As the 2020 term concluded, the US Supreme Court ruled in a 5-4 decision that the Muskogee Creek Reservation in Oklahoma was never disestablished by Congress. This has led to Oklahoma courts declaring that reservations for the Chickasaw, Cherokee, Choctaw and Seminole Nation reservations continue to exist as well, creating unanswered questions about state and tribal authority in much of the eastern half of the state.
The webinar explorde some of the litigation that has arisen after the ruling in McGirt, discussions between the state and the nations, and congressional discussions that have occurred in the past year.
- Jennifer Weddle, Shareholder, GreenbergTraurig
- Ryan Leonard, Special Counsel for Native American Affairs to Gov. Stitt
- Moderator: Eric Grant, Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to The Federalist Society’s virtual event. This afternoon, June 23rd, we discuss “McGirt: One Year Later.” My name is Evelyn Hildebrand, and I’m an Associate 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 very distinguished panel. I will introduce our moderator, Mr. Eric Grant, and he will introduce our speakers this afternoon. Mr. Eric Grant is the former Deputy Assistant Attorney General for the Environment and Natural Resources Division at the DOJ, and he is now in private practice with Hicks Thomas LLP in Sacramento, California. We’re very pleased to welcome Mr. Eric Grant and our speakers.
After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the event. If you do have a question, please enter it into the chat or the Q&A feature at the bottom of your screen. With that, thank you for being with us today. Eric, the floor is yours.
Eric Grant: Thank you, Evelyn. Again, welcome to our webinar addressing McGirt v. Oklahoma one year later. As Evelyn mentioned, I was the Deputy Assistant Attorney General for DOJ’s Environment Division while McGirt was being litigated -- McGirt and its predecessor case Murphy. And so I did help formulate the federal government ultimately unsuccessful position in the Supreme Court.
But you’re not here to hear from me. You’re here to hear from our two great panelists, Jennifer Weddle and Ryan Leonard. Jenn is a shareholder in the Denver office of Greenberg Traurig where she co-chairs the firm’s American Indian law practice. And she’s a longtime litigator in the U.S. Supreme Court on these significant and complicated issues.
Ryan Leonard is Special Counsel for Native American Affairs to the governor of Oklahoma. And he’s otherwise in private practice in Oklahoma City. And I urge you to read their full biographies on The Federalist Society webpage for this webinar. And with that, we’ll get started with Jennifer. Take it away.
Jennifer Weddle: Thank you, Eric, and good morning, everyone. It’s an honor to be here with you and to share this panel with Ryan. And as we were discussing before we joined, we hope to have a very friendly exchange of ideas and thoughts and really looking at the implementation one year later post the U.S. Supreme Court’s decision.
As Eric mentioned, I’m a continuing eager student of the Court, especially in the Indian law context. I’m a Native attorney myself, and I have chaired both the Federal Bar Association Indian law section and also served as president of the National Native American Bar Association and since 2002 have participated in the National Congress of American Indians Tribal Supreme Court Project where we follow cases throughout the country, looking at those that might eventually reach the U.S. Supreme Court and try to shepherd them both in terms of their record development and amicus briefing throughout so that we can continue to put Indian Country’s best foot forward at the Court.
I’m coming to you today live from Indian Country. I’m on the Fort Belknap Indian Reservation here in north central Montana in the heart of the infrastructure deficit. So hopefully the internet connection remains stable enough here in the -- I’m closest to the one plug in the wall to maintain connectivity throughout the Zoom. But I’ll be back if I should get disconnected. And I know Ryan will cover beautifully if I do.
I actually represented the former United States Attorneys as amicus curiae both in the Carpenter proceedings at the U.S. Supreme Court in 2018 and again in the McGirt proceedings before the Court in 2020. I got into the case because I know Pat Murphy, the original defendant who brought forward these claims in Oklahoma.
Pat is a citizen of the Creek Nation. He went to Haskell Indian Nations University in Kansas. He was a great basketball player and a very close personal friend of a lot of my friends. Pat is a guy who fell into hard times, struggled with substance abuse and addiction and eventually committed some very violent murders in rural Oklahoma.
Pat’s defense team asserted longstanding claims that it was inappropriate for the State of Oklahoma to prosecute him and that because the murders had been committed within the external boundaries of the Muskogee Creek reservation, it was therefore only appropriate for the federal government to prosecute him and not the state government. For Pat, this was a matter of life and death. The death penalty is available under Oklahoma state law, but for federal law and policy the federal government cannot institute the death penalty on Indian reservations unless the tribe is expressly agreed to it. So if we prevailed on the continuing existence of the reservation, Pat lives. And if we didn’t, Pat died. So it was very emotional and fraught for all of those reasons.
At the Tenth Circuit the case resulted -- Pat’s case resulted in a 100 page opinion by Judge Matheson and a short concurring opinion by Chief Judge Tymkovich finding that all the law and history presented to the court led them to conclude that the Muskogee Creek reservation persisted and that Congress had not taken any action to disestablish or diminish the Creek reservation, although acknowledging the hints in the historical record that maybe members of Congress and maybe a whole lot of other people had assumed that Congress had indeed done that. The action was appealed to the U.S. Supreme Court, and they ended up tying 4-4, we think, and remanding that for another look in McGirt. Justice Gorsuch had recused from the Carpenter case because he had been on the Tenth Circuit when Pat’s case had come up. He hadn’t been on the panel, but he did not feel comfortable hearing that particular case at the court.
