportedly deadlocked at 4-4 with Gorsuch not participating in the decision..

Jimcy McGirt, the petitioner in this case, is an enrolled member of the Seminole Nation. Here is the State of Oklahoma's summary of Mr. McGirt's crimes in its brief in opposition:

In 1996, Petitioner and his wife were taking care of Petitioner's wife's grand-daughter, four-year-old B.B., while B.B.'s mother was on vacation. While Petitioner's wife was at work, Petitioner penetrated B.B.'s vagina with his finger and his tongue, and forced B.B. to touch his "private." Petitioner was convicted of first degree rape, lewd molestation, and forcible sodomy. The jury recommended sentences of five hundred years each for first degree rape and lewd molestation, and life imprisonment without the possibility of parole for forcible sodomy. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences, recognizing that Petitioner had two prior convictions for forcible sodomy. See McGirt v. State, No. F-1997-967 (Okla. Crim. App. Aug. 26, 1998).

This is the guy that Neil Gorsuch overturned a hundred years of settled law to set free.

Gorsuch speaks movingly of promises made by the US to the MCN in 1832, but glosses over or ignores the subsequent history of the relationship, including the MCN's alliance with the Confederate States of America against the USA, the 1866 Reconstruction Treaty, and the numerous acts and agreements involving the allotment of tribal lands to tribal members and the subsequent extinction of the tribal government.

Chief Justice John Roberts's dissent (in the same document with the majority decision) is a master class in the evolution of Indian Territory toward incorporation in the State of Oklahoma. He walks through the process of the dissolution of communally held lands and tribal governments toward full American citizenship and property ownership for tribal members. He mentions treaties, agreements, statutes, federal reports, congressional debates, and the contemporary writings of Muscogee Creek principal chief Pleasant Porter. Roberts notes the determination in the last decade of the 19th century, that continued communal ownership of tribal land benefited the politically connected to the detriment of most of the tribal members. When I have more time, I intend to walk through the documents Roberts cites and provide links where I can find them.

Many individuals and entities filed amicus curiae briefs in support of one side or the other of the case. One brief stood out to me as a worrisome sign of tribal government influence in the State of Oklahoma's government: Filed in support of molester McGirt's appeal by the Chickasaw Nation, the Choctaw Nation, Congressman Tom Cole, former Governor Brad Henry, former Senate President Pro Tempore and Secretary of State Glenn Coffee, former Attorney General Mike Turpen, former Secretary of Transportation Neal McCaleb, former House Majority Leader Danny Hilliard, former House Speaker Kris Steele, former Congressman Dan Boren, former House Speaker T. W. Shannon, and former State Rep. Lisa Billy. Cole, McCaleb, Shannon, and Billy are all members of the Chickasaw Nation. McCaleb, Hilliard, Boren, and Shannon either have been or currently are on the payroll of the Chickasaw Nation or its subsidiaries, and Billy serves in the Chickasaw legislature, according to the footnotes of the brief.

The Cherokee Nation and Muscogee Creek Nation also filed briefs in support of molester McGirt's appeal. It's important to note that these two tribes, and the other tribes and individuals I mention above, were not supporting claims of good character or innocence by McGirt, but were supporting the legal doctrine that would void his conviction in Oklahoma's state court system, a doctrine with the potential of providing the tribes with new leverage over the citizens of the State of Oklahoma.

Amici in support of the State of Oklahoma's case included the US Government, the states of Kansas, Louisiana, Montana, Nebraska, and Texas, International Municipal Lawyers Association and National Sheriffs Association, and seventeen of Oklahoma's 27 District Attorneys, along with the Oklahoma District Attorneys Association, including Tulsa County's Steve Kunzweiler and Jack Thorp, who serves Wagoner, Cherokee, Sequoyah, and Adair Counties.

The City of Tulsa's amicus brief in support of the State of Oklahoma explained what is at stake for Tulsa citizens if molester McGirt were to win his case.

The overwhelming majority of Tulsa's landmass and population lies within the former territory of the Creek and Cherokee Nations. But for over a century, the entirety of the City--with the exception of a few scattered land plots--has not been "Indian country." Shortly before Oklahoma statehood, the Creek and Cherokee tribes agreed to disclaim and convey "all right, title, and interest" in their land to individual landowners, including the residents of the platted townsite of Tulsa. Since then, municipal and state laws have been applied throughout the City to Indian and non-Indian Tulsans alike. Only a handful of plots in Tulsa are treated as "Indian country," because they either are still owned by the tribes themselves or remain subject to unique title restrictions.

Petitioner's arguments, if adopted, would upend Tulsa's system of government and force the City into years of litigation over the most basic exercises of regulatory authority. Tulsa's Police Department would be stripped of jurisdiction to investigate crimes against or involving Indian Tulsans. Numerous lots in residential neighborhoods could suddenly be exempt from zoning. The City's taxing and regulatory authority could be subject to numerous challenges and endless litigation.

Tulsa's prosperity has been built on a system of government and regulation that applies equally to all Tulsa residents, regardless of their tribal membership. Petitioner's argument threatens that system, and would negatively impact the lives of thousands of Tulsans.

