Courthouse Steps Decision Teleforum: United States v. Cooley

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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.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, June 4th, we discuss the Supreme Court's decision in United State v. Cooley. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society.

 

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

      Today we are fortunate to have with us Mr. Anthony "A.J." Ferate. Mr. Ferate is Of Counsel at Spencer Fane LLP, and he's a member of The Federalist Society's Executive Committee on Environmental Law and Property Practice Group. Miss Jennifer Weddle is a Shareholder at GreenbergTraurig and the co-chair of GreenbergTraurig's American Indian Law Practice and has wide-ranging experience in complex regulatory and jurisdictional issues with a focus on Indian law. We're very grateful and pleased that our two experts were able to join us this afternoon.

After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along. If you do have a question, please enter it into the chat or the Q&A feature at the bottom of your screen.

With that, thank you for being with us today. A.J., the floor is yours.

Anthony Ferate:  Well, thank you, Evelyn, and this one's a little bit different for me. I start out, I guess, by presuming that video may kill the radio star because you now actually have to look at me through Zoom. But thank you for the opportunity to talk about this important case. As many of you may have watched after oral argument or listened to after oral argument, we discussed that case at that time or this case at that time. And it really brings us to today, this week, where by a 9-0 decision of the Supreme Court, unanimous decision of the Supreme Court, they decided in favor of the United States and against Mr. Cooley.

      What are the issues that we're dealing with here on this? Really, what started as a traditional, run-of-the-mill Terry stop on tribal lands really turned into this large matter as a result of the district court and the Ninth Circuit's ruling in the case. Mr. Cooley was parked on the side of Highway 212 in Crow Territory in the southwestern corner of the State of Montana. It was approximately 3:00 a.m. when this occurred, and the area where he was stopped is in a valley that did not really have good cellular service. Officer Saylor pulled up behind him, employed by the Crow Nation, pulled up behind him and did what officers often do. They were concerned for the welfare and safety of those in the community, in particular on this incredibly cold night, the safety of the individuals who were stopped on the side of the road.

      As he pulled up, as he walked up to the window, the front window and the back window of the truck continued to go up and down, but eventually he found out that not only was there a child in the back seat, but there was a gentleman in the front seat that had two firearms and seemed to have suspicion of illegal drug activity. Mr. Saylor went back to his car. He called for additional help from non-tribal police from BIA, from state police. Throughout the investigation they found out that there were in fact drugs in the vehicle. There may have been some intent to do a drug deal. They detained him, and he was properly arrested by the proper authorities, as opposed to Officer Saylor.

      What the Ninth Circuit did was they took a look at this case after the district court denied the evidence, the collection of the evidence on this, and they created a new convoluted test that would essentially give the opportunity to anybody who is stopped on tribal law to answer a simple yes or no question, and that is, "Are you a tribal member?" That would be the only question that a tribal officer would have been allowed to ask, and if they answered no, then the tribal officer would have been required by the Ninth Circuit to move on unless they saw actual evidence of a crime being committed at the time.

      So it gave a very large incentive to lie, and that's where we bring this to the Supreme Court. You've probably listened to the oral argument, or you may have heard me talk about this with Jennifer on the last discussion of it. Oral argument was not really much about the guilt or innocence or the admission of evidence against Mr. Cooley, but it was really much more of a conversation about whether or not the -- how to apply the matter. Were they going to find an inherent authority within the Tribe, or, against the wishes of Department of Justice, were they going to use Montana v. United States, a well-known tribal law case out of the Supreme Court that lays out certain elements of how to deal with the case. I don't think I heard anybody during oral arguments seem persuaded by an inherent authority nor a desire to even go down the road of just saying that there is an inherent authority. They wanted to couch it in something and that something was Montana v. United States.

      They pull no punches in the opinion. They say it straight out from the beginning that this fits "like a glove" with the second exception under Montana. Now, one of the things that we've been having a large discussion here in Oklahoma about is, as a result of McGirt last year, tribal law cases take on a larger focus. And over the past few days, I've had people ask me if this case is an expansion of any right. I've actually had people say, "Does this reduce the tribal right?" And the way that I come out is, frankly, the way that the Court did in this case. And that is that this is not a narrowing nor does it broaden Montana. It leaves it exactly where it is.