So one of the develops was that once certiorari was granted on Pat’s case, lots of other defendants began filing “me too” filings, alleging essentially the same thing -- that their state prosecutions were infirm as a result of their occurrence within the exterior boundaries of Oklahoma Indian reservation. Jim C. McGirt was one such individual convicted of violent child sexual assault against a child in a position of trust with him. Definitely not warm cozy facts in any of these cases.
But from a legal standpoint the Creek Nation and all of their amici curiae including a large group of former United States Attorneys argued really the separation of powers argument, which I think ultimately prevailed here -- that it is not for the Court to imply congressional action; it’s for Congress to be express about it, and especially in the Indian affairs context where the Constitution specifical reserves all power vis à vis Indian tribes to Congress. And I think that carried the day.
Judge Gorsuch authored the 5-4 majority opinion for the Court. It came down on July 9, 2020. Throughout both the Carpenter and McGirt proceedings I think it’s worthy of note and probably interesting to think about the national pray vigils that were held in Indian country throughout, including ceremonies we held on the steps of the Supreme Court in November 2018 when it was very cold and very windy and that we held by Zoom the morning of the McGirt oral argument in the midst of the pandemic and that Indian country held all night the night before the opinion came on July 9. I remember going first to the Court’s website right at 8:00 a.m. Mountain when they were posted, and I had been up all night in one of those prayer vigils.
And I looked first at the Murphy opinion because I knew I could just tell win or lose. And I read it, and it said that the opinion of the Tenth Circuit was affirmed. And I fell to my knees, and it was a really powerful moment.
And throughout Indian Country all our phones exploded on that day, just tears and gratitude and really feeling heard with Justice Gorsuch’s opinion that said, “At the end of the Trail of Tears was a promise,” and that the Court was going to hold the government to its word. And if Congress was going to take action to aggregate those treaty obligations that they had made to the Creek Nation, that they had to be express about that and it was not for the Court to imply action on Congress’ part.
There were very vigorous dissenting opinions in that case lead by Chief Justice Roberts, who also made clear that they had heard the many amici opposing Creek Nation and opposing the individual defendants, expressing great concern about the practical consequences of what would happen if an untold number of Oklahoma state prosecutions were upended and had to be either prosecuted by the federal government or might fall through the cracks and let bad guys get away. And I’ll turn there to Ryan who can talk about what has happened particularly on that prosecution front post-decision and what the state of Oklahoma is doing to try to work with the Creek Nation and other tribes to ensure public safety for everyone in Oklahoma.
Ryan Leonard: Thank you, Jenn. It’s an honor and a pleasure to be with all of you that are watching, and, Eric, thank you for putting this together. So my name’s Ryan Leonard. I’m an attorney in private practice in Oklahoma City. I was not involved in the McGirt litigation, unlike Jenn. That case was litigated on behalf of the state by our Attorney General, who actually resigned about a month ago. So that’s another little twist in this ongoing saga.
I will say that the impact of the McGirt decision on the 4 million people that call Oklahoma home cannot be overstated, and I’ll get to that. And so my realm of experience really is in the last year and more specifically in November of this past year. So the decision, as Jenn said, came out in July. Several months past, and the governor brought me on as a special counsel in early November.
And as the Court alluded in its majority decision -- in the 5-4 decision, the Court alluded to the fact that, well, there will be challenges. But my takeaway was the Court didn’t think this would be too much of a mess. And looking historically, the Court also thought that this is something that the state and the tribes could work out as the state of Oklahoma, which is home to 39 Indian tribes, has done historically over the past several decades with tobacco and gaming and gasoline taxes and water.
The tribes have been great partners for the state. That doesn’t mean there haven’t been hard nosed negotiations over the years. But historically, the state and the tribes have been able to work out these issues.
That said, the McGirt decision infused an element of geography that had not previously existed because I think everybody would tell you, tribal and nontribal members alike, that for the last 114 years since Oklahoma became a state in 1907 everybody -- it was the common understanding that the reservations had been disestablished. I’ll get to that more in a minute, but let me give just a brief synopsis of what’s happened in the past year. And then I’ll talk about what things look like on the ground today in Oklahoma, both in the criminal side and even on the civil side.
So I came on in November, and like others, I thought well, surely there’s a deal to be had here. So the governor under Oklahoma law has the authority to negotiate and enter into compacts with Native American tribes. That is his sole and exclusive authority. Those compacts do have to be approved by the joint commission of the legislature. The governor also has the authority to designate a negotiator for the state, and he designated me, for better or for worse, for that role.
And so prior to the McGirt decision there had been some gaming litigation between the state and the tribes, so the dialogue between the governor and the governor’s office and the tribes had not been as robust in the year or two leading up to McGirt as ideally it would have been. The attorney general actually negotiated what he called an agreement in principle with the five tribes who were affected. However, as soon as the decision came out, three of the five tribes immediately jettisoned the agreement in principle, which dealt with both criminal and civil issues and said, “There’s no deal here. In effect, we won.”
So I came in in November and immediately started having robust conversations with every tribal leader and council that would talk to us, within a relatively short period of time got a really good handle on where the tribes were. And thinking of it from 100,000 feet, we thought from the state’s perspective we really had three paths forward: either this is a situation that could be compacted -- and by situation, roughly half of the state of Oklahoma is an Indian reservation or Native American reservation for purposes of the Major Crimes Act. And it is very much the state’s position that the McGirt decision is limited only to the Major Crimes Act because that’s exactly what the decision says.
