Courthouse Steps Decision: Oklahoma v. Castro-Huerta

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nate Kaczmarek:  Welcome to this Federalist Society Practice Group Courthouse Steps Webinar. This afternoon our panel of experts will discuss the Supreme Court's recent 5-4 decision in Oklahoma v. Castro-Huerta. The case presented interesting jurisdictional questions about the ability to prosecute crimes in Indian country. My name is Nate Kaczmarek. I am Vice President and Director of the Practice Groups and the Article I Initiative. As always, please note that all expressions of opinion on today's program are those of our speakers.

 

In the interest of time, I will greatly abbreviate our panel's bios down to just their current titles. If you'd like to learn more about their accomplished backgrounds, please visit our website or the promotional emails for this program. Today we're very fortunate to have with us David Casazza, who is an Associate Attorney at Gibson Dunn. We also have with us Jason Manion, who is also an Associate at Gibson Dunn, as well as Jennifer Weddle, who is a Shareholder at Greenberg Traurig, and A.J. Ferate, who is Of Counsel at Spencer Fane LLP.

 

Throughout the panel, if you have any questions, please submit them through the Q&A function at the bottom of your screen so that our speakers will have access to them when we get to the final portion of our webinar. With that, I'd like to thank all of you for being with us today. David, I believe you are up first.

 

David W Casazza:  Thank you, Nate. So, just recently, the Supreme Court decided this case, brought by Mr. Castro-Huerta, challenging his conviction in state court. This is one of what's likely to be a number of cases that arise out of the Supreme Court's decision a few terms ago in McGirt. And in McGirt, and a predecessor case, Murphy, the Supreme Court held that Congress had not disestablished the Indian reservations that formed what was previously Indian Territory and is now the eastern half of Oklahoma.

 

The McGirt decision had substantial effects on state tribal and federal authorities, because most of these institutions had operated on the assumption that this area was not part of what federal law calls "Indian country," basically, Indian reservations. Now that status as Indian country is crucial because it involves very tangled webs of jurisdiction, and, in particular, here, has a big impact on criminal jurisdiction.

 

After McGirt, a number of people with state convictions, including Castro-Huerta, were able to have their state convictions overturned, because of existing law stating that crimes committed by or against Indians within Indian country were not within the state's criminal jurisdiction. Most of these decisions were based either just on longstanding federal common law, with regard to Indian country, or with two statutes: the General Crimes Act, the Major Crimes Act, and Public Law 280. The Major Crimes Act is not part of Castro-Huerta, but it will probably be a subject of future cases.

 

The General Crimes Act says that the general laws of the United States— as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States — extends to Indian country. Public Law 280, which is about 60 years old now, sets up a system whereby states and tribes can elect together to allow the state to prosecute crimes committed by or against Indians within Indian country. Oklahoma does not have these agreements with the tribes that are now in the eastern half of Oklahoma. So Mr. Castro-Huerta was able to have his conviction overturned in state court because, although he is not an Indian, the victim of his crime was.

 

The state then petitioned for Supreme Court review, asking the Supreme Court to decide first whether McGirt should be overturned, and, second, whether the state, in fact, did have jurisdiction to proceed with a criminal conviction for a crime committed against an Indian. The Court limited its review only to that second question, and declined to reconsider McGirt. In a 5-4 decision, with a five-justice majority led by Justice Kavanaugh, the Court held that the state does have concurrent jurisdiction with tribal and federal authorities for crimes committed against Indians within Indian country.

 

The dueling opinions just lay out a different background understanding of what's going on within the reservation and how the interplay of powers works there. Justice Kavanaugh's majority is very clear that for them, Indian country within a state's territory is part of a state, not separate from a state. Therefore, the state has jurisdiction to prosecute crimes committed in Indian country, unless state jurisdiction is preempted. Justice Kavanaugh's majority then looks at a number of statutes that Castro-Huerta points to, among them, General Crimes Act and Public Law 280, and concludes that none of these statutes preempts state jurisdiction here.

 

Finally, the majority looks at a balancing test set out in a prior decision called Bracker, to decide whether state jurisdiction is just incompatible with tribal self-government, in which case, you can have a sort of field preemption, even absent some express statute. The Court concluded that that was not the case here, and that there was no basis for preemption, and, therefore, the state had jurisdiction.

 

Justice Gorsuch, on the other hand, wrote a very powerful dissenting opinion, joined by three other justices, in which he started from the assumption that the state is precluded from operating here, unless it has some grant of authority by Congress. He then reads Public Law 280 to reaffirm this basic layout of power, and finds that because Oklahoma has not been granted this authority, has not entered into these Public Law 280 agreements with tribal authorities, there's no basis for tribal jurisdiction.