      I'm confused a little bit by the narrowing question, but the one thing that I did find in the decision on page 6 and at the top of page 7 that I guess some people could say is a narrowing, it says, "We also note that our prior cases denying tribal jurisdiction over the activities of non-Indians on a reservation have rested in part upon the fact that full tribal jurisdiction would require the application of tribal laws to non-Indians who do not belong to the tribe and consequently have no say in creating the laws that would be applied to them."

 

      So I could see how someone could look at that as potential dicta that narrows Montana specifically in areas that I think many had presumed exist. There could be a narrowing, so people could grab onto that. But I don't think that there is. And the second reason that I don't believe it is is if you look at Justice Alito's one paragraph concurring where he just simply says, all we are saying here, to be very clear, is that, "a tribal police officer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may have violated or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probably cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene."

      So again, the Court is very clear that this "fits like a glove" is their term with the second exception under Montana. Justice Alito is very specific in the basis of his vote, and those two, combined with the fact that we can have a debate about a broadening or narrowing, I just don't see that. I think fits exactly like the Court said within the exceptions of Montana. Some may be looking at it because it's unique, because there hasn't actually been a case decided under Montana in favor of anybody trying to use the claim. So in that regard, I think that it is remarkable. Anybody who is familiar with this case, I think, would say this is not surprising. I've got a few other thoughts I'll share in a little bit, but I'm going to hand it over to Jennifer at this point.

Jennifer Weddle:  Thank you, A.J., and hello everyone out there. I'm Jennifer Weddle. I co-chair the American Indian Law Practice here at GreenbergTraurig in Denver. I'm a Northern Cheyenne attorney. I'm a Montana property owner. I represent tribal clients in Montana, and I represented the Crow Tribe in their role as amicus supporting the petition for writ of certiorari and then later represented more than 200 tribal governments directly as amici on the merits including through the National Congress of American Indians, which is the major national intertribal organization, and coordinated  all of the amici briefs that were filed in support of the United States in this case. It was a massive effort and working closely with the Montana U.S. Attorney's Office as well as the solicitor general's office. I would say kudos and thank you to them for the incredible work they've done on this case from soup to nuts both in prosecuting it initially and in defending it on appeal including through the Ninth Circuit proceedings.

      I would also owe a huge thank you to the dissenters on the Ninth Circuit, Judges Collins, Bress, Bea, and Bennett, who offered an incredible dissenting opinion that really laid bare the practical results of the Ninth Circuit's unworkable majority opinion, that there was no way that tribal officers could protect the public under the amorphous test set down by the Ninth Circuit. Query what it means when a crime is apparent or obvious and also whether noting that tribal citizenship is not always easily discernable and that bad guys frequently lie to the police.  So not wanting to create a zone of uncertainty and further lack of safety in Indian country, their dissenting opinion also noted that there's more than a million Natives who live within the Ninth Circuit. Most of the nation's tribes and tribal people reside in the Ninth Circuit. And for them, for the hundreds of thousands of Natives within the circuit, this presented a very serious public safety issue if truly the only police available were not allowed to detain and investigate individuals.

      I'm very happy that A.J. laid out the Montana test, but I think it's important here to realize that there was not criminal adjudicatory authority being asserted by the Tribe, nor was there any civil regulatory or adjudicatory authority being asserted by the Tribe. Rather, this was simply investigative authority, ancillary to the United States role as the de facto district attorney for Indian reservations pursuant to the authority created by the Major Crimes Act. State troopers generally don't patrol Indian reservations unless there is a cross-deputization agreement in place, and the only law enforcement tends to be either tribal police officers or much more often, federal police officers employed by the Bureau of Indian Affairs Office of Justice Services, pursuant to their treaty and trust responsibilities to tribes. In the case of the Crow Nation, the Crow Reservation is roughly the size of the State of Delaware. It's a huge rural expanse. It takes two and a half hours to drive from one end of the Crow Reservation to the other. Throughout that time, there is generally no mobile or cellular reception of any kind. You are out there on your own, and you might go that entire expanse without seeing another person, even on the main highway roads.

