Courthouse Steps Oral Argument Teleforum: McGirt v. Oklahoma

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Tribal jurisdiction is again before the Supreme Court. Following November 2018 arguments, Chief Justice John Roberts first requested additional briefing and then announced new arguments would occur in Sharp v. Murphy. Instead, the Court granted certiorari in McGirt v. Oklahoma, and Justice Gorsuch, who had recused himself from the earlier case, will participate. Jimcy McGirt sought post-conviction relief of his rape, molestation, and sodomy convictions, citing Murphy, and arguing his crimes occurred in Indian Country and thus were subject to the Indian Major Crimes Act. If that law applies, Mr. McGirt’s crimes should have been prosecuted in federal court, rather than state court. The Oklahoma Court of Criminal Appeals rejected his request for relief. Because tribal jurisdiction related to criminal, civil, and regulatory matters generally flow together under Alaska v. Native Village of Venetie Tribal Government 522 U.S. 520 (1998), some legal analysts view this case as representative of a much larger matter than simply prosecuting criminals in the proper court.

Join us for a Courthouse Steps Teleforum for reaction to the McGirt argument. The panel will feature Andy Lester and A.J. Ferate, with the Oklahoma City office of Spencer Fane, and University of Oklahoma W. DeVier Pierson Professor of Law Taiawagi “Tai” Helton.

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

 

Event Transcript

[Music]

 

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.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call.  This afternoon's topic is titled Courthouse Steps Oral Argument Teleforum:  McGirt v. Oklahoma. My name is Greg Walsh and I am 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.

 

      Today, we are fortunate to have with us, A.J. Ferate, Of Counsel of Spencer Fane LLP and a member of the Executive Committee at FedSoc's Environmental Law and Property Rights Practice Group. We also have Andy Lester, a partner at Spencer Fane LLP and a former United States Magistrate Judge for the Western District of Oklahoma. We also have 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 go to audience Q&A. Thank you all for sharing with us today. Mr. Lester, the floor is yours.

 

Andy Lester:  Well, thank you and good afternoon and welcome to this teleforum on a fascinating case. On November 7, 1905, the citizens of Indian Territory approved the Constitution and the Statehood Petition of the State of Sequoia. Although Sequoia met all of the requirements for statehood, the petition was tabled, and for the only time in American history, a territory seeking statehood, that qualified for statehood, did not become a state. Just two years later, however, Indian Territory, roughly the eastern half of present-day Oklahoma, and Oklahoma Territory joined together to become, in the words of Richard Rogers, a brand-new state. The 46th start on the American flag. By the way, Oklahoma is the only state created by a marriage of two former federal territories.

 

      It is interesting to note how important Indian Territories petitioned to become the State of Sequoia was at the time. In 1905, territorial governance was so important that much of President Theodore Roosevelt's State of the Union Address dealt with the issue. Among other things, President Roosevelt wrote, "I recommend that Indian Territory and Oklahoma be admitted as one state. There's no obligation upon us to treat territorial subdivisions, which are matters of convenience only, as binding us on the question of admission to statehood. Nothing has taken up more time in the Congress during the past few years than the question as to the statehood to be granted."  Interestingly, he also recommended that Arizona and New Mexico territories be admitted as one state, something that, of course, did not happen.

 

      In McGirt v. Oklahoma, the Supreme Court will decide whether the land of old Indian Territory constitutes tribal reservations on which the Major Crimes Act, Title 18 of the United States Code Section 1153 requires the prosecutions of Indians who allegedly committed the specified crimes must occur in federal court. But the decision in the case may involve much more. The facts of McGirt are gruesome. Jimcy McGirt was convicted for the 1996 forceable rape, lude molestation, and sodomy of his wife's four-year-old granddaughter at their suburban Tulsa home. He was sentenced to 1,000 years plus life imprisonment. His conviction and sentence were affirmed.

 

      After the Supreme Court, in 2018, granted certiorari in Sharp v. Murphy, a similar case also emanating from Oklahoma, McGirt sought relief in the Oklahoma State Court system. The Oklahoma Court of Criminal Appeals, however, again affirmed his conviction.

 

      You may remember Sharp v. Murphy argued in the previous term, the Court eventually sought reargument after Justice Gorsuch had recused himself, presumably because Murphy was a case that the Tenth Circuit considered while he still sat on that court's bench. Justice Gorsuch has not recused from McGirt, however. The Tenth Circuit, by the way, had sided with Murphy, who was convicted for murder.

 

      Interestingly, the parties did not even agree on what the issue is. According to McGirt, and I quote here, "this case is about whether Congress disestablished the reservation of the Muskogee Creek Nation."  Citing Justice Thomas' 2016 unanimous opinion in Nebraska v. Parker, McGirt asserts that the plain text of the various congressional statutes did not expressly or impliedly disestablish the Creek Reservation in Oklahoma. In removing restrictions from land within the Creek Reservation, Congress never used the word "cession," and that's cession with a C. The sine qua non word for disestablishment.

