Courthouse Steps Decision: McGirt v. Oklahoma

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On July 9, the Supreme Court released its decision in McGirt v. Oklahoma. By a vote of 5-4, the judgment of the Oklahoma Court of Criminal Appeals was reversed. Justice Gorsuch's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  The Chief Justice dissented, joined by Justices Alito and Kavanaugh, and by Justice Thomas except as to footnote 9.  Justice Thomas also filed a dissent. Our group of experts joins us to discuss the decisions and implications moving forward.

Featuring: 

A.J. Ferate, Of Counsel, Spencer Fane LLP

Andy Lester, Partner, Spencer Fane LLP

Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

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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.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum Conference call. This afternoon will be a "Courthouse Steps Decision Teleforum on the Supreme Court's recent ruling in McGirt v. Oklahoma." My name is Nick Marr. I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      And today, we're fortunate to have with us here A.J. Ferate, Of Counsel at Spencer Fane LLP, Andy Lester, who is a Partner at Spencer Fane, and Professor Tai Helton, the W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law. After our speakers give their opening remarks, we will then go to audience Q&A.

 

Thank you all for being with us here today. Andy, I'll give it off to you.  

 

Andy Lester:  Well, thank you. And welcome everybody to what I think will be a fascinating discussion, fascinating because in my judgment, this holding, this case, McGirt v. Oklahoma, is one of the most fascinating cases, not just of this unusual Supreme Court term but the last several years.

 

      It has particular importance, of course, to Oklahoma, where all three of the speakers today are from. But it has, I think, wide ranging potential. Now, at first blush, the case looks to be a very limited holding. It's limited in that it simply holds that an enrolled member of a tribe who commits a major crime in Indian country must be tried for that major crime under what's called the Major Crimes Act in a federal court.

 

      And that's really all that it holds. Were it only that simple, the principle opinion is 42 pages long. The dissent is essentially of equal length. There are actual two dissents, but there's a principal dissent. And then Justice Thomas wrote an additional dissent.

 

      And here's what's, I think, fascinating about it. Once you get past the holding itself, the holding I say is very, very specific and pointed and frankly of interest to the parties but probably not too much of interest beyond those specific parties while there are a few others who may be currently incarcerated here in Oklahoma. But under this ruling, perhaps, would not have been incarcerated, other enrolled members of tribes who were convicted of major crimes in what is considered Indian country.

 

      Specifically, the case involved what the Court now calls the Muscogee Creek Nation reservation, the portion of land of several hundred thousand acres in Eastern Oklahoma. It probably applies to the bulk of Eastern Oklahoma. If you're not familiar with Oklahoma history, and I suspect most people outside of the State of Oklahoma are not, there are a couple of interesting aspects to Oklahoma history that are unusual and unique to Oklahoma.

 

      We've all heard of the Trial of Tears and this case discusses the Trail of Tears. The Trail of Tears started in the state that I grew up in, in part, of North Carolina. And it ended up here in Oklahoma. It also started in other states, and the Creek did not come from North Carolina. They came from Georgia and Alabama primarily.

 

      But the eastern Oklahoma, what was called Indian territory, was primarily settled by five tribes, the Choctaw, the Chickasaw, the Cherokee, the Creek, and the Seminoles. And that makes up the bulk of eastern Oklahoma. If you were to look at the map of Oklahoma -- and so first thing to do would be just you don't even need to think about the pan handle. The pan handle was sort of added as a bit of an afterthought. It was called No Mans Land.

 

So you take of the pan handle and you don't quite divide the state in half from north to south. You start at the north edge of Oklahoma and go about a third of the way towards the west. Go south, and then when you get about two-thirds of the way south towards the Red River, you then cut over to the west and go back up. It looks sort of like an inversed L. And that would be the old Indian territory.

 

Unlike any other state, Oklahoma did not come out of simply one territory, but it was actually two separate territories before statehood: Oklahoma territory and Indian territory. What we're talking about here is Indian territory. So roughly, the east half of the state plus the south-central part of the state.

 

And it does not include Oklahoma City, but if you go 30 miles south from Oklahoma City, you'd be entering what was Indian territory, old Indian territory, before 1907. And that's the part of the state we're talking about.

 

If you'd compare the majority opinion, and it is a 5-4 decision, with the dissent, they almost -- they describe a couple of different things. They both go through the history of Oklahoma and of the Creeks in particular, and they're both incredibly well-written.

 

And I'd commend to you reading both the majority and the dissent. But they talk about almost two different things. And in doing so, you get this flavor as almost as if they're talking not even towards each other or at each other but maybe over each other. There are references, obviously, back and forth.

 

One of the interesting things I want to point out -- I think our other speakers are going to talk more about the majority and the dissenting opinion, but one of the things I want to point out in the majority opinion is at the very end, and it's footnote 16, right on the last page of the opinion. And it's something -- this is just almost a practice idea.