But compacting was a way forward. Another way forward is Congress. Congress could take some action to address this issue. And a third way forward would be further court action.
So let me address the compacts first, and that is is there a deal to be had? And basically the takeaway -- and we’re not dealing with one tribe here. We’re dealing with five tribes. And the five tribes don’t see the world in the same way.
We have two tribes, the Cherokees and the Chickasaws, that have expressed an interest in compacting on criminal jurisdiction with the state. There actually was recently introduced legislation by Congressman Tom Cole that authorized criminal compacting. And the reason that federal legislation is necessary is because this involves the federal Major Crimes Act. However, the draft legislation does a lot more than that, unfortunately, including recognizing and affirming the reservations for all purposes, which is not what McGirt did. McGirt was a very narrow, limited decision. And so as that legislation stands here today, that legislation does not have the support of the governor or the leaders in the state other than Congressman Cole who introduced it.
So is there a deal to be had here? You know, I don’t want to put words in anybody’s mouth, but basically the message that I got -- the collective message was -- and again, this was nuanced depending on which tribe you’re talking to. So I’m not saying this came from one particular tribe. But it became very clear that there was a very strong sentiment that “We got our land back.”
That was expressed to me by a number of tribal leaders. The three tribes who are opposed to criminal compacting basically told the state, “We’re not willing to talk about legislation. We’re not willing to talk about compacting. We’re not going to give up an ounce of sovereignty that was gained through the McGirt decision.”
By the same token, the state’s in the very difficult position that here we have a very narrow decision limited only to the Major Crimes Act. The state can’t negotiate its sovereignty away based upon that narrow decision. So where does that leave us?
That leaves us that there’s no deal, and there’s no deal on the horizon. We’ve got -- and I’ll speak more about this later. But we’ve got thousands of Native Americans who have filed state income tax protests, not wanting to pay income taxes. In Oklahoma, we have 4 million residents but 1.8 million people living on the eastern half of the state, which is the McGirt impacted part of this state -- or that’s impacted by the decision. And the vast majority of those folks are non-Indian.
About 87 percent of those folks are non-Indian. Everybody’s living together. Everybody’s driving on the same roads. Kids are all going to the same schools, so this is not a situation where we have a reservation in an isolated corner of a state. In Oklahoma, which has always been unique, everybody’s mixed in together. Everybody’s neighbors and friends and partners. And so when we think about the potential for McGirt to extend beyond the criminal, the list of issues and problems that creates for the state of Oklahoma is endless and, frankly, calls into question the viability of the state of Oklahoma to continue as a going concern. And so I’ll get more into that later.
Congress, what can Congress do? So we’ve been the Washington several times. The bottom line is it’s been made very clear that Congress isn’t going to do anything about this outside of potentially the limited realm of criminal compacting, but we’re at a dead end there. There’s not a 1 percent chance or a 5 percent chance or a 10 percent chance of Congress addressing this issue. The members of our delegation have made it clear to us that there’s a zero percent chance of Congress taking any substantive action to address the fundamental issues and problems for the state created by McGirt. So Congress is not an option.
So what about the courts? So obviously it’s easy for me sitting in this position to Monday morning quarterback the litigation. We’re all lawyers. I had a lawyer tell me a long time ago that we all practice in glass houses.
But looking at it from the perspective of hindsight, there are several very important arguments the state did not raise in the McGirt litigation, including the City of Sherrill line of argument, which involved the Onida Reservation in upstate New York and involved the imposition by the court of equitable defenses to maintain the state sovereignty and jurisdiction over land on a reservation that was not disestablished. Also not raised were issues in the multiple times that our tribal leaders had testified before Congress as recently as 2016. The governor of the Chickasaw Nation, who’s a close friend of mine, testified before Congress, as he had multiple times in the past, that we have no Indian Reservations in Oklahoma.
When I was a young guy after I graduated college, I spent four years working on the Hill in Washington, and I actually wrote legislation that referenced former Indian Reservations in Oklahoma. That is all over the federal code, beginning with the 1974 Surplus Property Act. So it was everybody’s common understanding that there were no Native American reservations in Oklahoma. And those arguments were not raised before the Court.
So the bottom line as we sit here today, we’ve got a real problem on our hands in the state of Oklahoma. I would describe it and the governor would describe it as a state of jurisdictional chaos. On the criminal side we have thousands of cases which are simply going unprosecuted. We’ve had district attorneys tell us there are dockets -- a Friday afternoon docket, for example, where there may be 250 cases where the cases are just being dismissed because the McGirt decision affects cases involving Native American defendants or non-Indian defendants where you’ve got a Native American victim.
Just looking back over the past 15 years, there are about 100,000 cases in eastern Oklahoma that could be and would be impacted by McGirt. So what does that mean? That means that those convictions never happened. So the bottom line is people are just walking.
A sheriff of one county in eastern Oklahoma told me a month or so ago that they normally run about 80 folks in the jail every night. They’re now running about 40 because they released 10 people the week before and 15 the week before that. And so the bottom line is the tribes don’t have the resources to prosecute these cases. The feds don’t have the resources to prosecute these cases.
In cases involving non-Indian defendants south of the Major Crimes, those people are just walking. They are not being prosecuted. So the bottom line is eastern Oklahoma is a less safe place than it was. We have the Department of the Interior since the McGirt decision that has taken upon itself, unprompted so far as I know, to extend the McGirt decision to civil and strip the state’s regulatory authority away from the mining program.