 

      The State of Oklahoma, by contrast, argues that the Creek Nation lands in Oklahoma were never established as a reservation in the first place. Moreover, in the term, cession, according to the state, is not a magic word necessary to show disestablishment, even if a reservation had been established. Both sides cite history, but the history that they cite is quite different.

 

      Whichever side is correct, the issue in this case, at first blush, seems narrow. It only involves a major crimes act, and it only involves whether an Indian must be tried in federal court under that law. Consider, however, the potential ramifications. If Creek Lands remain a reservation, virtually all of the City of Tulsa lies in Creek Country. Essentially, all of the former Indian Territory also lies in Indian country. That could affect the validity of numerous criminal convictions and it even could affect state and local government power over essentially the eastern half of Oklahoma and its inhabitants.

 

      This is an unusual case in many ways. It seems to defy the typical conservative-progressive split at the core. As has happened throughout the COVID-19 era of telephone arguments, all Justices participated yesterday, and it certainly would be an interesting teleforum to have on how COVID-19 is affecting oral arguments. Perhaps our panelists will have some predictions.

 

      You've heard brief introductions of our panelists. A.J. Ferate, as you heard, is Of Counsel to the law firm of Spencer Fane. He clerked at the Oklahoma Court of Criminal Appeals for Judge Gary Lumpkin when Judge Lumpkin wrote the court's opinion in Murphy v. State back in 2005, the first published ruling in these cases. Throughout his career, Mr. Ferate has maintained an energy, environmental, and public law practice. And in addition to serving on the Executive Committee on the Environmental Law Practice Group, he is the President of The Society's Oklahoma City chapter.

 

      Taiawagi Helton is a professor at the University of Oklahoma College of Law where he teaches Environmental Property and Indian Law. He received degrees from Ohio State University—in Oklahoma, we refer to Ohio State as the other OSU—and from Tulsa University and from Yale, as one of the most sought after professors at OU. After law school, he clerked for former Tenth Circuit Chief Judge Robert Henry, who offered one of the principal amicus briefs supporting McGirt, and by the way was mentioned by name during the oral argument yesterday by Justice Gorsuch.

 

      Gentlemen, please open with a short statement of your positions with respect to this fascinating case, and I'm going to first turn to Mr. Ferate.

 

A.J. Ferate:  Well, thank you very much Mr. Lester. And I'm really pleased to be on this call with, both, you and Professor Helton. One of the things Andy didn't highlight is, if I've ever needed to review a historic tribal map, his collection has provided it to me. So wonderful. If you ever want to talk about maps, talk to Andy sometime.

 

      Turning to the case, a few of the thoughts. I'm going to start with the briefing, really because it's very rare in Supreme Court to have essentially the same issues litigated two terms in a row. So while I certainly don't show any disregard. In fact, I had a brief in the last term in the Murphy case, re-briefing this really kind of provided a completely different perspective, in my opinion. And provided much stronger briefs. I re-read them on Sunday afternoon and was really kind of impressed, still, by the briefing in this case on both sides. The arguments were also handled well by the parties. Mr. Mansinghani, his sticks out in particular to me. Both, because I've been opposite of him and on the same side as him in previous cases. He did a particularly good job here, given the tough questioning that he received.

 

      Speaking of the tough questioning he received, let me address the format of the arguments a little bit. I understand that the telephone arguments require a little more order than the traditional bench might in a live argument. And I really appreciate that the format is giving us some thoughts on Justice Thomas' questioning and some of the things that he is struggling with as he hears these cases. The example for this one was, we heard concerns about applying his own opinion from Parker v. Nebraska to this case and seemed to have some doubt related to those questions. But ultimately, I think that the format, unfortunately, didn't allow for a full level of discussion that we would more often see at a true oral argument. And I'll discuss the points perhaps a little bit more. But Justice Gorsuch, I think, may have probably had a much wider dialogue, had the opportunity been provided that you would see in a traditional format.

 

      As you might assume, the criminal jurisdiction issue here presents a really interesting debate between the parties similar to what Mr. Lester introduced us with. Because there was an extremely divergent perspective there. Certainly, the State argues that starting in 1897, Congress granted territorial courts jurisdiction over all residents, applying federal law and Arkansas law irrespective of race. The tribal courts were abolished and rendered tribal law unenforceable at that time. So the question really becomes, at that point, through statehood, really where was the jurisdiction over criminal issues?

 

      Mr. McGirt's argument is a position that there was a jurisdictional gap that led to lawlessness. It's difficult to find anything that suggests this in the history pre-state or post-statehood. But that was the position that was advanced from Mr. McGirt. And certainly the State notes that no criminal case has ever been tried in federal court on the theory that Eastern Oklahoma is comprised of reservations. In fact, they cite a number of state and federal decisions, including some from the Supreme Court, historically, that have affirmed that state jurisdiction.

     

      I turn to, again, I mentioned Justice Gorsuch's line of questioning of Mr. Mansinghani during argument and the issue, really his questions really go to the concept in this case, of what the case is all about. Certainly, on the Tenth Circuit, he had a great familiarity with tribal law and focused on those issues. And certainly his writing in Cougar Den last term was an important decision to review, as well.