 

But if you're going to be at the Supreme Court and you're going to have amici, choose them well. And the winning side in this case chose well not only who the amici were but even who lawyer was for the amici. There's a footnote that's dropped. It says that the Creek Nation is supported by an array of leaders of other tribes, many of whom had a role, and it references specifically see Brief for Tom Cole, one of the leading Republicans in the House of Representatives.

 

And it quotes an amici, our former governor, State Attorney General, cabinet members, and legislators of the State of Oklahoma, two federally recognized tribes, the Chickasaw Nation and the Choctaw Nation. And then the very last parentheses says, "brief authored by Robert H. Henry, also a former State Attorney General and Chief Judge of the Tenth Circuit."

 

Well, chief judge of the Tenth Circuit while Justice Gorsuch who wrote the majority opinion was on the Tenth Circuit. And did that make a difference here? Well, he mentioned former Judge Henry by name at the oral argument, and he mentions him here again by name. And I think that that is an important something, anyway, noteworthy, that I did want to point out.

 

A couple of things that I found interesting in the dissenting opinion and a difference from the majority. The majority opinion simply tells you that Mr. McGirt was convicted of some bad crimes. The dissenting opinion tells you in the very first sentence that he was convicted of molesting, raping, and forcibly sodomizing a 4-year old girl, his wife's granddaughter. And the majority did not mention what the crime was. It was a pretty brutal, awful crime.

 

The second sentence then says that the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt on the improbable ground that unbeknownst to anyone for the past century, a huge swap of Oklahoma was actually a Creek Indian Reservation. And I just want to tell a personal story about that to illustrate the point.

 

I moved to Oklahoma when I finished law school in 1981, and one of the first things I learned about Oklahoma -- I actually lived in Tulsa, where this takes place. But one of the first things I learned about Oklahoma is that we had, I believe at the time, the highest percentage of Native Americans as a part of our population in Oklahoma among the states. And we had absolutely no reservations in Oklahoma, which at that time was something that people were very proud of.

 

And yet -- that was the understanding. I think it would've been hard to find much of anybody in Oklahoma who thought we had any reservations. That is not what the Court says today. The Court today tells us that we have at least one, perhaps five, perhaps more.

 

So what does this case mean? Well, it means something for the criminal defense bar. But it perhaps means a lot more. The dissent fairly quickly starts raising what some of those issues are. Here, again, it starts on page one of the dissent. But this case may affect zoning and taxation, environmental regulation, oil and gas regulation, oil and gas exploration and the like. This case could impact the State of Oklahoma, its citizens, and frankly, citizens in other states as well in substantial ways, or it may not. And we don't really know right now.

 

The thing that I have been telling people since the case came out yesterday is there are two groups of winners in this case. One are the various tribes, especially the five major tribes in eastern Oklahoma, perhaps other tribes as well. And the second group of winners were lawyers, especially lawyers here in Oklahoma. I think we will have a lot of matters to discuss with clients and to litigate over the next several months and years to see exactly what this case means. Here, again, it may mean very little. it may mean something only to the Defense Bar. We know it means something there, and it may mean a lot.

 

So I'm going to stop my remarks right there and turn it over first to A.J. Ferate. A.J.?

 

A.J. Ferate:  Well, thank you very much, Andy. And to start, I want to raise an issue when we did this same panel just after oral argument. And one of the things Andy said to introduce the call at the time was that the briefs in the case almost look like they argued two completely different cases.

 

      I would note, I guess, similarly that the opinion of the majority and Justice Roberts' dissent look like they arguably argue two different cases as well. But the important element to note out of this is that there is at least a Creek Reservation at this point. It has existed for over 100 years, despite the belief that the State of Oklahoma. And we have to move forward knowing that that exists and presumably four others, with the other four civilized nations. And so we need to move forward determining how we unwind 100 years of understanding that these tribes have not existed or their reservations have not existed, excuse me.

 

      And how do we process that and put that back into place the way, I guess, that the Supreme Court believes that it should have been over this entire time. And so very narrowly, there are a number of people who are taking a look at this case thus far. And they are saying well, this is just a Major Crimes Act case. This only is from the perspective of the criminal perspective. This only deals with murders and rapists and large-scale crimes that should fall under the Major Crimes Act.

 

      And that's certainly true in the narrow perspective. But as we know, we don't look at cases in the very narrow perspective from the Supreme Court. We try to glean instruction and precedent out of that. And so that's why I note near the end of Justice Gorsuch's brief, he says at page 41, "In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of our potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long." Justice Gorsuch recognizes that yesterday's decision is going to have a lot more litigation around it and a lot more questions around that.

 

And going back to the Major Crimes Act issue. The only way that you can say that the Major Crimes Act applies here is if you say that there is a reservation. Along with that comes the element that if a reservation exists, not just criminal jurisdiction should apply, but what do you do with the civil litigation that should apply? The Supreme Court back in 1998 in Alaska v. Native Village of Venetie answered this question.