      The BIA historically has had four or five officers, period, available on the Reservation at any given time. That's not four or five a shift. That's four or five total. So on a typical day, you might have a single officer patrolling an area the size of the State of Delaware, and he's it for everyone, all the citizens. That was the case when Officer James Saylor encountered Mr. Cooley on the side of that rural road in the middle of the night with his young child on his lap.

      Office Saylor was detailed to the Crow Tribe under a BIA OJS highway safety grant. In order to address the long standing deficiencies in federal law enforcement funding available to tribes, the Office of Highway Administration had come up with a series of grants that tribes could apply for, with the purpose of increasing highway safety, which would allow them to essentially pay the salary of one more BIA Office of Justice Services officer so that you go from four officers on a force to five. Those officers, like Officer Saylor, they have a federal badge. They have a federal uniform. They have a federal vehicle. They have federal training. I actually wanted to share a photo so that you call can see. This is the glory of doing things on Zoom, right. I get to share my screen and actually show you what this looks like.

      So this isn't the vehicle that Officer Saylor -- very much like the one that Officer Saylor would have been using. Why is this not -- I can't get it into the right view. But in any event, ah, here we go. I'll make this bigger for you. So you can see that is says Office of Justice Services. The vehicle is clearly marked Federal Police, and the Seal of the United States Department of the Interior is on the door. This is exactly the kind of vehicle that Officer Saylor was driving when he encountered Mr. Cooley pulled over on the side of the road.

      The only difference between Officer Saylor and any other federal officer is that his paycheck was received through the Crow Tribe rather than through the BIA Office of Justice Services because he was acting pursuant to this grant. He was following federal procedures in accord with his federal training. He was using a federal radio to communicate with other officers. Had he simply received his paycheck from BIA, there would have been no question that the methamphetamine he uncovered in Mr. Cooley's vehicle would have been readily admissible in the district court when the U.S. Attorney's Office was prosecuting him for those drug offenses.

      But because this was pursuant to a grant and he was technically employed by the Crow Tribe, his counsel made a motion to exclude evidence of the meth, and Judge Waters in the District of Montana agreed with that and was upheld by at the Ninth Circuit and then in their petition for en banc review as well and of course unanimously reversed by the U.S. Supreme Court on Tuesday.

      I'll leave this up. I wanted to share another practical consideration which is Indian country faces this routinely, people who know and are well aware that they can evade legal prosecution by committing crimes in Indian country. They know tribal law enforcement is typically very under resourced, and they know, likewise, that U.S. Attorneys' Offices are often under resourced to be able to step in and serve that district attorney role, especially for more minor crimes. So Congress has held numerous hearings on this. The congressional record is replete with hearings -- I know A.J. sat in on many of those hearings when he was congressional staff as well -- all of which detail that the bad guys know Indian country is where you go to get away with it.

      Mr. Cooley is exactly one of those people. He lives in Sheridan, which is a border town right across in Wyoming. He brags around the he is untouchable. And interestingly enough, the Friday night before the oral argument, his ex-wife reached out to me. She had seen my name in the local papers, talking about the case, and she wrote me, really, a five-page letter describing her gratitude that Officer Saylor was available in the middle of the night on that rural road to save her two-and-a-half-year-old son who was unrestrained in the vehicle with his father. She identified herself as the mom who got the call at 2:30 a.m. to come to Crow agency to pick up her son and that he was okay. To me that's a very concrete example of the need for more law enforcement in Indian country and what it meant to her to have Officer Saylor there to protect the public when literally not a single other person was there to protect her son.

