Strict Scrutiny - Courts of the Conqueror

Episode Date: September 7, 2020

Leah is joined by Liz Reese, a Bigelow Fellow at the University of Chicago Law School, for a deep dive on the Court’s blockbuster Indian law case, McGirt v. Oklahoma, authored by the most interesting man in federal Indian law, Neil Gorsuch. Follow us on Instagram, Twitter, Threads, and Bluesky

Hi, I'm Jon Favreau, host of Crooked Media's weekly interview series, Offline with Jon Favreau. Each week on Offline, I talk to someone from news, politics, entertainment, sports, or business about all the ways our extremely online existence is shaping the way we live, work, and interact with one another. Catch new episodes of Offline with Jon Favreau every Sunday, listen on Apple Podcasts, or wherever you get your podcasts. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Leah Littman, one of the hosts, and today we have our much-awaited and long-promised deep dive episode on McGirt v. Oklahoma. One of the benefits of the summer recess is that it gives us the opportunity to do deeper dives on cases that got lumped together at the end of the term, and that of course includes McGirt. To help me with that deep dive, I'm delighted to have with me today Liz Reese. Liz is a Bigelow Fellow at the University of Chicago Law School. She researches and writes on constitutional law, race in the law, voting rights, federal Indian law, and tribal law. Liz graduated from Harvard Law School,

clerked for Chief Judge Diane Wood on the Seventh Circuit and Judge Thapar, then on the District Court, now on the Sixth Circuit, worked at the NAACP, LDF, and the National Congress of American Indians, where she worked on the implementation of the 2013 Violence Against Women Act. Welcome to the show, Liz. Thank you for having me. I'm excited. Yeah, we're really excited to have you. As I was saying, one of the benefits of the summer recess is that we can do deep dives on cases that really warrant it. And at the end of the term, it was readily apparent that McGirt was one of those cases. Oh, yes. I think with just page count, it was quite apparent. Yes. Well, especially if you don't count Justice Alito's appendix in the Bostock opinion, then Magritte definitely

by page length warrants the additional time. Yeah. And also because there was, you know, just immediately after the decision, a lot of probably confusion about what the actual holding was, what the effect of the case would be, both, you know, in Oklahoma, of course, itself for the affected area, but for just people around the country, I think we're suddenly wondering, wait, wait, actually, is half of Oklahoma like an Indian reservation right now, like today? And what does that mean? Like, what did the Supreme Court just do? Why don't we give our listeners a sense about what

McGirt actually held, and then we can go into some of its implications and some of why it was surprising in some ways. So the legal question in McGirt versus Oklahoma involved technically an interpretation of the Major Crimes Act and surrounding federal statutory provisions. The Major Crimes Act is a provision of federal law that provides that, quote, within the Indian country, quote, any Indian who commits certain enumerated offenses falls within the exclusive jurisdiction of the United States. And a neighboring provision defines Indian country as all land within the limits of any Indian reservation under the jurisdiction of the United States government. And so the question in McGirt was whether the land on which McGirt committed his crime

qualified as Indian country for purposes of the Major Crimes Act, thus requiring the United States to exercise jurisdiction over him, rather than the state of Oklahoma, which had done so in this case. Did I get that right? Yes. Okay. I'm going to try to be as precise as I can.

I know this is a highly technical and convoluted area of law. The opinion, as we described on the recap, was 5-4 with Justice Gorsuch authoring the majority and the Chief Justice authoring the dissent. Justice Gorsuch was joined by the four more liberal justices. And this was, I believe, the only argued 5-4 decision in which the Chief Justice ended up in the minority and all of the other ones he had been in the majority. So it was interesting in part for that reason. So bottom line conclusion, the court seemed to say that this land in Oklahoma did fall within the scope of Indian country. But the court's reasoning for why it did so was interesting and significant. And that's part of what we wanted to focus on here. Yeah, so much of the court's

decision rests on this idea of whether or not that land is still an Indian reservation. Because being an Indian reservation is one of the things that can make something Indian country. In this case, it's really about a very complicated history. If you think about, you know, the word reservation itself, and you really wind back the clock all the way, that is supposed to mean that this is land that was actually reserved for the Indians, actually set aside for them to exclusively live on back in the days when the Department of Indian Affairs was in the Department of War. So in some ways, it's kind of wild that we're even having this conversation now about whether or not reservations still exist, you know, what type of powers the government has.