 

      Interestingly, interesting note in this case is that Chief Justice Roberts was actually the lead litigator for the State of Alaska in this case. But the Supreme Court in its decision said, "Although this definition by its terms relate," speaking to the definition of Indian country, "Although this definition by its terms relates only to federal criminal jurisdiction, we have recognized that it also generally applies to questions of civil jurisdiction such as the one at issue here."

 

      What does that mean? That means that since we now know that the Major Crimes Act applies to the Creek Reservations, under Alaska v. Village of Venetie, civil jurisdiction likely applies as well. Does that mean that the tribe's intent to apply that in the way that other tribes have around the western states? We don't know the answer to that right now.

 

      But what we do know is that they have the opportunity to do that. We know that where that jurisdiction applies, that usually the federal government steps in, and they help govern those. For example, on issues pertaining to oil and gas, the Bureau of Land Management or I guess in the case of the Osage, the Bureau of Indian Affairs manage those natural resources for the tribe.

 

      And along with that comes a number of jurisdictional issues as well. For example, a 2019 article that was written addressed some of the issues -- The Tahlequah Daily Press, I guess, published this in 2019 noting that a number of tribes here in Oklahoma do not recognize same-sex marriage. Is same-sex marriage on the tribes an issue? Recognition of that, perhaps, could be in question if it is on the reservations.

 

      Oklahoma has a medical marijuana statute. We allow the use of medical marijuana in this state. That could be in question on these new tribal reservations as well. There are many things that we just don't know at this point, but I think we're going to find out some of those soon. And Andy alluded to some of the taxation issues. I think we're going to find those out sooner rather than later.

 

      I believe we may find out some of those questions on oil and gas, but ultimately, I've used the word that we are in a whole new world here in Oklahoma, that we've always been in ironically. And it's going to take probably decades of litigation to hammer this out and have a full understanding.

 

      I've got some thoughts on maybe some of the comments as well about trying to go to Congress and maybe some of the potential fixes, but I'll save those for now and turn it over to Professor Helton.

 

Prof. Taiawagi "Tai" Helton:  Thank you both. And thank you everyone for listening to us talk about this important case. I think if I had to sum it up, I would say that it amounts to a small win for the tribes, but it would've been a huge loss for them had it gone the other way because I don't think that this will have the cataclysmic or widespread consequences for the future. But what it does, I think, is stop a push to claim all jurisdiction within the State of Oklahoma by the state versus the tribes and that maybe the Court has put a backstop on that with this decision rather than expanding things a great deal.

 

      But fundamentally, what the Gorsuch decision does in the majority is that it reaffirms that the test for disestablishment of reservations is found in Solem v. Bartlett, the 1984 case that also, unfortunately, dealt with a very serious crime. It's a reminder that very often, tribes don't ask for these cases. It's a criminal defendant invokes his own rights, and then that implicates tribal sovereignty in ways that tribes might wish to avoid. But since they -- especially in Oklahoma, they talk so much about compromise.

 

      But that standard begins with the text. And I think if you want to give the most good faith application -- or good faith lens on Chief Justice Roberts' dissent, I think it's helpful to note that Solem was the fifth of what are now nine cases or ten cases in this area. But the first four cases caused a lot of confusion about a question of de facto disestablishment versus de jure disestablishment.

 

      De jure disestablishment really meant that Congress explicitly in the text disestablished the reservation and that that conclusion was buttressed by the surrounding circumstances of the negotiations and then future treatment of the area. But then there were other cases that said although we don’t have that strong textual language, the weight of history and the demographics outweigh this. And so we find that even though Congress didn't expressly say it, we still find diminishment. And they came to call that de facto disestablishment.

 

      And then in 2016, Justice Thomas wrote an opinion that unanimously said no, you start with the text. Solem was an effort to clarify the text as the beginning of this analysis and that if there is an unequivocal promise by Congress to pay a sum certain combined with strong language of cession and giving up the land and any interest in it by the Indians, that text creates a nearly irrebuttable presumption that there was disestablishment. And if you don't have that very strong combination of an unequivocal promise and the giving up of land, then you don't -- you still have the reservation. You don't have disestablishment.

 

      Nebraska v. Parker affirmed that unanimously that it is the text that dictates the outcome and that's what Justice Gorsuch wrote this time. And so it reaffirms that the text of an allotment statute is what matters. And I think it's striking that Justice Thomas joined the Roberts' dissent because it looked as though he had given up on some of his textualist approach that he brought so strongly forth in Nebraska v. Parker just four years ago.

 

      I also thought it was interesting that Justice Thomas in his brief dissent said that the Court shouldn't have addressed the question because he was procedurally barred from raising the issue. But even in footnote 9, Chief Justice Roberts wrote that jurisdiction can be raised at any time. And I thought it was striking that Justice Thomas thinks that it would be okay for a jurisdiction who didn't have jurisdiction over a criminal defendant to keep that person confined.

 

      And then in the Roberts' dissent, two things that I thought were really striking. One was the effect of the Civil War treaties that some of the five tribes cited with the Confederacy. And he suggested that the Civil War Treaty -- or the Civil War disrupted the relationship and took away tribal rights.

