On April 19, 2021, the Supreme Court will hear oral argument in Yellen v. Confederated Tribes of the Chehalis Reservation and the consolidated case of Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation. In these cases, the Court has the opportunity to consider whether certain Alaskan villages and corporations fall within the definition of “Indian tribes” for purposes of the Coronavirus Relief Fund.
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
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 www.fedsoc.org.
Nick Marr: Welcome, everyone, to this Federalist Society teleforum conference call as this afternoon, April 20, 2021, we’re having a Courthouse Steps Oral Argument Teleforum on a case called Yellen v. Confederated Tribes of the Chehalis Reservation. The Supreme Court heard these arguments on April 19th, and now we’re here to cover them. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.
As always, please note that expressions of opinion on our call today are those of our experts.
We have two great experts today. I’m going to quickly introduce them, and then they will take it away. We’re very pleased to be joined today by Anthony Ferate. He’s of counsel at Spencer Fane LLP. We’re also joined by Jennifer Weddle. She’s a shareholder at Greenberg Traurig. So with that, I won’t keep the introductions much longer. A.J., thanks very much for being with us. I’ll give the floor to you.
Anthony J. Ferate: Nick, I really appreciate being with you again, and it’s great to be back and great to have Jennifer joining us today. Those of you that have heard my comments on past calls know that I generally try to start off a call with a vocab lesson or a law explanation. But I’m going to pause on that for a second in this one because I think that some of the facts help give context in this case that they sometimes don’t always help with.
So let’s start with the CARES Act. About a year ago, as you know, Congress, recognizing that coronavirus was greatly expanding and people were, as I’m sure everybody on the call was, sitting at home trying to figure out what was going on with this virus and how we were going to approach it and attack it. And so Congress at that point set out and created the CARES Act, which was signed by President Trump.
Many people in the country received a check as part of that, but it was really much, much more. Businesses were administered money under that act to try to keep people salaried going forward. Business loans were provided to different businesses, and money was even sent to locality states in some cases—in every case, I guess—to try to attack and defend against some of the issues that we were seeing as a result of COVID-19.
But a portion of that bill, about $8 billion in relief funds, was scheduled for tribal governments. And the majority of that money was administered to those tribal governments. But there’s approximately $570 million that was intended for distribution from the Treasury to Alaska Natives through the Alaskan Native corporations. These corporations -- I’ll go into a little bit further, but recognized in 1971 by the Federal government. This is the way that many Alaska Natives receive their benefits in the state as opposed to having specific tribal governments and reservations and things like that.
Several tribes in the lower 48, and even some of the villages in Alaska, the Village of Venetie, which, those of you that are familiar with tribal law, is the name of a fairly important tribal case from a few decades ago. But the Village of Venetie, the Chehalis tribe, the Tulalips, the Quinault, the Ute, the Oglala, and Rosebuds Sioux, a number of other tribes as well, filed action in the D.C. District Court, and they challenged the status of the Alaska Native companies to receive CARES Act funding.
The way that the CARES Act was set up is they used a traditional definition that originated with the Indian Self-Determination and Education Assistance Act. After the D.C. District Court issued a preliminary injunction ordering the Treasury to withhold funding, ultimately that district court ruled in favor of the Alaska Native corporations to receive that funding.
There was, of course, an appeal to the D.C. Circuit, and there was a different outcome. Judge Katsas issued a broad, unanimous decision reversing the district court on a textual argument. And as I said, it was broad, and it invalidated the Alaska Native corporations’ ability, really, to receive funding, period, under the definition created under the Indian Self-Determination and Education Assistance Act.
In a concurring opinion in the circuit, Judge Henderson stated that -- she wrote separately to express her view that this decision is an unfortunate and unintended consequence of high-stakes time-sensitive legislative drafting. And then she went on, “I can think of no reason that Congress would exclude ANCs from receiving and expending much needed Title V funds.”
That brings us to the Supreme Court argument. But before we get there, I did promise a little bit of vocab, and so I’m going to just share three federal laws that are really important to grasping the context of the case. And the first one is the Alaska Native companies. And like I mentioned, these are corporations that are created under Alaska law. They were approved by Congress in 1971.