Here are some bookmarks of interest:

• McGirt v. Oklahoma SCOTUS docket page, with links to McGirt's petition, the Oklahoma Court of Criminal Appeal's denial, and the State of Oklahoma's brief in opposition.
• SCOTUS McGirt v. Oklahoma opinion, with dissents by Roberts and Thomas
• Oral argument transcript and audio.
• Joint statement from Oklahoma Attorney General Mike Hunter and the Five Civilized Tribes: "The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma."

I am in temporary isolation after spending an hour in a poorly-ventilated, jam-packed American Airlines A319, which sat waiting at the gate in DFW for the airline to locate pilots who could fly us to Tulsa. (The A319 is the aircraft with the useless mesh seatback pockets and the entertainment systems that use up most of the underseat storage space.) So I have been doing some reading, and this rambling essay represents what's on my mind.

If you're on Twitter you might have concluded that July 4th was Hipster-Pastors-Complaining-About-Flags-in-Churches Day. Rev. Greg Coates, Ph.D., recently graduated from Garrett-Evangelical Theological Seminary with a doctorate and tomorrow beginning a pastorate at Glasford, Illinois, United Methodist Church, agreed with Methodist pastor Taylor Mertins that churches should not have American flags in the sanctuary:

I fully agree. This is my first Sunday at a small rural church that has one in its sanctuary. I've already been warned not to touch the flag or else half of the church will leave. What would you do?

I replied: Respect your elders. Respect a country where you could earn a doctorate and have the freedom to preach. See the flag as a reminder of God's providential blessings through the USA's history to spur you to intercession and thanksgiving. Coates responded:

I'm all about giving thanks, but my conviction that Jesus is Lord implies that Caesar is not. Christians need to rid themselves of nationalism. It is a false god. We can be thankful for the privileges we enjoy in this place without pledging our allegiance to it.

We don't have a Caesar. Sovereign power is held by the people who rule by means of democratic elections of representatives. The American flag represents those principles. Healthy nationalism creates a bond of fellowship across racial, religious, and political lines.

Coates was undeterred in his condemnation of national attachments:

Nationalism divides. As a historian, I must say that if the 20th century taught us anything it is that blind loyalty to a nation-state breeds death and destruction. Our problem is that most Christians are more American than Christian.

The US flag does not represent blind loyalty. Like our allegiance to family, friends, and town, our allegiance to the flag and the republic is subsidiary to our supreme allegiance to Christ.

If the Rev. Dr. Coates had the courage of his convictions, if he really believed that the flag was an idol and its presence in the place of worship was an affront to the Lordship of Christ, he would interrupt his sermon to tear the flag from its post, burn it, and then invite the idolaters in the pews of Glasford UMC to drink the ashes, as Moses did with the golden calf.

Or perhaps he could ask his new parishoners to help him understand why the flag is important to them and how they subordinate and harmonize their love of country with their devotion to Christ. It seems to be the sort of thing that ordinary people understand instinctively but academics struggle to comprehend.

Israeli philosopher Yoram Hazony has written The Virtue of Nationalism to argue that the world is best governed by nation-states, not transnational or global government, which are modern forms of imperialism. Hazony has presented a five-minute video overview of his argument for PragerU. There is a level of trust and cooperation possible among people who share language, cultural assumptions, and "the mystic chords of memory," trust and cooperation that are not as freely given when a people's rulers are alien to its culture.

I cannot find where I read this, but it has been observed that in the absence of a nationalism that binds neighbors across socioeconomic boundaries, the ruling class identifies not with the interests of their countrymen but with their peer elites in other countries.

Hazony argues that the 20th century death and destruction attributed to nationalism should instead be credited to imperialism, the lust to subjugate and enslave other nations that drove Nazi Germany, the Soviet Union, the Japanese Empire, and the Red Chinese. The book page on Hazony's website links to dozens of reviews that will give you a sense of his argument (and critiques of it). For a longer treatment you can watch his lecture at the Heritage Foundation or read a longer excerpt from the book. Hazony demonstrates the roots of the nation-state in the pages of the Hebrew Scriptures, as God mandates that the Israelites will be ruled by their own brothers and will respect the boundaries of the neighboring nations.

Lincoln's mystic chords of memory are produced in part by symbols and monuments reflecting the shared heritage of a nation. When I was young, the flag, the National Anthem and other patriotic songs, monuments like Mount Rushmore, and our greatest presidents were regarded by all parties and classes as our common heritage. Even Sen. George McGovern's 1972 presidential slogan, "Come Home, America," appealed to patriotism as a rationale for retreating from the battle against imperialistic Communism in southeast Asia.

But it was around that time that the New Left began to dominate the Democratic party, shaped by globalist progressives in academia. Leftist voices in America proclaimed a moral equivalence between present-day Communist repression and shameful aspects of our own country's history and insisted that the West had no moral basis to critique Communism's denial of fundamental human rights or to resist its expansion across the globe.