      I think echoing A.J.'s comment, what we heard at the oral argument was a real focus on the practicalities from the Court. Hypothetical questions about well, do you have to let an axe murderer go; do you have to let a drunk driver go; what is the logical extent of this. And Mr. Cooley's counsel answered all those questions in the affirmative, that beyond determining whether or not an individual is a tribal citizen, that no tribal officer could stop activity unless perhaps there was an active murder taking place in the vehicle, but no other suspicion would be enough.

      Here we note that there was ample suspicion. Mr. Cooley gave non-sensical answers for his reasons for being there, saying he was buying a vehicle in the middle of the night from either a drug dealer or a probation officer. His speech was slurred. His eyes were red. He had large amounts of cash, weapons, and drug paraphernalia with him. It was blatantly obvious what was going on, and Officer Saylor responded in accord with his training and experience to protect both the two-and-a-half-year-old boy in the car and himself and the rest of the Crow public. Had Office Saylor not done that, there is no doubt that Mr. Cooley would have circulated the methamphetamine within the Crow Reservation, as he had done many times before or since.      

      So for Indian country, this is a huge victory. It's an affirmation that tribes can work to protect their people. They can work to support their federal partners. And it's a strong affirmation of federal law enforcement to be able to rely on their tribal law enforcement partners to testify to work through what Justice Kavanaugh read aloud from the former U.S. Attorney's amicus brief at oral argument is "an indefensible morass of law enforcement issues in Indian country that fundamentally makes people unsafe."

      The last thing I would say is that I agree with A.J.. This is a very narrow decision. It is not undoing the Court's previous decision, the major decision here Oliphant v. Suquamish Tribe from 1978. The opinion by then Justice Rehnquist finding that tribes have been implicitly divested of any criminal authority over non-Indian persons. That decision was the foundation of the incredible lack of safety in Indian country that Congress has been hearing about for so very long. My hope is that the Cooley case is the spark that lights the fire that burns Oliphant down and we get back to an originalist understanding, a textualist understanding, a conservative understanding that there's no such thing as implicit anything by Congress and that if separate of powers means anything, it means that Congress needs to be specific and judicial activists should not be implying new rules to meet the social morays of the time because they don't work and that is fundamentally Congress's job to do.

      I hope this is heading us down that road. I think Justice Alito hopes it's not heading us down that road and hence his affirmation of just how narrow this holding is. But I think for all the U.S. attorneys out there who have Indian country in their districts, this is a huge relief because it gives them some ability to continue to try to address the rampant crime in Indian country.

Anthony Ferate:  Yeah, so thank you, Jennifer. I appreciated, frankly, the appearance of the vehicle there. I had not seen what they drive before, and so it was helpful to me. I mentioned that I wanted to add a couple of things when Jennifer was finished. And I think that perhaps the biggest discussion that I heard at a meeting I was at last night up in Tulsa was really around the cross-deputization issue.

      And the Supreme Court does address the cross-deputization argument that Mr. Cooley makes. But they don’t seem persuaded, and part of the reason that they don't seem persuaded by the cross-deputization simply is that if you were to look at these cross-deputization agreements, there's nothing to suggest that the authority derives here, that the tribes don't have that authority initially. And so they dismiss that concept out of hand. But there are some concerns, at least here in Oklahoma right now, about some of those jurisdictional elements. Attorney General Sarah Hill, from the Cherokee, last night shared that they have cross-deputization agreements with all of the law enforcement within their reservation. And my understanding is is that most of those follow a similar format, that there's very little change in the form among those deputization agreements.

      But there are other reservations -- my crude understanding is that, for example, in the Cherokee -- I'm not Cherokee -- the Chickasaw area of the state, the Chickasaw Reservation, there's not a universal set of cross-deputization agreements, and many of those agreements may not be uniform among themselves.

      And so there could be some issues here in our state as we try to wade through McGirt, trying to deal with an understanding, contemplate how we do deal with cross-deputization. But I do think that or I'm optimistic that it will get resolved.