And the difficulty when Alaska was purchased, Alaska statehood came into being, was that there wasn’t a way similar to the way that there is in the lower 48 to identify the Cherokee or the Sioux or the Crow. And so it was a little bit more difficult as they were trying to deal with the issue, and they came up with a very unique way to address it. And so the state is really divided for Native American purposes into regionally divided Native corporations. We refer to them as ANCs throughout the case. And these ANCs are comprised of indigenous shareholders. Each ANC does have the ability to allow non-Native shareholders, but that’s a decision that can only be made by those individual corporations by shareholder vote.
The ANCs generally serve the purpose of reservations in Alaska, despite any particular land holding or reservation land, by managing federal settlement dollars. There was approximately $1 billion given to the ANCs by Congress in the ’70s as a result of trying to settle historic land claims that would have been very difficult to manage. And really, these ANCs also distribute federal tribal aid in place of these tribal governments as you would find in the lower 48 states. I do want to note that there are Native villages that meet the more traditional definition of tribal land in Alaska, but really, the more appropriate way that we recognize tribal efforts in Alaska is through the ANCs.
Next, I want to talk about the Indian Self-Determination and Education Assistance Act. And I’m going to shorten that for the rest of the discussion to ISDEA. And this definition -- well, this is a -- the law has a much more lengthy and complex purpose, but for our purposes today, we’re really looking at the definition that was first laid out in this act and has been used across about 150 other federal statutes. The CARES Act actually adopted the definition from this act, and this is the definition that the D.C. Circuit overturned. So that’s why this case has potentially such a broad impact is that the definition in this case that the D.C. Circuit overturned had an impact beyond the CARES Act.
And I want to read that briefly to you so that you know the language that we’re actually dealing with in this case. In relevant part, Section 4 of the ISDEA says Indian tribe means “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act,” and then there’s a comma, “which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”
The difficult part in this, and we heard it yesterday in the arguments and we see it in the D.C. Circuit, is that comment after the comma, “which is recognized as eligible for the special programs.” And the D.C. Circuit said the “which is recognized” should be viewed as a term of art, and that term of art means federally recognized.
Now, that term of art may not have been coined back in the ‘70s when this definition was created, and so that created some of the difficulties. And certainly, the Alaska Native corporations stressed and encouraged that that definition of the term “recognized” should just have its original meaning, its plain meaning as recognized as eligible in the sense that if this definition, essentially to make it easy, is applied, then Alaska Native corporations should be eligible for those programs.
And there are examples of this definition around federal law where ANCs are actually specifically removed from it. So that was one of the points that was made yesterday. And so that, essentially, the language “which is recognized” was stressed heavily by Paul Clement on behalf of the ANCs in Alaska.
The Department of Justice really tried to stress a different path on this. They tried to stress that there is a textual reading of this that is appropriate. The Court generally seemed unpersuaded by that argument and really seemed to latch on more to an argument that “recognized” has a different meaning than a term of art that the circuit seemed to grasp onto.
The last act that I want to talk about is the List Act because it was described and discussed in this case and in the briefing. And its official name is the Federally Recognized Indian Tribe List Act of 1994. And really what that does is it requires the Department of Interior to maintain a list of federally recognized tribes. I really raise this because I know Jennifer is going to discuss it, perhaps a little bit more than I do, in a moment.
But I also raise it because at one point, the ANCs of Alaska were actually on this list for a short time, and they were removed as a result of the clarity that was provided that this was a list of federally recognized tribes. And ANCs are admittedly not a federally recognized tribe. They are a statutory creation that was really added to provide some sort of authority for the existence of some level of recognition of tribes in Alaska.
I just want to go through briefly just a few quick points. After my reading of the briefing and listening to the arguments yesterday, more than any other that I’ve seen in a while, this case is a very good example that Scalia’s textual approaches are front and center in today’s courts. And I encourage you to go back and listen to the argument, and I encourage you to read the briefing, particularly Judge Katsas’s opinion. Reading Law by Scalia and Garner is quoted voluminously throughout not only the D.C. Circuit decision but the briefing at the Supreme Court.
But I also raise it because it reminded me that Katsas somewhat took the approach of Gorsuch in the McGirt case where we follow the text, and we don’t necessarily look at the impacts. That’s for others to figure out. We read the text, and we provide the analysis of the text. That seemed to be the Katsas approach based on how broad the analysis was.
