Strict Scrutiny - Indian Law Hall of Fame

Episode Date: March 3, 2022

Leah recaps Denezpi v. United States, an important case about tribal sovereignty, with Matthew Fletcher (Michigan State University & Chief Justice of the Pokagon band of Potawatomi Indians Court of Appeals) & April Youpee-Roll (Munger Tolles & Olson), which may involve … Neil Gorsuch’s heel turn in Indian law?!? Follow us on Instagram, Twitter, Threads, and Bluesky

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. Welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host for today, Leah Littman. Today is going to be a special focus on an important Native American affairs case the court heard this past week. And to help me break

down the case, I am delighted to be joined by two guests. One is Matthew Fletcher, who is currently a professor of law at Michigan State and director of the Indigenous Law and Policy Center. Matthew was recently appointed the chief justice of the Pokagon Band of Pottawatomie Indians Court of Appeals. And next year, drumroll please, Matthew will be joining the University of Michigan Law School as a professor. Welcome to the show, Matthew. Thank you. Go blue. Go blue indeed. Also joining us is April Uperol, who is currently an associate at the law firm Munger, Tolles & Olson and a lecturer at University of Michigan Law School, where she is co-teaching a problem-solving

initiative on policing by Indian tribes. Welcome to the show, April. Thanks, Leah. I'm very excited to be here. We are very excited to have you. So the case we're going to be talking about is Dennis P. v. United States. And the question in the case is about the double jeopardy clause, which says you can't be tried multiple times for the same offense. But that rule only applies when you're being tried by the same government. So one government can try you for an offense and then another government could do so afterwards without violating the double jeopardy clause. That is referred to as the separate sovereigns doctrine. You're not being tried for the same

offense under the double jeopardy clause if you're tried by separate sovereigns. And sometimes this comes up when it's the states versus the federal government prosecuting someone. Here, however, it comes up in the context of tribal prosecutions versus federal prosecutions. Specifically, the question is whether a conviction in the court of Indian offenses, sometimes known as a CFR court, is a conviction or proceeding by the federal government, or is instead a conviction or proceeding by the tribe. If it's the tribe, then the defendant could be tried again by the federal government after being tried by the tribe, whereas if it's not the tribe, then the defendant could not be tried by the

federal government. So that's kind of the general stakes of the case, at least with respect to Mr. Dennis P. So Mr. Dennis P. was convicted of violating tribal law in the Court of Indian Offenses, and then the federal government is trying to charge him with a violation of federal law in federal court for the same offense. So I guess before we get into how this argument went, could you share a little bit more about what are CFR courts or what are courts of Indian offenses, just so we have some understanding about how they might work in their relationship to federal courts? I'd be happy to try to answer that, Leah. So a court of Indian offenses, which is the technical term, is basically an Article II court. It's courts created in the 1880s by the Department of the Interior's Office of Indian Affairs.

Those courts were never authorized or really even ratified by an act of Congress. They are truly creatures of the executive branch. And as they existed throughout the history of the United States, an Indian country throughout the 19th and 20th centuries, they sort of became known as CFR courts because they were codified into the Code of Federal Regulations. The original understanding of the reason for the CFR courts is probably worth mentioning or reading actually from the statement of the Secretary of the Interior in 1882. I call your attention to the continuance of old heathenish dances, be enforced by Indian judges, Indian police, appointed by the local Indian agent or Bureau or Office of Indian Affairs superintendent, who would then create this court with this code with these judges and police to enforce laws to make sure that Indians would become assimilated. And those courts existed well into the 20th century on a lot of Indian reservations. Some of them still exist, although most of them have sort of faded off into history as of the 1970s when the United States Congress adopted a program of self-determination

and what we call Public Law 638. So some tribes adopted their own tribal courts and just did away with the CFR courts. Other tribes chose to keep their CFR courts and let the federal government continue to prosecute Indian country crimes through the CFR courts. Now, I'll leave it at that, but I'm going to come back to an overarching theory of this case that, in my view, is about the duty of protection. And from the beginning of the United States, you know, Indian tribes in the U.S. have a relationship that under customary international law is called the duty of protection. We typically more informally call it the trust responsibility now. And that's kind of shown in the structure of the Constitution.

