{"id":162620,"date":"2020-07-13T07:30:41","date_gmt":"2020-07-13T11:30:41","guid":{"rendered":"https:\/\/today.uconn.edu\/?p=162620"},"modified":"2020-07-12T17:35:04","modified_gmt":"2020-07-12T21:35:04","slug":"uconn-law-professors-brief-cited-landmark-supreme-court-case","status":"publish","type":"post","link":"https:\/\/today.uconn.edu\/2020\/07\/uconn-law-professors-brief-cited-landmark-supreme-court-case\/","title":{"rendered":"UConn Law Professor’s Brief Cited in Landmark Supreme Court Case"},"content":{"rendered":"

The U.S. Supreme Court cited UConn Law Professor Bethany Berger\u2019s brief in a landmark decision that is expected to reframe the sovereignty of American Indian tribal nations.<\/p>\n

In an opinion written by Justice Neil Gorsuch, the court held that the Muscogee (Creek) Reservation (which includes Tulsa, Oklahoma) still exists, so the state doesn\u2019t have jurisdiction over tribal citizens there. The court ordered that Jimcy McGirt, a member of the Seminole Nation of Oklahoma who had been convicted in state court of three serious sexual offenses, be given a new federal trial because the crime occurred on tribal land.<\/p>\n

\u201dThe thread running through the opinion is that when the U.S. makes promises to Indian tribes, it should keep them,\u201d Berger said after the opinion was released. \u201cIf it wants to break those promises it has to be clear about that, and it just wasn\u2019t clear enough here.\u201d<\/p>\n

In the majority opinion, Gorsuch pointed out that Congress had never acted to withdraw from the treaties, dating back to 1832. \u201c[M]any of the arguments before us today follow a sadly familiar pattern,\u201d he wrote. \u201cYes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so.\u201d<\/p>\n

\"\"
Bethany Berger. (Peter Morenus\/UConn Photo)<\/figcaption><\/figure>\n

The court\u2019s four liberal justices joined Gorsuch in the 5-4 decision.<\/p>\n

The decision may mean that the entire eastern half of Oklahoma is tribal territory.\u00a0 The decision itself includes only the Creek Reservation, which comprises about a sixth of the area. But the statutes it considered also affect the Cherokee, Chickasaw, Seminole, and Choctaw reservations.<\/p>\n

The court rejected Oklahoma\u2019s warnings about what the reservation would mean for the state, and its reliance on its long, and illegal, exercise of jurisdiction over tribal citizens there: \u201c[D]ire warnings are just that, and not a license for us to disregard the law. . . .\u00a0 . Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.\u201d<\/p>\n

The court relied on Berger\u2019s amicus <\/em>brief on behalf of the National Congress of American Indians, co-authored with Mitchell Hamline Professor Colette Routel, \u00a0in rejecting these dire warnings. Gorsuch cited a section of the brief that described the success of many towns and cities within reservations, and showed how tribes and states have worked together to everyone\u2019s benefit.<\/p>\n

Berger and Routel noted there are hundreds of towns and cities within reservations. They cited the experiences of Tacoma, Wash., which lies partly within the Puyallup Reservation, and Mount Pleasant, Mich., located inside the Saginaw Chippewa Tribe\u2019s Reservation, as evidence that predominantly non-Indian cites \u201ccan thrive within reservation boundaries.\u201d<\/p>\n

Berger said the decision not only recognized the tribe\u2019s legal rights, but also acknowledged its ability to competently and adequately self-govern.<\/p>\n

\u201cOne of the most striking things about this opinion was something we highlighted in our brief,\u201d she said. \u201cThe court accepted, for the first time, the idea that tribes can be good partners in government.\u201d<\/p>\n

Berger is a leading expert in federal Indian Law, property law, and legal history. She teaches American Indian Law, Tribal Law, and Property Law.<\/p>\n

\u201cProfessor Bethany Berger has long been a national leader in Native American law, and her important role in this case is an example of her influence,\u201d UConn Law Dean Timothy Fisher said. \u201cWe are fortunate to have her among our distinguished faculty.\u201d<\/p>\n

Berger said that years of hard work by many contributors led to the historic victory.<\/p>\n

\u201cI am thrilled right now and obviously proud of my contribution,\u201d she said. \u201cBut I really cannot stress enough what a collective effort this was.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

UConn School of Law Professor Bethany Berger’s legal brief was cited by the Supreme Court in a ruling with broad implications for Native American sovereignty. <\/p>\n","protected":false},"author":68,"featured_media":162622,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_crdt_document":"","wds_primary_category":0,"wds_primary_series":0,"wds_primary_attribution":0,"footnotes":""},"categories":[1715,1857,92,2227],"tags":[],"magazine-issues":[],"coauthors":[1902],"class_list":["post-162620","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-community-impact","category-law","category-uconn-hartford","category-uconn-edu-homepage"],"pp_statuses_selecting_workflow":false,"pp_workflow_action":"current","pp_status_selection":"publish","acf":[],"publishpress_future_action":{"enabled":false,"date":"2026-05-08 11:31:40","action":"change-status","newStatus":"draft","terms":[],"taxonomy":"category","extraData":[]},"publishpress_future_workflow_manual_trigger":{"enabledWorkflows":[]},"_links":{"self":[{"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/posts\/162620","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/users\/68"}],"replies":[{"embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/comments?post=162620"}],"version-history":[{"count":1,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/posts\/162620\/revisions"}],"predecessor-version":[{"id":162623,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/posts\/162620\/revisions\/162623"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/media\/162622"}],"wp:attachment":[{"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/media?parent=162620"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/categories?post=162620"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/tags?post=162620"},{"taxonomy":"magazine-issue","embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/magazine-issues?post=162620"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/today.uconn.edu\/wp-rest\/wp\/v2\/coauthors?post=162620"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}