I contrast that a little bit with Alito’s approach, and it was an approach that I -- if you were to see the notes from the briefs as I wrote in the margins, I curiously wondered about absurdity, whether the Katsas approach in this case really leads to an absurdity. Why even mention the ANCs if you are going to exempt them anyway, or they don’t really apply? That was the approach that Alito seemed to take, and other justices grasped onto. But Alito mentioned it several times and really kind of seemed to be the approach that he was taking with the case.
Again, I said this earlier, but the Court seemed unpersuaded by the argument from the Solicitor’s Office. This is similar to the way they seemed to feel with the argument in U.S. v. Cooley, which Jennifer and I discussed on a previous podcast. I encourage you to listen to that. But it really, I think, was of benefit that Paul Clement actually argued second in this case. And he really brought it back around to that approach that -- really kind of more of that absurdity claim that Alito latched onto, I guess is the way that I would put it.
I couldn’t count confidently to five justices after Paul Clement’s argument. But after the Court’s aggressive approach to Mr. Rasmussen, who argued on behalf of the Ute tribe and obviously represented the other tribes with his argument as well, I’m not sure that I see a path for the D.C. Circuit success to continue. He got hit hard. It was difficult for him to manage many of the approaches. Some of that may have been -- there was an article that came out that he found out just 48 hours before the argument that he was going to argue the case as opposed to Mr. Kanji, who I have seen argue before and is a very good orator before the Court.
Finally, just one last thing, and I know Jennifer and I discussed this before today’s call, is amicus briefing. And I know she has thoughts on this as well. I know there’s been a lot of articles about amicus briefing and briefing in general before the Court. I’m somebody who believes very strongly and encourages amicus briefing at the appellate levels if there are interests that are aligned.
But the difficulty that I think I saw here is when I’ve reviewed these cases for these teleforums in the past, I love the amicus briefing and I love highlighting the good amicus briefs out of these cases. But the difficulty here was a lot of the briefing was a lot of “me too” language. Everybody seemed to say the same thing, and there wasn’t a lot of additional interesting thought that could really be pulled out of those briefs. So I just raise that concern that we really need to spend a lot more time as litigators, as amici, really trying to provide the Court with something other than latching on to the same arguments that have already been made.
So with that, I’m going to step back. Jennifer, take it away.
Jennifer Weddle: Thank you so much, A.J., for that great overview. And hello to all the audience out there. This is my first teleforum, so I’m excited to be part of it. A little additional background about me and the context that I can offer for this argument. I co-chair the American Indian Law Practice here at Greenberg Traurig in Denver, Colorado. I’m also past President of the National Native American Bar Association and past Chair of the Federal Bar Association Indian Law Section. And I’ve participated in some form or fashion in virtually all of the Court’s Indian Law cases in the past two decades, including representing parties in Cooley, as A.J. mentioned.
I did not represent any parties in this instant case but have closely followed both the CARES Act and the subsequent relief monies made available to tribal governments in the American Rescue Plan, both in terms of advocating for tribal inclusion in both statutes and in helping tribes in the administrative process at the Department of the Treasury. So I think I have some answers and context for a lot of the very practically focused questions that the Court was asking of counsel yesterday.
First, in terms of context, I wanted to highlight the drama to which A.J. alluded. This is a case where there was some pretty bitter infighting happening on the respondent’s side of the V. The Ute Indian Tribe made a motion for divided argument. That motion was contested. Here, counsel Riyaz Kanji had represented 16 tribes, had filed first in the administrative litigation back in the spring of 2020, and had at all times been lead counsel in the case. The Ute Indian Tribe came in much later and had participated generally very little in proceedings before the district court and the D.C. Circuit, yet, nonetheless, made the motion for extended argument of the Court.
And the Court, consistent with its longstanding practice, didn’t want to be the decider between who argued what and ultimately said they were going to deny the Ute Indian Tribe’s motion and urged the parties to work it out. Ultimately, the solution fashioned by the clerk’s office was to put 16 slips of paper with Mr. Kanji’s name in a hat, and one slip of paper with Mr. Rasmussen’s name in a hat, and draw one to see who got to argue. And on 16 to 1 odds, Mr. Rasmussen won. And that happened late Friday afternoon when Mr. Kanji had been preparing for the argument in the weeks leading up to yesterday’s argument.
