Courthouse Steps Decisions: Denezpi and Ysleta

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On June 13 and 15, 2022, the Supreme Court decided Denezpi v. United States and Ysleta del Sur Pueblo v. Texas respectively.

Both cases dealt with issues of Native American law.  In Denezpi, a 6-3 Court ruled that the double jeopardy clause does not bar successive prosecutions of distinct offenses arising from a single act, in a case where a man was prosecuted in both a federal district court and a Court of Indian Offenses. In Ysleta, the Court ruled 5-4 that the state of Texas could not control gambling activities on the lands of the Ysleta del sur Pueblo Native tribe.

Please join our legal experts to discuss these cases, the legal issues involved, and their implications for the future of Native American law in America.

Featuring:

Anthony J. Ferate, Of Counsel, Spencer Fane LLP

Jennifer Weddle, Shareholder, Greenberg Traurig

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Ryan Lacey:  Hello, and welcome to this Federalist Society Webinar. This afternoon, July 1, 2022, we discuss “Courthouse Steps Decisions: Denezpi and Ysleta.” My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today’s program.

 

      Today, we are fortunate to have with us two experts in the area of Indian law whom I will introduce very briefly. First, we have Mr. Anthony A. J. Ferate, Of Counsel at Spencer Fane LLP. And second is Miss Jennifer Weddle, shareholder at Greenberg Traurig and co-chair of Greenberg Traurig’s American Indian Law Practice.

 

      After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen and we will handle questions as we can towards the end of today’s program. With that, thank you for being with us today. A.J., the floor is yours.

 

Anthony J. Ferate:  Thank you very much. A. J. Ferate with Spencer Fane here in the Oklahoma City office. And it’s great to be with you on this Friday before Independence Day. We’re going to just jump right in because we’ve got a lot to cover. Jennifer and I have talked a couple of times about this, and there’s plenty to chat about today.

 

Three cases from the Supreme Court have come out in the past few weeks related to tribal law issues and we’re ready to discuss them. I’m going to start with Ysleta. We’ve discussed this a couple of times. We had a Teleforum on this. I did a follow-up on this case after argument occurred. And this is one that really kind of touches on a state-tribal relationship that really revolves around gaming. And the state of Texas had control of the trust -- trust lands -- the tribal trust lands in this case for a number of years, told the federal government they no longer felt that that was an appropriate situation. And so there was a statute and a fight over what that language should look like in the 1980s. A Supreme Court decision called Cabazon -- referred to as Cabazon -- came about roughly around the same time as the Enactment Act of the trust land relationship between the federal government and the tribe.

 

And really this case revolves around a couple of sections actually of that arrangement with the federal government. And the real question as the majority put it is, is the question in this case one about prohibition? Does prohibition mean the same as regulate? Or does regulate mean something different? And there was a very broad discussion in the Supreme Court at oral argument about these two concepts and really a question about whether or not the Supreme Court should use what they generally do in this situation or should they follow more of the Cabazon focus on this issue. And where we came out with a Justice Gorsuch opinion -- and I’m going to count again here because I need to make sure -- yeah, Justice Breyer was on it. And so we had Justice Gorsuch in the majority with Breyer, Sotomayor, Kagan, and Barrett -- Justice Barrett. And the decision is, yeah. The tribe was right, and the state of Texas was incorrect in their assessment.

 

And with the question of whether or not, since the state of Texas allows bingo, does that trigger immediately that, under the Indian Gaming Regulatory Act, the bingo that occurs on tribal lands -- can that be regulated away from Texas? Now, Texas says “No. We only allowed this gaming to occur for nonprofits within churches, Knights of Columbus, those sort of things.” Furthermore they said, “What the tribe’s doing isn’t real bingo.” They’re slot machines, but they follow electronic bingo protocols to resemble exactly what is going on in that situation.

 

Texas didn’t really have a tough -- had a tough leg to stand on in this -- just being candid. Lanora Pettit, on behalf of the Texas AG’s office, did an amazing job. She actually argued this incredibly well and made this a tough case. And it is a tough case based on the fact that the decision was 5-4. But at the end of the day, the Court, Justice Gorsuch used that Cabazon model of regulate versus restrict and sided with the tribe. He said, “It would make no sense to have 107A and 107B in there if they didn’t mean something.” And if you look at other bills of other laws that were passed around tribal issues at the same time, they looked very differently in structure. And so, at the end of the day, the Court sided with the tribe. This is going to be remanded. It’s going to be remanded for review. There’s other issues that will be ongoing in this case. We’ll see where those pan out. But, at the end of the day, the tribe may continue their bingo -- electronic bingo systems -- there in the state.

 

The dissent was a little bit interesting on this one. Chief Justice Roberts did something very similar to what the state of Texas did is he focused on 107A of the statute rather than -- and he does mention 107B. So I want to be fair on that. But he kind of does that as an aside. 107C is mentioned as well in there as an aside. But he doesn’t delve into those significantly. And, at the end of the day, my opinion is that without addressing 107B and focusing on 107B and its relationship with 107A, you just can’t get to the conclusion of the dissenters in this case.

