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The Indian Law Outlook: October 2022

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The Indian Law Outlook: October 2022

For more than 30 years, the win-loss record for tribal interests at the United State Supreme Court was dismal. Between 2018 and 2022, however, tribal interests were on a remarkable winning streak. But what is the continuing outlook for tribal interests at the Supreme Court? This program will analyze the three cases decided by the Supreme Court in June 2022 and consider what they might portend for the future. The program will benefit tribal attorneys, practitioners of federal Indian law, and other attorneys who wish to learn more about federal Indian law.

Transcript

- Hello, and thank you for joining me today for the Indian Law Outlook as of October, 2022. I am Chloe Thompson Villagomez. Our learning objectives for today will be first to recognize the historic nature of the US Supreme Court's recent Indian law decisions, second, to analyze the three most recent Indian law decisions issued by the Supreme Court in June, 2022, and then third to predict what the outlook might be for pending and future Indian law cases at the Supreme Court. For the time period of 1986 through 2001, out of approximately 40 cases decided by the Supreme Court, 40 Indian law cases, tribal interests had a 23% success rate. Convicted criminals, by comparison, had a 36% success rate, so tribes were actually doing worse than convicted criminals at the US Supreme Court, and their interests fared progressively worse over this time period. As the late David Getches testified to the Senate Committee on Indian Affairs in 2002, nobody does worse in this Supreme Court than Indian tribes, and I should say that these statistics come from his research. For the following time period, 2001 through 2017, the Supreme Court decided barely half of the Indian law cases that they had decided in the prior time period, so approximately 21 Indian law cases in these 16 years by my estimate, and the issues ranged over a full range of Indian law issues, so everything from trust responsibility, sovereign immunity, to Indian Child Welfare Act, Indian Gaming Regulatory Act, various topics in between as well, and during that time period, tribal interests prevailed approximately 33% of the time, so somewhat better, but not by much, and so tribes are still not doing very well at the Supreme Court in that timeframe. One thing of note is that Justice Sotomayor was confirmed in August of 2009, and she has been quoted as saying that she actively studied Indian law when she got on the Supreme Court, and that she went back to the very beginning and tried to understand the foundational principles of Indian law. From 2018 to the present, a number of things of interest have happened. First, we have Justice Gorsuch confirmed in April of 2017. He does not participate in Lewis v. Clarke, which is the only Indian law decision of the 2016 to 2017 term, but the court has issued 12 Indian law decisions since then, and you can see from the graphic here that there has been a significant change in the success of tribal interests, so up until the most recent Supreme Court decision, Castro-Huerta, and not counting Yellen v. Confederated Tribes, which I'm not counting because there are arguably tribal interests on both sides of that case, so up until very recently and not counting Yellen, the tribal interest had prevailed 100% of the time, so currently with the negative outcome in Castro-Huerta, tribes are currently at 92% success rate for the time period of 2018 to the present. However, the court's most recent decision, Castro-Huerta, was a significant loss for tribal interests. Beginning in 2018 and continuing through 2020, you have a number of treaty rights decisions that come out favorably for tribal interests, and if you'd like a more detailed analysis of these cases or the Cooley case, which will be discussed after these, you can listen to my previous presentation for Quimby that covered these in a bit more depth, but in 2018, the winning streak begins with Washington versus United States, which is a judgment of the Ninth Circuit that's affirmed by a divided court, so there's not actually an opinion, but I do include this case just because it is a significant case and the positive result is of interest and is significant here. So Washington, the finding is that Washington violates the treaties with Indian tribes by building and maintaining culverts that impede fish passage, and so Washington must correct those culverts. The next case in 2019 is Washington State Department of Licensing versus Cougar Den Inc, and in that case, the holding was that a Washington fuel tax cannot be imposed on a wholesale fuel importer that's owned by a tribal member who transports fuel from Oregon to the reservation within Washington on public highways. Next is Herrera versus Wyoming, a 2019 case, and the result in that case was that the Crow Tribe treaty hunting rights survived Wyoming statehood, and the Bighorn National Forest land is not categorically occupied, such that the treaty rights no longer exist, so potentially they still exist within the Bighorn National Forest. The fourth case in this series of wins for tribal interests, and specifically on treaty rights topics, is McGirt versus Oklahoma, and this is a 2022 case, and it's one of the most significant US Supreme Court Indian