So we had this promise, but we take for granted that we're just kind of going to break it at various points throughout history and then sort of read the breaking of that promise like into the legal understanding subsequently. That was so much a part of the argument and also the opinion because, you know, as you kind of outlined the definition of reservation, right, as it was understood and as it was promised, it should have been land for the tribes and nations to whom it was given. Of course, that's not what it is now. And so the question is, well, if some of those promises have been broken, are we going to allow you to break all of them and say it's no longer a reservation in the sense of some of the remaining powers and benefits that flow from that original agreement. Absolutely. And that's what's

I think so fundamentally tricky about sort of Indian law generally, but also these types of cases specifically, is that they're so intertwined with all of these moments in history. If history was clear, it would be one thing, but of course it's not, because Congress changes its mind about what its policies are going to be with regards to the Indians all the time. And so because of this sort of back and forth, you know, you see the court trying to point to different places in the historical record that are very close to one another, that signal very different things about what Congress intended for this particular piece of reservation land to be and what it might have

intended for the tribe's powers to be over that land. And so the court now, looking back on all of that history and trying to make some sort of consistent doctrine or consistent rule of law out of all of this is really struggling. And it's, you know, pretty unsurprising because they're not working with something that always sort of plays by clear rules or has consistency in that regard. Yeah. So let's talk about the rule that the court kind of announced to determine whether there was still a reservation or whether this land was still Indian country for purposes of the Major Crimes Act, because there were a ton of examples of the phenomenon you just identified where Congress was rapidly changing its mind over a short period of

time, which was relevant to the court's assessment of whether the land remained Indian country. So in McGirt, Justice Gorsuch for the five says, in order to determine whether a tribe continues to hold a reservation, there's only one place we may look, the acts of Congress. So I'm going to bracket for this episode, Oklahoma's new argument that it made in this case, which is the land was never a reservation to begin with. And instead, we're just going to focus on once there is a reservation, basically, how do you know it still exists or whether it has been what's known as disestablished. And Justice Gorsuch says, you know, the focus of that inquiry and the dispositive

point is whether there's essentially a clear statement in subsequent congressional legislation disestablishing that reservation. Now some of the quick changes in congressional policy you were alluding to happened here, which is that in the early 1900s, Congress announced that it had plans to disband the tribal government and reservation in the next five years. But when those five years actually expired, Congress enacted a subsequent statute, I think it was in 1906, continuing the tribal government for some purposes. And so it didn't seem like they had actually disestablished it. And so Justice Gorsuch concludes that those statutes don't rise to the level of evidence of, you know, the kind of congressional indication that's sufficient to disestablish a reservation.

So is that the test that the court has always applied in these disestablishment cases? Or how, if at all, did McGirt sort of snuck in a rewrite of what the test used to be into now something that is really just a textualist test. So the test from Solum v. Bartlett, where it was established originally, is really a three-part test. It was first, look at the text, see if there's any clear language setting out either disestablishment or the diminishment of an Indian reservation.

So the boundaries just becoming smaller, but not necessarily just forthright getting rid of the reservation altogether. Part two, sort of the context. Is there a contemporary understanding of what the law of the land and sort of the subsequent actions by the people and government officials who were there afterwards. If I'm an Indian law professor who, which I am, who's teaching this test now after McGirt, I guess I would say that now the test is just step one. It is, is there actually any text from Congress that is clearly disestablishing or diminishing the reservation? I think Justice