 

We also had Denezpi. Denezpi was up before the Court, and this one is a little bit of a different case. Mr. Denezpi -- and I know Jennifer has a lot of the backstory on this one. And she shared it with me, and I know she’ll probably share some of that with you here in a moment. But this is a gruesome case. And this is a difficult case from the -- when you dive into this. And one of the questions I had for Jennifer as I was diving into it is, “Where are the law enforcement on this?” And the answer is, there’s really not any law enforcement. This is a 500,000-acre reservation, and you may only have one or two police officers policing the whole thing. And so it can take two to three hours at times even to get to where a crime occurred.

 

But Mr. Denezpi assaulted and raped another tribal citizen. I believe they were both Navajo -- and Jennifer’s nodding yes. So thank you. But they were on the Ute Mountain Ute Reservation. And they had been to the casino there on the reservation, and then the incident occurred that led to this issue. Now, you have two different situations. You have the tribal court issues. You have -- Mr. Denezpi was also charged after he got out of jail for his tribal offenses. He went and was prosecuted by the federal government in the district of Colorado -- much longer penalty than what he got from the tribe, which I believe was about six months.

 

The difficult question in this case is the tribal courts -- decades ago, many tribes did not actually have -- they didn’t have courts of their own. They didn’t have a way to actually provide justice within the tribes. And so the federal government, at one point, took it upon themselves to actually create what are today known as CFR Courts. There’s only about five of them in existence anymore. But the Ute Mountain Utes operate one of those. Again, they’ve got 500,000 acres, and they have, I believe, a very small number of members of the tribe. And so it just really isn’t economic for them to actually create their own judicial system. So the federal government comes in to supplement that.

 

And that’s where the question Mr. Denezpi brings up comes into play. He says that the CFR Courts are operated by the federal government. The federal government hires the judges. They hire the prosecutors. And in fact, even though the tribal law is employed in the matter, there’s an overarching CFR -- a federal regulation that really kind of restricts how this case is prosecuted. And so he claimed that you had the federal court prosecuting him in the tribal matter and the federal court coming over the top in the other -- in the federal case using the Major Crimes Act in that instance.

 

I’m a little surprised by the outcome. So listening to oral argument, I honestly thought that this was going to go Mr. Denezpi’s way. It did not. And I’m a little conflicted on this one because I think, on the policy issues, I actually agree with the majority’s decision. I think it was the right decision from a policy perspective. That said, we have Justice Gorsuch in dissent -- this was a Justice Barrett opinion. And we had Justice Gorsuch in dissent really kind of taking a deeper dive into what CFR Courts are, how they’re constructed, what they look like. And so I’m with -- I appreciate, again, the tribal perspective. The tribe’s win on this, right? The tribes want to continue their justice. The Ute Mountain Utes would not be able to process justice if it weren’t for these CFR Courts. So I think, from a policy perspective, this is a right answer. I tend to lean a little bit more with Justice Gorsuch on the law. I think he kind of gets it right on the law here and he dives into it. He focuses on Wheeler. He says that this is not a dual jurisdiction issue. He focuses on it in a much different and much more significant way than the majority does, and I think that that leads to some of the conflict.

 

And I see some of his consternation over Denezpi, I think, in a third case that I’m just going to lightly mention because I know that Jennifer and I will be involved in another Teleforum on Castro-Huerta next week. But Castro-Huerta also has come out since this Teleforum was announced. And you can see a little bit further some of the frustration that Justice Gorsuch had. We had a fairly short Justice Kavanaugh opinion in the majority on that one 5-4. Justice Gorsuch, writing in the minority, in dissent, wrote a very extensive and lengthy opinion countering what Justice Kavanaugh did. I really introduce Castro-Huerta into this really because all three of these cases have some play together. They’re involved. They’re -- and I know Jennifer has some thoughts on how they’re all integrated with each other.

 

But a couple of things that I want to talk about overall is, I have had a number of people reach out to me about, “So does this mean Justice Barrett is anti-tribe? or “Does this mean Justice Gorsuch is pro-tribe?” Or similar questions along those veins. And I think that the answer that I have to give is, “I look at these on a case-by-case basis. I look at the facts. I look at the law. And I’m not a -- I don’t wear a black robe, but I have to believe these people that wear black robes look at these in a very similar vein.” We had Justice Barrett in Ysleta very clearly in dissent. She did not support the Indian Gaming. She sided with the state of Texas.

 

However, in Denezpi, she took what arguably is the pro-tribe position in that case. Justice Gorsuch didn’t take what was arguably the pro-tribe position in that case. He took the pro-defendant position in that case. Justice Barrett was in the majority in Castro-Huerta. Justice Gorsuch was not. I think you can glean trends on some of these justices, but I don’t think that it’s fair or appropriate to really label anybody pro-tribe or anti-tribe unless they’ve actually come out and explicitly raised a pro-tribe or an anti-tribe opinion that can be viewed as consistent. So that’s how I have the process here to start out. I know Jennifer has a little bit more, and I know we’ll have a little bit of a dialogue after that.