The questions being imposed by businesses are immense. If you are looking to locate a business in Fort Smith or Fort Worth or Tulsa, for example, the prospect of that business coming to Tulsa today is not good. And so we have our major employers saying, “Why do we stay here?”
So the bottom line is -- and I understand, Jenn, the issues with Mr. Murphy and the personal issues surrounding that. But the bottom line is that this decision turned half of a modern day state into a Native American reservation or a collection of reservations. And the problems that this has created and will create for our state in the years and decades to come unless it is addressed in some substantive way are fundamental.
Looking back in the history when Oklahoma became a state, Teddy Roosevelt was president. That was a long time ago. But he issued a proclamation -- and Eric, I’ll wrap up. And that proclamation says, “Oklahoma enters the Union on equal footing with its sister states.” And I can tell you sitting here today in Oklahoma City, that is not the case. Fundamental issues of fairness, equity, and ultimately the uniqueness that Oklahoma finds itself in and always has found itself in with its very unique and important Native American heritage -- we’ve got some real issues in Oklahoma.
The governor describes this issue as the most pressing problem to ever face any state since the Civil War. I agree with him. We’ve got our hands full, and figuring this out is going to be an immense job. Ultimately, my view and our view is the courts will have to readdress this decision in some way.
Eric Grant: Jenn?
Jennifer Weddle: Yeah. So I guess I will start by acknowledging that this is really hard, and Ryan is in no way overstating the magnitude of the issues that Oklahoma is addressing. But I would say the solution probably lies not with the courts but with the people of Oklahoma, including the state, the local governments, the tribes. Ryan, I think, was quite correct in heralding the complexity of the situation because the Oklahoma tribes don’t speak unanimously on this issue.
They each have their own independent sovereignty and independent views of what the right solutions are. Governor Stitt himself is a citizen of the Cherokee Nation of Oklahoma. So everybody, I think, is experiencing this from a lot of different angles, and I think at least what I’ve observed anecdotally is a lot of good will amongst all the stakeholders to try to get to the best solutions possible to support the best public safety that everyone can in Oklahoma.
That includes a lot of step up by the courts, especially the Tenth Circuit and the federal courts. And I say this with a fair amount of Tenth Circuit pride. But social workers, court staff from all over the Tenth Circuit have gone to Oklahoma’s federal courts to assist in this process to try to provide resources to deal with the magnitude of open questions and cases that need to be addressed.
There are a lot of continuing conversations, and I think from the tribal perspective they feel like there’s been massive headway over the course of the last year and just a lot of progress in those continuing government to government discussions. As Ryan mentioned, the governor does have compacting authority. And there are also federal sources of authority for the U.S. Attorney’s Office to intercede as well and help craft solutions and 25 U.S.C. 1321 specifically. We don’t yet have a nominee for any of the districts in Oklahoma from President Biden, but I know those positions will be filled. And I also would expect that the Department of Justice Office of Legal Policy will have a prominent role in helping the state and tribes and local government continue to work through these issues post-McGirt.
For our audience that’s not as up to speed on these issues, I realize that Ryan and I have thrown around a few terms that might be helpful if I clarified a few of those. The starting place is really in the so-called Marshall trilogy by Chief Justice Marshall in the early 1800s that established that really state laws have no force or effect in Indian Country. And these settled practice that generally tribes would turn over bad men or criminals to federal authorities and they’d be prosecuted there. And there were not state prosecutions in Indian Country.
In 1885, Congress essentially affirmed that practice in the so-called Major Crimes Act, which Ryan mentioned, which was actually a late night rider to a government funding bill that no one probably thought about very much. But it vested the federal government with exclusive prosecutorial authority over certain major crimes taking place in Indian Country. Effectively, the U.S. Attorneys function as the district attorneys for Indian Country.
And the difficulty in Oklahoma is that post-statehood the state in many instances was just prosecuting as if there was not a reservation and they had the authority to do it. Although there were some continuing federal prosecutions as well, particular in the Prohibition Era on liquor laws, it was by no means a clear historical statement. And there was no clear congressional expression. So said the Tenth Circuit, and so said the U.S. Supreme Court. And now it’s really about how can the parties come together to try to create solutions for the people of Oklahoma. Back to you, Ryan.
Ryan Leonard: Okay. Thanks, Jen. So there are really two components to this. You know, you’ve go the criminal piece, and McGirt was a very limited, narrow decision. The decision itself said these are reservations -- or the Creek Nation is recognized as a reservation for purposes of the Major Crimes Act. That is the states position. It was a limited decision.
And so looking at the criminal side, there’s the retroactive side of this. And I referenced the approximate 100,000 cases, about 30,000 which are felonies. Basically those cases -- those convictions are under McGirt are as if they did not happen.
And then you’ve got the prospective side. So on the retroactive side, you know, one of the challenges is, if you read the newspaper, you read about the murders that are being -- the murderers that are being re-prosecuted assuming the witnesses are still around, not a lot of discussion about the impact of that on the victims. But what you’re not hearing about are those cases were, for example, the federal statute of limitations has run.
There’s a woman in Tulsa who was a Native American. She was drinking and driving. She killed five people. She got 107 years for manslaughter in 2009. Well, the federal statute of limitations is five years, so she’s on the street with no felony conviction today. That situation is being replicated thousands and thousands of fold across the state.