law cases in recent years, and in that case, the court, led by Justice Gorsuch, found that Congress had never disestablished the Creek reservation. The next case in 2021 was not a treaty rights case, so it's the only one of that series that's not a treaty rights case, but it was, again, a win for tribal interests, and so that case, the result was that a tribal police officer has the authority to detain temporarily and to search a non-Indian on a public right of way that runs through an Indian reservation. Now, this was essentially the status quo for years. The tribal police officers have this authority, so it's not necessarily a surprising outcome. It would've been a surprising outcome if it had come out the other way, but it does not, and so that is the correct result, I believe, but interestingly, the way that the court gets there is somewhat of interest, so the court applies the second Montana exception to reach that result, and Montana is a civil case, and there are sort of two prongs under what's known as the Montana test for whether tribes may have civil jurisdiction over non-Indians, and the court applies the second prong, which pertains to conduct that threatens or has some direct effect on the political integrity, economic security, or health and welfare of the tribe, and so that test and that second prong, they're normally applied in civil cases, not in criminal cases like this, and then the second prong itself is often, it's rarely successful. The Supreme Court has suggested that there is quite a high bar to apply that second prong, and yet that's the way that the Supreme Court gets to the result here. The other noteworthy thing about US v. Cooley is that it's a unanimous decision, and so that is significant when we're thinking about the various combinations of justices that we might see in any given Indian law opinion going forward. So what explains this remarkable string of wins? Well, I think potentially a few things. One is I think the type of issues in the cases. As we've seen, most of them focused on treaty rights, and then in the Cooley case there's sort of a practical public safety issue, and so I think potentially the issues are contributing to the results, but also I am seeing in these opinions evidence of a deeper understanding of and appreciation for historical background, and I think that's really demonstrated the most and led the most by Justice Gorsuch and Justice Sotomayor. There is also, on the part of many justices nowadays, propensity towards textualism, and so I think in some of these cases we're seeing that play out as well, where they're applying the plain language of the treaties and how it would've originally been understood by the tribes, and that's leading to the positive results. Another potential factor is that there seems to be sort of a more modern and practical understanding of Indian country from some of the justices, or at least they're trying to develop that, and so I do see some indications of that in these opinions, and the justices are interested in and are citing to briefs from organizations in Indian country and real sort of current on-the-ground information. We also see that Justice Gorsuch in particular brings a more sophisticated understanding of Indian law to the court, and then other justices like Sotomayor were already developing that type of understanding. Another potential factor that I've seen mentioned sometimes is potentially having a justice from the west, which would be Justice Gorsuch, does kind of make a difference in terms of one's understanding of just the terrain out here and the way things work out west that may be contributing somewhat because most justices tend to be from the East coast, and you know, there's not as much Indian country on the east coast. Out here there are more tribes and more reservations and larger reservations, and so potentially having someone who's from the west brings a greater understanding there. And then potentially the Tribal Supreme Court Project, which is a coordinated project of tribes and tribal organizations to try to coordinate briefing to the Supreme Court, and there may be other factors too, and I'm interested to hear if other folks have other ideas on what is or was contributing to that remarkable string of wins for Indian country. The real question though at this point is can this winning streak continue? And so the coalition for Cougar Den, Herrera, and McGirt was Gorsuch, Sotomayor, Kagan, Ginsburg, and Breyer, so the loss of Justice Ginsburg then calls into question whether this better direction for Indian law cases can continue. potentially the unanimous result in Cooley does provide some reason to hope that it can, but notably, as I've mentioned, most of these decisions were treaty rights cases, so what will be the result in other types of cases? Well, at this point we now have two new justices, and so what can we expect from them as we are moving forward? One is Amy Coney Barrett. She is known to be a conservative as well as a textualist, which could actually in some cases be favorable. She does not have notable Indian law experience, so it's hard to predict exactly how she will develop in terms of her Indian law jurisprudence. Next is Ketanji Brown Jackson. She is known to be a more liberal individual. She has more diverse life experience. For example, she's a black woman. She's a former public defender. She does not, however, have any notable Indian law