 

These are two very strongly expressed and differing views of the relationship between federal, tribal, and state law, and there are a number of areas in which the majority reserves questions not addressed here, which are likely to be the subject of a number of follow-on decisions. And, with that, I'll pass things over to Jason for his commentary, and for a discussion of the impact on the state.

 

Jason Manion:  Hi everyone. So, as David mentioned, I'm going to address some of the impacts on state and local law enforcement as a result of the McGirt decision, and then just a few thoughts about the opinions themselves. Before I do so, I represented clients, including the City of Tulsa, in this litigation, and just want to make clear that anything I say today are my own views, not the views of the clients that I represented.

 

So, to start with the impacts, this case came before the Court in a somewhat odd posture. So the issue before the Court was the question, the first question presented: should the Court overrule McGirt?  If not, should the Court decide this question about state criminal jurisdiction? But it came up in the posture of a direct criminal appeal. And what that meant is that there was no ability or reason for parties outside of the initial prosecution to build a record within the normal adversarial process on the facts on the ground.

 

And so the Court had before it, in this case, a competing set of amicus briefs, some of which, generally from state and local law enforcement, presented a view that McGirt's consequences have been really significant, and really bad for law enforcement efforts in Oklahoma. But you had briefs on the other side, including from the federal prosecutors, from some of the tribes that are in Eastern Oklahoma, acknowledging that there had been, maybe, growing pains, or some initial but inevitable difficulties from McGirt, but ones that were not likely to be lasting, and also were not as bad as the state authorities claimed.

 

So that's what the Court had before it. But I'm going to cover more of the state-side amici and some of the examples that they had presented to the Court. And, overall, these amici stressed that when McGirt ousted the state of Oklahoma from being able to prosecute crimes committed by or against Indians in almost half of the state, that dramatically increased the law enforcement burden, both for the federal government and for the tribes, but that the federal government and the tribes had been unable to keep up with that increased burden.

 

There had been, according to the amicus briefs, a 400 percent increase in federal criminal filings in some of the affected districts there. And, despite that increase, federal prosecutors were still required to prioritize cases, with violent offenders typically being prosecuted to the exclusion of others. And there were specific examples that some of the briefs highlighted, and I'll just highlight a couple of those, one involving a violent burglary of an Indian Tulsan in his apartment. According to a police report, he heard a knock on his door, heard someone saying that this was the Tulsa Fire Department, there for a smoke alarm check. But, instead, it was one of his former tenants who had been banned from the property and that had assaulted him in the past. The suspect forced his way inside, punched the victim in the face, kicked him in the chest. And the U.S. Attorney's Office declined to prosecute.

 

Another example in the briefs was a first-degree burglar who initially was not armed or violent. The United States Attorney's Office declined to prosecute, and the burglar re-offended within the same month. And, according to the police report, the FBI, after the initial burglary, said, because this wasn't a violent crime or one that involved a gun, they didn't have the resources to prosecute. In the second burglary in that example, the suspect was armed with a knife. So those were burglaries, but there are other classes of crimes that were not being fully prosecuted, crimes that were impactful to the victims, but not, maybe, as serious.

 

So one of the examples in the briefs was a member of the Cherokee tribe within Indian country caught her neighbor peeking in a window as she got out of the shower. And the tribes couldn't prosecute, because the defendant was non-Indian. The state couldn't prosecute under the pre-Castro-Huerta view of the law. And so she contacted the federal officials, who declined to press charges. And the victim statement said, "Basically, unless I'm murdered or raped, there's nothing, there's no law and order for me or anyone that's on an Indian roll in Northeast Oklahoma."

 

But even when there was prosecutions, defendants would sometimes receive lower sentences — thanks to plea-bargains — in the federal system, than in the state system. So one of the examples in the briefs involved a member of the Muscogee Creek Nation who broke up with her non-Indian boyfriend. He then shot and killed her. The state, before McGirt, had successfully prosecuted him for first-degree murder, and that resulted in a sentence of life in prison without parole. He appealed. Thanks to McGirt, his conviction and sentence were vacated. The U.S Attorney's Office ultimately allowed him to plead guilty to second-degree murder. And so for the same conduct that had previously resulted in a life sentence, this defendant received only 25 years.

 

So these were among the examples. But, as I said, the overall theme was that only violent crimes were being prosecuted, or, certainly, prioritized, and that that was leaving other serious crimes that the state would typically prosecute to go unprosecuted.

 

A couple quick thoughts about the opinions themselves: as David mentioned, the Court was initially presented with two questions, one asking the court to overrule McGirt entirely, one asking the Court to take this one limited question that would remedy some, but not all, of McGirt's consequences. And, as you read the opinions, I think, particularly, the dissent, you'll see some strong language that suggests that the result in this case was a major blow to tribal sovereignty. I think the practical reality is much more limited than the rhetoric might suggest.