 

Jennifer Weddle:  So thank you, A. J. And I’ll tap in here and talk first about Ysleta del Sur. This is really a textualism case where, as A.J. explained, Justice Gorsuch, writing for the majority, follows the Cabazon Band of Mission Indians framework, a 1987 US Supreme Court case that held the state of California could not regulate tribal gaming -- then also bingo -- could not regulate bingo. And that the tribe was conducting that economic activity pursuant to its inherent sovereignty as a nation state and that the tribe was free to do that unless and until Congress limited that sovereignty in some way.

 

Shortly thereafter, Congress did exactly that and enacted the Indian Gaming Regulatory Act of 1988 that put parameters around how tribes could engage in gaming including giving states something of a veto power. And really the -- less of a veto power, but more a “Are we going to play baseball or not power.” So under IGRA, tribes can engage in gaming, entering into a compact with the state that sets out the parameters of what they’re going to do. States can also make the decision that no gaming of any sort will be allowed, and then the tribe can’t gain either. But conversely, if a state regulates gaming and allows gaming activities within its borders, then tribes can also game.

 

And really the question in Ysleta del Sur was whether -- because Texas did not prohibit bingo and instead expressly authorizes bingo subject to its regulations -- whether those regulatory restrictions would also apply to the tribe. And the Court said, “No.” So are we going to play baseball, state of Texas? Yes, we are. Okay great. Texas, you don’t get to set what the strike zone is. If we’re playing baseball, then the tribe gets to set their own strike zone. Again, I think that’s very consistent with the Court’s precedent, with the plain text of the statute, and really the whole case hinged on whether the word -- what is a prohibition versus what is a regulation. And clearly, we’re not getting into the business of the state imposing its own regulatory regime on the tribe. Once there’s a yes or no to be in a particular type of gaming activity then it’s up to the tribe to regulate from there.

 

      In terms of Denezpi, again I think this is an important case about -- as all of these cases are --what is the role of tribes in our federalism? And, as many of you who are tuned into this webinar know, that has long been a pendulum in federal policy ranging from war -- outright war with tribes, to forced assimilation of tribes, to restoration of sovereignty, to termination of tribes, and now, to the so called self-determination era which we’ve been in since the Nixon administration, where the evinced policy of both the Executive and the Legislative Branch has been to support tribal self-determination, tribal self-governance, the strengthening of tribal institutions to be able to make their own laws and be governed by them and provide services to their citizens.

 

Denezpi is within that framework. As A. J. described, the Ute Mountain Ute tribe, my longtime client here in Colorado, is a very very poor large land-based tribe. The median income is less than $25,000 dollars a year per household. It’s hundreds of miles from the nearest urban and metropolitan areas and about a nine-hour drive from the federal courthouse here in Denver. So it’s very hard to get access to justice. Another guidepost I want to give everyone as we talk about this is, what is the general status of criminal jurisdiction in Indian Country? It’s been routinely referred to as a maze of injustice and also an indefensible morass. And why is that? Because the US Supreme Court has routinely just made it up in the Indian criminal justice context.

 

And the problem really finds its -- the modern problem really finds its roots in 1978 when the Court ruled in a case called Oliphant v. Suquamish Tribe that tribal criminal jurisdiction over non-Indians was inconsistent with our status as conquered people. Let that sink in for a minute. So you have a court in 1978 following the height of the Civil Rights Era saying, “You can’t have jurisdiction over nonnatives because that’s inconsistent with your status as conquered people.” That means the law enforcement closest to the community, the law enforcement with most observation opportunity responsible to the public, cannot prosecute nonnative offenders.

 

For years, there had been a lack of prosecution in Indian Country because, in an 1885 appropriations rider, Congress enacted the so-called Major Crimes Act which gave the federal government exclusive jurisdiction to prosecute certain crimes by non-Indians occurring in Indian Country. Over the years, the federal government has been derelict in its duty in prosecuting those crimes. And I know we have some folks on the webinar who are very expert in this, including Tom Gede, who actually sat on the Indian Law and Order Commission.

 

US attorneys’ offices decline Major Crimes prosecution in Indian Country generally at a rate of about 62 percent and it’s even higher in cases of sexual violence. US attorneys just are not prosecuting Indian Country-based crimes, and tribes can’t prosecute those Indian Country-based crimes. What tribes -- what certain poor tribes have, as A. J. mentioned, is a vestige, an administrative court, a so-called CFR Court which are actually organs created by -- exclusively by the Department of the Interior. And Justice Gorsuch’s dissent does a great job laying out the tortured history of CFR Courts which were a tool of assimilation.

 

An Executive Branch entity, the Department of the Interior took unto itself the power to create a court that was judge and jury -- taking legislative, executive, and judicial power all into itself to create this entity called a CFR Court. And those courts were designed to prosecute so-called Indian offenses. Mostly trying to prosecute religious exercise by natives -- going after medicine men and traditional cultural practices in a way that is deeply offensive to Justice Gorsuch who has maintained a strong focus on the freedom of exercise.