experience either, and so again, it remains to be seen how she develops in her Indian law jurisprudence. She was not involved in the decision of the three June 2022 cases that we'll be discussing next, and so her first Indian law case will be Haaland versus Brackeen, which is an extremely important case that pertains to the Indian Child Welfare Act. So next we'll be looking at the three decisions that were issued by the court in June, 2022, and these may provide some indication of what things are going to be looking like moving forward. The first case that the court decided Denezpi versus United States, and this was decided on June 15th, 2022. The opinion is written by Barrett, and she was joined by Roberts, Thomas, Breyer, Alito, and Kavanaugh, so we've got kind of the slate of more conservative justices, plus Breyer,. Justice Gorsuch dissents in this case, and he is joined by Justice's Sotomayor and Kagan as to parts one and three of his opinion. The topic, the area of law in this case, is criminal law, as well as, to some extent, constitutional law, and the issue specifically that's at issue is the double jeopardy clause of the Constitution. The issue is, is the court of Indian offenses of the Ute Mountain Ute Agency a federal agency such that me Denezpi's conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident? So the background on this case is that Denezpi, who's a Navajo citizen, was charged in the court of Indian offenses of the Ute Mountain Ute Agency, and I'll be referring to that as the CFR Court, because it's created under the federal Code of Federal Regulations, so the CFR Court, with assault and battery under the Ute Mountain Ute Code, as well as with terroristic threats and false imprisonment under federal law. He enters a plea to the assault charge, he's sentenced to time served, which was 140 days, and then the remaining charges were dismissed. Six months later though, he's indicted in federal court on one charge of aggravated sexual assault in Indian country, arising from the same incident. He moves to dismiss the indictment on the grounds that it violated the Fifth Amendment's double jeopardy clause. The district court denied the motion to dismiss and Denezpi was convicted, and he was sentenced to 360 months in prison and 10 years of supervised release, so a significantly higher sentence than he had previously received, and he appeals the denial of the motion to dismiss the indictment. The double jeopardy clause, as we know, protects a person from being prosecuted twice for the same offense. Under the dual sovereignty doctrine, an individual can normally be prosecuted in both tribal court and federal court, and the authority that we can cite for that proposition is US v. Wheeler, 1978 US Supreme Court case, but here we're dealing with not a tribal court but a CFR court, and so the question is whether the CFR Court's authority originally derives from tribal sovereignty or from the federal government, and the 10th Circuit stated that the Wheeler reasoning applied to CFR courts, because Congress's creation of the CFR courts did not divest the tribes of their sovereignty, but merely provided a forum through which a tribe could exercise that power until a tribal court replaced the CFR court, and so the 10th circuit held that the ultimate source of the CFR court's power is the tribe's inherent sovereignty, and so the subsequent prosecution of Denezpi in federal court did not violate the prohibition against double jeopardy. At the Supreme Court, Denezpi argues that the prosecution in the CFR Court was brought by federal prosecutors on behalf of the United States as a plaintiff, and he strives to characterize the CFR courts as federal courts, and he also argues that not only the charge but the prosecution must have its source of authority in separate sovereigns, which is not the case here. On the other hand, the US argues that today's CFR courts are viewed as vehicles for the exercise of tribal jurisdiction, and also argues that it's the offense that's determinative and that the offense in question was a violation of tribal law. We do have several amicus briefs filed on both sides, including a brief from the Ute tribe in support of the United States. In my previous presentation for Quimby, I predicted that at oral argument the justices seemed generally somewhat more favorable to Denezpi's position, and so I thought that most likely Denezpi would prevail, or if I would've bet on it, that would've been my bet, but I think what happened here was that we did not hear much from Barrett, Thomas, Breyer, or Kavanaugh in that argument, and they ultimately went the other way and delivered the win for tribal interests. So in the opinion, which is written by Barrett, and this is her first Indian law opinion, so that's significant, the court relies almost entirely on the plain language of the double jeopardy clause, and it provides only a very brief history of the CFR courts. It says that by its terms, the double jeopardy clause prohibits separate prosecutions for the same offense. It does not bar successive prosecutions by the same sovereign, so even if both prosecutions were federal, it did not violate the double jeopardy clause, and the court says, because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense than that of another sovereign. And the court relies on US v. Wheeler, which I've mentioned previously, but that case involved a tribal court prosecution for a