In response, working-class voters, who felt pride in their country, believed in the sanctity of human life and traditional morality and in America's global role in the defense of liberty against Communism, turned their back on their long-time political home in the Democratic Party and voted for Ronald Reagan in 1980. As Reagan himself said years earlier, "I didn't leave the Democratic Party; the party left me."

Leftism strengthened its grip on the Democrat machinery, driving out anti-Communist hawks and pro-lifers. Increasingly, patriotism took on a partisan aspect, because one party seemed increasingly embarrassed by patriotic displays. (The same thing has happened in the UK: The display of the national flag of England, St. George's Cross, outside of sporting events is treated by the mainstream press as a likely indicator of racism.)

The brief post-9/11 surge of bipartisan patriotism did not last, and patriotic symbolism was increasingly rejected by the Democrats and their media allies as a sign of jingoism, racism, and partisanship.

I seems to me that it was around this time that Evangelicalism began to part ways with patriotism. Churches trying to achieve a foothold in cities with a Leftist zeitgeist had to visibly separate from any partisan appearance to attract attendees. Unfortunately, since patriotism and opposition to abortion had been made partisan by the Democrat lurch to the Left, seeker-sensitive pastors adopted the "black-armband view of history" and minimized the importance of abortion and sexual morality. Because of the apparent success of the urban pastors in growing their flocks, their leftward shifts were aped by pastors in flyover country, where the cultural conditions didn't require it, yea even here in Tulsa.

When the College Board floated new America-hating Leftist standards for Advanced Placement US History in 2015, and the Oklahoma legislature voted to substitute a better standard in its place, I was amazed to see friends who had been politically and religiously conservative join in the outcry against the legislative bill to offer an alternative. They believed the line that legislators were politicizing the course, but not the Leftists who were remaking the course to serve their political ends, because the College Board was seen as some neutral authority -- a neutral authority with the power to withhold a desired credential.

More bizarre still to hear these same evangelicals uttering the kind of America-is-evil rhetoric that was once the province of Communist sympathizing atheists. These were not members of a mainline church that had abandoned historical Christianity, but lay people in a branch of Presbyterianism that still believed in the Bible, the virgin birth, and the Resurrection. To them it didn't matter that AP US History was becoming more anti-American, because they had come to believe that America is not a great country. They were hearing this from the pulpit -- from the same pastors who have stopped preaching on holiness and morality for fear of alienating the mythical "seeker."

And now I am hearing the same America-is-evil tropes from Millennials -- not just from those indoctrinated with Howard Zinn's "history" in the public schools, but even from young adults who were homeschooled or attended private Christian schools, so powerful is the kultursmog. These young adults who were raised in Christian homes are now judging Christianity based on its adherence to their new true faith and allegiance, Wokeness -- Critical Race Theory. I have been admonished that defending America and disputing the existence of systemic racism, even to point out the complexity of our past and present, will drive these young people away from the church. They want to believe that America is evil, and they resent anyone attempting to complicate the picture.

There are principled reasons for not having an American flag in a place of worship, but nowadays it seems fair to assume that the absence of a flag is a statement -- a statement against the proper love of one's own country and against acknowledging the blessings that God has providentially wrought in the world through the United States of America.

ELSEWHERE:

Author Chris Arnade brightens Independence Day with a Twitter thread of recently-minted American citizens and their immense pride in their new nation.

New York Post columnist Karol Markowicz, whose family immigrated from the Soviet Union when she was a small child, writes:

Happy birthday to the greatest country in the history of the world. I feel lucky every day I got to be an American and even luckier that our 3 children have never had a moment of being anything else. Have a happy and safe 4th.

In 2008, @Freakonomics asked readers for a new six-word motto for the USA. Their readers chose: "Our Worst Critics Prefer to Stay." Now more than ever, notice no one is making a move for the door.

A new exhibit at the Smithsonian's National Museum of the American Indian sets out the complexity of history. Diogenes would applaud:

For museum curator Paul Chaat Smith (Comanche), who has overseen the design and opening of the widely lauded "Americans" exhibition now on view on the museum's third floor, it is imperative to provide the museum-going public with an unflinching history, even when doing so is painful.

"I used to like history," Smith told the crowd ruefully. "And sometimes, I still do. But not most of the time. Most of the time, history and I are frenemies at best." In the case of the Trail of Tears and the enslavement of blacks by prominent members of all five so-called "Civilized Tribes" (Cherokee, Chickasaw, Choctaw, Creek and Seminole), Smith went one step further, likening the ugly truth of history to a "mangy, snarling dog standing between you and a crowd-pleasing narrative."...

"I don't know why our brains make it so hard to compute that Jackson had a terrible Indian policy and radically expanded American democracy," Smith said, "or that John Ross was a skillful leader for the Cherokee nation who fought the criminal policy of removal with every ounce of strength, but also a man who deeply believed in and practiced the enslavement of black people."

Here is the text of President Trump's remarks at Mount Rushmore. Roger Kimball hails President Trump's Mount Rushmore speech, while Drew Holden compares what the mainstream media reported with what Trump actually said.