So very dramatic result, and as A.J. and I were discussing earlier, could be its own annual convention panel on “Whose Litigation Is It, Anyway?” And what is the potential for dramatic consequences like this where veteran Supreme Court practitioners might be ousted by a latecomer by a mere game of chance?
I know that, certainly, Mr. Kanji’s clients felt very strongly about what they had invested in litigating their case through to the D.C. Circuit and at the Court, and this result is really hitting a lot of people in Indian country hard, especially given very, I think, widespread negative reactions to how fulsomely the respondent’s arguments may have been presented to the Court. In fact, the refrain that I’ve heard is that this may be a textbook example of the old adage that while it’s nearly impossible to win a case at oral argument before the Court, it’s fairly easy to lose a case at oral argument before the Court. And there are many who are concerned that this may be an instance where Mr. Rasmussen has snatched defeat from the jaws of victory.
As A.J. was describing, at base, this is a case that once again puts the Court’s commitment to textualism to the test. And Justice Scalia’s presence is felt very strongly, particularly throughout Judge Katsas’s opinion for the D.C. Circuit. And I think generally in the questioning of the Solicitor General’s Office and of Paul Clement, the justices generally did not question the D.C. Circuit’s reading of the Indian tribe definition, and I think generally agreed with the respondent tribes’ position that the D.C. Circuit’s reading better comports with the plain text of the statute. And you heard a lot of concern expressed amongst the Court about not adhering to that text on a practical level.
Likewise, we heard from Justice Alito about the absurdity argument. And Paul Clement I think really hit that home that why would Congress include ANCs only to accomplish nothing? And Judge Henderson, as Paul Clement pointed out, I think really struck that well that Congress’s purpose in the CARES Act in including ANCs is clear, but the text is also clear going in the opposite direction.
The underlying tenet, though, is a concern amongst the Court about what Congress was doing to try to include ANCs and why, and noting, I think often uncomfortably, that they all generally know that Alaska is different, but they’re uncertain as to the details of how it’s different. And the amicus brief by the Alaska delegation is particularly powerful. That brief was read aloud in portions by Justice Kavanaugh, which is, I think, the third time he’s done that in recent weeks, referring back to amici briefs.
In fact, in that Alaska delegation brief, their Appendix B has a fantastic listing of all the statutes that reference the ISDEA definition of Indian tribe to include ANCs that I think is very helpful. And they also do a great side-by-side of the definitions on page 19 of their brief comparing ISDEA to the definition in the Lists Act.
And at base, both the definition in ISDEA, the definition in the List Act, all of those go to the fact that tribal governments, groups of indigenous people, can organize themselves in different ways under federal law to preserve and engage in their nation-to-nation relationship with the United States. And Alaska has slightly different conventions that are set apart from that 1971 and that Alaska Native Claims Settlement Act, which set up ANCs as a different vehicle for Alaska Natives to nonetheless continue to interact with the United States and to engage in various federal programs for the benefit of Indians on a broad range of issues. And again, I think those are well highlighted and explained both in Paul Clement’s briefing and in the Alaska delegation’s briefing.
Likewise, the respondent tribal briefs do a very good job of laying out that Alaska Native villages that are organized pursuant to one of those choices, the Indian Reorganization Act, have been long recognized as tribal governments under the List Act, and that there’s always room to include ANCs potentially as additional List Act components later. And there was an interesting colloquy with Chief Justice Roberts on that point on whether Congress was thinking about potential hypothetical future inclusion of ANCs on the List Act. But I would refer everyone particularly to the discussion in the Confederated Tribes brief at pages 7-9 and 32-37. Those portions of the brief I think really lay out some of those historic issues very well, and they really weren’t highlighted in oral argument yesterday.
And then the next thing that I would share is going back to this issue of the Court’s continuing questioning about the practical consequences, and sometimes sharply questioning Mr. Rasmussen as to why he was treating Alaska Natives as second class citizens, and why would Congress want to accomplish nothing, and what does it mean for Alaska Natives, how do they get their services, and all those practicalities.
And that was a path, I think, really first forged by Justice Gorsuch in his questioning of both the United States and Paul Clement to say isn’t there an administrative remedy to all this? And the answer to that is, yes, there might be if anybody at Treasury could figure it out. And that’s where a little more context about the administrative process is probably helpful.