Gorsuch handles sort of step two and step three in the following ways. He sort of, with step two, he sort of explains that it really doesn't make sense to have sort of a context-based test, especially with Indian affairs, because things change so often. The history is a mess. Congress changes its mind. The local agents change their mind. Then with the sort of third test, he does the following, which I think is great. think it's great he basically just trashes it just as gorsuch just like clearly says and explains that uh this test is a is is terrible um because what it allows people to do is to break the law and turn that breaking of the law into the law so might making right i like that you call it trashing because I was envisioning like Neil Gorsuch, the most interesting man in federal Indian law, just doing some like

radical trashing in the doctorate. And it was just a, you know, fun vision I had. You know, I like to picture that too, but like in a very like empowered, like, you know, I am the justice doing justice, kind of like slamming it in the trash. Yeah, and I think it's that third aspect of the test that kindist xenophobic white people, you know, like running roughshod on tribes rights. And if, you know, you use that as evidence of either disestablishment or diminishment, it has the problem of might making right and allowing the breaking of these promises to actually break them in the courts of law. Yes, exactly. You know, if I'm teaching Indian law classes after McGirt, the way that I'm describing this three part test of, you know, text, context, and Indian character or demographics is that the test is now just part one. Just part one. Thank you, Justice Gorsuch. And then what McGirt does with part two is sort of just say this doesn't matter because it's impossible to make any sense of this because this is Indian affairs, right? Like

Congress changes its mind all the time. And this is 18 and 1900s, in periods of time where you're looking at historical records that are, you know, people are on horses, like, you know, these are letters and documents that are, you know, close in time for historians to evaluate, but it's not like, you know, very clearly created records that you can, you know, narrow down in time like we would have now. So it's just, it's impossible. It's interesting to me to see that written by Justice Gorsuch, who is obviously a very prominent and self-identified originalist in constitutional interpretation. Yet here he's saying, right, the context around this period was just insufficiently clear to shed light on the statute.

Now, maybe that's unique to this either area of law or it's unique to this particular application of this legal standard. I don't know. But it was interesting for me to see him admit that putting aside the text, the historical record about what this text meant at the time was just not sufficiently settled or was like being worked through to a point where like, we just can't definitely say it amounted to disestablishment. I think you're right to point out that that is fairly inconsistent with originalism in some regards. But I think in other regards, you know, this is the West, this is Oklahoma in, you know, there's a reason why the Wild West is called that. You know, things are changing and more in flux in an interesting way, especially with regards to Indian affairs.

Like I said, Congress and the president and the's adjustment of the legal standard represented a triumph of textualism or textualism and something else or the something else. Because in some respects, this opinion is very much simpatico with Justice Gorsuch's method of statutory interpretation, which is I care about the text, just the text, and nothing but the text. And here he's saying, I'm not going to read it into context, and I'm not going to look at subsequent practice or consequences. And in that respect, it is a textualist opinion. In other respects, though, I wonder whether we are jumping too quickly to the conclusion that textual interpretation is driving these conclusions rather than textual interpretation infused by substantive considerations. What do I mean by that? One is,

why do we have this clear statement rule that requires there to be clear evidence in the statutory text in order to conclude that there is diminishment or disestablishment. It protects tribal sovereignty, right? And like native governance. And that might be like a one substantive consideration that's like infusing how the court sets up the rules about statutory interpretation in this context. But the other more important indication to me was just reading this opinion. It was hard for me not to come away from this opinion without the conclusion that Justice Gorsuch was extremely sympathetic to the tribe's assertion of sovereignty. The opening line is, on the far end of the Trail of Tears, was a promise. And throughout the opinion, it is littered with opinion writing that is critical of state and federal diminishment of tribal sovereignty. And so even if I think that, you know, his best interpretation of the statutes was doing a lot of work, it was an interpretation of the statutes that in some ways was consonant with his assessment about what was right in the bottom line of this case. Is that wrong? Or

because it just feels like he does this several times in federal Indian law cases where he is receptive to arguments of, you know, tribal sovereignty and tribal authority. Yeah, so I there's so much there. And I, you know, let's, let's dig into all of it. So Justice Gorsuch in Indian law is absolutely someone to watch and a very interesting figure who, you know, you know, keeping in mind, he comes out of the 10th circuit, which gets a lot of Indian law cases. You know, he's been in Denver, which is right next to the

headquarters of the Native American Rights Fund. And when he's nominated, a lot of tribes come out in support of him based on his Indian law record. There was, you know, even I think sort of stress about whether the Native organizations were, you know, what they were going to do because a lot of the other civil rights or racial justice advocacy groups had come out against his appointment. And the Native orgs, I think, sort of stayed quiet, because of this record that he has of generally being judged when he was on the 10th Circuit, who was sympathetic to tribal sovereignty. The question, I think, is sort of why and sort of what's going on there. I think there's maybe two possible ways to think about that.