You’ve got looking prospectively the crimes, as I mentioned, you know, involving non-Indians, for example, where you’ve got an Indian victim. South of the Major Crimes, the U.S. Attorneys have told us those folks are just walking because the tribe doesn’t have jurisdiction. The feds don’t have the resources. There’s just no recourse.
Jenn, as you mentioned, the governor’s a citizen of the Cherokee Nation. I’ve told the governor several times— and it’s true— if I steal the governor’s car in eastern Oklahoma, I will not be prosecuted. And there is no dispute about that.
The sheriff of Seminole County told me a month or two ago -- he said, “Ryan, we’re going to be back to circa 1910 for law enforcement purposes in eastern Oklahoma.” And the reasons is if a state law enforcement or a county law enforcement officer shows up at a scene, the first question they ask is, “Are you a Native American?” And if the answer to that is yes, they leave. Or if there’s a life threatening situation, they may stay.
What the sheriffs have told us is is if you call 911 in eastern Oklahoma, the first question is, “Are you a member of a federally recognized tribe?” And if the answer to that is yes, you’re routed to the tribe. If you’re on the Chickasaw territory, you get a live person that answers the phone. If you are in downtown Tulsa, which is part of the Creek territory, then you get an answering machine. And so there are real issues here.
The district attorneys are telling people with tribal tags to park their cars in their garages because they are being targeted because the criminals know that they won’t be prosecuted. The tribes have a, under federal law, maximum range of punishment of three years. And so there are real equal protection issues presented here because let’s say you’re an African American or a Hispanic or a Caucasian and you commit a crime in downtown Tulsa, you could be looking at 20 or 30 years from the state. If you’re a Creek, you’re looking at three.
And so is that fair? The bottom line is it’s not. And so the situation is that this area includes a major metropolitan area. I think Tulsa’s the 45th largest city in the country, and so there are issues presented by this ruling and that are created by this ruling in Oklahoma that really wouldn’t exist anywhere else.
Talking about the civil side of things for example, I mentioned the thousands of tax exemption protests that have been filed. If we get into a situation where Native Americans, who are all our friends, neighbors, family members end up not paying state taxes yet the state is providing hundreds of millions and billions of dollars of benefits to these folks and you’ve got the western side of the state subsidizing the eastern side of the state, that doesn’t work. Oklahoma will no longer remain a viable state under that construct.
A leader of one of the five tribes told me -- I said, “Chief, why don’t you just recognize that your tribal citizens ought to pay state taxes? We’re all Oklahomans. Yes, you’re a member of this nation or that nation or a citizen of this nation or that nation, but we’re all Oklahomans. We’re all here together.” And he said, “Ryan, the state of Oklahoma trying to tax a citizen of my nation is the same as the state of Oklahoma trying to tax a resident of Texas.” That doesn’t work. And so unquestionably those issues will be litigated.
The Department of the Interior’s action -- when we were in Washington last week we had a call -- the governor participated in a call with Interior Secretary Deb Haaland, who in effect doubled down on the Interior Department’s decision to strip Oklahoma’s mining regulatory authority away. And so if McGirt extends to the civil arena and these are reservations for all purposes, it’s a very legitimate question to ask whether or not we still have one state. That question is being posed. And when you boil it all down on the civil side, the ultimate issue is an issue of jurisdictional uncertainty that’s created by this decision.
Folks that are investing capital -- you know, you mentioned the opening line, Jenn, of the decision talking about the Trail of Tears. I was a history major in college. I get it. I read exclusively history, and it’s a tragic history. Of our 39 tribes in Oklahoma, probably only three or four are actually native to Oklahoma. The rest came here from elsewhere, not necessarily within their own will or by their own will. So the history is a tragic one.
On the other hand, you have 114 years where everybody, tribal and nontribal alike including the leaders of our five tribes as recently as 2016— so five years ago— recognized that these reservations were disestablished. It’s all over the federal code.
So what do we do? As we’ve talked about it amongst ourselves and as I’ve slept with this now for eight or nine months, the issues being presented really are kind of foundation of the republic type issues and because Oklahoma’s sovereignty as a state has been dramatically diminished if McGirt is extended beyond its narrow ruling. So we’ve just got our hands full. And so our concern is it’s a little bit of a slow boil right now.
You wake up in Tulsa. It looks the same as it did last summer. But what about two or three years from now? What about five years from now, 10 years from now? How are we going to continue to attract private capital investment in those folks who promises were also made to for the last 114 years? These are five or six generations of Oklahomans also to whom promises had been made. They though they lived in a state. They thought they had the guarantees of the jurisdiction of the state of Oklahoma, and now they’re being told that they don’t.
It’s very foundational, and these raise very existential issues for the state of Oklahoma. So we’re in a very difficult time, and the prospect of a deal or of this being able to be resolved through negotiations, there’s nobody that would love that more than me. I still don’t know how we can address the jurisdictional uncertainties created by this even if you had a deal.
The leader of one nation may be great sitting there today, but who knows about the next leader? And these are not commonly elected folks. These are folks elected by the citizens of the tribe. And so if you’re sitting there in eastern Oklahoma— and I know it because I’ve had countless conversations in the last number of months— people are extremely nervous. People are not making investments. Title exceptions are being issued on title policies when land is sold because people don’t know the extent of this ruling.