That's super helpful. So I think some left-leaning people, when they look at the facts of this case, you know, they think, well, look, isn't it bad if two governments could prosecute someone? And wouldn't it be better, you know, for decarceration or, you know, whatever you want to call it? Were we to prevent the federal government from trying Mr. Dennis P. after, you know, he is tried by the Court of Indian Offenses? So what does that frame of the case miss? Because I found that in talking to other people, sometimes, you know, that's their intuition. And I see that. So I think full stop, what that misses is the concept of tribal sovereignty. So as many of your listeners probably already know, because you're following

the court, it takes so many Indian law cases. Tribes are pre-constitutional and extra-constitutional sovereigns. And I don't believe that you can truly accept that tribes are real governments possessing and exercising a real form of sovereignty, even if it's sort of an unfamiliar form. At the same time, as you're telling the Ute Mountain Ute Court, who is a participant in this case, like, no, this is actually a federal court. What you believe is your tribal court is actually, that was a federal prosecution. You know, Justice Kagan really aptly called that accusing them of suffering from a false consciousness. And so I think that's really what's missing from that sort of oversimplified

view. And this is related to something else that really stood out to me in the argument, which is that Mr. Dinespi's lawyer kept saying that certain alternatives were more respectful of tribal sovereignty than, you know, the tribe itself. They're sort of their position in the case and also their decision to continue to use the CFR court. And like the paternalistic vibes inherent in that are just overwhelming to me. It's like, you know, dude, they're in the room like you. They know that you're talking about them and you like, talking about what's best for them. And they are speaking for themselves. So, you know, I think that really what's missing here is just respect for tribal sovereignty in general. I think we'll probably come back to this theme, you know, a bunch of

times. But there was a very strange vibe to the argument when you had Mr. Dennis B's lawyers arguing that it would be better for tribal sovereignty to recognize the Court of Indian Offenses as a federal court, while the Ute Mountain tribe is in the case arguing, we are the tribe, it actually would be better for tribal sovereignty if you recognize the Court of Indian Offenses as a tribal court. So yes, the paternalism vibes were very strong. And since you brought up the Justice Kagan clip, I think we should probably play it for our listeners now because it was a really telling moment where she was pointing this out of the oddity of everyone around the court arguing, well, the tribes were just totally wrong in thinking about this court

as an arm of the tribe. So let's play that clip now. The tribe seems to think of these courts as very tribal. I mean, there's a tribal brief, and the tribal brief is on the government side. And it says, these are our courts. And in a way, it's sort of like saying they're suffering from false consciousness. What your your argument? Well, I mean, they believe these are their courts. That, again, to me was just like a very pointed moment in the argument where it's like this is in some ways a case about us without us. Right. Like the tribe was not even participating in the argument and it was all about whether this court is, you know, a tribal court.

It just had a very weird flavor to it. I agree that it's weird. I don't think it's unfamiliar in Indian law, right? Like almost all of the law about us is made without us. It's made, and Matthew will talk later about like the complete lack of Indian advocates before the Supreme Court over the last 20 years or whatever. You know, so I think it is, it's very strange. I think Justice Kagan really

encapsulated how strange it is in that comment. We're kind of used to it is sort of the other sort of sad side of the coin. April's absolutely right. This is the third time that we've had a double jeopardy case argued involving a federal prosecution of an Indian person that is subsequent to a tribal prosecution. And these cases go back to at least 1978. And it's always the United States arguing the case, and the tribe is not – there's no tribal advocate at all. They're not even a party to the case. So the government, the federal government, gets to frame the case, and we live and die on what the federal government's framing is.

And what's missing here is that the frame of the federal government is never going to make this argument. But the real frame that the tribes should have been trying to make in their amicus brief is that this is all part of a consequence of the duty of protection, this relationship between the tribes in the United States. 25 CFR Part 11, which is where the Court of Indian Offenses is codified, is now, as of the 1970s, a product of a negotiated arrangement between the tribes and the United States. And there's actually a little bit of discussion in the argument where they say, where I think it's

the attorney for Dennis P. who says, look, in 1993, you went to Interior and said, we don't want these things in the code anymore. Fix them. And Interior refused. The tribe doesn't get everything it wants, but it's still part of a negotiated product between these two sovereigns. And that is completely, completely missing in any of this argument. So it helps to, as you are suggesting, think about this case also through the lens,

or maybe just through the lens of tribal sovereignty. But what are the stakes of this case for, you know, tribal sovereignty or broader issues of Native American affairs as well? So I think to talk about stakes, we first have to sort of reckon with and situate this in context. There are relatively few CFR courts that still exist. Relatively few of the 574 federally recognized tribes rely on them. And, you know, some members of the court seem to contemplate an easy fix, just make the prosecutor answerable to tribal authorities, whether that means make him a tribal employee or what have you. But let's be clear what we're talking about here. Even if this is like a very localized effect on five CFR courts and a handful of tribes still using them, what we're talking about really is closing the courthouse doors to those tribes.