One is just sort of this sovereignty question, right? Like, you know, I've always liked to think, you know, sometimes conservatives should find tribal sovereignty way more appealing than they do because it's like come on guys state sovereignty you know like like you love it when governments get to have power in a more direct way and make rules for themselves and just like do the things you know come on like we got like 574 of them ready to do it like but I think there's also just this sense of just like the justice of it all and just the rule of law and just there's going to be a promise but it's going to but it got broken and we're just trying to hold

the pieces together in some doctrine that attempts to make it coherent um and instead just says we should not be breaking promises you know let's the government to its word. As he also says at the beginning of the opinion, the law means something, rely on the law, is also very much coming through the opinion and probably motivating his sympathies for tribes in this regard. Yeah, and it's a way that he is extremely different from two of his fellow conservatives on the court, you know, in particular, both Justice Alito and Justice Kavanaugh are much less formalist than Justice Gorsuch is, you know, both in constitutional interpretation and statute interpretation. And also in this area, you know, at the Sharp arguments, which was the first iteration of this case, argued and in the McGirt arguments, both Justice Alito and Justice Kavanaugh kept coming back to the idea of, well, what are the consequences if we rule for the tribe? Isn't this going to create this fundamental instability? You know, what about the fact that no one asserted this claim that this was a reservation

for the last 100 years? So I just want to play these two oral argument clips really quickly of Alito and then Kavanaugh making this. A fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn't bark. And how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I'm aware, for a hundred years? But even if it were ambiguous on the text, the historical practice for a century has been against you. And stability is a critical value in judicial decision making. And we would be departing from that and creating a great deal of turmoil. You know, part of what is interesting about this to me is it brings into stark relief,

like where the sympathies of the justices lie, like Justice Alito and Justice Kavanaugh are extremely concerned about the implications on people other than the tribes. Whereas I read Justice Gorsuch's opinion to be quite concerned, and rightfully so, with the consequences for the tribe if the ruling had gone the other way. And so it's not entirely, you know, a formalism functionalism to me. It's about where do you assess or how do you assess the equities in this case? Because what's getting lost here is if you all of a sudden say reservation is no longer a reservation, what is going to happen to the provision of tribal services that has been happening all over eastern Oklahoma. Yeah, and it's not just the tribe, it's all tribes. That is part of the frustration, again, with Indian law is that even though a lot of these are individual agreements, individual treaties, really contracts between different governments with, you know, vastly different histories, like, you histories, the context of what power relationships they might have had with the U.S. government, this body of law, Indian law, for the

most part, treats them very similarly. And we'll read a decision about one as having quite sweeping implications for the powers of the others. And so a loss for one tribe is going to have huge effects for the tribes across the rest of the country. If you look at Oliphant, the case where the tribes lost criminal jurisdiction over non-Indians, the court for the most part looked at the facts of the Suquamish reservation that was involved in that case, when in effect it also stripped criminal jurisdiction over non-Indians across the entire as a sovereign, but with the Indian people who live on this land of both this case, but other tribes who would have been governed by a similar rule of decision. that the court does in cases like Oliphant, when those rulings go against the tribe, they somehow tend to be universally or generally applicable. Whereas rulings for a tribe, the concern is those end up being more limited to their facts. So for example, like in the lead up to this case, you know, the big decision that I think was most favorable to McGirt and to the tribe here was Nebraska versus Parker, which, you know, dealt with the, you know, lands in a very small town in Nebraska.