 

      But he asked four specific questions, and the first was can you explain to me why the fact that the land is in fee simple would lead to a less stringent disestablishment test than Solem. For those of you are unfamiliar with some of the tribal law aspects, Solem is a general case that is applied, a mid-'80s case that really has been used as the analysis. Not necessarily a test, but an analysis of how you tell if a certain area has been disestablished of a reservation. And so that question really kind of goes in that direction of questioning. Can you apply this fee simple test to disestablishment? And Mr. Mansinghani handled it well. But the real answer, I think, to that question is no. You don't need to use a disestablishment test. You don't need to use Solem in that instance because the land is fee simple. The federal government provided it to the tribes in that direction and so there was nothing to disestablish.

 

      Mr. Kneedler, in argument yesterday, actually quoted from the Principal Chief of the Creek from 1906: “Upon the establishment of the state government, all powers over the governing, even of our land and property, will cease except insofar as the distribution of our property and money is concerned.” Justice Sotomayor questioned that yesterday and said that that statement was made in light of the existing congressional disestablishment legislation. But this was made after those lands and those allotments had been provided for and just pre-statehood. And so this clear understanding, I think, is something that was given a little bit of short shrift by Justice Sotomayor, but I think is very important to consider, nonetheless.

 

      Second, Justice Gorsuch asked the question about demographics. He said, the State makes lots of review of the demographics and evidence about what has happened. And he couldn't understand why that was relevant. From my perspective, when I heard that question, the note I wrote down immediately was Indian character. This question really kind of goes to that Solem analysis that is out there. And among all of the number of steps that you do to review under Solem, one of them is to determine if an area has long since lost its Indian character. Because if it has, de facto, if not du jour diminishment may have occurred. We know from Solem that there's no requirement of magical words that this area has been disestablished, or that reservation has been disestablished. We know that it is a full analysis and one of those elements is that if an area has long since lost its Indian character, that has to be given consideration. And so really, Justice Gorsuch's perspective there was interesting, given light of that issue in Solem regarding Indian character.

 

      And then third, the third question that he asked was about the practical impossibility of the arguments and it could be addressed, what's wrong with the brief by Judge Robert Henry. I don't think that there's anybody on this call that would certainly besmirch Judge Henry's analysis and thoughts, and deservedly so given the regard that I think is held for him. But the thing that I guess that I would address there is, of course there are tribe and state partnerships on issues in the state of Oklahoma. But here are certainly disagreements, as well. There have been significant water lawsuits in the past. There are ongoing tribal gaming disputes in the state. There are a number of other issues that, certainly, can be viewed as caustic. Certainly, we find partnership with the tribes in the State of Oklahoma as much as possible, but certainly, that doesn't exclude the fact that litigation occurs and litigation is ongoing currently in some of those issues.

 

      And then fourth, the fourth question from Justice Gorsuch was that he would have thought that after Carpenter v. Murphy we might have seen a tsunami of new cases. I think it's appropriate to comment that, after Murphy, Murphy hasn't been decided yet. We don't have a final result, but we actually have seen a number of issues. We know from the State of Oklahoma, itself, that there are about 1700 that are eligible for relief. We know that there are at least 42 pending post-conviction relief cases at the Oklahoma Court of Criminal Appeals. And so I think that those are worthy considerations that, even though it is premature for those issues to be litigated and arrived, we have already started to see some.

 

      I also highlight, too, the comments from Lisa Blatt's argument on behalf of the State in the Murphy case, that there are 155 murders, 113 rapists, and over 200 felons who committed crimes against children. And habeas isn't going to help here because the statute of limitations on their particular crimes have expired. And so what to do with those cases certainly raise questions how to proceed forward on the criminal issue. And with that, I know we'll have some questions here, in a little bit. I stand down and Professor Helton, by all means, please tell me where I'm wrong.

 

Prof. Taiawagi “Tai” Helton:  Thank you Mr. Ferate. It really is a pleasure to chat about this. It's amazing, given the very low population of Native Americans, how much attention they get from the U.S. Supreme Court. And this is case is as important a case as we've seen since statehood. One of the things I find most striking, as I was listening to the argument, is how quickly the Court's textualists become consequentialists when they're uncomfortable with the parade of horribles that the State describes might happen. And that notion of Indian character, I thought, was really striking, too. You mentioned Lisa Blatt's brief in the Murphy case. And Justice Breyer kind of called her out about this in oral argument, in that case, because she opened the brief with a picture of the City of Tulsa that has skyscrapers. And it seemed clearly to evoke the idea that Indians are a thing of the past. And they do not operate modern administrative states, and that there's nothing of Indian character about the modern world. And I think that relegates tribes to the past in a really uncomfortable way

 

      But I actually think, as The Federalist Society and conservatives should really want to preserve the Solem v. Bartlett standard here. Because the compromise, or the addressing of Native Americans in what becomes the United States was part of the fundamental federalism compromise between states and the national government. We often think of the Articles of Confederation as falling apart because of a liquidity crisis for the nation buried in Revolutionary War debt, states wanting to pay their own debts instead of giving money to the national government. But a primary reason for the failure of the Articles of Confederation was that there were competing claims by states over Indian lands.