 

And Justice Gorsuch very rightly points out that after the Civil War, a treaty was reinstated in which they gave up additional landholdings but had all of their rights reaffirmed. And so I thought it was striking that Chief Justice Roberts thought the War did away with tribal rights despite a treaty immediately after the War reaffirming them.

 

      And it's interesting to hear -- Andy, you say that unbeknownst to anyone over the last century, it was Indian country because I remember as a child being told Oklahoma is unique and special because most of Oklahoma is still Indian country and most other states can't say that anymore. And so I always had the impression that Oklahoma was a special place with a special history and I assume special legal rules arising from that fact.

 

      But it strikes me that what happened was one narrative dominated for almost a century but that there were a variety of historical and legal narratives taking place. It was just that only one of them was being heard.

 

      But I guess I'll stop there. And I'd be happy to also talk about the potential for this to apply to other tribes either in the five tribes in eastern Oklahoma or elsewhere in Oklahoma and then to talk about the sort of "parade of horribles." I guess I will just say that I was glad that the Court rejected some of the State's, what I thought was, hyperbolic parade of horribles.

 

And I think that it was really telling that as they were telling the Court the world would fall apart, the morning that the decision was raised, they issued a joint press statement with tribal leaders that effectively said we'll work this out. And it reminded me that sometimes when corporations are talking to an administrative agency about a new rule being proposed that they say this will destroy our lives, jobs, the industry will go away, but then they tell their shareholders in case this rule comes up, we're well-situated relative to everyone else and we think we're ready to accommodate that rule and still be thriving.

 

And it just struck me that the parade of horribles felt a little less sincere after the State was so comfortably able to say ah, we'll sort this out in compromise. And I think a lot of litigation can be avoided with compromise. And we saw that after a similar decision in 1993 in Sac and Fox and the Oklahoma Tax Commission case. After the state lost for the third time, they then entered into a series of negotiations that led to unparalleled prosperity for tribes and the state both. And I'm hoping that the clarity we have here does something similar.

 

Andy Lester:  Well, let me just respond a little bit to both A.J. and Tai. First off -- and I do want to point this out. What we're talking about here in terms of land masses is a little bit under 20 million acres of land. Just to give you a sense of what that is, there are 10 states that are smaller in territory than the land that we're talking about. If you lop off Maine, New England is smaller than the land mass that we're talking about. Maryland, of course, is about a third of the size. New Jersey is even smaller than that, Massachusetts as well.

 

      So we're talking about a pretty significant part of the land mass of the State of Oklahoma and a good part of the population of the State of Oklahoma that will be directly affected by this opinion.

 

      Justice Gorsuch at the oral argument derided the State's -- and he's the one who used the term parade of horribles at the argument. And well, perhaps, hopefully, that's the case. I'm not sure that the State itself is going to get to make all those types of decisions even with the cooperation of the tribes.

 

      The tribal members will have something to say and perhaps the federal government has something to say about what the State and the tribes can negotiate. It's certainly in any negotiation took all the trump cards and stuck them in the tribes' hands, which it is what it is. It's what the courts says the law is. So, so be it.

 

      But it's certainly stacked the deck in favor at this point of the tribes, for better or for worse, whichever way it is. So it'll be interesting to see what happens. Yes, there was a joint press conference of the Attorney General and several tribal leaders, and that's a wonderful thing. We'll see as we move forward on a day-to-day basis how much that spirit of cooperation continues.

 

      By the way, that was also mentioned by the Court in its opinion that it seems as if the tribes and the State of Oklahoma have cooperated on all sorts of fronts. And that has been true, although one could also discuss the fact that there is nature litigation going on between the State and most of the tribes in Oklahoma regarding revenue from casinos. So we'll see how what direction that goes in.

 

      I wanted to ask a question of A.J. and Tai. This case saw the usual split that we see on the Court, the four so called liberals or democratic appointees sided with Justice Gorsuch. And the four more conservative justices all were in dissent and that the only thing that Justice Thomas differentiated himself from Chief Justice Roberts' dissent was on that footnote 9 that Professor Helton mentioned.

 

      Do you see this as a liberal versus conservative type of case? Professor Helton, I'll go to you, ask you first.

 

Prof. Taiawagi "Tai" Helton:  Sure. I don't, although it's almost always framed in that context. The fact is there are conservative reasons why tribal government is attractive. There are also liberal reasons to call it illiberal because it recognizes a form of social group right in a context of generally focused on individual liberties. But I found it striking that the majority included Justice Ginsburg and not Justice Thomas.

 

I thought that Justice Ginsburg, who although generally described as a liberal lion -- he actually has written two of the candidly least coherent and most anti-tribal decisions in the last 40 years: Strate v. A-1 Contractors and City of Sherrill in New York v. The Oneida Indian Nation. And in both of those, there was a suggestion of mistrust of tribal government and tribal institutions. So my fear was that we would not get Justice Ginsburg in to agree with the majority here but that Justice Thomas would have joined. And then it was a question of what Justice Gorsuch would do in my own mind.