We're talking about either a deprivation or a subjugation of tribal sovereignty, right? It effectively means that tribes can't exercise their retained inherent right to govern the conduct of Indians on the reservation, or that that right has to potentially be subordinated to federal priorities. I mean, I think it was Chief Justice Roberts who pointed out, this is one of my favorite moments in the argument, was like, well, you know, how can the tribe have an interest here when the penalties are so much lighter? The tribe isn't the reason the penalties are, there's such a big disparity between the penalties a tribal court can levy and the penalties that a federal court can levy. That has nothing to do with the tribe. That's all on Congress. So just to spin out this point for our listeners who might not be as familiar with

the facts, Mr. Dennis P., you know, within the Court of Indian Offenses was sentenced to, I believe, 140 days, whereas under federal law, for the same conduct, he faced something like up to 20 years. But that's not because the tribe didn't view the conduct as serious. That's because federal law caps the amount of time that the Court of Indian Offenses can sentence anyone to. Right. And so back to sort of the stakes question, I mean, what that means is that if you're looking at punishing the same conduct, even though potentially tribal courts and, you know, until there's a federal remedy here, that's the position that we'll be in. Effectively, the courthouse doors are just closed to those tribes. And sort of taking a step back, Indian law is a generalist discipline.

So in almost every case, if not every case, implicates tribal sovereignty. Like that's what we're talking about. That's the core of the doctrine. And it's sort of applied and interspersed over every other area of law. And I think that there are sort of some sleeper and not so sleeper themes in this oral argument that really do implicate core issues of tribal sovereignty. I mean, first you've got Alito talking about race based classifications in criminal law, even though we've known since 1974 that Indian identity is not a racial classification. Or at least we know that the Supreme Court told us that in 1974, previewing perhaps what we'll hear when the court potentially inevitably grants cert in the Brackeen Challenge to the Constitutionality of the Indian Child Welfare Act.

But more troubling, like that I think was expected and was sort of like very blatant. More troubling to me was this focus on like the federalization of tribal governance by secretarial approval, and that it was coming from Gorsuch, Gorsuch of all people. So the Indian Reorganization Act of 1934 put into tribal constitutions a provision for secretarial approval, both of the tribal constitutions and of certain tribal laws passed sort of subsequent to the constitution. So I'm a member of the Fort Peck tribes, my reservation's in Montana. We have a constitution that has a secretarial approval provision in it, which means that anytime the tribe makes a law governing the conduct of non-members or makes a law related to law and order or the court system or makes a law related to banishment, there's a secretarial approval provision in our constitution still effective now saying the

Secretary of the Interior has to sign off on that to ensure that it complies with federal law effectively. So the federal presence in Indian country is beyond ubiquitous. It's everywhere. So this idea that you can simply federalize the act of a tribe and therefore it's no longer a tribal act, but in fact stems from federal authority is hugely problematic for the sort of modern tribal sovereignty as we understand it. So maybe just a little bit more background for our listeners before we get into discussing more of the argument. So the argument and case turns on some questions about how to think about tribal law and how to think about CFR courts and how to think about the officials who bring prosecutions in CFR courts. So the defendant is arguing that in order to say that a prosecution is by a separate sovereign,

two things have to be true. The defendant must have been charged with violating another sovereign's laws, and they must have been charged by or prosecuted by an official of another sovereign. And Dennis B. says neither is true here. You know, maybe it's tribal law, but as April just noted, it's tribal law that requires some approval by a federal official. So is that tribal law or federal law? You know, Dennis P. is saying maybe it's federal law. But then second, the official who brings these prosecutions in the Court of Indian Offenses is an official who was appointed by the Secretary of Interior, the federal government. And so Dennis P. is saying, therefore, you know, they're not representing the tribe.

The federal government, who is supported by the tribes, is arguing that what really matters is Dennis P. was convicted of violating tribal law, the law of another sovereign, even if the federal government retained some power to displace tribal law, even if it's a federal official involved in the prosecutions. And they're saying in any case, like that federal official is acting as the agent of the tribes. Okay. So with that background, maybe now we can shift more into the argument itself. April already kind of previewed, you know, some of the things we're going to be talking about. But I mean, how did you think the argument went? What were some notable moments for you?

I mean, one of my favorite moments was John Roberts talking about the tribal interest and how, you know, the penalties are so light, like how that really reflects on the tribal interest here, which I think is completely absurd. And, you know, I just want to come right back to the clip we already played of Justice Kagan talking about the false consciousness moment. I like I think that that is probably like an Indian Law Hall of Fame moment just for recognizing exactly the dynamic we're talking about. I think April's got the quotes of the day today. So this is great. I'm sorry, that shouldn't be part of the podcast. I'm just impressed. No, it can be. It can be. We like group affirmations. We like, you know, positive feedback. That's what we're about on this show, except if it relates to Sam Alito, then that gets cut. I got you. So my favorite moment, I have two, I guess you could say. One was actually the Chief Justice sort of defending all of this, but Justice Kagan also had a phrase

where she was referring to the attorney for the, actually, I don't even remember which one it was, but we'll call it her halfway house moment, where she said, I think you're in a halfway house. So the NSP's attorney says, is trying to frame this case as a textualist case. Look at this statute here. It says that federal prosecutors have to consult with tribal prosecutors. Look at this right here.