And I think some people, you know, Pender. People being like, oh, Pender. Right. Like some people not unfairly, you know, in the lead up to this decision were like, well, Tulsa, not Pender. These are different places. And so the rule that the court laid down in that case is not necessarily going to be good for the tribe here. And so that kind of asymmetry in how the court's cases play out, part of the backdrop to the dynamic you're describing. So I did want to talk a little bit about the aftermath of the decision, because I feel like this underscores, like, where the equities lie, or like, who stood to win or lose, you know, no matter how the court ruled. So in the immediate aftermath of this decision, the state of Oklahoma and the Creek Nation and other affected tribal nations released an agreement

in principle, which outline a plan for implementing the court's decision. But in the backdrop of this, there have been some rumors, and I think some news reports like quoting the Oklahoma Senator Inhofe said that he was, you know, considering legislation that would actually overturn the decision and disestablish the reservation. But the point that I wanted to make is just the court's ruling underscoring that the reservation exists gives the tribes more political power to be at the negotiating table in order to make decisions about how jurisdiction and authority and social services are going to be effectuated and carried out. Yeah, so I want to be really clear about what this case holds and what it doesn't hold. So in the opinion that Justice Gorsuch writes, he is very clear to say that the holding applies to the Major Crimes Act. So as a matter of interpreting the Major Crimes Act and this one tribe, so the Muscogee Creek Nation and its reservation boundaries, the Major Crimes Act shall be interpreted such that those he is not saying that the rest of Indian

country's jurisdictional framework immediately applies both to these lands on the Muscogee Creek Nation and to the other four tribes who have very similar histories as the Muscogee Creek Nation and so whose claims would likely be adjudicated similarly. In fact, he explicitly says, you know, those tribes have to also come to court, you know, we'll resolve those in due time. I, you know, I'm, we're not deciding this case along with those other tribes' interests. When I saw that, my immediate reaction was, this is very strategic and careful because Indian country's jurisdictional framework is incredibly complicated. What sovereign has jurisdiction over what persons in which circumstances, both criminally and civilly, requires a complex series of charts. That large of an area of land with that many people living on it, going from being non-Indian country to Indian country overnight,

and therefore having to abide by all of those rules, would be very confusing. And it would be a challenge for all of the government people involved to switch over and effectively figure out those rules. What Justice Gorsuch did was effectively kick all of the affected parties, so the tribal government representatives and the state and probably members of Congress, into negotiating rooms where exactly, you know, like you said, the tribes now have more bargaining power to try and reach agreements about how this land is going to be governed going forward that will hopefully be more workable for all involved. I've been watching very closely as various folks are debating what to do, and the tribal government representatives are, I think,

still continually in negotiations. And then, you know, you layer on top of that, you know, whatever agreements they are able to hammer out, you know, there are also a complicated background set of rules. You know, you noted rightfully that the decision is really just about, you know, criminal jurisdiction under the Major Crimes Act. But there's a complicated set of rules governing civil jurisdiction on Indian country or reservation lands. And those rules are entirely separate and distinct and I think much more restrictive of tribes authority than the Major Crimes Act is. Well, it depends on how you think of it.

I think Indian law's complex jurisdictional framework kind of resists all generalizations. But tribal civil jurisdiction is fairly limited. So with the Major Crimes Act, you're that's sort of been eroded pretty pretty swiftly by the court over recent years too so um that was kind of an interesting thing that kept kept coming up because you know going back to this question of uh what were people sort of really worried about and what were the the interests that were really at play in the case that were going to sort of motivate the outcome. People kept talking about what happens to all these people, what happens to all of this land if we say that it's a reservation. And specifically to non-Indians, right? Like that was a concern of, you know, the chief,

Justice Breyer, Justice Alito, and Justice Kavanaugh. Like, what do you say to the person who is non-Indian and wakes up the next day knowing that they're on a reservation? My favorite line was Justice Breyer saying, like, they've built their lives on all this law. They have built their lives not necessarily on criminal law, but on municipal regulations, property law, dog-related law, thousands of details. And now if we say, really, this land, if that's the holding, belongs to the tribe, what happens to all those people? What would happen is that this giant, complicated regulatory framework that you guys have come up with would apply. And, but it would mostly not affect them and their lives because the Supreme Court has, for the most part,

severely scaled back the powers that tribal governments have over particularly non-Indian conduct on non-Indian owned land, which is the vast majority of this area. Right. Because like the default is, you know, the inherent sovereign powers of tribes don't extend to non-members unless, you know, there is an agreement that has been entered into consensually. So like, I guess if there was like an agreement between a person and a business and the tribe, it's like, I allow you to govern dog law. I just, I don't know what Justice Breyer was envisioning.