 

So, before this case, tribes could not prosecute non-Indians. Afterwards, the exact same thing, tribes still cannot prosecute non-Indians. Beforehand, states could not prosecute Indians who committed crimes against non-Indians in Indian country; afterwards, the same thing. This decision has not resulted in tribes losing any prosecutorial authority. It has also not resulted in states gaining any prosecutorial authority against Indians. So the only difference, after this case, is that non-Indians who commit crimes against Indians are under two sets of laws and could be prosecuted by two authorities, which is similar to every other class of crimes within Indian country. In some cases, it would be just the federal government or a tribal government. In some cases, this class -- Castro-Huerta decided it is now the federal government and its states, which just equalizes the ability for crimes involving non-Indian perpetrators against Indian victims.

 

And so I think after this case, McGirt -- and the rest of McGirt is still good law. As David mentioned, I think the majority opinion was pretty careful not to endorse current understandings of some aspects of Indian law, while also making clear that it was not altering them in this case. So there could be greater impacts going forward, but more from follow-on cases than this case, in my view. And I think the major difference here is just the different conceptions of the level of sovereignty enjoyed by tribes. The majority appeared to view tribes as some lesser form of sovereign, lesser than, say, a state or another nation, which is consistent with Supreme Court precedent in other cases saying the tribes no longer possess the full attributes of sovereignty.

 

The dissent takes a very different view. As Justice Gorsuch says, "Tribes are not private organizations within state boundaries. The reservations are not glorified private campgrounds. Tribes are sovereigns." So he has viewed them as being much more like a state. And he drew that analogy that a state -- it would be no answer in a case involving two states to say, "Well we would have just one extra set of prosecutors, one extra sovereign here." That wouldn't address an injury to a full sovereign.

 

My last quick point before I hand it over to A.J is that the dissent, at the end, went out of its way to try to limit Castro-Huerta, including by insisting that the analysis was limited to only the Cherokee Nation, and that nothing about the majority opinion pre-judged the answer for any other tribe or any other state. But that's not the way it played out after McGirt. McGirt involved one tribe, one state. But it was quickly expanded to the rest of the tribes in Eastern Oklahoma.

 

So it will be interesting to see. Presumably, there will be the follow-on litigation in the Oklahoma state courts that will see whether Castro-Huerta applies, whether the result in Castro-Huerta applied equally to other tribes in Eastern Oklahoma. Justice Gorsuch suggested it shouldn't play out that way, but it remains to be seen how it will. A.J.?

 

Anthony J. Ferate:  Thank you, Jason. And, to your point, the first decision using McGirt was actually in the Seventh Circuit. It was used in a matter involving the Oneida Nation, whether they needed to get a city permit for their festival that they held on their land that was within city limits. So this case could have impact outside of Oklahoma. But, just like McGirt, its primary impact, or its primary area of focus, is here within Oklahoma. So really just focusing on a couple of other areas, as the one that's sitting here in Oklahoma City, I just wanted to highlight a few thoughts. And some of these I shared on a different podcast last week.

 

But it's been estimated that about 20 percent of the prosecutions that were occurring in state court would have -- I don't want to say, "disappeared," but the state court would not have had those prosecutions, had Castro-Huerta gone the other way. And to cite some of those, I — similarly to Jason, and similarly to Jennifer — had a brief in the case. In the brief that I wrote, we used the U.S. Court's data, which showed that the Eastern District of Oklahoma represents, currently, 57 percent of all federal homicide prosecutions. That's not something that had happened prior, but just to go to show how difficult it is for the federal government to handle all of these prosecutions. They're certainly handling the more significant major, major crimes, I guess, I suppose is what I'll call them.

 

Some of the other major crimes — the burglaries, the larcenies, the thefts that should now also be handled by the federal government — those are not occurring, though there was a national increase of about 6 percent as a result of those, according to the U.S. courts, which is leaving a significant number of these without attention. And that's not to say that once the federal government, once the tribes get up to speed, that those will continue to be an issue. But they are currently an issue, and are causing a lot of confusion within Eastern Oklahoma, and, arguably, Oklahoma as a whole.

 

So I really wanted to focus a little on a little bit of the interplay. Jennifer and I, last week, discussed a little bit how you can't look at these cases in a silo. You kind of have to look at them all in a holistic sense, look at Yselta and Denezpi kind of in a similar vein. But, in this particular instance, it's worth looking at Dobbs, interestingly enough, in Oklahoma. Oklahoma, as Dobbs passed, giving the states the ability to determine how to deal with the abortion rights in each and every state in the country, the state of Oklahoma initiated perhaps some of the most stringent abortion rights in the country, as soon as that case came through with its result.