 

And congratulations to A. J. and the Kennedy case result. I want him to talk about that as well, but Justice Gorsuch is very consistent in his efforts to safeguard religious practice, and I think quite rightly says, “These CFR Courts were all wrong to begin with.” But the majority and Justice Barrett recognized that, what were most certainly lemons for tribes in CFR Courts, the Ute Mountain Ute tribe has now made lemonade with its CFR Court. And this was a question that came up at oral argument. We represented not only the Ute Mountain Ute tribe but other tribes with CFR Courts as amici before the Court. And we argued that the tribes have really appropriated these courts as their own. These courts now prosecute tribal offenses. The prosecutor and judges are selected by the tribal community -- still subject to federal approval. And the courts are run with federal resources because the tribes don’t have their own resources. But these courts typically prosecute tribal offenses that have been adopted into the tribal code.

 

And that’s exactly what happened to Mr. Denezpi, a very violent sexual offender who followed his ex-girlfriend hundreds of miles from the Navajo nation to the Ute Mountain Ute reservation where she took refuge. He brutally raped her in a home to the point she could not stand or walk. She crawled to get help. And he hid in a shed in a neighbor’s yard for 13 hours and was at large, violent, and armed, in the community for three days until law enforcement showed up and arrested him on a tribal charge. Under the Indian Civil Rights Act, the most that anybody can be prosecuted for in these CFR Courts was one year and a $5,000 fine. To get a plea deal, really the maximum amount of time the tribe could get for him to be in jail in the CFR Court was six months. But that was six months this very violent offender was off the streets not in the community and not endangering anyone else.

 

As A.J. mentioned, later he was prosecuted for the rape charge by the US Attorney's Office but that was more than a year after the crime had been committed and six months after he had completely served his sentence for the tribal offense. And Justice Barrett, again in a strict kind of textualist moment, says “Well, what’s the source of sovereign authority that was prosecuted here?” The offense is the tribe’s offense. It’s one that they created under tribal law and the United States has a very different offense that’s created under the United States Code. So there’s no double jeopardy here.

 

And I think Justice Barrett heeded the consistent refrain from all the amici in the case that, if the Court were to have taken away the one minimally effective tool that the tribe has to get people in jail and deter violent conduct, that would have been an incredible hit to public safety amongst the poorest of the poor. And it would have been especially a hit to tribes’ ability to protect citizens from particularly violence against women. Sexual violence in Indian Country, domestic violence in Indian Country are really the number one crimes and because of Oliphant, are areas where the tribe has really the least ability to keep its citizens safe because the offenders are almost always nonnatives.

 

And that moves us into Castro-Huerta. And there I’d say it’s a very kind of different approach. But before we go down that vein, I think just analyzing Ysleta del Sur and Denezpi, these are strict textualist approaches that seek to manage the tribe’s expectations, that look to what is the sovereign legislative action at stake here, whether it’s the federal government speaking in the Recognition Act for Ysleta del Sur or whether it’s the Ute Mountain Ute tribe defining the offense in Denezpi. It creates bright line rules, it’s easy to follow, and it doesn’t create different policy balancing tests to try to achieve some different outcome determinative result. So for Indian Country, these two are huge wins. So I want to kind of cabin them and give A. J. a chance to further reflect.

 

Anthony J. Ferate:  Now I’m not muted. I thank Jennifer and a couple of things that she mentioned there that I think are fairly important. And I guess, in disclosure, I wrote an amicus brief in Castro-Huerta. I believe that she did as well. So we do have that opposite sides, but one of the things that she touched on about justice in the tribal area and the federal government failing to meet its duties I guess in that sense -- the duties that they’ve assumed. We wrote about that in our brief, and we talked about how now 50 percent of all federal homicide prosecutions are now in Oklahoma. In a statistical sense, Oklahoma has now become the federal murder capital of the country.

 

But the problem is that, when you look at that and you try to match that with what I’ll call lesser major crimes if you will -- burglaries, larcenies, thefts -- you’re not seeing the same precipitous climb. And it’s causing difficulties in some of these communities because you’re not seeing similar prosecutions -- candidly, just because the federal government can’t handle them yet. And maybe they will. And maybe we’ll get up to speed. But it continues to be an issue. And I know it’s an issue that Jennifer and I share is that all communities should be safe, and all communities should be properly policed.

 

      Going back to Justice Gorsuch in Denezpi, and I think it’s important to kind of read this into the presentation because it circles it back around. He says, “In these proceedings however, Mr. Denezpi has not questioned whether the Court of Indian Offenses is statutorily authorized, nor has he questioned whether the constitution permits executive officials rather than a judge and jury to try him for crimes. Accordingly, those questions -- long lingering and incredibly, still unanswered -- remain for another day.” I don’t know Jennifer. What do you think? I’m wondering if he thought that there was some questions in conference that may have led to a different result if Mr. Denezpi had actually focused maybe on a couple of these areas.