It says that the prosecutor and the judges are appointed by the federal government. So it's sort of like, I'm finding some texts for you, textualist judges, to look at to reach a conclusion. And Justice Kagan says, yeah, you got some text, but you're not telling the whole story. What are the practicalities on the ground? And this is where I thought the government did a decent job of pointing out a few things.

You know, there are differences in practicalities that matter if this is going to be a tribal or federal prosecution. Tribes have a limitation on the amount of time they could put somebody in jail. Tribes also have a very quick docket. You know, they can prosecute somebody long before the federal government actually gets around to indicting anybody. Sometimes a year or two will go by before the feds for the AUSA could do anything about that. I would also add, and not to ding the SG for not pointing this out, but there's a difference between a CFR budget and a 638 budget. And what I mean by that is the CFR is a federal instrumentality. So Congress, the one thing they are really, really good at is funding itself. The government funds itself great.

But when a tribe negotiates for a budget through Public Law 638, it gets a pile of money. And sometimes the money is going to be adequate for the tribal court, and sometimes it's not. So that's a sovereign choice a tribe like Ute Mountain Ute could actually make. And I thought another thing that was textually important and critically important in this case is the fact that appeals. There are things in the Code of Federal Regulations that say, well, you cannot appeal this to an ALJ in the Department of the Interior or the Interior Board of Indian Appeals. Your appeal actually is through 25 U.S.C. Section 1303, which is the Indian Civil Rights Act's habeas corpus provision. So there's a case called Dry versus CFR Court in the 10th Circuit in 1999, which is an example of somebody convicted in a CFR Court who had to file their habeas petition in federal court through the Indian Civil Rights Act. Those are textualist kind of

arguments that are, some of them are totally left on the floor here, and it was a little bit concerning to me. By the way, there's another thing in the Code of Federal Regulations that says a CFR court must follow tribal custom if it comes up, unless it directly conflicts with federal law. So I'm thinking it's conceivable that, I don't know if this happens in the five or seven CFR courts, but a tribal defendant or even a victim could ask for peacemaking, which is sort of a non-adversarial process to remediate a case without going through an adversarial process. And I think that could be done in a CFR court. So these are things that push back on the textless arguments. And I'm going to come back to this again and again, with better preparation perhaps or a different strategy, you would have seen more of these things show up in the SG's argument the other day. Yeah. So let's just tick through some of the usual

characters that we cover on this show. So Justice Breyer highlighted the amicus brief we mentioned on the preview that was put together by Greg Oblosky at Stanford and Maggie Blackhawk at NYU that is filed by the NYU Yale Sovereignty Project. As Justice Breyer pointed out, I think it pretty persuasively demonstrated that many tribal officials were selected by the federal government. So as April was talking about, you know, the federalization of tribal law, tribal actors doesn't mean, you know, it's not tribal law or tribal actors. I think a point that relates to Matthew, what you were just saying, and also April, what you had suggested before about how easy of a fix might it be for, you know, tribes to bring in a tribal prosecutor or, you know, alter the CFR courts. Justice Sotomayor was pretty quick to point out that the justices' fixation on the fact that the BIA prosecutor was appointed by the federal government overlooked how the federal government had, you know, as Matthew was kind of suggesting, forced tribes into this position by not granting them sufficient money to construct tribal courts, to select an official to

bring prosecutions in CFR courts. So why don't we just play that clip from her now? So would it have mattered if the tribe had contracted with the government to provide the prosecutor? The tribe had actually provided the prosecutor. So it would be an easy fix if you were to win in this case. CFR courts could continue so long as the prosecutor was tribally controlled. I think that's right, and I would say that I think there are two easy fixes, Your Honor, both of which are substantially more respectful of tribal sovereignty than what happened here. First, you could have a 638 contract that allows the tribe to control and bring the prosecutions. Beyond that, you could also just have the simple administrative fix of reallocating the resources for these CFR courts

to grants to the tribes to establish their own judicial system. There already are. These tribes are too small to make use of those grants. Well, I think the grants aren't big enough. They're not big enough in light of the poverty of the tribes. And now we get to Neil Gorsuch, who has somehow acquired this reputation as a justice who is receptive to Native Nations authority, you know, and some of his recent cases, you know, have indicated as much. But at this argument, he was really hostile, I would say, to the federal government's position. And it was a little bit hard for me to know what the precise reason for that was. But I want to play two clips that underscore this hostility. So here's the first clip, which suggests one possible reason for the hostility.

And I don't want to revisit Gamble. I was in dissent there, and so I must have been wrong. But here, am I correct that the tribal crimes are only enforceable in CFR court with the assent of the Secretary of Interior? That's exactly right, Your Honor. And that comes from, it's duplicative of 25 CFR 11.449. It's also 11.108, which is the provision that requires approval of this. And historically, as I understand it, that was an important feature of the law because the federal government, in its infinite wisdom, didn't want every tribal crime to be enforceable because they thought some of them were not sufficiently worthy or of federal respect. Is that right?