 

      In some cases, I think Virginia claimed everything out to the Mississippi. I think New York might have claimed everything to the Pacific, as well as land that was also being claimed by states like Delaware and Massachusetts. And so as the Articles were falling apart, the compromise that was made was that each individual state would give up its claims to Indian land in exchange for the federal government removing tribes from within their borders. And we saw the first push to remove Native people from the east, starting in the 18-teens.

 

      I think 1817 was the first removal treaty, but then there was this embarrassing episode where a bunch of Cherokees complied with the U.S. request that they remove to what becomes part of the State of Oklahoma, but initially in Western Arkansas. And they got there, and there were already non-Indian settlers there. And so the United States was quite embarrassed and it was frustrated in its effort to relocate these tribes from their original aboriginal territories to these new reservations and what would be known as the Indian Territory.

 

      And so this is part of the original compromise, for the Cherokees' at least. They, then, after the 1825 removal, and then many of them returned back to their original lands. They, then, are getting pressure from Georgia. Georgia is trying to claim jurisdiction over their lands. First they go to the President. But in 1828, Andrew Jackson, a famous Indian fighter becomes President, and he's not helpful. They go to Congress and Congress passes the Indian Removal Act of 1830, the purpose of which was to relocate these people onto permanent homelands, permanent reservations within their own territories. So that doesn't work, and so they go to the Supreme Court. And the Supreme Court describes them as domestic dependent nations. And there's a three-part -- Domestic dependent nation is a three-part status.

 

      But the reason the Court chose that is that they didn't want to hear the Cherokees' claim based on original Supreme Court jurisdiction. And you can go straight to the Supreme Court if you have a conflict between a domestic state and a foreign nation or between two domestic states. And everyone agreed that the Cherokees were a nation. Everyone agreed that they were not a domestic state. But the question, then was, are they a foreign nation? And Justice Marshall creates a new form of sovereign, the domestic dependent nation, in order to get away from the original Supreme Court jurisdiction. And he says that they're neither a foreign nation nor a domestic state, they're a domestic dependent nation. And in that case, and then in one other a year later, in Worcester v. Georgia, we learned that there are three components to the domestic dependent nation status of tribes.

     

      First is the reserved rights doctrine, the flip side of which is the diminished tribal sovereignty doctrine. Then the second is congressional plenary power and the third is the trust doctrine. And under the reserved rights doctrine, U.S. law says that tribes, as pre-constitutional sovereigns have all of the powers of any sovereign, except those that they've expressly given up in a treaty, that Congress has explicitly taken away, or those that were necessarily diminished by virtue of their dependent status. And Marshall, at least, has in mind only two things. Their ability to sell their land to anyone of their choosing without the permission of the U.S. And he says that if they were to enter into a treaty with European power, we would view that to be an act of war. So effectively, that is an 1823 statement of the Monroe Doctrine that was articulated three years earlier, but then here, applied to Indian territories.

 

      But under the reserved rights doctrine, tribes have lost some jurisdiction because of discovery and conquest, but the beginning question is, not what rights do they have left, but what rights has Congress expressly taken away from them or that they've expressly given up?

 

      And then the second piece is congressional plenary power. And we've often been taught, in civics classes, that we have a system of bilateral federalism and a national government of limited enumerated powers. That's not true. We have a system of trilateral federalism that includes states and the federal government, as well as tribal governments that were incorporated piecemeal into the United States, although very often, not voluntarily. The U.S. still claims power over Indian affairs on the basis of discovery and conquest and not on the basis of consent of the governed.

 

      But in any event, what the Court said is, and they verify this later, a century-and-a-half later in United States v. Kagama in 1886, the Court says that power over Indian affairs must exist somewhere and it cannot exist with the states because the people of the states, or the local citizen of the states have often been their deadliest enemies, so it must rest with the federal government.

 

      And the branch of the federal government that exercises that power, because of the Indian Commerce Clause, which was added to the U.S. Constitution specifically to address the problem of states purporting to have jurisdiction on Indian lands, or for states purporting to be able to take title to Indian lands, that the Commerce Clause says that Congress has the power to regulate commerce with foreign nations among the several states and with the Indian tribes. So making it quite clear that, just like King George III did in the proclamation of 1763, the United States claimed national centralized authority over Indian affairs and originally, that only included affairs between Indians and non-Indians. In 1886, it gets expanded to include internal relations of tribes, or internal affairs, as well, to some extent.

 

      But there's no doubt that that is a power exercise by Congress, exclusive of the states. And in fact, in Worcester v. Georgia in 1832, the Court says quite clearly that the Cherokee Nation is an independent political community -- or a distinct political community with discrete boundaries in which the laws of the State of Georgia can have no effect.

 

      And then finally, the third piece is the trust doctrine, which says that when the United States exercises its authority over Indian affairs, it must do so in the best interest of its Indian wards.