 

Jennifer Weddle:  Yeah. I think that almost definitely is the case. And there’s several places in both the majority and the dissent where I think the justices resisted the invitation to raise and knock down arguments that hadn’t been made by Mr. Denezpi in the proceedings with the 10th Circuit or in the proceedings below. And I think really, the Court has to do that. And they also were clear that they weren’t -- this wasn’t a blessing on CFR Courts by any stretch --

 

Anthony J. Ferate:  No.

 

Jennifer Weddle:  -- by Justice Barrett. And I think Justice Gorsuch highlights just how problematic those CFR Courts are. But it also I think importantly, left the door open for creative solutions here -- the tribe using this federal vehicle effectively as a tribal court and that was mentioned in oral argument. Justice Kagan asked Denezpi’s counsel directly, “So do you think the tribe’s suffering from false consciousness?” Clearly, they think these are their courts. And his answer was “Well, I think that the Department of the Interior should just direct fund all the tribal courts.” And that would be great, but that’s not the world we live in.

 

So I think they’re continuing to leave open what are the structures that could work for effective policing in Indian country and recognizing that the Department of the Interior may very well have a role to play in that and that this is really a very narrow slice of the universe. Most prosecutions are not taking place in CFR Courts, but for some very poor rural places, these are really the only access to criminal justice that many people practically have. And it’s one minor tool to keep communities safe and the Court just was not willing to take that away which the Ute Mountain Ute tribe is very very grateful for.

 

 

Anthony J. Ferate:  Yeah. I tend to think that -- and again, to be clear there’s only five of these courts left in the country. Two of them actually happen to be here in Oklahoma where I’m visiting with you from. And they’re not really a significant part of Oklahoma. I mean, I was aware that these existed. I didn’t necessarily -- I can say with certainty I’ve never interacted with one. And I think that’s generally because so much of what happens here in Oklahoma really is handled by the tribes direct. Most crimes that would happen between Native Americans will happen on the larger reservations in the state.

 

But interestingly of this too, Oliphant itself -- the Suquamish at the time had a CFR Court and so Oliphant actually grew out of a CFR Court and it’s interesting that these issues weren’t actually more thoroughly fleshed out at the time. The Suquamish do have their own tribal judicial system now, so that has changed. But that is an interesting note that, yet again, we’re dealing with CFR Courts when Oliphant maybe could have even addressed it more clearly themselves.

One of the things Jennifer talked about there and mentioned is my interaction on the Kennedy case. So this was a -- I’ll just mention very briefly and I’m -- appreciate her highlighting this. This was a case I started seven years ago just Coach Kennedy and I. And it’s a religious liberty case -- actually happened not far from the Suquamish Reservation. And when you get in these things, and you work them through, and you see what happens in the district court, and you see what happens in the circuit court, and you finally see that answer from the Supreme Court, it takes a completely different meaning. The outsiders watching these are cheering them on from one side or the other or are excited about them, watching hopefully their side win.

 

But as a practitioner working on these things, it takes an elevated level on them. And certainly, it takes an even more elevated perspective when you’re dealing with a case that really has a personal level. Like, I grew up going to this high school. I grew up in the community that Coach Joe was in. And so there was a much more meaningful personal level to this case than even some of the other amicus briefs that I’ve written or other cases I’ve been involved with at the Supreme Court. So that’s what I’ll say there unless others have questions about it.

 

Jennifer Weddle:  One thing I wanted to jump in with A. J. is you kind of highlighted -- a lot of questions are out there about trying to label the justices in a particular way -- pro-religion, pro-tribal, anti-religion, anti-tribal. And I think it’s a mistake to try to do that. I think all these justices are trying to approach these cases in a way that is fair and impartial. But they are reaching very divergent results, and we’ve seen a lot of strident language both in majority opinions and dissenting opinions in a way that seems much less genteel than perhaps days of  more recent past -- and really some hard-hitting language between each other. And I think that also reflects the tensions that are out there in society.

 

And you mentioned Denezpi and, from the Ute Mountain Ute Tribe’s point of view, the pro- tribal side of the case won. The tribal government side of the case, the sovereignty side of the case to be able to enact criminal laws and see them enforced versus an individual Native American civil rights perspective for the defendant Mr. Denezpi. And I would just observe, I was listening to another liberal podcast on this issue and the commenters were actually saying “Well, I like Justice Barrett’s opinion and am I still a good person?” They just couldn’t believe that they were agreeing with Justice Barrett on -- they were having this esoteric crisis about where things were coming out in the case. And I think that’s because these things aren’t political, and they aren’t personal. They’re really -- the justices continue to really struggle with the question of what is a tribe's role in our federalism, especially when that butts up against other values such as individual civil liberties whether it’s the exercise of religion or freedom from unjust or oppressive prosecution.

 

Anthony J. Ferate:  And exactly. I completely agree with what you just said. And let me even use an example of a Teleforum we did last year. We did a number of Teleforum on the Alaska Native corporations and the Covid funding issue. What does pro-tribe mean in that situation? Does that mean that you are against the tribes because you support the Alaska Native Corporations? Are you pro-tribe because you supported the Alaska Native Corporations which were set up to represent tribal interests and first nation's interests in Alaska? I don’t know that you can really come to that. A lot of these really revolve, as you said, around the facts and the issues.