violation of tribal law, but the court says here that Denezpi's actions transgressed both tribal law and federal law, and because the double jeopardy clause does not bar successive prosecutions by the same sovereign, it doesn't matter who prosecutes the offense. Also, according to the court, an offense is committed before it is prosecuted, which seems like a rather obvious statement, so it would be two separate offenses before the time of commission and at the time of commission, but then would become one offense if a single sovereign prosecutes both, which would be nonsensical, and so as a result, the court fairly summarily rejects several other of Denezpi's arguments and concludes that Denezpi's single act led to separate prosecutions for violations of a tribal ordinance and a federal statute. Because the tribe and the federal government are distinct sovereigns, those offenses are not the same. Denezpi's second prosecution, therefore, did not offend the double jeopardy clause, and we affirmed the judgment of the Court of Appeals. The dissent, as I mentioned, is written by Gorsuch, and he has quite a different take on things. He begins by saying that federal prosecutors charged Merle Denezpi twice for the same crime. Now, Gorsuch has sort of a fundamental disagreement with the dual sovereignty doctrine. He thinks it's at odds with the text and original meaning of the Constitution, but he also thinks that in any event, in this case, it does not sustain the court's conclusion, so he goes much deeper into the history of the CFR courts, and he describes some of the federal attributes of the courts, including their federal origin, that tribal members historically viewed them as foreign and hated, that the federal regs only assimilate tribal crimes if approved by the feds, that prosecutors are presumptively hired and controlled by the department, and that the department retains the power to appoint and remove magistrates. In part two of his opinion, which Sotomayor and Kagan don't join, Gorsuch sort of lays out his position about the dual sovereignty doctrine having no place in our constitutional order. He also, to some extent, questions the legitimacy of CFR courts, and then he explains why, in his opinion, the dual sovereignty doctrine would require that the prosecutions be brought under the laws of two sovereigns and that two prosecuting entities derive their power from independent sovereigns, so he believes that those two factors should both be present. And Gorsuch says that Denezpi's first prosecution was for violation of federal regulations that merely assimilated tribal law. He says that Wheeler does not control because that was a tribal court prosecution whereas this is a CFR court prosecution, and he suggests that this decision is really a case specific ruling and that the nature of the CFR courts remains open to question. And then finally in part three, it's a little bit redundant. Again, he takes issue with the dual jeopardy inquiry here and says that it's based on the historical wellsprings of the prosecutorial authority. He suggests that it's deeply revisionist to suggest that the wellsprings of the CFR Court's authority is anything other than federal, regardless of subsequent changes in the CFR courts. The next decision is Ysleta del Sur Pueblo versus Texas, and this case was decided June 15th as well, also of 2022. In this case, the opinion is written by Gorsuch, and he is joined by Breyer, Sotomayor, Kagan and Barrett, and so you can see, interestingly, that he's got Barrett to join the opinion there, which again, does suggest that there is still possibility here for various coalitions to emerge and to still reach favorable results for tribes. We've got then Roberts dissenting, joined by Thomas, Alito, and Kavanaugh, so the rest of the conservative justices. The area of law in this case is gaming, and so as you can see in this term, the cases are shaping up to be a bit more diverse, even though there are only three of them, so it's still not that many Indian law decisions, but this time around they are on a bit more diverse topics. So the issue here is whether the Restoration Act, which I'll talk about in a moment, provides the Pueblo with sovereign authority to regulate non prohibited gaming activities on its lands, including bingo, as set forth in the plain language of section 107 B, the acts legislative history, and this court's holding in California versus Cabazon Band, or whether the Fifth Circuit's decision affirming Ysleta won correctly subjects the Pueblo to all Texas gaming regulations. And this case has a bit of a complicated and protracted background. So in 1987, a restoration act of Congress restored federal recognition for the Pueblo and for the Alabama-Coushatta tribes of Texas. Section 105 F of the act incorporates by reference Public Law 280, and that is a state law that pertains to state jurisdiction in Indian country, and so we'll talk about that in just a moment. Section 107 of the act provides that A, in general, all gaming activities which are prohibited by the laws of Texas are hereby prohibited on the reservation, and on lands of the tribe. Any violation of the prohibition provided in this subsection shall be subject to the same civil and criminal penalties that are provided by the laws of the State of Texas. The provisions of this subsection are enacted in accordance with the tribe's request in tribal resolution number TC-02-86, which