 

And what happened in Oklahoma, as a result of that, is that shortly after, the same day that the decision came down, there was discussion about the federal government partnering, perhaps, with the tribes to offer abortion services within the borders of those reservations. It was an interesting discussion that, I think, really, kind of Castro- Huerta maybe took it in a different direction than it might have gone otherwise. Because, as a result of Castro-Huerta, it now says that if you violate state law, if you, for example, are a non-Indian tribe member abortion provider, you are subject to the laws of the state of Oklahoma.

 

Now, certainly, there's the licensure requirements. But I think that the tribes each have their own regulatory ability, that they could have licensed physicians independently from the state of Oklahoma. So I don't know that that would have been a direct impact, but for Castro-Huerta. But, because Castro-Huerta is now in place and is the law relating to this type of issue, it makes it more difficult to actually go find physicians that can actually practice in this area and practice these sort of issues.

 

I did want to touch a little bit on what Justice Kavanaugh talked about, related to Public Law 280, as well. And he tries to respond back to Justice Gorsuch on this point. But he really focuses on the fact that this is not the downfall of Public 280 that it seems to be, because Public Law 280 allows states to prosecute tribal members and non-tribal members. But, really, what we're dealing with here in this instance is an exclusive allowance for the state to continue to prosecute non-members.

 

Now, he gives a number of lengthy justifications that Jason went into and gave an expert opinion on. But those are really what is at base on this decision, is that the reservation remains in the state, according to Justice Kavanaugh. The state has authority over non-members. And there is no language -- I'm going to go back to the McGirt decision that said that "We didn't see the magic words." Justice Gorsuch suggests that no magic words have been provided to say that the reservations have been disestablished, so they remain in existence.

 

There are some that say that the Solem test was just clarified by Justice Gorsuch. I think that Solem was eliminated and there's a one-point Solem test now, if you will, under McGirt: where are the words of disestablishment? And, I think, in a similar way, that's what Justice Kavanaugh does, is he goes through and says, "Where are the magic words that the state lost its jurisdiction when public law 280 was passed, or under reservation, under the law regarding native Americans and the Major Crimes Act and the General Crimes Act. He's looking for those magic words, perhaps in an opposite way to what Justice Gorsuch was looking for. And that is the reason that we saw the 5-4 decision that we did.

 

I want to go back and reiterate what I did say last week, as well. We talked a little bit about: is this justice anti-tribe, or is this justice pro-tribe? I don't think we can really glean any of that from what we are discussing here. I think that -- for example, I had a professor email me and ask me my thoughts on Justice Barrett. And I don't think you can reach any conclusion. I think that she's struggling with these, just like many of the other justices, on a case-by-case basis. She's trying to figure out what the statute says in a particular situation, what the treaties say in a particular situation. What are the jurisdictional or criminal issues that we're trying to wade through?

 

Similarly, in Denezpi -- as somebody who was in the military, I know that I could be arrested by the military and I can be arrested by the state police, if I commit a crime in a similar situation. And I think some of those parallels kind of leap over a little bit as we're dealing with some of these tribal issues. So you really do have to look at them on a case-by-case basis. I don't think anybody can come to any conclusion that anybody in particular is pro-tribe or anti-tribe, just because they're taking a particular position in a case or a particular vote in a case. Jennifer?

 

Jennifer Weddle:  Thank you A.J.  And I completely agree that we should all resist the urge to label the justices in a particular way, and instead try to look at what's really driving both the majority and the dissent, and what can we look to for any predictive ability in this space, going forward. And I really appreciated Jason's framing of the narrowness of this decision, when questioning its practical impacts. And I think most Indian law practitioners like me would agree that, on its face, yes, the holding is narrow. There's not any jurisdiction taken away from tribes. There's nothing all that new or different here, other than putting back in place what had been the common understanding in Oklahoma, prior to the McGirt decision, about the ability of the state to prosecute crimes with Indian victims within much of Eastern Oklahoma.

 

      But I think where a lot of the really emotional reaction you've seen from Indian country in the last week-plus has been driven by the sense of loss on that predictive ability, because of where the majority went in their opinion, upending understandings that Indian country has had for 200 years. And not looking, as they have in all these other cases, to the point of, "Show me the text. Point to me exactly where or when something changed. What did Congress say? What did the tribes say?" A.J. and I talked in our webinar last week about how, in Denezpi and Ysleta, the court was very much sticking to the text, what the Ute Mountain Ute tribe said in its own code that created the offense, and that was being prosecuted in Denezpi. And, similarly, had Congress used the word, "regulate" or "prohibit" in assessing the Texas Tribes Restoration Act, and subsequent ability to engage in Bingo games.