 

And I think Justice Gorsuch was exactly right when he argued Cougar Den. I think Justice Gorsuch -- or wrote Cougar Den -- I’m sorry -- wrote his opinion there. Herrera was absolutely correctly decided. There’s a number of these cases. We can go down the line, that -- it requires you to read the treaty. It requires you to look at the history. It requires you to look at the facts, and that’s what these justices are having to do on these far more than really many many of the other questions that they get. These require a significant deep dive to get to many of the answers that we’re dealing with on these cases.

 

Jennifer Weddle:  So maybe pivoting just for a second then to Castro-Huerta, and I want to make sure we leave time for calls, but Castro--Huerta came out this week and the decision there is that Oklahoma state courts have concurrent jurisdiction with federal courts to prosecute crimes by non-Indians against Indians occurring in Indian Country. It has very long been the case that states maintain the jurisdiction to prosecute non-Indians committing crimes against non-Indians in Indian Country. But, until the Castro-Huerta case, it had not been understood that states could prosecute non-Indians for crimes committed against Indians.

 

Castro-Huerta involved a nonnative stepparent who starved and abused his seven-year-old native stepdaughter. She was about 19 pounds at age seven and found chained in a bed of feces, cockroaches, and bed bugs, and in really really rough shape. And the state had prosecuted the stepfather -- achieved I believe a 28-year sentence. And then the US Supreme Court’s decision in the McGirt case, finding that the Creek Nation Reservation had never been diminished or extinguished and the Creek Nation Reservation persisted in Oklahoma, which invalidated the states prosecution of the nonnative stepparent. And then the federal prosecution that ensued resulted in a sentence that was basically only 25 percent of the state time -- seven years.

 

In the majority opinion written by Justice Kavanaugh and joined by Justice Barrett, I think really their most fundamental problem was that they found it offensive that the state could seek justice for a non-Indian but that the state couldn’t seek justice for a native state citizen. And that that just fundamentally didn’t fly with them. But tribes strongly resisted that exercise of concurrent jurisdiction by the state. And there’s also a kind of a euphemistic reaction in the majority opinion that “Well, why? Shouldn’t more law enforcement always be better? Wouldn’t that keep communities safer?” And by the way, we hear you. We’ve heard you, tribes, in all these other cases where you say “The federal government is derelict in their duty to prosecute. The federal government declines these cases. Tribes don’t have criminal jurisdiction so there’s this huge gap in law enforcement in Indian Country. Why wouldn’t state jurisdiction be better?”

 

And there’s a whole lot of historical reasons why state-tribal relations have not always been particularly rosy, but I think there, in a very powerful dissent by Justice Gorsuch, which I endorse with all the hearts and flower emoji I possibly can – and I will sleep with it under my pillow for the rest of my days – he really says, “Let’s be real about the history, right? Let’s not have a contrived interpretation of all these other statutes and policies to achieve what is really results oriented.” And I think that that’s where Castro-Huerta is a departure for the Court from some of their other more recent Indian law jurisprudence. And by that, I mean Justice Kavanaugh, for whom I have the greatest respect, really glosses over a lot of the history, and just says, “Well, at some point our understanding shifted.” And doesn’t explain when that was or how that occurred or what Congress possibly had to say on that topic. And he just says, “Look, the problem is, the Court’s decision in McGirt made 43 percent of Oklahoma an Indian reservation, and Indian reservations have a lack of access to justice. And the way to fix that is to make sure states have concurrent jurisdiction.”

 

My competing theory would be, the way to fix that is to undo Oliphant and restore tribes’ territorial sovereignty to prosecute everyone within their territory and allow for states and tribes to do what they do all the time and enter into cooperative law enforcement agreements. So rather than putting our finger on the scale to say here’s who has jurisdiction here or there, address the nub of the problem which is that the US Supreme Court had just made it up. And I think really what Justice Kavanaugh’s opinion does is create this kind of doctrine of elevating colonizers’ aspirations to say, “Well, of course Indian reservations are part of states.” Well, those of us from Indian reservations don’t think so and have never thought so. And indeed, many of the State Enabling Acts for western states expressly disclaim any state interest in tribal lands or interest in any governance over tribal people.

 

State of Montana’s Enabling Act is a great example of that where they say specifically that “Montana forever disclaims all right, title, and interest to all lands lying within limits owned or held by Indians or Indian tribes.” So it’s really a strained reading and my phrase of contrived interpretations is one I actually borrowed from Justice Thomas’s dissent in Torres v. Texas Department of Public Safety yesterday where, again unusually this term, the Court went out of their way to reinterpret -- or as the defense would say, “Cast aside their previous precedent,” and find that the Eleventh Amendment did not inhibit the ability for Congress to subject the state of Texas to tort damages in a federal court. And Justice Thomas’s dissent essentially says “What? How could that possibly be?”