I appreciate Justice Breyer's concern for dogs. I'm a dog person. I just, you know, part of me was like, do you not remember all of the law your court has made about, you know, and then the other exception is that it like interferes with the political integrity, health and welfare of the tribe, which has been read so unbelievably narrowly by this court, that like the other hypothetical of that dog related law that I tried to come up with was something like, you know, like it would be like dog trained terrorists or something like something crazy. So, you know, that was part of the aftermath of

the decision. You know, one other small piece of aftermath that came up at the oral argument in Sharp when it was initially argued, and then again, in McGirt was, well, if we say that the federal government and has exclusive jurisdiction over this instead of the states, how many people could this potentially affect that is of persons who have already been convicted in state court proceedings what is going to happen to them um and lisa blatt in her closing in the initial argument you know told the court that they were going to free something like 2 000 people and she like listed a particular number of you know which she identified as like murderers and rapists,

as is her want, extremely colorful. But I think, you know, the reality is it's a little bit more complicated than that, because of restrictions on post conviction review for people who are tried and convicted in state court. And in particular, you know, as we've been talking about, the ruling in this case is a statutory ruling. It is about the Major Crimes Act. And so the convictions in these cases, they would violate a federal statute. And there's actually a separate doctrine that limits the ability of state court prisoners to raise federal statutory claims in their habeas proceedings and so they have to overcome a certain threshold in order to do so on top of that there are also limits on second or successive habeas petitions

so if you've already filed one habeas petition in federal court, you can only file a second one if you show there's clear and convincing evidence of your innocence or a new constitutional rule of criminal procedure that the Supreme Court has established retroactively. It is far from clear that either of those conditions are satisfied. The Tenth Circuit has said they would not be. And so the number of people affected by this ruling or who can actually gain the benefit of it might be quite small. There's all that federal habeas law that's already going to make it hard and unlikely that there's that many people with claims out there that are still alive. But that's also interacting with the types of cases that the federal government would have been the exclusive prosecuting authority because they are a serious enough type of crime. For a lot of the people affected, they are people who, you know, might have committed these types of crimes, but they've also

been in prison for a long time at this point. And a lot of times they've already brought these habeas petitions. So they've sort of exhausted these rights. And those two are kind of intersecting in a way that is likely going to make it that there aren't that many sort of still live claims out there. At least that's my guess. But, you know, I also have heard lots of different variations on the numbers from Oklahoma representatives over time. So I think we'll have to just sort of see. And certainly if there was going to be a flood of people coming in and saying, oh, actually, let me out of prison. This is Indian country.

You would have expected to see it after the 10th Circuit's decision. And, you know, no such flood happened. Right. And so in addition to the, you're right, the Major Crimes Act only applies to certain enumerated offenses. So it's not all persons who identify as tribal members, it's a person who identifies tribal members committed their crimes on these lands, and those crimes were the certain enumerated offenses. Oregon Indians who committed crimes against tribal members. Yes. One additional avenue that people could file for relief is actually in state post-conviction proceedings. But there, like the state basically has control about how freely or narrowly to grant post-conviction relief. And so if they were super concerned about, you know, a possible wave of litigation, you know, states can and do adjust their post-conviction relief procedures, you know, to impose certain time limits or, you know, limits on other bars. But yeah, anyways. But I thought maybe it might be worth to talk with our listeners just about like what McGirt means about this court. Like, are we at a kind of crossroads for federal Indian law at the court? Like, how excited should we be? How cautiously optimistic should we be? How pessimistic. I think that at least Indian country is feeling, you know, cautiously optimistic, which is like a weird feeling. You know, like Indians are generally used to winning, especially, you know, cases like this that involved such huge non-Indian interests, where you had like half,

you know, up to half of the state of Oklahoma, you know, 1.8 million non-Indians potentially freaking out about the status of their land. And the Supreme Court was like, no, we're going to hold the government to its word. Like, that's wild. You know, a lot of Indian law scholars and experts have sort of described the doctrine as often just sort of bending to the interests of non-Indians, regardless of what coherent rules or doctrine or law would command. And so sort of seeing this not happen was just a huge deal. And I absolutely, in my networks of Indian law folks or just Native American people, saw mass sort of like shock and celebration. You know, it's just really worth pausing and marking that because especially for this demographic