And so as I’ve said a couple of times, it remains our view that this was a very narrow ruling, limited only to the Major Crimes Act. If this goes beyond that, the consequences for the state of Oklahoma are dire. And I cannot overstate that.
Eric Grant: Jenn, I don’t think you’ve used your full time, so I’m going to give you a chance to have kind of the last first word. And then I have a few questions for both of you. So go ahead. Let’s shot for two or three minutes.
Jennifer Weddle: Thinking about some of the philosophical issues, Ryan, you had mentioned City of Sherrill, which applied the doctrine of latches vis à vis the Onida Nation in New York related to some land claims where almost unquestionably their land had been conveyed away from the tribe in violation of the Nonintercourse Act. And writing for the court, Justice Ginsburg in that case found that it essentially happened so long ago that there was nothing the Court was going to do about it.
Interestingly, toward the end of her life she said regularly that that was the decision she most regretted from her time on the Court. And I think in part that regret comes from just making it, which has regrettably been what the Court has continuously done over the course of its history vis à vis Indian tribes where there wasn’t a lot for them to go on beyond the Constitution in terms of vesting Congress with the power to interact with Indian tribes. And it created doctrine after doctrine where they have made it up whole clothe.
And the shifting set of decisions over the policy -- the differing policy decisions of the time, the differing social morays of the time has created for Indian Country what Justice Kavanaugh quoted recently at oral argument as an indefensible morass for how Indian tribes are supposed to safeguard their own people and the public within reservations. And I think Justice Gorsuch’s opinion in McGirt really is a wholehearted embrace of those separation of powers issues that echo his book A Republic, If You Can Keep It. Now, I sound like I’m the Justice Gorsuch publicist, but I encourage everybody to read that book and think about what devotion to those principles of separation of powers really mean. It means you have to follow it even if it’s inconvenient and very messy and the consequences might be dire.
Again, coming back to circle to one of my introductory comments, the solution is the people of Oklahoma, tribal and nontribal, coming together to address these issues without throwing everything else ancillary in the bucket -- gaming issues, tax issues, et cetera. My suggest is to try to get everybody focusing on this one thing, the narrow holding in McGirt, and build on the understandings from there. But I think Oklahomans have shown time and again that they are special. They can come together, and they can do this.
And I actually wanted to flip the question back to Eric, which I think would be helpful for the audience, which is could you talk a little bit and share how you think the U.S. Department of Justice can or might be helpful in this continuing conversation based on your experience there?
Eric Grant: Well, I can address that briefly. My tenure at the Department of Justice ended in January, so I’m going to give you a backward looking perspective. But I know that certainly one of the first responses was to divert resources, particularly to the United States Attorneys’ offices for just bodies to prosecute, special assistant United States Attorneys -- and then a whole other question diverting resources to the local offices of the FBI.
I don’t know how those have played out over the past year, but at least before January 20th, it was a big problem -- a big issue and one that had the highest levels of concern from the Department. But it struck me as a non-prosecutor and someone at main Justice rather than out in the field as a very, very difficult problem that was not easily to be solved. And maybe Ryan can speak to how the state of Oklahoma has perceived the resources given or not given to the local U.S. Attorneys’ offices.
Ryan Leonard: The U.S. Attorneys, they are beyond snowed under. My first job out of law school, I worked in the district attorney’s office. I wanted to get in court, and I was interested in public service. And so you really see the meat grinder of the criminal justice system in the state DA’s office. And obviously, for over a century, the district attorneys have prosecuted all these crimes.
This is not my observation. I do do a lot of work in federal court, though. And the general takeaway from those who know it best say the federal government doesn’t do a great job in Indian Country generally with its prosecutions. I do know from my firsthand experience that the U.S. Attorneys really aren’t set up for that type of work, obviously throwing resources -- and there have been additional resources -- temporary resources that have been given to the U.S. Attorneys’ offices and the FBI.
But when you look at the retroactive nature of all of this looking back, it’s too much. You can’t even begin to get your hands around that. It doesn’t matter how many resources you throw at it.
The other option is we have three of the tribes who want to, in effect, build their own judicial infrastructure. I had one of the tribes who was opposed to any state criminal compacting on criminal jurisdiction tell me -- they said, “Ryan, we view having a --” this is almost an exact quote -- “having a robust judicial infrastructure as being an inherent expression of our sovereignty.” So if you take that view and we start using federal money to build courthouses in all 11 counties of that particular tribe, you know, the question was also posed to me, well, what about -- would you be opposed to the tribe prosecuting non-Indians?
So you’ve got all these questions being posed, and that is along the line of thinking that “We got our land back.” And that tribe in particular expressed that to me. So the challenge with throwing resources at it is basically what you’re doing is you’re federalizing in large part of eastern Oklahoma.
That’s not in the interest of the state of Oklahoma, and we’ve also got the resources to do it sitting here today. But we only have two tribes willing to talk about criminal compacting. The other three are not only opposed to it; those three are opposed to it for the Cherokees and the Chickasaws. They don’t want anybody to be able to deal with the state.
So if McGirt remains the law of the land from this point forward for purposes of Major Crimes Act jurisdiction, the criminal compacting does seem to be the most workable, efficient, cost effective way to do that. But that’s not where the tribes are. That’s not how they see this.
The state has an open door and an open ear to all of these issues. And I get it. The tribes, they won that case. And I think that -- I don’t know why all of these arguments were not raised in the litigation. I know that there was a desire to reach an amicable resolution along the points of what Jenn has raised.