In the CARES Act, in the coronavirus relief fund set up in Title V of the CARES Act, Congress set aside $8 billion for Indian country. But unlike the monies appropriated to state governments in the CARES Act, Congress left discretion with Treasury to allocate those monies, whereas the state monies were allocated strictly on a population basis.
Treasury scrambled following the wee hours of March 27th enactment of the CARES Act, held a series of tribal consultations as is required by many sources of executive branch policy, including executive orders, and engaged in a litany of factfinding requirements with tribes where tribes had to submit data to a Treasury portal on a number of items, including their certified tribal enrolment population numbers, including numbers about how large their land base was, including what their total 2019 expenditures were, and including the total number of employees employed by a tribe or any tribal enterprise or economic arm.
And then Treasury announced a formula for allocation that incorporated none of those things and announced that 60 percent of the $8 billion would be distributed based on population, and that population was to be derived from so-called Indian housing block grant data, which is a program used by the Department of Housing and Urban Development, which uses self-identified race-based census data to determine service area numbers for tribes. It’s in no way a governmental representation, and those numbers generally vastly undercount rural tribes in particular by 60 percent or more. And there were 33 tribes that had a zero population number because they either don’t participate in that program, or there were other issues with census reporting for the tribe.
But in short, tribes don’t produce those IHBG numbers, and that was its own mess, which has also resulted in significant litigation which the D.C. Circuit found to be arbitrary and capricious on the part of Treasury to use that incorrect population number. In using that number, Treasury shortchanged any number of tribes and also overpaid many tribes in accord with population, and it remains to be seen how Treasury might fix that.
I wanted to raise that in particular because of Justice Gorsuch’s question, is there an administrative solution? There are multiple prongs of the Trump administration Treasury Department’s allocation of CARES Act money that have now been challenged. And one aspect is the inclusion of ANCs as eligible. There’s roughly $536 million at stake there. That is the money that Treasury had indicated would go to ANCs.
If the Court overturns the D.C. Circuit and finds that ANCs were not eligible, that money would have to be redistributed by Treasury in accord with some other formula. But it can’t be the formula they originally selected based on that IHBG data because the D.C. Circuit has already held that that was arbitrary and capricious.
A few weeks ago, Treasury held again tribal consultations and said, “Well, we know we got the CARES Act money allocation wrong. Tell us how we should fix it, and we’ll get back to you in a couple months after we’ve thought about it, and hopefully, in a couple of months after the U.S. Supreme Court rules in the Chehalis case.”
Separately, Treasury is also engaging in consultation on the new American Rescue Plan monies set aside for tribal governments. They are using the List Act and the List Act only, but there’s another $20 billion that is again left to Treasury’s discretion. And so all of that is now percolating in a soup of roughly $20.5 billion that Treasury has to reallocate, perhaps with some guidance by the Court, or perhaps by some global settlement that might be achieved at a later date.
But all of that to say it’s a hot mess. And I think A.J.’s observation quoting Judge Henderson that this is what happens when Congress tries to pass pandemic relief at two o’clock in the morning. I think there seems to be little question that it was the intention for ANCs to be eligible to receive these monies as their commonplace pass-through for tribal governments and delivery of services to Native Alaskans.
But much more hinges on this now, separate and apart from the relief dollars, including ANCs potential participation in a wide range of other programs, federal government programs. And it also gets to a more base question about the role of tribes and tribal governments in our federalism and the ability of the federal government to regulate in that space pursuant to the plenary power vested in Congress in the Constitution.
So I’ve said a whole lot, and I think it might be good to have some discussion. And if there are questions, we’re happy to answer them. But A.J. and I can also just totally nerd out and talk with each other for another hour if anybody wants.
Nick Marr: Great. Maybe we should open the floor for questions, and then we’ll see if we have any. Otherwise, I’ll send it back to you. And we do --
Anthony J. Ferate: -- While we’re -- okay, I was going to say I was going to make a comment, but if we have a question, please go ahead.
Nick Marr: We do have one, so we’ll go to it now, and then we’ll go back to you, A.J.
Caller 1: Yes, thank you. So assuming that the Alaskan tribes lost this case, what administrative remedy use, if any, do you think would be the best one?