 

      So I think maybe the flip between Thomas's textualism in Nebraska v. Parker and Ginsburg's mistrust of tribal authority, especially over non-members from her earlier cases, I think those two bely the idea that this purely splits between liberal versus conservative.

 

      And even the tribal courts or the tribal leadership that joined in that press conference said that justice matters and that they don't want criminals to simply be walking the streets. I think this in a way is a federalism question that Congress is the only entity with power to change the status of land. If there is a failure, it is a congressional failure and Congress should fix that problem.

 

      So I don't think that this is especially pro-defendant or especially pro-tribal. It's really, I think, saying that once Congress designates an area as being subject to the special rules of federal Indian law, only Congress can change the status of that. And we simply look at the text to see whether Congress has done so, and they didn't do so here.

 

      A.J., what do you think?

 

A.J. Ferate:  So I believe that tribal law is very different from other areas of law. It's certainly not a pro-life case where you generally have a picture of where people are going to fall on that liberal and conservative spectrum.

 

      As you said, Professor Helton, I tended to think that Justice Ginsburg was potentially the swing deciding vote here. If Justice -- she definitely had difficulty both in the Murphy case, the predecessor case the year prior to this, and in oral argument here in the McGirt case, she seemed to really struggle with the release of criminals issue. So I kind of viewed her as potentially the swing vote here given her past track record on writing opinions.

 

      So I did think that that's where we were trying to get a picture where we were in this case. But I don't think that tribal cases are like that. Interestingly, Professor Helton and I spoke a couple of months ago about textual views of tribal cases. Last term's cases of Herrera and Cougar Den -- Cougar Den was written by Justice Gorsuch. I think that those were honestly very well written and properly decided cases. I just felt differently on this one.

 

      But those are different because you can look at the actual text and the historical comprehension and understanding of the treaty at the time that it was written. This one -- and I know that Professor may disagree with me on this, but I think this one, you had to look beyond the treaties. You had to look beyond the treaties because you had to look at the historical elements and the context, and you were doing a Solem analysis which required you to look at a number of different conditions involved.

 

      So I think that that's -- there is a textual element to actually looking at these from a conservative vantage point in many tribal cases. So did this one -- do I think there's a liberal/conservative approach? Maybe on some of the justices I could make that argument, but not as a total court, no.

 

Prof. Taiawagi "Tai" Helton:  Well said.

 

Andy Lester:  And I'll add that I agree with Professor Helton. I did not see that here. I saw some news reports referring to the four liberals and Justice Gorsuch and this may be another sign of Justice Gorsuch moving or something like that. I, honestly, I did not see that here at all. I thought those reports were vastly overstated and overblown. It just happened that that's the way this particular case came out.

 

I too thought I could've seen either Justice -- both Justice Thomas and Justice Ginsburg being in opposite corners on this case. I think when we spoke right after the oral argument, we talked about what might happen. And my recollection was that we thought it could be a 6-3 or 7-2 decision or most likely was 5-4 but wasn't quite sure who the 5 would be and what side they'd be on. So are there any other comments before we throw it open to questions?

 

A.J. Ferate:  Just one very briefly. Just one very briefly. I had mentioned that I was going to address potentially future settlement and discussion, and some of the information I've received over the past 24 hours is that while the Attorney General has released a statement that they're working on an agreement related, I believe, to the Major Crimes Act and how to address law enforcement issues, I don't know that the federal delegation from Oklahoma is willing to advance anything at this point unless they have complete buy-in from all of the mayors and the governor and the attorney general and potentially the leadership of the legislature.

 

So I think that there are a lot of stakeholders, including the tribes, that are going to have to provide a consistent voice for our federal delegation to want to take up the effort of trying to advance a "fix" in Congress.

 

      So there are some things that potentially can be addressed or dealt with my compact, but many of these ultimately will require some sort of congressional action. And frankly, the tribes gained a significant amount of bargaining power yesterday, and I don't know how quick they'll be to relinquish any of that.

 

Andy Lester:  Professor Helton?

 

Prof. Taiawagi "Tai" Helton:  The things I just wanted to note when we talked about potential consequences in the future. I wanted to point out, there really are a tremendous number of limitations on tribal authority in existence, especially as to tribal jurisdiction over people who are not members of the tribe, whether they are non-member Indians, meaning they are a member of a different tribe, or a non-Indian entirely.

 

      One example of this, A.J. mentioned gay marriage. Tribes generally have no jurisdiction over non-member marriages. That's deemed a matter of internal governance, so there's domestic relations law within each tribe, but they do not apply those rules to non-members. I know of no tribe that's ever done so.

 

      Similarly, in the criminal context, because of the General Crimes Act of 1855 and then the Major Crimes Act of 1885, the state still has jurisdiction over non-Indian versus non-Indian crime, according to a Supreme Court case from, I think, 1881, McBratney v. The United States. They arguably have jurisdiction over non-Indian victimless crimes, like, say, drug possession, even on Indian lands within these areas.