was approved and certified on March 12th, 1986. In subsection B, the act goes on to state that no state regulatory jurisdiction, nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas, and subsection C, jurisdiction over enforcement against members states notwithstanding section 1300 G dash four F of this title, the courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection A of this section that is committed by the tribe or by any member of the tribe on the reservation or on the lands of the tribe. However, nothing in this section shall be construed as precluding the state of Texas from bringing an action in the courts of the United States to enjoin violations of the provisions of this action, this section. So under the Supreme Court's California versus Cabazon Band, civil regulatory and criminal prohibitory framework, a state law that's civil or regulatory in nature does not fall within Public Law 280's grant of Indian country jurisdiction to a state, so the reference to Public Law 280 in this act, and then some of the language of the act as well, and the fact that it was passed just after California versus Cabazon suggests that the Cabazon framework should apply here, and so as long as a state law is civil regulatory in nature, then that should not be a basis for state jurisdiction in Indian country. Now, the resolution that you heard mentioned in that act specifically disclaimed any interest in conducting high stakes bingo or other gambling operations, and it requested for the Restoration Act to include language which would provide that all gaming, gambling, lottery, or bingo, as defined by the laws and administrative regulations of the State of Texas, shall be prohibited on the tribe's reservation or on tribal land. And Texas law has a broad definition of lottery, which only the state may operate however, and it permits certain groups to operate bingo. So the definition of lottery, I mentioned it's pretty broad under Texas law, and it just means procedures operated by the state under this chapter through which prizes are awarded or distributed by chance among persons who have paid or unconditionally agreed to pay for a chance or other opportunity to receive a prize, and so this definition, although it is limited to the state, but otherwise it's arguably broad enough to encompass various games of chance, sort a variety, an array of games of chance, such as baccarat, blackjack, craps, roulette, and slot machines, and these were the gaming activities that the Pueblo originally proposed to conduct. Nearly 30 years of litigation results. So the first Ysleta case, Ysleta one in 1994, the Pueblo sued the state and the governor for failing to negotiate a compact in good faith under the Indian Gaming Regulatory Act, which does require states to negotiate with tribes in good faith. The Fifth Circuit dismissed and held that the Cabazon framework did not apply to the Restoration Act. The Restoration Act, not the Indian Gaming Regulatory Act, or IGRA as I'll refer to it, governed, and the action was barred by the state's 11th amendment immunity. The Fifth Circuit said that Texas gaming laws and regulations operate as surrogate federal law on the tribe's reservation. While this case was still pending, Ysleta one was still pending, the Pueblo opened a gaming facility in 1993, and its activities included slot machines, poker, blackjack, bingo, number games, Keno number games, dice games, and off-premises wagering on horse and dog races. This gaming facility was a huge economic benefit to the Pueblo, so at various points when it had to be shut down, the courts noted that it had employed 1200 people, 30% of whom were tribal members, and that the revenues were 60% of the Pueblo's budget, and when the casino closed in the past, unemployment went from 3% to 28%, so it really is a significant economic benefit for the tribe, which is in keeping with the purposes of IGRA, but the Fifth Circuit has said that IGRA does not apply. So then we come to Ysleta two in 2001, and in this go around, the state sued to enjoin the Pueblo's gaming activities, because as I mentioned, they had opened the gaming facility while Ysleta one was pending, so now the state is suing to enjoin that, and the Fifth Circuit grants the state's motion for summary judgment and enjoins the Pueblo from engaging in all gaming activities on the reservation, and the Fifth Circuit concluded that the fact that the State of Texas is authorized to conduct a lottery does not open the door for the Pueblo to do so. Moreover, the Pueblos may only engage in gaming activities that private citizens or organizations may lawfully engage in if it complies with state regulations, including obtaining a license, so the Fifth Circuit really goes pretty far there, requiring the Pueblo to obtain a state license to engage in gaming activities on its own Indian country, so the Pueblo shut down their casino in 2002, but they don't give up. They subsequently keep pushing the boundaries of the injunction with various gaming activities, and they're twice held in violation of the injunction for some of their more creative attempts to work within the injunction while still engaging in gaming activities. And then in 2016, the Pueblo transitioned to bingo, and they operate both live bingo and bingo machines, which the Ysleta three court noted look and sound like slot machines, and the state again sued to enjoin Ysleta three, and the Fifth Circuit held