The tribes historically have been wonderful partners for the state of Oklahoma. I have -- the four years I worked in Washington working for one of our U.S. senators in the ‘90s, I really valued my relationships with the tribal leaders. The tribes employ 51,000 people in the state of Oklahoma. In large parts of the state they are the number one job creators and economic generators in much of rural southeast and northeast Oklahoma.
So what I am espousing here, the state is not anti-tribe in any way. The tribes are a wonderful positive for the state of Oklahoma. But we didn’t plan on losing half of our state -- losing jurisdiction over half of our state. And that’s the issue. And so --
Eric Grant: Ryan, if I could jump in --
Ryan Leonard: -- our foundational and existential -- I can’t overstate it enough because they are.
Eric Grant: -- you mentioned sovereignty. And Jenn mentioned sovereignty several times. And that’s a word that I heard many times working on Indian issues at the U.S. Justice Department. And it seems to me that one aspect of sovereignty -- a core aspect is public safety. And I guess to kind of follow up on what Ryan said, Jenn do you think the tribes, one or more of them, are prepared to take over those fundamental aspects of sovereignty to provide public safety and criminal prosecution and incarceration, I guess, ultimately?
Jennifer Weddle: Sovereignty for tribes is inherent, meaning tribes retain whatever powers they had a nation-states at the time of the founding of the United States, unless and until Congress has limited their sovereignty in some way. That would include public safety broadly. The tribes’ position would be generally that they have always had those powers; they just haven’t exercised them due to mistakes of law that were made on an intermittent basis.
But I think like all other areas of government, including healthcare, public works, safety and sanitation, areas where the Oklahoma tribes have become very significant contributors all over Oklahoma -- running the trash disposal in some places, building water infrastructure, running hospitals -- the tribes are doing all of those things. And public safety is another one where I think the tribes have and will continue to try to rapidly expand their capacity both in terms of law enforcement officers, prosecutorial resources, working together with their state and federal partners to absolutely step up and do what needs to be done to make sure they’re delivering on their obligation to provide public safety within their territories.
Eric Grant: I’d like to switch to another topic. Ryan in particular has mentioned a couple of times about possible relief from the courts. And I guess it strikes me—and I’m sure I’m not the first person to make this observation—that the personnel on the Supreme Court has changed since the decision. And do either of you see any prospects for McGirt in a sense being reargued, trimmed, confined more narrowly given the change in personnel on the Court?
Ryan Leonard: Eric, I’ll speak to that. Obviously, I did not argue the case the first time, and I am not a regular practitioner before the Supreme Court. So I don’t want to speak out of turn. I will tell you that there’s a case in which a petition for certiorari will be filed very shortly, the Bosse case. And the Bosse case involved a non-Indian defendant who killed a Chickasaw mother and her two children -- got the death penalty from the state.
And so that conviction was tossed out in the Oklahoma Court of Criminal Appeals because of McGirt. The state in March filed a petition to stay the mandate, and that stay was granted a few weeks ago in a 6-3 ruling. The state’s petition for cert is due in the next six to seven weeks. And so in that case issues surrounding the McGirt decision will be revisited.
These tax protest that I’ve mentioned, those are sitting here today in the administrative process. But those will -- depending on what the Oklahoman Tax Commission rules. They’re an independent body, but if they rule that McGirt is limited and confined to Major Crimes Act jurisdiction only, then depending on whether or not a tax protester who’s protest is denied -- if that ends up being what happens, if they appeal that, that would be another avenue.
What the Department of the Interior has done recently is beyond troubling. We don’t have a lot of mining in Oklahoma, but the precedent set by the extension of McGirt to the civil arena in an unwarranted way that’s not consistent with the decision is very troubling for the state. So the options are being considered with respect to that action. So we’ve got a power plant in northeast Oklahoma that doesn’t have anything to do with a tribe. They’re saying that they don’t owe their $400 million in ad valorem tax this year because they’re in the eastern part of the state.
If in fact McGirt is extended to civil jurisdiction, the Creek Nation, for example, and none of the tribes have to abide by zoning ordinances. So what does that mean if you’ve got a corporate headquarters in downtown Tulsa? Those concerns are being expressed and being circulated around the state. People are saying, “We invested here. We thought we had certainty here.”
So I don’t see any way forward but for given the limited nature of the McGirt decision but for that decision to be reconsidered through the courts, particularly because there’s no other path forward here. The tribes have made it very clear they’re not willing to give up an ounce of what was gained. And as I said when we started early on, the state can’t negotiate its own sovereignty away based upon where we’re sitting here today.
We’ve got almost 2 million folks living in the eastern half of the state, 87 percent of whom are not Indian. So the state has an obligation to them, and the state’s providing services to everybody. So in answer to your question, I don’t see any way around one or more cases going back up as we sit here today.
Eric Grant: Jenn, do you have a comment on the Bosse case and the other issues that Ryan mentioned?
Jennifer Weddle: I was going to answer your initial question no. I don’t think that the Court is likely to go a different direction with new personnel. I think Chief Justice Robert would view a shift in less than two years as calamitous, and I don’t think he would let that happen. And I also think that Justice Barrett is a strong federalist herself and would appreciate the separation of powers principles that underly Justice Gorsuch’s majority opinion in McGirt.