 

      And then finally -- not finally, but and then the third, there's a Supreme Court case from 1981 called Montana v. The United States where the Court says that tribes are limited in their ability to regulate non-member conduct on non-member fee land within the reservation unless the non-members have entered into a consensual relationship with the tribe or the non-member activities would have a direct effect on the economic security, political integrity, or health and safety of tribal members.

 

      So many of the things that you might think of when you think of civil jurisdictional consequences or criminal, many of those things have already been sorted. And that's what makes this case have less of an impact than it otherwise would because even designated as Indian country, we still have this complicated jurisdictional framework that is fairly well defined even if complicated.

 

Andy Lester:  I'll let that be the last word for us. Oh, did you have one final thing, Professor Helton?

 

Prof. Taiawagi "Tai" Helton:  I just forgot to mention in 2005, Senator Inhofe also added a rider to a highway appropriations bill that said that the Environmental Protection Agency cannot give an Oklahoma Indian tribe treatment as a state for purposes of certain environmental statutes without the permission of the state. So even in the context of increased zoning and regulatory authority, environmental regulatory authority is still constrained in ways that most of us wouldn't imagine.

 

Andy Lester:  Yeah. On that, I just want to say that now that we have a different reality of reservations, I don't feel comfortable that that retains the strength that it did prior to yesterday's decision. I'm not saying that it doesn't withstand, but I think that the very significant question that remains unanswered as a result of yesterday's decision.

 

Prof. Taiawagi "Tai" Helton:  But doesn't that rule limit the EPA and not tribes directly? And so it's fairly easy for Congress to simply constrain the authority of the agency there?

 

Andy Lester:  Again, I'll just stand on the fact that I think it's an open question.

 

Prof. Taiawagi "Tai" Helton:  Okay.

 

Andy Lester:  And I'm not sure it's easy for Congress to do anything these days, but that's a different issue. With that, I'd like to throw it open to questions.

 

Nick Marr:  Great. We'll go to audience questions now then. We'll go to the first one.

 

Ken Masugi:  Hi. My name's Ken Masugi, and I was a special assistant to Clarence Thomas when he was chairman of the EEOC, that's way back in the 1980s into '90. And I was puzzled, first of all, why you thought that Thomas might be on the majority on this.

 

      And then second, I recall something from the gays, and I have no idea whether this has been updated. But the enforcement of the Civil Rights Act of 1964, say Title VII employment provision has -- well, it takes a reverse take concerning Indian tribes because, of course, the law doesn't apply on the reservations. And the Act [inaudible 41:16] pushed [inaudible 41:18] back instead of forward.

 

      So for example, shops that Indians run that are barely outside the reservation can indulge in all sorts of what Title VII regards as discriminatory acts. And the commission has been, at least back then, 40 years ago, was hesitant to enforce Title VII to the full extent. So I always found that very bizarre, this exception in our civil rights law. So I thought that -- I don't think Thomas ever approved of it then, and so I don't think he'd approve of the full scope of the laws not applying now.

 

      I realize there are other issues in this current case, but might you comment on this?

 

Andy Lester:  Ken, thank you for your question. And by the way, I served with Justice Thomas on the EEOC transition team for President Reagan back in 1980-81. I think this question probably is first directed to Professor Helton.

 

Prof. Taiawagi "Tai" Helton:  Yes. Thank you, Ken. So to explain why I thought he might be with the majority, in 2016, a similar issue arose in a disestablishment case called Nebraska v. Parker. And he notes that there are three elements to this test, and he spends the bulk of that opinion, which, again, was unanimously joined, he spends the bulk of that opinion talking about the negative consequences in terms of demographics and upsetting the expectations of local non-Indians.

 

But he says quite clearly but effectively, that's a problem for Congress to fix because we are limited in the first instance of looking at the text of the allotment statute. And so it was his -- he has generally been unsympathetic to tribal concerns. He's written publicly that he thinks federal Indian law is so full of internal contradictions, we should just do away with it.

 

      That troubles me because he doesn't mean iron out complications. He's -- at least as I read it, he thought we should do away with tribal sovereignty as a matter of law. But because he was so anchored to the text in 2016, I thought he might say the same thing here which is yet again, we have Congress having failed to clearly articulate that they're taking this land and despite the negative consequences, we just once again have to ask the political branches to cure the problem of their solving.

     

      But it was the strong statement that the text governs even when he was quite uncomfortable with the consequences of the decision four years ago that made me think -- or five years ago, that made me think he might join the majority in this case.

 

Andy Lester:  Yeah. And I would add to that, before -- oh, well, before the oral argument, I would have thought much the same thing. Here's maybe something that the COVID-19 era has changed for us. But if you listen to the oral argument or any of the post-COVID-19 oral arguments, each of the justices had chances to question and not just interrupting people but were asked by the Chief if they had any questions.