that Ysleta one controlled, and said that the Restoration Act governs the Pueblo's gaming activities and prohibits any gaming that violates Texas law. Thus the Fifth Circuit affirmed the district court's enjoining of the Pueblo's bingo operations, and so then the Pueblo file a cert petition, and that is how we get to the current case before the Supreme Court. So that's a bit of an unusually protracted and complex background to the case. So in their Supreme Court merits briefs, the Pueblo, and they have amicus support from the Alabama-Coushatta tribe, the National Indian Gaming Association, and the United States, they argue that the Restoration Act is essentially a codification of California versus Cabazon's criminal prohibitory and civil regulatory distinction, and that the Fifth Circuit decisions to the contrary were incorrect. The state, for its part, argues that the Ysleta one court was correct when it held that the Restoration Act federalizes all Texas gaming laws and regulations and that the Restoration Act controls. So in my previous presentation for Quimby, I predicted that the justices ultimately seemed to lean somewhat more towards applying the Cabazon framework here, although they did seem to struggle a bit with the Cabazon regulatory prohibitory distinction, and that turned out to be correct. So in this case Gorsuch writes the opinion, and he begins with a careful look at the statute's terms, so again, we've got them really focusing on plain language of things, which can work out to tribe's benefit in many cases, and he notes that Texas laws do not prohibit bingo. And then he continues to sort of analyze this Restoration Act, and he says that in subsection A, Congress applied to tribal lands only those state laws that prohibit or absolutely ban a particular gaming activity, and that would be consistent with the Cabazon framework. And then in subsection B, Congress explained that it was not authorizing the application of Texas gaming regulations on tribal lands, and in subsection C, Congress granted federal courts jurisdiction over claims by Texas that the tribe has violated subsection A. Interestingly, Gorsuch, or the the court I should say, relies on ordinary canons of construction here in making this statutory analysis, not Indian law canons of construction, and he specifically notes in a footnote that the Texas interpretation of the Restoration Act fails even without recourse to Indian law canons of construction, so sort of saying we don't even need to get to the Indian law canons of construction because it already fails under ordinary canons of construction. The court additionally looks at the context of the act's passage, and says that it clinches the case that Cabazon was decided six months before Congress passed the Restoration Act, because when Congress enacts statutes, the court presumes that it's aware of the court's relevant precedents, and Congress contemporaneously passed two other statutes demonstrating that it clearly understood how to grant a state regulatory jurisdiction over tribe's gaming activities when it wished to do so. The court rejects Texas's argument that Congress's reference to the tribal resolution means that the Restoration Act should be read more broadly, primarily because, the court notes, it doesn't actually incorporate anything by reference. It's just referring to this resolution, but does not incorporate it by reference. And finally, the court rejects Texas's argument that it will be unworkable to distinguish between prohibition and regulation, so for example, whether the electronic bingo games qualify as bingo, noting that courts have applied this framework in both the gaming and the non gaming context for decades, which is very true and very accurate, and this particular issue is, there are numerous cases on this topic in Indian gaming law, and so it's not something that is new issue or something that courts have not previously grappled with. And the court holds that the Restoration Act bans, as a matter of federal law, on tribal lands, only those gaming activities that are also banned in Texas, so something has to be completely prohibited or banned in Texas for it to be prohibited under the Restoration Act as well, and the court vacates the Fifth Circuit's judgment and the case is remanded. The dissent is written by Justice Roberts, and he begins by saying that a straightforward reading of the statute's text makes clear that all gaming activities prohibited in Texas are also barred on the tribe's land. He treats the tribal resolution of being of central importance to this case, and then he notes that both slot machines and gambling device versions of bingo are outlawed in Texas, and he discusses the more than 2000 Las Vegas style slot machines that the tribe was operating, and so this seems to be the matter of primary concern to him, is that this tribe is operating these electronic bingo games, and for good measure he includes a picture of these machines, and so anyone who is not familiar with gaming, and in particular Indian gaming, might think that these look like slot machines, and admittedly, to some extent they do, but if you are familiar with Indian gaming law, you would also know that tribes across the country operate these types of machines. They're what's known as class two machines, and they're versions of games like, they're just electronic versions of games like bingo, and it's an actual bingo game, but it's