I also think that the Court recognizes that historically they’ve made a real mess of tribal relations and sovereignty issues and jurisdictional issues on Indian reservations. We saw that in the United States v. Cooley decision and argument, which I was also involved in that case. And A.J. Fraudy and I have a great podcast on that, too, you all should check out. But I think that they know that this is a vest, and they’re inclined to just stop digging and defer to Congress.
Eric Grant: Well, but do you think stop digging might in this situation be stop extending? Obviously, Ryan raised some interesting issues about taxes and zoning and mining and so forth. Is it digging to extend McGirt to those areas as well?
Jennifer Weddle: Yes.
Eric Grant: Okay.
Ryan Leonard: So I’ve got a question for Jenn, and maybe I misunderstood your last comment, Jenn. So do you view the decision as one being limited to Major Crimes Act jurisdiction?
Jennifer Weddle: Yes, very expressly on its own terms it’s a narrow decision, and I think Justice Gorsuch was very careful in his word choice. And I think Indian Country always knew that there would be lots of arguments made, and lots of amici raised these issues at the U.S. Supreme Court as well, the point of horribles that Ryan has kind of gone through. All of that was readily anticipated, and I think pursuant to the Indian Commerce Clause the Court will continue to say the better course here is to let the governments do what they do, work with each other, figure it out, go to Congress if they need the ultimate arbiter of some dispute, but try to come together for the good of all Oklahomans.
Ryan Leonard: Eric, I might make one point on the congressional action, and we were just there last week. So our information is as old as about four or five days. And obviously this is of utmost concern to our governor and to me and to the elected folks in the state because this was such a curveball and very unexpected. Our governor ran for office -- he was a business guy, ran for office three years ago under the premise of making Oklahoma a top ten state, attracting business, attracting a lot of jobs. Obviously, now we’re dealing with this very fundamental ruling instead.
But the members of Congress have made it very clear to us -- we have 574 federally recognized tribes in the country that exert a tremendous amount of political influence. Our own tribes in Oklahoma, I believe they’re the large political givers at our state capital. Oklahoma approved Class 3 gaming through the approval of a lottery in 2006. And so the economic power of the tribes in Oklahoma alone is tremendous. And so what our members of Congress have told us is “We will do whatever all five tribes and the state agree on.”
So that’s our marching orders. “Get all five tribes together and the state and whatever that is, that’s what we’ll do.” And the problem with that is we’ve got five tribes who have very fundamental disagreements amongst themselves. So the state is just sitting here in a state of shock saying, “What is the path forward? How do we maintain jurisdictional certainty for folks?”
We thought we had a state. We’re talking about we want the best for our tribal members, our non-tribal members. We want the best for all Oklahomans. So how do we do this moving forward? And sitting here today, that solution is not self-evident.
Eric Grant: I see that our Federalist Society hostess has reappeared, which means we’re coming to the end here. I don’t see questions from the audience, and so if that is the case, I am going to give each of you -- let’s see if we can do it in 45 seconds each. So Jenn, why don’t you go for the first 45, and then I’ll let Ryan close us out.
Jennifer Weddle: Well, picking up where Ryan left off, the people of Oklahoma -- the solution in Oklahoma is blessed with a fabulous congressional delegation, including Tom Cole, who’s himself a Chickasaw Nation citizen who’s working very hard on solutions, including Senator Lankford who sat right behind me at the Carpenter oral argument. They’ve been paying attention to this from day one and I know are committed to working with the state and the tribes to continue to advance solutions. It is hard work, but Oklahoma is exceptional. And I know you all can do it. And you’ve got a great negotiator at the table for the state.
Eric Grant: Ryan?
Ryan Leonard: Thanks, Jenn. I agree Oklahoma’s exceptional. We hadn’t quite anticipated this situation. The state of Maine faced something a little similar back in the early ‘70s, but it involved mostly the rural part of Maine from my reading of that near-recent history. Oklahoma, obviously, we’ve got 2 million folks in half the state, so it’s different.
There’s no more foundational and existential issue that either our state or any state has faced. The McGirt decision striped the sovereignty of the state of Oklahoma away in many ways, particularly if extended to civil jurisdiction. And, Jenn, I appreciate your comments and your viewpoints on that. I can assure you that your viewpoint is unfortunately not really shared within Indian Country or within the tribes in Oklahoma. I wish it were because it is our view of the scope of that decision.
But we’ve got our work cut out for us. We need help. We are drowning with this. The criminal piece of this is a fiasco. If extended to civil, as I said the ramifications are dire. So we will continue to work on this night and day, but ultimately looking at the paths forward, compacting, Congress, and the courts.
The compacting -- we’re trying as hard as we can. That’s not a viable option at this point. Congress isn’t willing to do. And so we see no path forward other than to seek clarification. And the Court’s given the view of others in the tribal community and of our own federal government that McGirt extends beyond Major Crimes Act jurisdiction, a position we strongly disagree with.
Eric Grant: Well, I want to thank Jennifer Weddle and Ryan Leonard. It was an excellent program, and I very much appreciate your contributions, very knowledgeable, very thoughtful. And thanks again, of course, to our Federalist Society hosts. And with that, I’m going to close the program.
Ryan Leonard: Thanks, Jenn. Thanks, Eric, and thanks, Evelyn.
Evelyn Hildebrand: Thank you all. And on behalf of The Federalist Society I want to thank our experts and our moderator for the benefit of their valuable time and expertise today. And I want to thank our audience for participating. We welcome listener feedback by email at email@example.com. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
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.