And then here are the other clips. But we can avoid all that, it seems to me, if we apply our existing double jeopardy jurisprudence under Barkas. And my first question to you is, does the government acknowledge that there is what I've called the Barkas exception? That though there may be nominally two separate sovereigns involved, even in those circumstances, sometimes double jeopardy can be implicated. You have a law that has to be approved by a federal executive officer, a federal prosecutor before a federal forum. And as I believe you pointed out, this initial prosecution, if it isn't strictly speaking a dry run or a hand in glove sort of thing, provides for immediate incapacitation in a way that might not be possible

in federal court. If this doesn't qualify, would anything? This stuck out to me, and I want to offer a sympathetic explanation about what he's doing and then a more concerning one. So the sympathetic explanation is Justice Gorsuch is still upset about Gamble and the court's unwillingness to overrule the separate sovereigns doctrine, because he does think it violates the double jeopardy clause when two different governments prosecute someone for the same conduct. And so in his mind, maybe he's just trying to arrive at a rule or a resolution that best approximates that result. Note, however, that would be like an extremely anti-formalist move

just to like refashion the law in order to reach the result you think is the right one. But that is, again, I guess the most sympathetic explanation. And then the other one was, I guess it truly never dawned on him how significant it might be were he to say the fact that, you know, the Secretary of Interior has some authority over the prosecutor's priorities, or the fact that the Secretary of Interior has some authority over tribal law means it's federal law. I mean, that could make tribal courts federal courts, because as you were saying, April, tribal courts enforce tribal laws and tribal laws sometimes require federal approval. And so this line of reasoning he's throwing out would just junk tribal sovereignty outside the context of CFR courts as well. And does he realize this? Well, and taken to its logical extreme, keep in mind that Congress has plenary power over Indian affairs. So if you want to go that far, like tribal sovereignty just doesn't exist.

And I think that is because that's the reason for secretarial approval of, you know, certain tribal constitutions, tribal code provisions. We're in this sort of unique and limited sovereignty place. And the reason for that is the plenary power of Congress and also, you know, things like the doctrine of discovery. And Matthew's going to, I think, talk a little bit more about, you know, the duty of protection, sort of how all the history factors in here. But I do think that like one big thing missing from this argument is just any awareness of where we are. I am a big proponent of modern tribal sovereignty, like of who we are now,

and sort of like not dwelling on a lot of the horrible things, and quite frankly, the arbitrary things that happened because of shifting federal whims and budgetary concerns and priorities, but really talking about tribes as modern sovereigns. But at the same time, to get there, we have to sort of start with the premise of inherent sovereignty. We have to start pre-constitutional. So what I think is missing in this argument is not only sort of an acknowledgement of the plenary power of Congress that creates, necessarily creates, a federal overlay in Indian country in a lot of ways, but also asking why we have CFR courts in the first

place. I mean, if the goal was just to stamp out Indian culture, Indian religions, or even generously to protect public safety in Indian country, why couldn't the federal government just do it? Because tribes retained a degree of authority. And I feel like the solicitor's office generally conceded that this is a federal forum. And I'm not so sure it is because the whole reason the forum exists is because of tribal authority. I always thought a better way to frame this case was to point out a couple of places in federal Indian law where tribes exercise delegated federal power. So for example, under the Clean Water Act, the EPA can actually identify tribes and grant them treatment as state status.

That's a thing under the Clean Water Act. And so they can enforce tribally enacted promulgated water quality standards. And the tribe effectively has the power to do that because it is stepping in the shoes of the federal government. The EPA, like it does with states, delegates federal power to enforce these promulgations. The city of Albuquerque is under the water quality regulations of the Isleta Pueblo, just downstream of the Rio Grande of Albuquerque. So that's a really good example. So what could possibly be happening here, and this is very consistent with what April's talking about, is that the Ute Mountain Ute is delegating

tribal power to the federal government through federal government machinery, a CFR court, to prosecute tribal laws. And in this case, that's actually happening. It is a tribal ordinance that is being enforced. And there's just no contextualization of that. And that's effectively what's happening. And, you know, maybe the SG's office as a political matter just doesn't want to raise the possibility that the federal government is not the most absolute sovereign in the world. Throughout argument, you heard Justice Sotomayor, I think, started this. Couldn't the tribe just retake over from the CFR court? Yes, they could. They could pull the sovereignty back from the federal government. It's delegated tribal power to the federal government. But we don't even consider

that contextualization. It's not briefed. It's like it's impossible to imagine that that could be the case. But it happens all the time. So on Justice Gorsuch, this is for you, Leah. He is close to just an amazing justice in the short period of time for Indian country that he has been on the court. He hasn't ruled every single time in favor of tribes, as far as we can tell. But we're hopeful, of course, that we have a solid future with him. But, you know, maybe he just got lost in translation. And maybe we just asked too much. And maybe this thing that we had with Justice Gorsuch was a masterpiece until he tore it up. Matthew, this is all too well, my friend. I remember it all too well, I will just say. I am definitely seeing red.