 

      So we have this very strong statement from the initial establishment of the United States that Indian affairs are a matter of exclusive federal concern. That gets almost no change until some criminal jurisdiction cases starting in 1978, or so. But it gives us this beginning principle which is -- has been affirmed by the Court repeatedly for 200 years, and that is that only Congress can change the Indian Character Status or the Indian Country Status of land. And that when it does so, it must do so expressly or clearly in a piece of legislation, because of course, legislators act -- or legislatures act through the passage of legislation.

 

      So the test we get in Solem v. Bartlett addresses the problem of Congress not being clear enough when it allots reservations, according to the Allotment and Assimilation Policy, which ran from somewhere between 1871 and 1887 up to 1928 or 1934, depending on how you count the dates of significant moments in that time.

 

      But there, the Supreme Court said, in the Solem v. -- I'm sorry.  In Solem v. Bartlett in 1984, that was the fifth case where the Court was addressing these questions. And they said that, the first thing you start with is the text of the Surplus Land Act. And that is the statute that would have broken up the reservation. And what you have to have at the outset is strong language of cession, meaning the Indians are giving up all right and interest of the land to the United States combined with an unequivocal promise to pay a sum certain by Congress. If you have that, then you have a nearly irrebuttable presumption in favor of disestablishment. If you do not have that, then you don't have disestablishment. That merely means that the non-Indian or nonmember fee lands are removed from the Indian country portion of the area, but the rest remains Indian country.

 

      On the other hand, if you do have disestablishment, then the reservation is formally disbanded and the only remaining areas that are still Indian country are things like allotments, tribal land, and trust lands for the most part, or restricted fee lands.

 

      And then the other two points in that Solem v. Bartlett standard is to say that after we've examined that language to test our nearly irrebuttable presumption, we look to the contemporary circumstances surrounding the negotiation and the subsequent treatment by the federal government. And in analyzing this, the Court says, because only Congress can do that and because we want Congress to speak clearly and plainly, we will not rightly find disestablishment.

 

      So we get this standard, that I should note is actually incredibly pro-state. If you look to footnote 13 in Solem v. Bartlett, they make this remarkable admission. They say that, when we're looking at subsequent treatment by the federal government, and subsequent demographic history, they say this in footnote 13 in Solem v. Bartlett in 1984: "Resort to subsequent demographic history is, of course, an unorthodox and potentially unreliable method of statutory interpretation. However, in the area of Surplus Land Acts, where various factors kept Congress from focusing on the diminishment issue, the technique is a necessary expedient." So they're already talking, not about relying after the text on legislative history, but on legislative future to see how the land was treated later on in time.

 

      So the Court is already considering this notion of demographics to override the absence of strong Congressional language. But in any event, the Supreme Court, in 2016, in Nebraska v. Parker, unanimously upheld that standard as the standard to be used. So I thought it was really remarkable that not only did the state wholly abandon its disestablishment analysis that it had made in the Murphy argument, but then Justice Thomas started suggesting that maybe the Nebraska v. Parker standard and the Solem v. Bartlett standard shouldn’t apply.  Because here we have a whole bunch of different statutes that seem to address lots of different topics.

 

      And I guess I would just say, to go to that issue, in it's plainest sense, there's no doubt that Congress was contemplating a process by which they would dismantle tribal lands and dismantle tribal government. But they stopped that process before it was complete. And as a result of that, if it is a problem, it is a problem caused by Congress and quite candidly, Congress should fix this problem.

 

      And we know that they're capable of fixing such things, because when Oklahoma became uncomfortable with the Environmental Protection Agency treating tribes as states under certain environmental statutes. A state representative spoke with Senator Inhofe, and in 2005, he added a midnight rider to a Highway Appropriations bill that said no tribes in Oklahoma could get TAS status in the future without the permission of the State of Oklahoma.

 

      So there's no doubt that state and federal representatives have, since statehood, known that Oklahoma had a peculiar and distinct history. And that where the legal consequences of that history need to be addressed, Congress can step in and do so. And I guess I would just add one more thing, since the legal standard that has historically applied in all of these cases seems to have been abandoned, there's not actually a very good legal standard there, left. And there's no strong statement anywhere that Congress intended for this change to be made, that this was part of a process, that process was ended. And it just seems striking that the State largely abandoned the legal discussion in just emphasized the consequences rather than the text, even though Justice Thomas made quite clear that, if you don't have the unequivocal language of cession -- or the strong language of cession and unequivocal promise to pay by Congress, then you don't have disestablishment. It sounds like there's just so much discomfort here with the potential consequences of what is clearly the plain legal rule.