      As we face in this case, I believe that there was an amicus brief on the issue of cross-deputization. Some tribes, frankly, are reluctant to enter them for one reason or another. Perhaps they're concerned that if they train up their staff that they might get picked off by another entity somewhere in the area. They may be concerned about their issues of sovereignty as to whether or not to enter some of these agreements. And so those are some of the challenges and really why Cooley is a fairly important discussion. Again, we're not broadening here, I don't think. I don't see anything in there. I continue to see that this is fit for Montana like a glove, and I think it's the sort of thing that for those that are concerned about McGirt with this, I think it's McGirt adjacent, but not relevant per se.

Jennifer Weddle:  And I would absolutely agree with that. Again, this is a case where cross-deputization was not implicated because Officer Saylor was a federal officer. The cross-deputization is really just another tool that Congress has made available to states, counties, and tribes to use, and some do and use it very well. But it takes some willing dance partners to get to those cross-deputization agreements. That's simply not always available.

      Evelyn, do you want to bring up our questions?

Evelyn Hildebrand:  Absolutely. Actually, in the absence of audience questions at this time, I'm interested if you could explain the McGirt decision a little bit more for the benefit of audience members who may not be familiar.

Anthony Ferate:  Jennifer, do you want to start?

Jennifer Weddle:  Go ahead. You're the Oklahoman. Go ahead, A.J.

Anthony Ferate:  So the issue has been raised probably a number of times throughout the decades in the State of Oklahoma. But around 2005, probably 2004, a gentleman that -- Murphy v. State was the case that came back before the state recorded criminal appeals. We have two supreme courts in Oklahoma. And in that case, the question was brought up -- and candidly, it was a lower level proposition. Those of you that are attorneys know that you stick your best arguments up front and your lesser arguments in the back, and this was one of those lesser arguments that was stuck into the case. But the Court of Criminal Appeals sent it back for an evidentiary hearing on this issue. The tribal land man in that case came back -- and this involved the Muskogee Creek Nation -- and said, "No, this is state land." But when Oklahoma answered that question as, "No, this is state land," it didn't just stop here. Through a number of iterations, a number of habeas claims that went through, Mr. Murphy continued on over about 15 years, and his argument was heard in the Supreme Court, where it deadlocked 4-4. Justice Gorsuch sat it out. That came back the next term as McGirt v. Oklahoma where the question continued to remain do the reservations continue to exist or were they extinguished. Justice Gorsuch entered on the 5-4 decision, entered the majority opinion, and he said that he could find no evidence that the reservations had been disestablished. There are some that look at that case as a -- we prior used to use as a disestablishment test the Solem is what it's called, and it really still exists. But for example, the Seventh Circuit, shortly after McGirt came out, wrote that the Solem test really kind of ceased to exist or became a one-question test now and that is, "Can you point to the textual statement that the reservation has been disestablished?" And that is the difficult issue that Oklahoma is now facing as it struggles over jurisdiction.

      Approximately half of the state, the Five Civilized Nations -- and that's not a negative comment, for those of you who are not familiar with that term, but there are five specific nations within Oklahoma that comprise about the eastern half -- and through McGirt and similar state court decisions, their reservations have been re-recognized, I suppose, as a result. And so that's a lot of the challenge and issue that we're facing in Oklahoma right now is how do we unwind over 100 years of understanding by most in the state.

Jennifer Weddle:  And I guess to tie that together a little bit with our Cooley discussion, I think the metaquestions out there are really about how rigorous adherence to that separation of powers understanding, as I think Justice Gorsuch had in his majority opinion in McGirt and as he so wonderfully lays out in his book A Republic If You Can Keep It -- that's my book club plug for Justice Gorsuch -- but separation of powers isn't optional if you're going to defer to Congress under the Constitution, you have to do that even which it's inconvenient and it upsets the apple cart of, in Oklahoma's case, 100 years of settled expectations, not all of which were by any means consistent. There was a lots of historical evidence around in different places like popcorn. And now I think the task has been with all the tribal governments and the state and the counties working together and trying to do what good governments do to come to agreements, to come to new understandings, to work proactively, somewhat declaring a do over and trying to do what works in a modern construct.