just in electronic format, and it's dressed up to look much more like a slot machine type game, but at its essence it's still a version of electronic bingo, and so this is something that tribes all across the country operate. It's something that tribes rely on because there are often greater restrictions or challenges with having class three games, which are the more slot-machine-like games, and in order to operate class three games, tribes have to have a compact with the state, and in some cases the state may, negotiations may result in limitations on the class three games. For example there might be a cap on the number that each tribe can have, or a state might just be recalcitrant and unwilling to negotiate with the tribes, or the tribes might not be willing to accept the terms that a state offers, and so in that case, a tribe may have an even greater need to operate these class two games, and so this is not something that's at all unusual or of concern in Indian country, although it does spawn litigation at times, periodically. As I mentioned, there are a number of cases involving this issue. But this is something that seems to be of great concern to Justice Roberts, but really the issue isn't whether these machines violate state law. It's whether Congress granted the state jurisdiction, and so Roberts also purports to do a plain text analysis of the statute, and concludes that the best reading is that all of Texas gambling laws apply in full on the tribe's land, and he rejects the idea that the word prohibited incorporates the Public Law 280 and Cabazon framework, saying that Congress could have expressly incorporated that if it wished to do so, and arguing that it did not do so here, so in Justice Roberts' opinion, this word prohibited is not like a term of art. It's not referring to Public Law 280 or Cabazon, so he concludes that the act struck a balance by prohibiting gaming yet protecting the tribe's interests by prohibiting direct state enforcement, and he says that the court today throws out that balance, treating gaming on this reservation as if it were just like any other Public Law 280 reservation. I respectfully dissent. The last case that we will be discussing today is Oklahoma versus Castro-Huerta. Now, I mentioned before the McGirt case. After McGirt, the State of Oklahoma has been on a consistent campaign to sort of discredit the McGirt holding, to seek to overrule it, to bring multiple cases before the Supreme Court, in attempts to either overrule or limit the holding of McGirt, and the state even has a page on their website asking people who have been directly impacted by the McGirt decision to tell your story to Governor Stitt, and so it's expressly looking for these challenges to McGirt and to tribal jurisdiction, and mostly in this case sort of ways to continue the overreaching of state jurisdiction, and in Indian country more specifically. So that leads to Oklahoma versus Castro-Huerta, and this is just one of many cases that the State of Oklahoma has sought review for in the Supreme Court since the McGirt decision, and this one did actually reach the Supreme Court, the Supreme Court granted cert, and this was the last Indian law decision issued by the court in 2022. Well, in, yeah, in June, 2022, so on June 29th, this decision comes out, the opinion is by Justice Kavanaugh, and he is joined by Roberts, Thomas, Alito, and Barrett, and so he's got the full slate of the conservative justices there, except for Gorsuch, and Gorsuch, again, just is very strong on Indian law issues, and so here he dissents and he is joined by Breyer, Sotomayor, and Kagan, and the issue here in this case is criminal jurisdiction, and it is whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country, and Oklahoma also sought to present the question of whether McGirt should be overruled, but the court limited the grant of cert to the above issue and declined to consider whether McGirt should be overruled. The background in this case is that Castro-Huerta, who's a non-Indian, was convicted of child neglect in Tulsa County District Court. The victim was Indian, and the crime was committed within the Cherokee reservation, which the district court concluded, in accordance with McGirt, had not been disestablished. Castro-Huerta appealed on several grounds, including that the state lacked jurisdiction to prosecute him. The state argued that it had jurisdiction over all crimes committed by non-Indians in Indian country. The Oklahoma Court of Criminal Appeals rejected the state's argument. The appellate court vacated and remanded with instructions to dismiss. The state then appealed to the Supreme Court. The General Crimes Act gives federal authority to prosecute crimes by non-Indians against Indians in Indian country. The state argues that it's not precluded from having concurrent authority to prosecute as well. At the Supreme Court, in its briefs, the state argues that McGirt was a hugely destabilizing force to public safety and that federal law does not preempt state jurisdiction over non-Indians in Indian country. It suggests applying a Bracker balancing test, which is a sort of fact specific balancing test that balances federal, state, and tribal interests to determine whether a particular state law should be preempted, and it notably is a balancing test that is normally used in civil cases, not criminal cases, and the state asserts that there are no serious issues of tribal