Speaking of seeing red, before we get to the Solicitor General's office, we have to play the question from Sam Alito, in which he suggested that basically all of federal Indian law is unconstitutional. So let's play that question. Can a federal criminal statute include a racial classification? It's a fair question, Your Honor. I think there is a serious constitutional equal protection question about whether or not that's the case. So if we were to hold that this provision of the tribal code was really federal law, we would have to confront that question, wouldn't we? I feel like someone who was listening to the argument might not immediately understand just how scary this question is, because what he's

saying is that any law that distinguishes between people on the basis of whether they are Native American or not is constitutionally suspect, and that court should probably strike it down. But that would include basically all of federal Indian law. And in particular, this is an argument that is being pushed against the Indian Child Welfare Act now, which enacts several protections that are designed to limit states' ability to break up Native families and place Native children in non-Native families. And what Justice Alito is saying would call the constitutionality of that law into question.

You know, as April alluded to, the court is currently sitting on some requests to hear cases about whether the Indian Child Welfare Act is unconstitutional. That's for keen. If you're interested in that issue, you should definitely check out season two of This Land with Rebecca Nagel. But is Justice Alito previewing, you know, that they federal government is, quote, unconstitutionally discriminating on the basis of race when it enacts protections for, you know, Native nations and Native Americans. So what was that article about? Or like how, you know, where is Justice Alito going astray? Well, Justice Alito is parroting sort of the talking points of those who have attacked Indian

affairs statutes for the past half century. You know, nobody was around to help Indian tribes when Congress was passing laws that were detrimental to tribes, but those were totally constitutional. And in the last 50 years, Congress has been passing laws that have been sort of ratcheting back those negative things. And now suddenly there are racial classifications. Did you know that the Constitution has racial classifications in it? We have a phrase in the Constitution that says Congress has the power to regulate commerce with, quote, Indian tribes. And even in the 14th Amendment, there's this phrase, and it's sort of inert right now, which is a good thing, but there's a phrase called the Indians Not Taxed Clause. So twice in the Constitution, a racial classification

is made. Now, those terms are not defined. The Constitution doesn't tell us who Indians are. Guess who it leaves to tell us who Indians are? Congress. For purposes of federal law, Congress tells us who Indians are. And that's the law. It has been the law since the Constitution was enacted. And as April said, in 1974, Martin v. Mankary, the Supreme Court reminded everyone who thought this was a bad idea that so long as Congress is fulfilling its duty of protection, its trust responsibility to tribes and individual Indians, that those classifications are perfectly constitutional. And, you know, that's the thing that's missing from this analysis. And, you know, that's the

thing that's missing from this analysis. And it's like there's an echo chamber in chambers, I suspect, between judges who probably know each other. This idea of sort of pushing back on Morton v. Mankery in 1974 was originated by a former judge who shall not be named, but whose last name rhymes with Bozinski. You know, this is not the law. This is just idle speculation and concurring and dissenting opinions from a judge who didn't like Indian law, didn't like, you know, reform statutes, civil rights statutes that benefited people who had been historically oppressed and wanted to idly think of reasons why they might not be constitutional. But the Constitution itself makes them constitutional.

Well, unfortunately, that sounds like a legal argument, Matthew. Unclear exactly how much of federal Indian law is law in a real sense versus vibes. So in some ways, maybe federal Indian law was like the canary in the coal mine for what would become of all of constitutional law. OK, so we've kind of alluded to already, you know, some questions and additions we all had to the argument that the federal government was presenting. And I did want to shift now to the role of the Solicitor General's office, in particular in Indian law cases, as well as more generally the Supreme Court bar. So, Matthew, you run a wonderful blog, Turtle Talk, and I wanted to talk about something you posted on the blog that relates to something we often talk about on the show, which is the lawyers who are arguing the cases at the Supreme Court.

And as you pointed out, after the lawyer who argued Nevada versus Hicks, there have been 37 individual Indian or tribal parties represented at oral argument, and none were represented by an American Indian advocate. You also offer, you know, some additional statistics like the members of the Supreme Court bar who have argued for Indians or tribes since 2001 are 9-6. The advocates who argued for Indian tribes who were not members of the Supreme Court bar were 10-21 in winning and losing. And I guess my question to you is, like, what is causing these dynamics, like the lack of American Indian advocates, you know, appearing before the court, as well as the lawyers who are representing tribes and, you know, tribes win, lose rates at the court? Like, what do you kind of think is going on here? Well, the reason that it's been, Nevada versus Hicks was 2001. And James Anaya, who has just stepped down as Dean of Colorado Law School, who was an amazing appellate advocate in both state,

federal and international tribunals, was a great choice to argue that case. And he lost nine to nothing. And it was a part of a string of losses throughout the 1990s that were case. Those advocates, there were 13 of them. We sort of jokingly referred to them, wryly referred to them as the last 13. They were the last 13 Native people to argue a Supreme Court case. They won the first six cases in the 80s, they argued. And then it was just dropping off a cliff. Outside of Bill Rice, who is one of the greatest appellate advocates of all time, in 1993, all of the Native advocates were just roasted over an open flame at the Supreme Court. And so the thinking in 2001, and this actually occurred, you can't make this up, on 9-11 in Washington, D.C., tribal leaders from national organizations met in the basement of a hotel while D.C. was in flames and came up with a plan called the Tribal Supreme Court Project.