      I think that's also -- separation of powers was less apparent in the Cooley case and Mr. Cooley's counsel was actually arguing the inverse that, because Congress has made available the tool of cross-deputization, that somehow was the only tool that was available. I think the Court very clearly rejected that argument.

      The other argument that is an originalist argument that didn't come up in the Court's opinion, but that was briefed very thoroughly by tribal historians and legal scholars was the Crow Treaty Claim. The Crow Tribe is one of nine tribes that have a so-called "bad man" provision in their treaties with the United States, which gives them very expressly an investigative power to turn bad men over to federal officials, which is exactly what happened with Mr. Cooley here. And that was an argument in the alternative that the Court didn't need to reach.

Anthony Ferate:  Jennifer, thank you for bringing up the bad man provision because that was something that we saw the United States use in the request for cert, but they seemed to abandon it on the merits. My question for you is provide a little bit of color on that because I thought it was an interesting argument that probably should have been explored a little more.

Jennifer Weddle:  So it was in their briefing, and again, I think the Solicitor General's Office team did just an outstanding job. But I also think strategically, they were focused on arguing this as any other plain vanilla Terry stop case, exactly in keeping with the Court's recent clear jurisprudence in Kansas v. Glover and not making this a weird, sexy Indian law case and keeping it for what it is, a plain vanilla Terry stop case about a trained officers reasonable expectations and reaction to secure the public safety on the middle of the night in a rural road.

Anthony Ferate:  That's fair.

Evelyn Hildebrand:  We do have two questions that are in the -- three questions, actually -- that are in the Q&A tab. So I think I'll read the first one and give you both an opportunity to comment. The first question is from Carlos Carpy (sp). He says, "Would love to hear more about how we think about," I think that's, "law enforcement efforts cross borders and its implications to possibly transnational issues for activities outside the continental U.S." Do either have some comment on that question?

Anthony Ferate:  [Cross talk 00:36:02] No, go ahead.

Jennifer Weddle:  There are a number of tribes that sit on and over the border, Tohono O'odham Nation in Arizona, Fort Belknap Indian Community in Rocky Boys in Montana, the Iroquois Six Nations Tribes in New York and Canada. There are major international issues that tribes face every day and working, coordinating with the Department of Homeland Security addressing issues with ICE, tribes that are very much burdened by the influx, particularly at the southern border, the influx of people coming across who have their own very significant law enforcement concerns with people breaking in to tribal homes as they're trying to hide during the day, creating unsafe conditions for tribal members who have rights to cross the border to access traditional properties on the Mexico side of the border. Those things are routine and are exactly the sort of governmental responsibilities that those tribes have to deal with, again, especially with their federal partners to try to resolve them. But it's omnipresent for those tribes that are situated near the international borders.

Anthony Ferate:  I completely agree in what Jennifer said there is that those issues are extremely important. And maybe I understood the question a little bit differently, right, despite my agreement. When you're dealing with transnational issues other than where a reservation is on the border, the U.S. Supreme Court's been very specific that tribes are -- the current understanding is that they are dependent nations and that they have no ability to have intergovernmental relations, for example, with Britain or France or those sort of issues. The province for those is currently maintained by the United States, and that's not to say that that could not or would not change at some point, but there's a whole lot of different issues that would have to be weeded through before we could ever get to that point.

Jennifer Weddle:  Yeah, that's a good -- that angle is important. And the Non-Intercourse Act governs that, one of the first five acts of Congress, which provides that tribes cannot treat with any international entity; they can only treat with the United States.

Evelyn Hildebrand:  Thank you. That's fascinating. Let's turn now, if you're both prepared, for another question from Mr. Carpy. He writes, "With COVID, should we expect issues of community consent to tracking and monitoring to come into play during national emergencies? I understand that there's no cross-deputization issue, but should we expect to see some kind of tribe federal government issues on emergency situations as opposed to prima facie law enforcement, drug enforcement, as is the case in this situation?"