 

In cases where the court sticks to the text, generally, we all feel pretty comfortable that we can predict where they would go in future cases. And, here, the majority has thrown that out with the bathwater. And, as Justice Gorsuch described it in his dissent, "Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom." Justice Gorsuch is not a man who's prone to hyperbole. And he said, really, exactly what every Indian law lawyer who's read the majority is thinking, as, "Where on earth did this come from?"

 

And, I think, pretty plainly, as David and Jason and A.J. all sorted out, it's coming from, really, policy objectives. And Justice Kavanaugh says it as much, in the majority opinion, where he says this was never a problem until McGirt. And McGirt recognized a much different understanding of the legal lay of the land that had been in place in Oklahoma, and essentially says, well, we're talking about 43 percent of Oklahoma. This is no longer scattered dicta about a question that, until now, is relatively insignificant in the real world.

 

Well, I guarantee you, this was very significant in Indian country forever. And tribes have been acting on these understandings and trying to create and enforce public safety on their reservations. So the idea that everything has suddenly changed is very different, depending on what side of this case your perspective is.

 

Other big problems for tribes about how Justice Kavanaugh got here is -- again, they state that this is very broad, and I answered this question in the chat, that this broadly applies and tribes are part of states, as if this has always been the case. And many states in the West have expressed limiting language in their enabling acts, where they disclaim any interest in Indian land. And, indeed, Indians were not citizens until 1924, so how on earth is it that supposedly this whole time states have had jurisdiction to prosecute crimes made against people who are not even citizens of the United States?

 

      Take into account another glaring issue, which is tribes are not parties to the Constitution. They didn't cede any authority to the United States in the Constitution, and, rather, all of that authority, whatever authority the United States has, rests on the Marshall trilogy of the Court, wherein the Court adopted the doctrine of discovery and found that federal dominion over tribes was appropriate because of the non-Christian, infidel status of Indian people, and that land could only be conveyed to the United States and not to any other sovereign government.

 

      Also should keep in mind that the Articles of Confederation had originally left tribal relations, as a matter, to the states. And that was a disastrous experiment. So they changed that in the Constitution and reserved the plenary power, vis-à-vis tribes, exclusively to Congress. So, again, as the dissent points out, the majority opinion really glosses over all of that, and says, "Okay, well, at some point in the late 1880's, basically, things changed and it's totally different now," which, again, is inconsistent with everything that the Court had said before. And I think the reality, when you see these very strident opinions colliding, is that the Court continues to confront this issue, with respect to the role of tribes in our Federalism.

 

And Justice Thomas actually described it well in his concurring opinion in U.S. v. Lara in 2004, where he said, "Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases." Indian law has been routinely made up by the Court, with little direction by Congress, going back to some of the earliest cases, the Marshall trilogy, which I mentioned. Professor Lindsay Robertson, at the University of Oklahoma College of Law, actually has great scholarship from 2005: his book Conquest by Law, where he got some of the original Marshall family papers that demonstrate, very conclusively that Chief Justice Marshall's opinion influenced, positively, his own land deal with the Piankashaw Indians in Illinois.

 

So, none of this is predicated on disinterest, from the very beginning, with the Marshall Court. And as federal executive policy and Congressional policy towards tribes has flipped, over and over and over again in our history, as Justice Gorsuch notes, since the Nixon administration, we've been in a so-called self-determination era, where tribal rights have been ascendant in the halls of Congress and in the executive branch. And to see the judiciary curtail tribes' ability to make their own laws and be governed by them, to fail to recognize tribes' inherent right to exclude anyone from reservations, including state law enforcement, feels very much out of step with the other branches, and feels very much like it could slide in any other direction.

 

So who knows what lesser abilities the court might perceive for tribes in the future, and, hence, why I think there's an even greater need, as there has been, for states and tribes to come together and try to negotiate this out, and figure out what are regimes that work for public safety, and for law enforcement and for Congress to help them sort it out if they can't come together and work through those issues. Nate, I think we're ready for questions.

 

Nate Kaczmarek:  Can't turn my camera back on, for some reason.  Hold on one sec. Sorry for the difficulty. Well, you can hear me, anyway. Sorry, I don't know why my video's not turning back on. I wanted to quickly, well, first, remind our audience that if you want to ask additional questions, please do throw them in the Q&A.

 

I wondered if we might talk a little bit -- I don't know how much discussion there has been of the one question, the most recent. I know Jennifer and David, separately, responded to the question about how this decision might complicate Indian gaming frameworks. I don't know, David, if you wanted to jump in there and sort of give some of your explanation, just for the benefit, both of the audience that didn't see it there, and then also for our podcast audience who won't be able to view the question that was in the chat.