 

      And then I should also mention, I can't speak for tribes, I'm not a tribal citizen of any tribe, but I think it's worth noting that the tribes didn't want either of these cases. And when you look back at many of the disestablishment cases, clearly the tribes were not trying to pick this fight. Solem was, in fact, a criminal case, just like these two cases are where you have criminal defendants invoking the General Crimes Act of 1855 and then later, the Assimilative Crimes Act, and then the Major Crimes Act of 1885. All of those are federal statutes governing jurisdiction, or criminal jurisdiction in Indian country. And the tribes have, through cross-deputization agreements, and through a variety of other mechanisms, have made fairly consistent efforts to provide for public safety within their territories in a way that respects state jurisdiction. Because the states do retain jurisdiction on non-Indian on non-Indian crime, even on reservation lands and many of these lands that have entered into ordinary fee will still be covered by state jurisdiction.

 

      And then, finally, I should note, I was really struck by what seemed to me to be kind of willful ignorance during arguments about the difference between ordinary fee lands restricted fee lands. Because there's no doubt that the restricted fee lands were intended to give the tribes more protection than ordinary aboriginal title, or than tribal trust lands. And the United States transferred communal fee land to them for the purpose of fulfilling a promise of near-complete sovereignty. A promise that was kept for seven decades or so. And when you look at the treaties, the Civil War treaty reaffirmed the rights of the tribe up to that point, to the land that they still -- that was reaffirmed in the 1866 and '67 treaties. And there's no statute where Congress has clearly said that they intended to break tribal jurisdiction here, or transfer jurisdiction to the state.

 

Andy Lester:  Thank you, Professor Helton.  Mr. Ferate, do you have a brief response before we go to questions?

 

A.J. Ferate:  Sure, I do. And thank you. So a couple of the things, I guess, that I would address is the Professor suggested that the state abandon their argument and moved to this dependent nation status argument. That argument was there. It existed during the Murphy case. It certainly wasn't the highlight of the Attorney General's focus in that case, but it was certainly there. And I guess, to refocus that a little bit, and important, I guess, after yesterday's argument, is there was this concept that it exists as a dependent Indian community. And I think, really specifically, the Attorney General's argument was more that it looked similar to what can be considered a dependent community, rather than anything in particular. And that fits with the fact that this land, again, was held in fee.

 

      But if we're looking at this under the Solem analysis, and we are saying that there was a reservation, or is a reservation, certain through the plenary number of treaties that followed the Dawes Commission, there are more than enough examples in there to provide that the land was disestablished and certainly, as I even --

 

Prof. Taiawagi “Tai” Helton:  No, I'm sorry, I should have interrupted. I was just going to ask if you could mention some of the treaties after the Dawes Commission.

 

A.J. Ferate:  Well, I mean, certainly. I don't have them on hand, but certainly the treaty of 1901 and 1902 began to do some of that. But certainly even, as I mentioned earlier, the own words of the Principal Chief of the Creek Nation in 1906 recognized that. And certainly, on top of that, the allotment that occurred. Those lands were handed off by the Creek and other of the civilized nations. Those lands were handed off to their members and those lands were held in their possession for quite some time.

 

      Now, the Professor also addressed some of the protected rights around those and obviously, the Stigler Act came into effect in the mid-'40s to help protect some of those land rights that the Native Americans have received as a result of allotment. But at that point, there were no tribal lands, essentially, to be spoken of. And so disestablishment truly did occur. Even if we were to suggest that the land wasn't held in fee and argue that there was a reservation, at one point.

 

Andy Lester:  Thank you.

 

Prof. Taiawagi “Tai” Helton:  I would just note in 1990 -- sorry, go ahead.

 

Andy Lester:  I think we're ready. Professor Helton, if you had a last comment, please. And then I think we'd be ready to go to questions.

 

Prof. Taiawagi “Tai” Helton:  Sure. I just wanted to note that in 1993 in Oklahoma Tax Commission v. Sac & Fox Nation, Oklahoma made the argument that because the Sac & Fox did not have a formal reservation, that their lands were not Indian country. And Justice O'Connor wrote for the Court that that had never been the standard. And that 18 U.S.C. § 1151 distinguished categories of Indian country, but never intended to require that something fit within one of those categories in order to be Indian Country. And in fact, what she said was, it memorialized the common law rule which was, the question is are these lands validly set aside for the use of Indians as such under the supervision of the federal government. And there's no doubt that these lands were. They were set aside in restricted fee and individuals received restricted fee, in most cases. And so we're not talking about a movement from restricted fee status to unrestricted fee given to non-Indians or unrestricted fee given to tribal members.

 

Greg Walsh:  Perfect. Well let's go to audience questions. We'll now go to our first question.

 

Caller 1:  Hello. I'd just like to know if members of tribes vote in their state, of course it's not their state these days, election for governor.

 

A.J. Ferate:  I'm sorry. Was the question, do members of tribes vote for governor? I'm sorry, I didn't understand the question.

 

Caller 1:  Yes. Can they vote in their state's elections if it's for a state office, such as governor?

 

Prof. Taiawagi “Tai” Helton:  Well, I'll go ahead and take that one. The answer is yes. They're full citizens of the State of Oklahoma. If they live here, in Oklahoma and otherwise are citizens, and in fact our current governor is a member of one of the tribes.