Jennifer Weddle:  So tribal governments have been very active in working to protect their communities in COVID with detailed public health orders, stay-at-home orders, in some cases, reservation check points. There was a very high profile case from the Cheyenne River Sioux Tribe in South Dakota, which had set up check points for temperature taking and monitoring of where people were going within the reservation. There's a completely hysterical bit about it on The Daily Show. Everybody can google that, but my good friend and the Tribe's attorney, Nikki Ducheneaux is wonderful in that clip. Navajo Nation continues to have pandemic stay-at-home orders right now. Other reservations when dry, end all sales of alcohol, took steps to try to ensure that people were not gathering for any reason, had to deal with their limited police resources in order to enforce those kinds of orders.

      I'd say the pandemic has highlighted even further the need for that intergovernmental cooperation, and I think there have been a few isolated but high profile disputes, but much more the norm has been states, counties and tribes acting as partners, who are all on the same page, trying to keep people safe and keep their economies open.

Anthony Ferate:  So I would say a couple of things there. First, here in Oklahoma, the five nations that I talked about with McGirt have been phenomenal at trying to fight COVID, providing vaccinations to not only their communities, but after their communities were vaccinated and they had surplus, they reached out to the community of Oklahoma as a whole and provided vaccination. So I think that that's an important step that shows their participation in the community of Oklahoma, if you will.

      The other thing that I would mention is if you're wondering about the financing of this as far as for example in Alaska. Jennifer and I did a Courthouse Steps on the Alaskan Native case that still has yet to be decided, and maybe we'll come back here again in the near future and talk about that decision.

Evelyn Hildebrand:  Great. Thank you. And how this final question is an interesting one relating to FEC enforcement in tribal lands, "With crypto currency crimes becoming rampant and criminals becoming more creative about how to deploy their efforts, is there an implication for less clear law enforcement issues such as financial fraud?" Jennifer, do you want to lead off?

Jennifer Weddle:  I would generally say no. Those would be major crimes where the prosecutorial and investigative authority clearly rests with federal officials pursuant to the Major Crimes Act. And additionally, any number of banking regulatory laws restrict that. The general rule is that federal statutes of general applicability that are silent as to tribes do not apply to tribes. However, the Ninth Circuit is again an outlier in that regard and has a 1983 opinion, a case called Donovan v. Coeur d'Alene Tribe, which implies the application of federal statutes that are silent as to tribes to tribal entities, in that case, OSHA. And they rely on dicta in the 1953 U.S. Supreme Court case called Federal Power Commission v. Tuscarora Indian Nation, which had nothing to do with a statute of general applicability that silent is to tribes and instead referencing taxation of individual Native Americans like all other United States citizens. And the Ninth Circuit extrapolated from that dicta this ridiculous rule, but generally all that to say federal crimes are still prosecuted by the feds, and no there's not any weird crypto currency loophole in Indian country.

Anthony Ferate:  And I agree with that. That's definitely something that the federal government has a sophistication and understanding to work with. And even if there was, I'm sure that not only would the tribes generally feel overburdened -- I know most police departments across the country would feel overburdened by that -- but it really is something that would require some federal interdiction on.

Evelyn Hildebrand:  Great. Thank you. Do you have any questions for each other that you would like to pose or a closing comment perhaps that you'd like to share?

Jennifer Weddle:  Well, a closing comment to me is just thank you to The Federalist Society for hosting this and thank you to A.J. for inviting me into this conversation. These are wonderous fun for us, so happy to share this with the rest of The Federalist Society family.

Anthony Ferate:  And I as well. I'm grateful for Jennifer, not only on this, but other matters. I've enjoyed getting to know her. She's a great attorney, and it's just a lot of fun to do these. And whether you're listening on the Friday afternoon at 4:30 p.m. that it is on the East Coast, or you're watching this later, I hope it's something that's kept you entertained rather than going home.

Jennifer Weddle:  Keep safe, everyone.

Anthony Ferate:  Thank you.

Evelyn Hildebrand:  Thank you both so much. I just want to add the thanks of The Federalist Society for the  benefit of your valuable time and expertise today. I want to thank our audience for participating with your great questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. 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 www.fedsoc.org.