 

      Based on the questions that I heard from Justice Thomas, I would have been quite stunned had he been on the other side. But without those questions, it would not have surprised me all that much that it happened.

 

      A.J., did you have anything?

 

A.J. Ferate:  No. And I think you said what I was going to say, is the Parker v. Nebraska lent to the possibility that Justice Thomas could have been viewed the other way but completely agree when you listen to him at oral argument, you can tell very clearly where he was going with his views.

 

      And that was not available in the Murphy -- I was at oral argument for the Murphy argument the year prior and trying to read his body language as he leaned back in his chair and closed his eyes, it was hard to tell where he was going with his views at the time without any questions.

 

Andy Lester:  So do we have another question?

 

Nick Marr:  Great. We’ll go to our next question now.

 

Caller 2:  Hi there, a non-lawyer here, so please be tolerant. Were the other reservations in Oklahoma disestablished by the specific text, like the Cheyenne, Arapaho, and Comanche reservations? And if not, does this decision have any impact on them? Or if they weren't disestablished, would this have any impact on them? And if they were not, would you expect someone who was a criminal defendant in those reservations to press the claim on behalf of those tribes?

 

Andy Lester:  I'm not sure which one of you would like to field that question.

 

A.J. Ferate:  I'll answer the criminal question, and I'll leave the other portion to Professor Helton. But so anybody under the Major Crimes Act, you do not have to be a member of the Cherokee nation or the Creek Nation. If you are a Native American, if you are a Chey and Arapaho and you commit a murder tomorrow in Tulsa, you would be -- please don't do that. But you would be subject to the Major Crimes Act.

 

      Now, probably the biggest open question right now is do the Tulsa Police have the ability to arrest you under the Major Crimes Act? They may be able to detain you, but they do not have, I would argue, the authority to arrest you at this point. And they would have to wait for either federal agents or the Lighthorse Police up there to come in and handle that.

 

      I do think that there is probably some tribes that are not from the five civilized nations that are probably looking at this decision very closely and trying to determine if they can make similar claims. But Professor Helton may view it differently, but I'm not sure that they can claim the same justification as the five civilized nations can today.

 

Prof. Taiawagi "Tai" Helton:  I think that's right. You'll notice in all of the discourse about these cases, there's been this distinction between what has been historically described as the five civilized tribes, the Choctaw, Chickasaws -- Choctaws, Chickasaws, Cherokees, Muscogee Creeks, and Seminoles versus all the other tribes in Oklahoma. And the reason for that distinction is that the statutes that allotted the Creek Reservation very often overlapped with the statutes that allotted other reservations among the five tribes or the lands of the five tribes.

 

      So there's not a complete overlap, but for the most part, all of the statutes that lead us to the conclusion in this case would lead us to the same conclusion for the other four tribes within the five tribes in eastern Oklahoma.

 

      The test is the same for all other tribes. That is, the Solem v. Bartlett test where you look at the text of the statute to see if the tribes gave up everything in exchange for this promised to pay by Congress. And then you look at the surrounding circumstances of negotiations and then how the land was treated later on over time.

     

      So it's a good reminder that the only reason the five tribes get a similar outcome is that they have the same statutory text to look at. But each of the other of the 39 federally recognized tribes in Oklahoma, each of the others have their own legal histories, and so each tribe needs to now go to the statutes that allotted their lands to see what the Solem v. Bartlett test dictates.

 

      And I know that there have been some tribes in western Oklahoma who have already been adjudicated to have been disestablished. And there are other tribes who have different statutes but have not yet had them adjudicated. And so I don't know that there's a list.

 

I think a friend of mine and I were chatting once, and we came up with five or six tribes maybe that we thought had been adjudicated to have been disestablished. But each tribe will have to look at its own allotment statutes to see whether those allotment statutes point to disestablishment or point to diminishment under the Solem v. Bartlett test.

 

Andy Lester:  Just for the folk who are not from Oklahoma to understand, Professor Helton mentioned there are 39 federally recognized tribes here in Oklahoma. Some have very large amounts of land that are associated with them, but I'm not going to call them a reservation given that term has become rather important here but have some land that is associated with them, some very large, some very, very small. And when Professor Helton was talking about tribes in western Oklahoma, that would be the old Oklahoma territories so not the part of the state that this case was dealing with.

 

Prof. Taiawagi "Tai" Helton:  Thank you, Andy.

 

Andy Lester:  Do we have another question?

 

Nick Marr:  We have actually about six questions waiting in the queue, so we'll try to get through as many of those as we can in the next few minutes. I'll ask callers to please keep your questions as succinct as possible. Area code 202, you have the floor.

 

Caller 3:  Yes, thank you. Two questions. One, did Senator Warren file a brief? And two, what does the United States Solicitor's Office say? And three, I guess, Justice Thomas is not, in my experience, and I've read all of his opinions, a man who flips. And I would say that textualism is not sola scriptura. How do you explain Thomas's deviance from what the Professor seemed to think was a sure thing or at least the opposite of where he came down three years ago? That's it.