Jennifer Weddle: Treasury has complete discretion to allocate the dollars. Alaska tribes have been integrally involved in numerous consultation sessions with the Yellen Department of the Treasury, and I think will continue to be so. The Alaska delegation has closely focused on this as well.
But at the end of the day, Treasury’s got to come up with a new formula, and then it seems likely that there will be additional litigation around that new formula whenever it appears. There’s also the potential for a legislative fix that could go forward, and I think there’s a lot of stakeholders in Indian country who are hoping that something like that might materialize.
Anthony J. Ferate: Yeah, I think I agree on the administrative element of what you’ve just raised, Jennifer. The thing that I think ultimately is going to happen, and I suppose it all depends on how broadly the Supreme Court rules, but if we have a decision that mirrors what we saw from the D.C. Circuit, the real issue is how quickly can Congress act to address ANCs so that they can continue to provide the same level of benefit to members of the ANCs that the currently do because like I said, there’s approximately about 150 different statutes across federal law that rely on this current definition. And if this is an invalid definition, ultimately there’s going to have to be some fast level of attention that Congress pays to try to address anybody who would be left out of funding that currently receive it through the ANCs.
Jennifer Weddle: And that was a concern that you heard Justice Sotomayor asking Mr. Guarnieri, “What’s the narrowest way we can rule for respondents but not screw up the other 150 statutes that use the ISDEA definition to expressly include ANCs?” And again, echoing back to the State of Alaska delegation brief, there’s a lot of moving parts. And I think the Court is very concerned about potential collateral damage flowing from what they would hope would be a narrow CARES Act ruling and trying to make sure they know where all those potential pitfalls are.
Nick Marr: Okay, no questions on the floor currently, so, A.J., I’ll send it back to you.
Anthony J. Ferate: No, I appreciate that. And a few things -- a few thoughts that came to mind while Jennifer was speaking. She talked a little bit about Sotomayor and some of the others. The Sotomayor question was actually a really interesting question, and it seemed to throw Mr. Guarnieri off tilt a little bit when she said, “Tell me what the easiest way would be to rule against you? What would be the kindest way to rule against you?” And she persisted when he resisted, and so that question really was very interesting.
I have to say that the two for me that were hardest to read, and I welcome thoughts of others on this, Justice Thomas -- I really appreciate hearing the questions, but he doesn’t show his cards very much during his questions. They are good questions. They are important questions, and I can see him trying to work through the issues. But he doesn’t quite provide the insight that sometimes Justice Roberts does, or that you get, obviously, from Alito’s comments yesterday as well.
I also think it’s interesting too, and I’ve said this previously on other teleforums, but Justice Roberts is not a novice necessarily at some of these issues. He in particular in the Village of Venetie case from the ’90s, he represented the State of Alaska in that case. And so he definitely has an understanding of Alaska and some of these issues as he’s dealing with them. And I think you started to see a little bit of that upon his questioning of Mr. Rasmussen.
Justice Gorsuch, I couldn’t necessarily get a grasp on where his thinking was leading as well. So I think that those are interesting. Ultimately, I think I’d put them on the side of DOJ. So we’ll see what happens, but I just found those two interesting.
The other thing I just quickly want to mention is Jennifer mentioned the attention that the Supreme Court has been giving to these issues and how tribes really fit into federalism. And I think that the Court really is doing perhaps a much better job at contemplating some of these issues than they have in the past, and that’s not a slight on them. But I think we’re starting to see much more regular significant tribal law claims coming to the Court, and so the Court is somewhat being forced to contemplate some of these issues, perhaps in a different way, but also because I think they’re of potentially higher magnitude than we’ve seen in the past.
So those were just a few thoughts off of what Jennifer said that I wanted to make sure that I had provided.
Jennifer Weddle: I love those thoughts, A.J., and I’d jump in with a few responses. One is that I don’t think Justice Thomas’s questions are less insightful. I think he’s just unfailingly polite and too much of a gentleman to be as pointed with his questioning. But I think that he will find Judge Katsas’s reasoning at the D.C. Circuit persuasive, and I think that is a solid one vote. Judge Katsas clerked for him at both the D.C. Circuit and on the Court, and they’re part of a family. And I think Judge Katsas learned his textualism from Justice Thomas, so I expect that to ring very true for him, and I think he’ll like it.