of people that has felt like the rule of law just didn't apply to us. We just could not count on the word of what's supposed to be our government actually meaning anything. Especially in what the Supreme Court has explicitly called courts of the conqueror. Yes, exactly. That's how this is going out. Exactly. The, you know, absolute seed cases in Indian law are very clear that, you know, there will be injustice in this because this is a court system of the conqueror. tribes sort of retain all things that haven't been explicitly taken away, whether that's sort of lands, rights, or powers, it sort of slowly started flipping to getting closer to the assumption that tribes only have that which has been explicitly granted. Watching that, the doctrine sort of slowly evolved, like not with any sort of clear basis for flipping in that way.

So this is really different. This case marks a very interesting time period. You know, originally, it's a different case that's argued. Sharpe v. Murphy is argued, and Justice Gorsuch is recused because he participated in, I think, the en banc at the Tenth Circuit? Yeah. This case is decided, you know, by Justice Gorsuch 5-4. So it's very clear that sort of his presence on the court and, you know, in writing this opinion is the thing that makes the difference. So if you go back to 2015 and think about the

Dollar General case, which the court heard in December 2015. This is a big civil jurisdiction case for tribal courts. Things looked pretty bleak. It looked very likely that tribes were going to lose the Dollar General case, and it would be yet another instance of tribal governments having even less power over non-Indians, in this case over the ability of non-Indians to even consent to civil jurisdiction. But then in February, Justice Scalia dies. And lo and behold, in the following summer, the case comes out and it's 4-4. So Justice Gorsuch coming in as the replacement for Justice Scalia is just, it's a huge change in terms of the expectation for Indian country, for the people who litigate Indian law cases in what the court is going to be doing and the types of cases it's going to be deciding. Yeah. And I'm so glad you tied this dollar general to the term that Justice Scalia passed away because, of course, Justice Gorsuch

is the justice who was eventually nominated to replace Justice Scalia. And in a lot of ways, he is Justice Scalia's heir, right? Like he is publicly avowedly originalist textualist who disclaims concerns for consequences says, you know, I don't care what people are telling me, I have my methods. And that's what's gonna decide these cases. And, but in this important area, it appears like he might be quite different because it's not like McGirt is the first decision on the Supreme Court where he has joined with his more liberal colleagues to vote in favor of tribal authority. It's happened in Herrera versus Wyoming and in Cougar Den. I think, you know, McGirt was probably a more significant case in some ways, at least in its implications. But yeah, so, you know, it's possible we are turning a corner. I feel like this is an oddly optimistic take for both this podcast and for me.

But, you know, I'll take it when I can get it. Well, it's hard to, I mean, that's the thing with Indian law or also with, you know, advocating for tribal sovereignty, it's like the bar was so low that it's like, you know, but no, because it really was. Like one of the weird things about looking back at how bad it was and how many times tribes were losing after it really feeling that bleak, it did just sort of seem like the best course of action was to keep cases out of the court so that there wouldn't be more damage to tribal sovereignty. Especially in times like this

and at many other times throughout their histories. Tribal governments are sometimes just not pushing for their powers or exercising rights that they may believe they have because they just know what the political winds are or because of just the circumstances of the current, you know, whether it be administration or Congress, etc. And so know that maybe just the move is to just sit and wait. That's a really important point about, you know, what we make of the fact that these claims have not, you know, been raised or litigated before. You know, you alluded to this earlier, but basically, you know, the consequences for public safety when you restrict the authority of tribes over non-tribal members, you know, the consequences for public safety when you restrict the authority of tribes over non-tribal members, you know, for criminal prosecutions, because, you know, and this came

up a little bit in the argument in this case, but under the Major Crimes Act, you know, the result of the statute was supposed to transfer cases out of state court and either to federal court or if tribal courts existed, tribal courts for crimes that tribes were allowed to prosecute, which, as you mentioned, after Oliphant, did not include crimes in which they would have been prosecuting a non-Indian member. So it's a complicated maze of jurisdiction, as Liz's piece in the University of Chicago Law Review blog outlines. because, you know, this means that there won't actually be prosecutions of these crimes if