 

David W Casazza:  Sure, sure.  So, gaming, like criminal law, is an area where there are going to be a lot of overlapping state regulations, state laws, federal statutes on top of those, the Indian Gaming Regulatory Act, in particular. And, at least with the approach that the majority opinion has taken here in Castro-Huerta, the question in a lot of those cases is going to be, what does the specific text of the statute say about the state/tribal relationship? So we saw that earlier this term with Ysleta del Pueblo that there was a close analysis of the specific terms of the statute and of the interplay between Texas's laws and what Congress had said about those laws.

 

And I think that's going to be the case going forward, where certainly the reasoning of the majority is that there's a presumption of state jurisdiction unless it's either ousted by Congress or is fundamentally incompatible with tribal authority. But gaming is going to be one of a number of areas in which this is going to continue to arise, and, as Jennifer was saying, that there have been a lot of long-standing assumptions in Indian law about how these powers play with one another. And in most places it's been settled out, if through state-tribe negotiation, through some kind of Congressional enactment.

 

Oklahoma is not one of those places, because, until McGirt, there wasn't a recognition that those sort of negotiated understandings were necessary. So really, one of the unintended consequences of McGirt is that there's going to be a lot of legal re-examination in cases like this, of things that either folks thought had long been settled, or that folks didn't need resolved because they have some kind of specific negotiation already set out that governs their state or their tribe.

 

Anthony J. Ferate:  If I can just jump in here, in response to David. I think this raises a really important issue for Oklahoma. The governor of Oklahoma and the tribes have really kind of, even prior to McGirt being decided, been at each other's throats over gaming compacts. And that's a completely separate podcast to have a lengthy discussion of. But, really, the issue that I'll focus on is states, in many instances — because of some of the things that we're discussing in these cases — are now very, very sensitive about dealing with compacting. I think they'd prefer a much more clear picture, direct from the federal government.

 

I know that that's how Oklahoma feels as a result of McGirt, is they want that clear picture to come from the federal government, rather than coming from between the parties, between the tribe and the state, just, really, because a poor drafting of the language or a -- and I know that's the problem with the gaming compact between the state and the tribe. But whether it's not contemplating anything through, unintended designs, those sort of issues, that's really why a lot of states, including, significantly, Oklahoma, are really trying to look to the federal government to deal with some of these and provide some of that guidance, as opposed to what used to be a trust or a symbiotic relationship between the tribes and the states.

 

Nate Kaczmarek:  Very good. Jennifer, any further thoughts on that point before we move to the next question?

 

Jennifer Weddle:  Just on the gaming context, I would say, that flows from what was a very foundational honoring of first principles in Indian law by the Court in 1987, in the California v. Cabazon Band of Mission Indians case, where the Court held — quite rightly, in my view — that California had nothing to say about whether or not a Southern California tribe could engage in bingo -- the Court deals in a lot of bingo -- to engage in bingo on their reservation. And the Court's answer was, "Yes, the tribe can do whatever they want on their reservation and California has nothing to say about it."

 

And Congress quickly acted to say, "Okay, well, California doesn't, but we will, and we'll set up a regime that gives states a voice in the process," created the compacting structure, and likewise, set up a regime to put some parameters around licensure, background checks, rules that the tribes would have to follow to engage in gaming. And that proliferated a whole industry. But, as Justice Stevens said in his dissent in Cabazon, "The Court's reasoning that the tribe could do whatever they want meant that the tribe could engage in all sorts of activities that were illegal in their home state." And he listed out a colorful list, including cock-fighting, tattoo parlors, nude dancing, and prostitution, which might say a lot about Justice Stevens' views of Indian tribes.

 

But he was right, legally speaking. As sovereign nations who retain all their inherent powers as nation-states that they had at the time of the founding of the United States, unless and until Congress acts to limit that sovereignty in some way, that's true. Tribes are nation-states that can do all of these things, and they haven’t ceded any sovereignty to the United States in the Constitution. And whatever power the United States federal government has exists now by virtue of this slender reed of the doctrine of discovery, which is repellent to most people several hundred years later as the basis for conquest and jurisdiction of other people.

 

Nate Kaczmarek:  Any further actions before we move to the next question? So here's a question that Jason's been working on typing out a long answer to. I'll read it for the benefit of our audience. What do you make of the fact that the Court declined to consider McGirt as part of the petition? Doesn't it seem as if the change from Ginsburg to Barrett suggests that McGirt would be overruled if it were to be reviewed? Why rethink basic principles if the problem was the practical implications of McGirt? Jason, would you like to take a stab at that one?