I think both Chief Justice Roberts and Justice Gorsuch will likewise defer to the text. Justice Gorsuch is also a pragmatist and has been very focused, especially in the Indian law context, on devotion to separation of powers and not ascribing congressional intent to try to satisfy some jousting at policy windmills, if you will. He wants to firmly let Congress do its job and the Court do its job. And that’s really the entire topic of his book, A Republic, If You Can Keep It, which is also a brilliant work. And I think we may see a remand for some further work at the district court as perhaps a best way out of this.
More broadly, on the point about the Court’s taking up Indian law cases, and not just because they’re quirky things, but I think as we talked about on our Cooley teleforum discussion, A.J., there are multiple tenets that the Court is grappling with, including the textualism issues at issue in this case, as well as originalism issues, and what it means in that separation of powers context to defer to what Congress has done and said rather than implying intent to Congress, which the Court has done over and over and over again in the Indian law context historically, and really mucked it up by shifting as often as Congress has in terms of what is the policy position of the United States vis-à-vis Indian tribes.
Anthony J. Ferate: Yeah, I think I agree with a lot of what you said, and I really want to focus on the Gorsuch issues that you’ve raised. And I think you’re probably right. I think that, like I said, the Katsas approach really reminded me of the Gorsuch approach in McGirt. It also reminds me of the approach that he took -- I frankly don’t recall if it was Cougar Den or Herrera. It was one or the other during that decision, but I believe it was Cougar Den.
But it really kind of is that approach where the Court should stay in its lane. It should interpret what Congress has done and allow Congress to fix whatever error the Court finds. So I think you do raise a good point there that Gorsuch may kind of be in line with that Katsas approach to this case. It’ll be really interesting to see, but he was hard to read on this one as opposed to the way he has been in past arguments.
Jennifer Weddle: Well, I think he does have a continuing refrain about -- or a continuing caution about paying heed to dire consequences.
Anthony J. Ferate: Yeah, I agree.
Jennifer Weddle: But, again, being very focused on separation of powers really is the antidote to judicial activism, which I think he perceives as leading to a lot of undesirable consequences.
Nick Marr: So we don’t have any questions right now on the floor.
Anthony J. Ferate: And while we’re waiting, I’ll go ahead and -- oh, do we have a question?
Nick Marr: We just got a question. Are you --
Anthony J. Ferate: -- Great. No, that’s fine.
Nick Marr: So we’ll go to our next question right now.
Caller 2: Hi, and thank you for a very illuminating and interesting discussion. I have a question that is much broader than anything that has been discussed so far. I’ve worked and lived in Indian country a good part of my life, and I’m wondering if -- I don’t often get a chance to ask questions of people who are so immersed in Indian law, so I ask a hundred year question. The buffalo are gone. My Native American friends and relatives watch TV and speak English and follow the same cultural things in large part as their neighbors. A hundred years from now, will there still be Indian law, and if so, what will it consist of?
Anthony J. Ferate: Oh boy, I -- yeah. I’ll give a short answer, but I believe the answer is yes. I don’t see the sun setting, if you will, on the tribes. I think the tribes are going to be important elements of our national community going forward.
But more importantly, you said the buffalo are gone. I hearken back to, frankly, the Herrera case where the treaty actually says as long as animal -- I believe, as long as the buffalo exist. And they still exist. The Crow treaty is still in effect, and I think will continue to be a hundred years from now.
Jennifer Weddle: And I would say buffalo are back and getting stronger all the time through a number of preservation programs with more than two dozen tribes having significant buffalo herds. Language is back in a significant way through language restoration efforts, including additional monies appropriated for that purpose in the CARES Act and in the American Rescue Plan with a lot of cultural reawakening that coincides with tribes’ increased participation in our federalism, including as major economic actors within their regions.
I think tribes have really embraced the self-determination era that started in the Nixon administration and has really grown since then. And I don’t think we’re turning back. I think there’ll be continued sophisticated engagement. And as good federalists, if we stick to the Constitution and the framework there recognizing tribes as nation states that existed at the time of the founding of the United States, able to engage in all those activities, unless and until Congress has diminished their sovereignty in some way or acted to restrict their sovereignty in some way, then we have a recipe for success.