And they were going to try to harvest and recruit members of the Supreme Court Bar to help argue the cases, to strategize the cases. And as you know, the Supreme Court Bar is not very diverse, not very diverse in gender. And there are no Native people who have ever could be construed as being a part of the Supreme Court Bar. There are no Native people in the pathway or the pipeline to become members of the Supreme Court Bar, really. There may be a person or two that we don't know about, but they obviously haven't argued a Supreme Court bar, really. There may be a person or two that we don't know about, but they obviously haven't argued a Supreme Court case. So that was part of a strategy. And one could argue in the last 10 years, tribes have been very successful, at least since 2014. And maybe the strategy is just an overwhelming success. I give the credit, by the way, to Justice Sotomayor, who's forced the court, whether they liked it or not, to take Indian law seriously.

And Justice Gorsuch is certainly part of that as well. But now we're to the point where it's been 20 years and it's getting to be a bit embarrassing. Only two of those advocates out of the 37 were women, I point out as well. So the strategy is great, but we've done this for a generation. And we have people like Amanda White Eagle, who was the co-author of that amicus brief you mentioned, that Maggie and Greg worked on. You've got people like April. April's going to argue her first appellate case in a couple of months in the Montana Supreme Court.

You have people like Nikki Ducheneau, who was there at the beginning of the case that ultimately became Yellen versus Confederated Tribes of the Chehalis Reservation. You know, people are out there, Native people out there ready to step in. And, you know, for whatever reason, it's just not happening yet. And I think it's impacting. I think what happened on Tuesday hopefully will open some eyes. Look at the argument in the Isleta del Sur Pueblo case versus Texas. It's a bingo case. Justice Alito asked a question that right along the lines of Justice Alito, nothing matters anymore. I don't know. There's no Indian law precedents because I didn't write the opinions. Therefore, they don't exist. And he wanted, we didn't think that was going to come up in this, so we didn't brief it. I don't really know. Somebody who's a specialist in Indian law, who knows a little bit about Indian law,

would have been able to give a better answer than that. And I put one up on my blog just in case, I don't know, it's like a post-argument, amicus brief, so to speak. But it would have been nice if the SG had an Indian law specialist who argued the case. And again, the SG, they don't hire, there's nobody in the pipeline. So there's nobody that we know of who's native who's ever worked in the SG's office. That says a lot. And given how many times they're arguing cases, I don't know, it's troublesome. And I think it comes up

again in the framing of this case. Again, the SG is the only one arguing the tribe side, so to speak. And for whatever reason, I thought that they had no real theory of the case. You know, Dinesh P's counsel came up and said, look at these texts, you know, point here, here and here and not mentioning and excluding ones that were never brought up that were contrary to their position. The SG didn't have a response. The SG could have said something like, hey, this is all part of, I don't know, I said this before, like third time in this podcast. You know, this is the question of the world of the duty of protection. Welcome to the world of the duty of protection, right? This is just what happens, right? So sometimes tribes do things themselves.

Sometimes the federal government does it on the federal government's authority. And sometimes the tribes and the federal government sort of work together in this weird CFR court type world and universe. And it would have been nice for the SGD to be able to frame that. And the last thing I wanted to say, this is not really a rant. I'm not yelling, am I? But the last thing I want to say is. No, this is commentary. This is what we call informed commentary.

Thank you very much. And the last thing I want to say is I thought that when the tribes are in a position like this where they're not arguing the case, but it's all about them, it's a really hard place to be. And the Tribal Supreme Court project usually does a really great job of lining up amicus briefs that meet certain goals. And there are two critically important amicus briefs in this case. The first is the scholars brief you mentioned. The scholars brief gives us the history of where the CFR courts came from, how terrible they were, but they're still creatures, even in their worst instances, they're still creatures of the duty of protection, just a quite absurd and abusive version

of the duty of protection. But that's where the scholars brief ends. It ends at public law 638. It's the tribal brief, the one that several tribes who are still CFR courts, most notably Ute Mountain Ute itself, that amicus brief is sort of should have picked up from where the scholars brief ended. And it didn't really do that. It kind of covered some of the same ground as the scholars brief saying, we're reminding't really do that. It kind of covered some of the same ground as the scholars brief saying, we're reminding you that these old courts are bad, but now we've taken them over, full stop. There's none of the details we've talked about, like where the appeals go. You know, those practicalities that should have been the response and were partially the