 

And I would say the Castro-Huerta majority’s decision is no less jarring in the Indian law context because it turns upside down very long held understandings from precedent and really everything that you would find in a US attorney’s manual, in a state attorney general's manual and says, “Well, we think this will be better to deal with the fact that there’s -- so much of Oklahoma is an Indian reservation. And it’s just not tolerable to have so much of Oklahoma suffer under the same yoke in the maze of injustice that Indian reservations do more broadly.” And again, my plea would be, “Two wrongs don’t make a right. Let’s fix the original wrong of Oliphant.” And that would have been a much better course and may still be the course because I think tribes will be pursuing both legislative fixes and there will be a lot more discussion between states and tribes on cooperative agreements and where to go next. And I would continue my own personal optimism that good things happen when states and tribes come together and sit at the table and try to work things out for public safety which is something everybody has a collective interest in getting right.

 

Anthony J. Ferate:  Yeah. I have two thoughts not directed at Jennifer’s comments but ancillary to her comments. I’ve seen a lot of comments here in Oklahoma about the Castro-Huerta decision, some suggesting that this throws Public Law 280 on its head. And I think the response to that from Justice Kavanaugh is that it doesn’t turn it on its head. It does address the issues of nonmembers and the jurisdiction around those nonmembers of tribes, how they -- whether they can or cannot be prosecuted. Oklahoma estimated -- and I’m going to get the percentage wrong, so I probably shouldn’t even say it, but I heard anecdotally from one individual familiar with the case that it’s about 20 percent of the state’s existing prosecutions would have disappeared -- maybe not disappeared depending on the severity of them -- but with the statistics I provided earlier, a lot of those probably would have gone uncharged rather than what they are currently.

 

And so the fact that the tribes -- and to Jennifer’s point a moment ago -- the fact that many of these prosecutions were trying to get up and running under McGirt here in Oklahoma -- to have the state continuing to support on some of those as a public safety issue isn’t necessarily a bad thing or shouldn’t be viewed as a bad thing. I can appreciate the view of the tribes that this is not a good decision. It is not consistent with McGirt. It’s not consistent with a number of other precedents. But I respectfully disagree with that view in the sense that there is nothing in the federal law, and that’s the view of Justice Kavanaugh, and that there is no text saying the states lost their jurisdiction on these. And that view is similarly consistent with Justice Gorsuch in McGirt when he said, “Show me the words. Show me the words that the reservation was disestablished.”  

 

Jennifer Weddle:  And I’d also like to just call out that I think this is actually some of the highest ideals of The Federalist Society to have reasoned informed debate and be able to disagree but still smile at each other. So I know we’ve got about 11 minutes. So Ryan, can we take some questions?

 

Ryan Lacey:  We certainly can. First, thank you both for those great presentations of these two cases and a little more talking about Castro-Huerta and Kennedy and Torres as well. Starting out, I’ll take moderator’s privilege and ask a couple of my own and then move to audience questions. And I’ve seen that you’ve typed up some answers Jennifer, but I’ll ask them again and get A. J.'s responses to those questions as well. My first question, I wanted to turn to these questions about the CFR Courts. You said there’s only five left. It’s kind of a small subset of the law. And one of the things that these cases do is they bring -- they heighten the public profile of these Indian issues. And I wanted to know, what do you think the changes to these CFR Courts that, as Gorsuch established, have a very very fraught history and are not very well managed, may not even be legislatively justifiable? What do you think the future for CFR Courts is and do you think we’ll see changes to them?

 

Jennifer Weddle:  I think --

 

Anthony J. Ferate:  So --

 

Jennifer Weddle:  Go ahead, A. J.

 

Anthony J. Ferate:  No, my simple comment was going to be that I think it’s difficult to -- Jennifer pointed out that some have suggested, why don’t we just give the money to the tribes to administer them? From a policy perspective, that might sound like a noble effort, but when you start doing that, maybe there’s other tribes that want money for their systems. Maybe there are other states that want money for their systems or other communities that want money for theirs. And what starts out as a noble intent can unwind into something that it was unintended for. And so, in defense of the CFR Courts, this has been an efficient way to process justice within these areas that are very remote, that are very underpopulated in areas where the tribe just simply can’t afford their own system. And if we -- I don’t think it’s something just as simple as, throw money at the solution. I think it’s something we need to think creatively about if we were to eliminate CFR Courts.

 

Jennifer Weddle:  I think the solution is that Congress has the power to cure this, Ryan. And Congress could establish a similar mechanism that’s funded, that’s available to poor tribes, that can’t practically maintain their own tribal court to cure the fundamental problems with any Executive Branch agency giving itself legislative executive and judicial power in one swoop which is -- it seems so shocking to even say out loud. I think Congress could fix it. I think, as a practical matter, it’s likely to get little attention because there are so few. There’s a lot of other priorities both at the Secretary of the Interior and in Congress. And until somebody really invests in fixing it, it probably won’t be fixed. So I would expect we’ll see more lower court challenges from future CFR Court prosecutions and people who want their moment in the sun to argue a case at the US Supreme Court.

 

Anthony J. Ferate:  Yeah. Justice Gorsuch flagged the path to try to get this back up there, didn’t he?