 

Jason Manion:  Sure. So Jennifer beat me to it with a pretty concise answer, which was that there's no way that Chief Justice Roberts would have allowed the Court to overturn a decision less than two years old. I think it's a very good question, because I do think the majority was quite clear about this. This legal question that the Court took was not a legal question that really mattered before McGirt. And, McGirt, and the consequences of McGirt, was the reason the Court took this question. I think that the fact that the Court did not grant cert in McGirt in this case likely means the Court won't grant cert in the case unless it proves that there are even more issues that can't be resolved in sort-of follow-on cases, the way that this case was resolved.

 

And you could reasonably view the Court's decision as a compromise, to leave McGirt in place, not formally overrule it, but to try to address some of the consequences of it. I don't know if it's right that the switch from Justice Ginsburg to Justice Barrett -- now, it certainly is a consequential switch. And I think it is clear that that switch means that if McGirt had made it to the Court this term for the first time, rather than two years ago, there probably would not be five -- there almost certainly would not have been five justices to reach the McGirt outcome.

 

      But I think stare decisis complicates it, as Jennifer mentioned. And I think a similar analogy would be the Whole Women's Health case from a few years ago, where Chief Justice Roberts was in dissent. A year or two later, he concurred in a decision overruling a lower court decision that was inconsistent with it, based on stare decisis grounds. Now, he was fine with modifying the test in that case, but not getting rid of the case in its whole. Something similar happened here. And I think maybe there will be more follow-on cases, and maybe not. I think some of the follow-on questions that the Court was careful not to opine on in this case, are ones that you can't easily get before the Court.

 

      For example, if you wanted to get the question of whether a state could prosecute a non-Indian who committed a crime against an Indian in Indian country, it seems like the most efficient way would be to start a prosecution that is currently illegal. That's a very different calculus than defending a prosecution that was legal at the time.

 

Nate Kaczmarek:  I know your job here is not to be legal prognosticators, but I'm curious if the group has a sense of what, if any, Congress's attention and/or responses will be to the case.

 

Anthony Ferate:  So I think that that was kind of answered by McGirt, I think, at least on the going-forward basis. When McGirt was decided, anecdotally, the federal delegation, the members of the House and the senators from Oklahoma began to take kind of an approach that they weren't going to bring anything forward. There wasn't going to be a consensus on this, unless the term at the time, unless all the mayors, all the tribes, the governor -- everybody needed to be on board on what that structure and plan looked like, going forward, which I know I talked earlier about how the state of Oklahoma is resistant to doing a compact on this.

 

    Well, the federal government, in opposite, is not willing to bring something forward, unless there's consensus out of the state as well. The other dynamic on this, of course, is the current democrat structure of Congress probably is not going to be willing to advance anything in any way, shape or form, unless they are told very clearly by the tribes the answer, otherwise Nancy Pelosi is just not going to bring something forward on behalf of the Republican members of Congress that come from Oklahoma.

 

So I don't see a path, currently, of willingness to do that. Now, the other issue that I'll bring -- Jason talked a little bit about some of these cases that are kind of bubbling up, and we can all feel, rightly or wrongly, about those. But I think that some of these do require answers, that there is a case going on in the Western District of Oklahoma, Elbert Lin is representing the state of Oklahoma on that, trying to determine when the Department of Interior took the state's authority away over mining.

 

There, now, admittedly is not a lot of coal mining in Oklahoma anymore. But when the federal government revoked the state's authority to regulate mining, did that follow a proper path under McGirt, and really, under the Administrative Procedures Act? But there's a number of these questions that are going to need to be answered or clarified. I think that McGirt was only the start. I think Castro-Huerta wasn't even the end of the first quarter. There's going to be a number of these that need to be clarified for decades to come, unless the tribes and the state can come to some sort of an agreement, whether that be by compact or at the federal level, through legislation.

 

Jennifer Weddle:  I'd jump in there --

 

David W Casazza:  I would just add --

 

Jennifer Weddle:  Go ahead, David.

 

David W Casazza:  I would just briefly add that Indian law is an area where, certainly in the last 50 years, Congress has been responsive to what the Court has done. And in a number of cases, whether it's the enactment of IGRA or the Duro-fix that there are new statutes passed when Congress disagrees with something the Supreme Court has done. I'm just not confident that we have that dynamic in Congress anymore, that Congress is capable of acting quickly, or forming a consensus now, or that spirit of legislating may no longer be in D.C.

 

Jennifer Weddle:  I was going to agree with David's observation. The likelihood of Congress doing anything is low, and much lower in a case where it's complicated and there are strong views and historical issues on all sides of it. So, as much as they might be interested, and, indeed, a number of senators attended oral argument in the earlier iteration at Carpenter v. Murphy, when the Court was still entertaining in-person arguments. They're engaged. They're hearing a lot about it from their constituents, both states and tribes, and not just in Oklahoma, but all over.