And I think in a hundred years, we’ll see continued engagement by tribes. They’ll continue to be a part of our federal fabric. I think that tribes will experience a resurgence in economic power. I think tribal rights are ascendant at the U.S. Supreme Court because of their renewed focus on separation of powers. That’s what the framers intended, and I think that’s what we’ll continue to see.
Caller 2: Thank you. That was a very interesting take, so I hope you’re right.
Nick Marr: Okay, we do have a next question in the queue, so we’ll go to it now.
Caller 3: Yes. Thanks very much. I just wanted to follow up on the prior caller’s question and ask maybe the obvious question, which is as some degree of social assimilation continues and mixing between tribes and non-tribal entities, and there’s -- most tribes, as I understand it, govern their membership based on tribal affiliation. I’m wondering to what extent the tribes may in a sense sort of dissolve or diffuse into the fabric of the rest of American society to the extent that if there are certain advantages to tribal identity, those who might have otherwise tenuous connections with them might seek to [inaudible 51:08] tribes, and that may be a dynamic that may be relevant to the continuing status of Indian law.
Anthony J. Ferate: Let me -- go ahead. Go ahead.
Jennifer Weddle: A.J., do you want to jump in?
Anthony J. Ferate: I just will quickly, and I’ll discuss it. I sit here in Oklahoma. I practice in Oklahoma. I practice in other states, but I live in Oklahoma. And it’s very difficult to go throughout a day without interacting in some capacity to a tribal member. And the tribal community is very important to Oklahoma. And as they begin to develop their businesses, many tribes have very active businesses and have very successful business plans that they have developed. I continue to again say that I don’t think you’re going to see tribes go away. I think you’re going to see tribes continue to try be partners with the states in which they exist and within the United States community as a whole.
Jennifer Weddle: And I think I agree with that. People have been wrongly predicting the retreat of tribes for 200 years, and it hasn’t happened yet. Going back to Chief Justice Marshall’s opinion in Johnson v. M’Intosh that the savages, the wolf, would retreat into the forest, both being beasts of prey, though they differ in shape. And this idea that persistent encroachment would just make the problem go away has been steadfastly wrong.
So again, I think in the separation of powers context, we’re going to see a gradual retreat from those implicit divestiture doctrines that the Court has, frankly, invented whole cloth over time, and we may see much more of a return to tribes as territorial sovereigns, a lot more intergovernmental agreement which exists on any number of issues now with states, cross deputization agreements, taxation agreements, healthcare delivery services, garbage collection, water and sanitation. Tribes are an important part of our federalism fabric, and that’s not going to go away. And at base, Natives are resilient people, and we’ll keep on keeping on.
Anthony J. Ferate: Just to add to that comment as well, Congress made a very clear decision to recognize these governments over 100, 150, 200 years ago. They did not make the decision to claim them, perhaps, as the Romans did, that when the conquered an area that those who lived within that area became Roman citizens. The United States did embrace these people and offer them U.S. citizenship, but they are still tribal members. And Congress made that as a very deliberate decision.
Some would say that the government hoped that they would assimilate as a result of those decisions, but they didn’t. And to go right along with what Jennifer said, they are a resilient people, and they’ve continued to persist throughout the history of our country. And I just don’t see that changing. I see them only getting stronger and growing to be more important parts of the United States.
Nick Marr: Well, great. So we don’t have any questions left, and we’ve got about a minute left in the program, so A.J. or Jennifer, I’ll send it back to you for some closing remarks.
Anthony J. Ferate: Jennifer, by all means.
Jennifer Weddle: It’s just been a pleasure to be part of this conversation. And I think we’ll all be watching and waiting to see what happens, not only what the Court does with this case, but I’d be most attuned to what happens next in Congress and how the legislative branch might help us sort this out.
Anthony J. Ferate: It’s been a pleasure, and I’m glad to have the conversation. And I look forward to seeing how the outcome of this case comes about.
Nick Marr: Great. On behalf of The Federalist Society, I’ll just offer a quick thanks to our panelists, A.J. and Jennifer. Thanks very much for joining us. Thanks for taking the time and giving us the benefit of your valuable expertise, and to our audience for calling in, for your great questions. As always, we also welcome your feedback by email at email@example.com. Also, be checking our website and your emails for announcements about upcoming teleforum calls like this one. Until next time, though, we are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.