 

Andy Lester:  Well, I'll field that last part first, and then I think A.J., I'll let you go from there and Professor Helton also. I don't think that he -- I don't think that he flipped at all. I think he's looking at -- he and the dissent were looking at -- again, it's fascinating. Both the majority and the dissent base their reasoning on history, and we're looking at various texts. Sometimes, there were different texts, and sometimes, they seemed to be different histories.

 

      So I think, and Justice Thomas would say, that he was being quite consistent. And he went a step further than the rest of the dissenters did and simply said the Court really had no jurisdiction to be deciding this case in the first place. So I think he was actually quite consistent with where he has been before.

 

The only thing was that up until the time of the oral argument, I would not have been surprised had he gone the other way based on what was said in Solem, but -- excuse me, in the Nebraska case, but that's -- any notion of that, I think, was dispelled at oral argument.

 

A.J., do you have a response?

 

A.J. Ferate:  No. I would agree with that, and I heard your first question, but if you could please restate it for me. This discussion made me lose it off my mind real quick. What was your first question? Oh, he's gone, unfortunately.

 

Prof. Taiawagi "Tai" Helton:  His first question was did Warren file a brief? And then his second question was what's the position of the Solicitor now that the decision's been issued?

 

A.J. Ferate:  Yeah, so if we're talking about the Oklahoma Solicitor General, Mr. Mansinghani is obviously supportive of his boss, the Attorney General, and is working, I presume, with the five civilized nations to try to come to a resolution.

 

      The U.S. Attorney and the Oklahoma Attorney General did take slightly divergent views in this case. Whereas, Oklahoma took a secondary position that this land was never a reservation. It was not joined by the U.S. Solicitor General's office. And that was slightly divergent. But we also see Justice Robert's foreclosing that in his dissent by saying in a footnote that he just presumed that there was a reservation to have existed.

 

Prof. Taiawagi "Tai" Helton:  And I have not heard -- Ed Kneedler argued on behalf of the U.S. Solicitor, and I have not heard any comment from that office.

 

A.J. Ferate:  Correct.

 

Andy Lester:  Maybe one more?

 

Prof. Taiawagi "Tai" Helton:  Oh, and may I just say, I would never have described Justice Thomas as a sure thing. I just thought that his textualism might govern despite the consequences. But I agree that after oral argument, that became significantly less likely.

 

Nick Marr:  All right. Let's take at least one more question today.

 

David Burge:  Yes. This is David Burge in Atlanta. My question probably has to do with my nonfamiliarity with Oklahoma history. But before this decision, in what part of the state did the Creek courts operate, and how were those boundaries determined? Do they have the capacity to exercise this larger jurisdiction?

 

Andy Lester:  Professor Helton, do you want to field that?

 

 Prof. Taiawagi "Tai" Helton:  Oh, sure. Yes, they had a court system that already applied within the boundaries that we're talking about. It applied for the most part to tribal members. It adjudicated some civil matters that involve non-members, but for the most part, its criminal courts deal with crimes by tribal members themselves.

 

      I can't remember what their state status is in terms of violence against women jurisdiction. I can't remember if Muscogees are among -- have that jurisdiction, but most of the five tribes have already, in compacts with the state, use the boundaries after the Civil War treaties. And the state without acknowledging that those are legitimate boundaries at the time was a sort of assuming arguendo so that they could come to a compromise that that's where those things would apply.

 

      And so this is just a sort of Supreme Court imprimatur to the boundaries that have actually been recognized since these treaties were passed. And even as the state said, no, you still don't have a reservation in the compacts, they still use those same geographic designations. And until --

 

Andy Lester:  Well, we're at the top of the hour -- oh, go ahead.

 

 Prof. Taiawagi "Tai" Helton:  Oh, I was just going to say and they actually lend police resources to the state and county sometimes within their territory. I know they have a forensic diving team that the feds and the state lack. And then they borrow federal and state resources as part of their cooperative agreements.

 

Andy Lester:  And there are numerous cooperative agreements among the various tribes and the state and local governments. So I think that -- the cooperation that's mentioned in the opinion has existed, does exist, and hopefully will continue to exist.

 

      And I think we're at the top of the hour, and I believe our time is up. I want to thank everybody for attending this teleforum on, again, what I think is one of the most fascinating cases I've seen from the Supreme Court in many years. I hope, if you haven't had a chance to read both the majority and the dissent, that you do so. I think you'll find it quite interesting to read. Thank you for attending.

 

Nick Marr:  Thanks, Andy, and I do thank you for being here today. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. Thank you to all the callers who called in, and apologies to the questioners we didn't get to yet. Keep calling in. You'll have more opportunities to ask questions in Teleforums. We welcome listener feedback by email at info@fedsoc.org. And tune in next Monday at 1 pm. That will be our next teleforum. Thank you all for joining us today. We are adjourned.

 

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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.