 

Certainly the Senate Committee on Indian Affairs will almost certainly have some sort of hearing about the consequences of the decision that I'm certain will happen sometime in the fall, in all likelihood. They may commission additional studies. The majority's decision is clearly contrary to the recommendations of the Indian Law and Order Commission, convened in 2010 in the Tribal Law and Order Act. It's also generally inconsistent with the expansions of tribal criminal authority recognized in the Violence Against Women Act reauthorization.

There's lots of things that people, I think, people in the halls of Congress will be thinking about and hearing about. But I don't think it's likely to result in much.

 

I also think we should avoid pigeon-holing Justice Barrett in the way people seem to be very eager to do, and think that, well, she clearly would have been with the dissenters in McGirt. I don't think that we can, or should, assume that. My own thought is Justice Barrett has been very careful about sticking very close to A.J.'s mantra of "Show me the text." And she certainly did that in Denezpi where she wrote for the majority, over a Justice Gorsuch dissent, and in Ysleta del Sur, where she joined Justice Gorsuch's majority opinion. I don't think that we should believe that she would be so quick to abandon the text. I do think she has a fundamental problem with the state not being able to protect tribal and non-tribal victims equally.

 

Castro-Huerta was a child-abuse case where a step-parent had severely abused his 7-year-old tribal member step-daughter: starved her, chained her to a bed in feces and cockroaches and bed bugs. And, I think, just as a working mom, Justice Barrett has a problem with that not being prosecutable to the fullest extent possible, and has maybe somewhat of a euphemistic view that, well, more law enforcement has to be better, right? And Justice Gorsuch, I think, does a good job in his dissent about explaining why that isn't necessarily so.

 

But I don't think we should see this as opening the flood-gates to undoing every understanding that hasn't ever been expressly stated by the Court. That's kind of what Justice Kavanaugh's majority opinion says, is, well, "Nobody ever asked us this exact question, so here's what we're saying now, despite the fact that every predictive ability reading all of our other cases would have told you the answer was the opposite." There may be cases that the Court has never expressly answered the question. And, I think, coming back to my comments, that's where tribes are concerned, is our ability to predict where the Court will go, based on their precedents, is completely out the window.

 

Anthony Ferate:  To your point on that, Jennifer, we talked about pro-tribe, anti-tribe, a little bit ago we talked about McGirt. Would McGirt be decided differently today if Justice Barrett were on the Court, or not? We don't know the answer to that. I don't know if we will know the answer to that. But what's interesting about that is that many believed that Justice Ginsburg was "anti-tribe" at one point in history. So it, again, just kind of revolves around to this discussion of I think the justices look at these on a case-by-case basis.

 

David Casazza:  I think that's right. And the majority opinion here, agreeing with what Jennifer said, really laid out a number of areas where there had been a common understanding of what federal law was, without necessarily there having been a Supreme Court holding specifically on that point. And, here, the majority, in addition to being careful not to continue to make those statements, signaled an openness to addressing them in what they would view as the first instance, going forward. So it's certainly an unsettled time in Indian law, and I think A.J. is right that we're really in the beginning of what are going to be a series of cases that come out of McGirt and these related issues.

 

Jennifer Weddle:  I want to jump in. I know we have to end early, David, but I'm reminded of President Andrew Jackson's reaction to Chief Justice Marshall's decision in Worcester, which, of course, is recounted so much in this particular opinion, where he said, 'Well, John Marshall has made his decision, now let him enforce it." And I think we may very well have the same reaction to Justice Kavanaugh's opinion, at least in Indian country, where people say, "Uh-huh, yeah. No, that's -- we're not going with that." And the reaction is going to play out much more boots on the ground than in the halls of Congress or in additional Court cases, especially in very rural Indian country, which is not going to react well to state law enforcement just showing up in the unlikely event they were to do that.

 

What are the open questions about how tribal and federal law enforcement would cooperate with state law enforcement in the first place? Just because you have the prosecutorial authority doesn't mean you have anybody there, boots on the ground, to get you information for those prosecutions. It's going to take some cooperation to make this work for everybody. And it's not just going to come down from on high.

 

Nate Kaczmarek:  Very good. I think we'll have to let that be the last word. We appreciate all of our participants today. On behalf of The Federalist Society, thank you for the benefit of your insights and expertise. I want to thank our audience for joining and participating. If you have a question that you want to get answered, that you weren't able to fit into the program, please do feel free to send an email along to the folks on the panel, and I'm sure they'll get to it and be helpful, as always.

 

We welcome listener feedback by email at [email protected]. Keep an eye out on our website for upcoming programs, including, in three minutes, the Egbert Courthouse Steps Decision. We certainly have a busy week and a lot of great cases to talk about this week. Thank you all for joining us. I hope you have a great one.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.