 

Andy Lester:  Well, let me pose a question to our panelists here. It's fascinating to me to hear a Supreme Court argument where the justices are citing to something we, in Oklahoma, are familiar with but others may not be, the Oklahoma Enabling Act, which includes language suggesting that the laws should apply regardless of race. And the questioning yesterday, several of the Justices raised this point.

 

      How does that language, the Oklahoma Enabling Act language and other statutes that say that the law should apply regardless of race work with this case? Does it apply to the reservations if the reservations indeed existed, does it apply to Native Americans?

 

Prof. Taiawagi “Tai” Helton:  I may have to give an opening crack at that and then I'd like to hear what Mr. Ferate says. But the Oklahoma Enabling Act -- first it's worth noting that when the State of Sequoia that you mentioned at the beginning of this was denied, in large part, that was because President Roosevelt, Theodore Roosevelt, didn't like the idea of creating two territories that would likely give greater power to Democrats in Congress. And so he wanted the two of them to be merged into one state. And later on, when we do get New Mexico admitted to the Union, it's got half the population of what Oklahoma's -- what just the Indian Territory had. So, the reason that the State of Sequoia was not added had nothing to do with its Indian country status, for the most part.

 

      But when it comes to the Oklahoma Enabling Act, President Roosevelt was worried about new states passing Jim Crow laws immediately. And so he insisted that the Oklahoma Enabling Act include that provision in order to protect African Americans. And in fact, right after statehood, we saw exactly his concern realized, which was Jim Crow statutes got passed and then we saw a string of governors increasingly enforcing separation. But the Oklahoma Enabling Act was intended to make sure that within state courts, racial discrimination didn't take place.

 

      But it's also worth noting that the Supreme Court has made quite clear that Indian status is not a purely racial status subject to strict scrutiny, but instead, these are distinctions based largely on membership in a tribe, or tribal citizenship, which is a political classification. And I found it frustrating during oral arguments that people kept talking about, this is based on race, when eligibility for tribal citizenship, or tribal citizenship is essential to criminal jurisdiction. It just seemed really unfortunate that we kept talking in terms of race, when this is about political status, not racial status.

 

A.J. Ferate:  So I, in response to that, I think that there is an important element here and that there was a reason that it was argued and addressed by both sides. And that is that under the territorial law at the time, there was a predecessor of law to the Major Crimes Act, and to other issues there that if you were in Eastern Oklahoma and this was a Native American crime, it had to be addressed by the federal government. And so there was a diversity or difference in approach to Indians and non-Indians, at the time. And so that language can have elements, or is important to the conversation really, because the intent was to apply the same law to both Indians and non-Indians in the territory. And so I think there was an important reason why that discussion happened from both sides in the case.

 

Greg Walsh:  We'll now go to caller from area code 406.

 

Caller 2:  My question is this, just going back to Professor Helton's comment on this willful ignorance, because I'd watched yesterday and saw a lot of that. And I'm curious -- this is more, probably a theoretical question, why it is that it seems that all of these great legal minds who are working these cases and making these arguments really go towards the willful ignorance stance as opposed to addressing all of these things. In particular, he was just talking about this last issue where we know that it's not just about race and these things have been taken into account. But it seems as if most of the Indian cases that I've been following, like willful ignorance or the façade of not understanding Indian country by these minds who clearly understand it, is a common theme?

 

Greg Walsh:  To whom -- is this directed to the Professor?

 

Caller 2:  Either.  I mean, I'm curious, but yeah.

 

Greg Walsh:  Okay, thank you.

 

A.J. Ferate:  I guess I'll try to answer that. I think that on some level, through the way that governments are set up and the separation of powers discussions. Look, the Professor and I, I think, would both agree that tribal law is hard. Tribal law is not something that is interesting to the average Joe. They don't report on tribal law often on the news, and there's a reason for it. And it's because it's hard. It takes a lot of thought and analysis and review, as you're dealing with it, as compared to other areas of the law. And there's a reason that the justices struggle with it. There is no other -- the tribal structure and the inter-relation between the tribes and the United States is something that there really is not precedent for anywhere in the world. And so these issues have to be discussed and deliberated. And certainly, the Supreme Court seems to be a place where we have done that, thus far.

 

Prof. Taiawagi “Tai” Helton:  I would just add that this is really hard and there are legitimate conflicts of values that arise in all of these cases. And that's why institutionally, the Court is less a good place to go to address these questions. Because if you are weighing competing policies and competing societal values, the legislature is the place to handle that, and specifically Congress. And the Court followed that rule for about a century-and-a-half, where they just kept saying, whatever the problem is, Congress has to fix it.

 

      And it was only in the early 1980s when the Court started taking it upon itself to start to resolve some of these issues, generally to the disfavor of tribes. But I do think the state sort of grabs onto a notion and can't let it go. I remember, in the Sac & Fox case, Justice O'Connor writes, for the third time, the State of Oklahoma brings this argument to us. That is that without a formal reservation, there's no Indian country, and for the third time we reject it. And I feel like we're seeing Deja vu all over again here, where they're bringing this argument that there's no Indian country. And remember, they're not just arguing about surplus lands here. They're talking about even tribal land would be subject to state jurisdiction now. And that is a broader claim than other states make.