response to Justice Kagan's halfway house question. The attorneys for the tribes who argued that case, now Ute Mountain Ute is a natural resource extraction tribe. They're coal, oil, natural gas. That's what they do. Their outside counsel who put together this brief, that's what they do. They're not public law, constitutional law scholars. And I understand the tribe wants to have its own people that they're familiar with put together this brief, but this brief did very little work. And taken in conjunction with a scholar's brief, which ends at sort of the beginning of the self-determination era, that creates a real problem. The scholar's brief tells us a very incomplete story, and it gives room for the justices to say the paternalistic stuff that April was complaining about earlier. I shouldn't say complaining. She was commenting on.

You know, like, hey, aren't these CIO courts, CFR courts, aren't they just terrible for tribes? Wouldn't it be better if we just, like, say they're federal and get rid of them? That's not the full case. And those two tribal briefs, those two amicus briefs on the tribe side could have done a much better job of putting together a story. I don't know if the court would have listened to it. They obviously pointed, you know, Justice Breyer brought up the scholars brief, and that's great. And I think actually somebody brought up the tribal brief, too. But they didn't come together in a way that was really truly effective, and it was disappointing.

It sounds like maybe what we need is a two-prong strategy. One is, of course, it's great to proactively seek out better lawyers to be litigating on behalf of tribes and tribal authority, but you also have to take some responsibility in constructing the pipeline for who those lawyers are going to be. That is, you can't just rely on the existing Supreme Court bar. You also have to try to change who is going to become part of the Supreme Court bar as well. Just as an aside, I used pipeline too, but that's a dirty word in Indian country. So we're trying to say pathway. But I still do it. You're right. It doesn't make sense to say it's a pathway because it's totally a pipeline. But I'm just joking. It's just a thing.

I mean, we've been hearing for decades that there are pipeline problems for, you know, Indians in the law. There are a lot of us. You know, Matthew's talking about like the last 13. That wasn't, you know, that was more than 20 years ago that there were 13 Native advocates who had two, until 2001, had argued in front of the Supreme Court. Some of the real pipeline issues, right, are that Native law students aren't getting hired into federal clerkships. There have been two

Native women ever who have clerked on the Supreme Court. One was hired by Justice Gorsuch and one by Justice Sotomayor. She was actually a Native Hawaiian woman. As far as we know, there's never been an Indian in the SG's office. Like, that's insane. But also, I think part of the reason for that, it's not that there aren't enough of us, there are plenty of us. It's that Indian law is in a lot of spaces really marginalized. I mean, I had classmates make comments to me in law school. And I went to Harvard undergrad, but I went to law school in Montana, because I wanted to choose a law school that had a relationship and a responsibility to Indian tribes. But I had classmates even there at a school that prides itself on teaching Indian law say things to me like, oh, you do Indian law,

right? Like in this sort of patronizing, that's so cute tone. And what that does to native law students is that it like, it makes them feel marginalized and it sort of makes them feel like they don't have a place in a federal clerkship or in sort of a big law firm like where I work. And so what I always tell Native law students now, I've had like a ton of opportunities to talk to people since I'm not that far out of law school, is that there's like a great gift in being an Indian law practitioner. We are generalists by default. You have to be incredibly intellectually nimble to attack any area of the law, learn it, and then apply 250 years of history and precedent to it. And, you know, we're just waiting for people to recognize that again. And I, you know, I hope they recognize it soon. I hope so too. I now teach in part because of Matthew's influence, you know, Indian law and Native American affairs

law in my first year introductory constitutional law class. And my most recent habeas project was focusing on uses of habeas like in Native American affairs, you know, in late 1800s, 1900s as well. So, yes, law students, right? Federal Indian law is, again, as we were saying, like the canary in the coal mine for like all of constitutional law, right? Federal Indian law is, again, as we were saying, like the canary in the coal mine for like all of constitutional law, right? Like if you learn it, you will learn, you know, all of the important things about public law and become like a very skilled lawyer in the process. Absolutely.

So that's probably all we have time for, unless you all want to add any kind of final concluding thoughts. I feel like Matthew really mic dropped there, so I'm good with that. That works for me. April and Matthew, thank you so much for joining us and sharing your time and expertise with our listeners. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Thank you. A quick update. After we recorded this episode, the court agreed to hear the cases on the constitutional challenges to the Indian Child Welfare Act, as I speculated might happen in

light of Justice Alito's question at the oral argument in Denizpi. Sometimes it's no fun being a Cassandra. This means you definitely need to listen to season two of This Land with Rebecca Nagel to get up to speed on these challenges. And we will be covering them more on this show as well, particularly as the argument gets closer. The cases won't be heard until next term, which begins in October.