states don't have the authority to prosecute them because the federal government, as we know, just has fewer resources, you know, prosecutes fewer crimes, you know, particularly on some land that might be more remote and like not near the U.S. Attorney's Office or something, you know, maybe they aren't going to like investigate or prosecute the crime. This feels a little bit like heads I win, tails you lose, because it's only as a consequence of, you know, so vastly restricting tribal authority and starving tribes for money that we have created this situation in which tribes aren't able to make up the, you know, difference between state and federal prosecution. Tribes would love to be able to prosecute these cases and they would love to have the power back

to be able to do that. They've been screaming at the top of their lungs for Congress to give them that power back as a matter of public safety ever since Oliphant was decided and all of the subsequent cases which have stripped them of jurisdiction. You know, and similarly, that, you know, the fact that all of the federal prosecutor's offices who are sort of tasked with doing the work of prosecuting, particularly not just major crimes committed by Indians or against Indians, but also non-Indian crimes on reservations are underfunded, like that is also something that is the, you know, entirely the federal government's fault. And so, you know, like they can also fix that. And one of the things that people who do work in this field, you know, like I used to back when I was at NCAI, are really hopeful of is that with all of the attention on this case. and in Oklahoma now qualifies as Indian country,

will actually think about, okay, what are the budgets of these federal prosecutions need to be in order to do the job that we've said that they need to do? Or maybe does it even make sense to have them doing that? Or should we let tribes be doing more of this? Hopefully reconsidering some of these questions so that we can come up with a more workable solution. I just think it would be interesting if, you know, let's say hypothetically, a candidate for president was coming under attack for being insufficiently attentive to public safety. Like what if that candidate responded

and was like, my solution to public safety safety is like let's do the vow fix and like empower tribes to serve as like local governments right like that would be a criminal justice fix in favor of public safety i just i'm waiting for joe biden to do this so joe joe i just gave you free advice tip on the pod if you're listening yeah there are lots of ways that tribes can be you know empowered to do a lot of great things on the ground you know not just with public safety but also things like voting you know like there, every time there's an election debacle, especially that reaches Indian country in a particularly challenging way, I always think to myself, like, gosh, why aren't all, why aren't tribes running elections like states are?

So for those who are interested in what tribal governments can teach us about American law, Liz has a fascinating paper that is forthcoming in the Stanford Law Review, The Other American Law, that our listeners should check out and we will post when it is publicly available. In writing that paper and just generally in my experience working with tribal governments across the country, the reality of tribal governments kept coming up all the time. Also, when I was thinking about the McGirt decision and like listening to the oral arguments, because, you know, at a myriad points of times, it's very kind of clear, especially when there's the sort of like fear mongering coming in about like, what will happen

if the Muscogee Creek Nation is like, making these laws? And, you know, I kept thinking like, why is everyone so afraid? You know, like, have you met them? Like I have, they're, they're nice. Like they're, they're, you know, they're like, you know, a thoughtful group of politicians who have, you know, an established government that's like very capable of doing things. And, you know, you know, what's going on isn't sort of Oklahoma or like chaos and lawlessness

um you know it's like Oklahoma or you know in some very certain contexts that are very limited for reasons that we've talked about Muscogee Creek Nation which is you know a government that is real and competent and makes laws that uh you should not be inherently afraid of because it is this unknown. You know, tribal law is so knowable. Tribal governments are so knowable to the rest of America, and they should be more known and knowable. And that's one of the things that I hope that this piece will get across to legal academics and practitioners across the country, because I think it's really important that tribes get really seen in that regard, because not seeing them or just being sort of afraid of this unknown

has done a lot of damage when it comes to Indian law in particular. Yeah, because you get Steve Breyer musing about the horrors about subjecting people to tribal law, dog law. I'm sure that the people of Muskogee Creek Nation are also dog lovers and are not going to create crazy dog law if they were, you know. Right. Well, again, Steve, if you're listening, you know, maybe you can think about that, too. So thanks, everyone, for listening.

Thank you so much, Liz, for appearing on this episode and informing us all about federal Indian law. Thank you so much. Thank you to our producer, Melody Rowell. Thank you to Eddie Cooper, who makes our music. And thank you to Erica Schumann, a second-year law student at the University of Michigan, who helped with some research for this episode.