 

Greg Walsh:  Okay. Let's now go to our next question.

 

Caller 3:  Clay Christian starts with, if all of Eastern Oklahoma is federal Indian country, does Congress have more power over people in federal Indian country than if it is not federal Indian country. And then the question is, do the tribes in Oklahoma have better political representation and influence in Oklahoma City or in Washington D.C., and would it necessarily benefit the tribe to hand greater power to Washington D.C.? And has the federal government ever improperly or poorly treated these tribes in the past?

 

A.J. Ferate:  So let me, I guess, start on the very broad question and address it. A reservation is defined by the federal government as land that is held in trust on behalf of the tribes, of the various tribes. And so the federal government actually does hold reservation land in trust on behalf of the tribes, and as a result, yes, there would, on some level, be an additional -- in my opinion. The Professor might disagree. But on some level, there would be an expanded authority, or expanded role for the federal government across the eastern half of the state.

 

      And this kind of goes into that discussion that Justice Gorsuch mentioned in Cougar Den and has been used in this call about the parade of horribles. But some of those aren't horribles. Now, first of all, I grant Justice Gorsuch the allegations made in Cougar Den by Washington State probably, and definitely in my view, were not what they -- did not amount to what could be considered terrible ramifications.

 

      I think that there's at least on some level a different level of concern that has to be considered here. For example, we had, during the Murphy briefing, after, in fact I had actually written that there should be concern about regulation of oil and gas wells and questioned about land and ownership of some of those issues. During that briefing and after I had written that, the Seminoles released a notice to oil and gas operators, saying that anybody within their 1866 treaty range would, therefore, going forward, have an eight percent rate of tax, taxed by the tribe, on top of any taxes that are owed to the state. Now the letter actually requested that those taxes be paid in arrears for up to five years. So some of those parade of horribles, to use the term, certainly have -- there's been efforts to apply some of those.  And I think that those are valid questions and concerns, particularly here in Oklahoma and in this case.

 

Prof. Taiawagi “Tai” Helton:  I think one of the consequences that doesn't get discussed, is that I think if the tribes -- if the Tenth Circuit's decision is affirmed in Murphy and if the tribe wins here, then I think that we would actually see an increase in public safety resources being added to this area because then you would have clearly more jurisdiction. And I've spoken with the U.S. Attorneys who say that they do have the resources to address these problems. And the tribes would be investing more resources. And they've already got rather remarkable cooperative arrangements. And like I said, the state already has jurisdiction on non-Indian/non-Indian crime, even on tribal lands. And very likely over victimless crimes in Indian country. And so I think that prospectively, we could wide up we could wind up actually seeing more public safety resources committed to Eastern Oklahoma because more would be coming from the tribes, and more would be coming from the federal government. And that might help our cash-strapped state.

 

Greg Walsh:  Professor Helton, A.J., and Andy, is there anything you would like to say to conclude before we finish up today?

 

A.J. Ferate:  Yeah, I'll start by really saying that if the Court really wants to stay faithful to tribal understanding at the time, as we've seen throughout the briefing in this, and like they tried to stay faithful to the tribal understanding in Cougar Den, they really do have to rule in support of the State of Oklahoma. Certainly for decades, they've noted that they don't have a reservation here in this area. And so to go -- to alter that at this point would be a significant change for the way that we address issues here in the State of Oklahoma.

 

Prof. Taiawagi “Tai” Helton:  Thank you. And I would just say that I think Mr. Ferate's reference to the Stigler Act shows that Congress was continuing to pass statutes regulating Indian land and Indian affairs in Eastern Oklahoma well into the 1940s. And more recently, we've seen them fund tribal public safety, tribal courts, and the like in this area. And it seems odd that they would be doing all of that if there weren't still tribal entities with tribal Indian country.

 

Andy Lester:  To conclude, as I said at the outset, this is a fascinating case that defies the typical conservative-progressive divide. Much of the focus since the indeterminate result in Murphy, at this point, has been on Justice Gorsuch, who is the justice who did not take part in that case. And perhaps that focus is justified.

 

      I think it's going to be hard to predict exactly who wins and what the makeup of the court will be on this case. It may be a 5-4 decision, but Justice Gorsuch decides, essentially. But it may not have the typical 5-4 split that one anticipates. And I wouldn't be surprised by just about any split among the justices, including even a 9-0 type of result. So it'll -- it's a fascinating case to watch from a variety of perspectives, and certainly from those of us in Oklahoma, one that we must watch. For those not in Oklahoma, I'd suggest that you put into your web browser the phrase State of Sequoia, and you will see a picture of the map showing the part of Oklahoma that is covered by this. And thank you for your participation and for your attendance at this forum.

 

[Crosstalk 54:46]

 

Greg Walsh:  -- looked at the map and it is, in fact, about half the state of modern Oklahoma. That is shocking. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected] Thank you all for joining us. We are adjourned.

 

[Music]

 

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.