 

Ryan Lacey:  Turning now to Ysleta, possibly the least flashy of these three Indian law cases but had some important impacts specifically on economics of Indian lands and Indian reservations. Will this kind of recementing of Indian tribe rights, economic rights to go through their gambling -- establish their gambling industry -- will that have impacts for other industries on Indian reservations, other things that are regulated by states but on Indian reservations, they have taken advantage of being able to trade in those areas, for instance, a big one being tobacco and alcohol. What impacts does this opinion have on other industries on Indian lands? 

 

Jennifer Weddle:  So I want to answer that question, Ryan, but I want to take issue with the fact that Ysleta is very flashy. The US Supreme Court actually included a photo in the appendix to Justice Robert’s dissent. So any time you have a photo of bingo machines that appears in the US Supreme Court opinion, I think that’s pretty flashy.

 

I think, in answering your question about tribal economic development, really tribes retain all their inherent rights 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. So tribal economic rights are not grants of rights from Congress, they’re reservations of rights by tribes in treaties and in their government-to-government relationship with the United States. So that’s the fundamental premise. Tribes and states are co-equal in terms of their ability to regulate their economy to restrict or encourage different types of activities. So, in much the same way Nevada has encouraged gaming or Silicon Valley favors tech companies or New Mexico is now promoting the film industry, different governments make different decisions all the time about what kind of activity they want to encourage or what kind of activity they want to restrict.

 

And again, the -- as between states, they don’t get a hammer to make different decisions even if they don’t like their neighbor’s decision. And here in Colorado where I am, we experienced that when the state legalized marijuana and there was an original jurisdiction case from Oklahoma and Kansas saying “Well, all your drugs are going to be diverted over here and we don’t like the choice that you came to as a sovereign government.” And ultimately, I think the Court this term has made clear that those are decisions that need to be made at the state level or the tribal level and nobody gets a sledgehammer to beat up everybody else. You can create your own environment and your own rules. And then how you work across jurisdictions is going to be a matter of good governance and cooperation, compacting MOUs, treaties, modern treaties, you name it, I think all those things are on the table. But what we’re going to see, I think, is the continued ascendance of tribal rights as in broadly within the Legislative and Executive Branch, real recognition of the nation-to-nation relationship, and resultantly, a lot more interest and information about what is the role of tribes in our federalism and what are the limits of the carrot versus the stick I guess might be the way to put it.

 

[CROSSTALK]

 

Anthony J. Ferate:  I know we’re running short on time, but I will just in response, she showed the electronic bingo machines, and I will specifically state them that way. So with Justice Breyer leaving the Court just yesterday officially, my favorite Justice Breyer moment of the term was when one of the justices asked the question of counsel, “Are there experts on bingo machines?” And Justice Breyer quickly interrupted before counsel could respond and he said, “My grandmother is an expert on bingo machines. Go ask her.” So that was an entertaining moment of levity in the courtroom on this one. The simple fact is I guess on those is that it’s a matter of changing out the card. We know that you can change the card to make it a class III or a class II gaming machine.

 

But I think that Jennifer is correct. I think we’re going to continue to see tribes thrive and grow as they figure out their role in today’s commerce. They’re gaining more strength. I mean, I brag on the Chickasaw here in Oklahoma. They are operating perhaps one of the most professional businesses in the state. They have to be compared right up there with some of the Fortune 500 companies that we have here in Oklahoma. So yeah. I think that you’re going to continue to see tribes figure out how to operate professionally and grow in their power going forward. 

 

Jennifer Weddle:  Ryan, I want to just say there, this is another point where yet another case from this term informs us in yesterday’s Clean Power Plan opinion. The answer to different governments reaching different decisions is not more centralized regulation from the federal government and federal government agencies or more regulation from state government and state government agencies. It’s not a race to the bottom of who can impose the most restrictive regulation. I think it’s going to be much more driven by the free market, “Life will find a way” sort of approach.

 

And I wanted to highlight that Christopher Berger has put in the chat “How did we get Chris Pratt to moderate this call?” So a little Jurassic World shout-out for the best question in the chat ever. And you’ve been an excellent moderator Ryan, so thank you.

 

Ryan Lacey:  Well, thank you so much, and I surely wish I was as good looking as Chris Pratt. But nonetheless -- well, thank you both. And I’m sorry for the questions we weren’t able to get to specifically on Castro-Huerta. But you’re in luck. If you tune in next week on Tuesday, we’ll have both of our fine speakers here on another panel joined by two other speakers on Castro-Huerta specifically to get into the nitty gritty of that case as well. And that will be Tuesday, I believe, at -- I can look it up right now. It’ll be Tuesday --  

 

Jennifer Weddle:  1:00 P.M. Eastern.

 

Ryan Lacey:  -- 1:00 P.M. Eastern. Thank you so much, Jennifer. But nevertheless, I would like to thank both of our speakers for the benefit of their time and expertise today and for our audience for participating. You can send your questions or feedback to [email protected] And as always, keep an eye on our website and your emails for upcoming programming including all the Courthouse Steps Webinars that are coming up next week. We have several. But if -- yeah. Other than that, we are adjourned. Thank you so much for joining.