sovereignty here because tribes lack the power to prosecute non-Indians. For his part, Castro-Huerta argues that the General Crimes Act preempts state prosecutions of non-Indians for crimes against Indians in Indian country, and that Bracker does not apply, but even if it did, would confirm that the state lacks jurisdiction, and he asserts that the state's practical concerns are overstated, and in this case there are numerous amicus briefs filed on both sides. This was really sort of the one to watch of the term ending in June, 2022. So I previously predicted, based on the oral arguments, that Gorsuch, Sotomayor, Kagan, and Breyer did not seem receptive to the state's position, that Alito, Kavanaugh, and Roberts seemed more receptive to it, and that Thomas and Barrett were fairly quiet, so it was hard to say, but I predicted also that barring something outrageous happening in Ysleta, that this is likely to be the court's most important Indian law decision this term, and I would say that was generally all correct. So the result was that Kavanaugh writes the opinion, and the court begins by discussing the purported effects of McGirt, and so they're sort of, to some extent, playing into the State of Oklahoma's arguments here. The court notes that Castro-Huerta's lighter sentence by plea in federal court, then in state court, makes note of that. Also notes that others receiving lighter sentences or going free after the state convictions were reversed, and the state estimates that it will have to transfer 18,000 cases per year to tribes and feds, and that the DOJ was opening only 22% and 31% respectively of felony referrals in eastern and northern districts of Oklahoma, so he's kind of discussing what the supposedly negative impacts of McGirt have been there. To begin with, the court says, the Constitution allows a state to exercise jurisdiction in Indian country. Indian country is part of the state, not separate from the state. A state has sovereignty over all of its territory, including Indian country, and that is quite a remarkable series of assertions, and yet there are no citations for these statements in the court's opinion, and I'll get to this a bit more later, but I mean these statements essentially turn 200 years of Indian law on its head, and yet without citation or further discussion, or I guess significant discussion I'll say. The court says that states have jurisdiction to prosecute crimes committed in Indian country unless preempted. Again, this is sort of the flip side version of what I have always understood, as an Indian law practitioner, the law to be. The court says that the central question that we must decide, therefore, is whether the state's authority to prosecute crimes committed by non-Indians against Indians in Indian country has been preempted, and the court says that this can happen either by federal preemption or by infringement on tribal self-government, and those things are fairly well established principles, so I don't take issue with that as a concept. So Kavanaugh begins, or the court begins and analyzes the General Crimes Act first, and this is to determine whether it preempts state jurisdiction, and the General Crimes Act provides that except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the soul and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country, and that is 18 USC 1152, and the court says that by its terms, the act does not preempt the state's authority to prosecute non-Indians who commit crimes against Indians in Indian country. It simply extends federal law to Indian country. It does not say that Indian country is equivalent to a federal enclave, and it does not say that federal jurisdiction is exclusive, or that state jurisdiction is preempted. Under the General Crimes Act therefore, both the federal government and the state have concurrent jurisdiction to prosecute crimes committed in Indian country. The General Crimes Act does not preempt state authority to prosecute Castro-Huerta's crime. Next, the court proceeds to analyze Public Law 280 and whether that preempts state jurisdiction. Public Law 280, as we've discussed before, grants certain states broad criminal jurisdiction in Indian country, and the court says that Public Law 280 does not preempt any preexisting or otherwise lawfully assumed jurisdiction that states possess to prosecute crimes in Indian country. In response to the point that Public Law 280 wouldn't have been necessary if states already had criminal jurisdiction in Indian country, the court says, to begin with, assumptions are not laws, and the fact remains that Public Law 280 contains no language preempting state jurisdiction. Public Law 280 also grants states jurisdiction over crimes by Indians, which could otherwise implicate principles of tribal self-government, and so it made good sense in 1953 for Congress to explicitly grant this authority in case of any legal uncertainty. So in sum, Public Law 280 does not preempt state authority to prosecute crimes committed by non-Indians against Indians in Indian country. So having concluded that neither the General Crimes Act nor Public Law 280 preempts the exercise of state jurisdiction here, the court next proceeds to apply the Bracker balancing test to determine whether the exercise of state jurisdiction is preempted because it would unlawfully infringe upon tribal self-government, and as I mentioned, Bracker balancing test is normally applied in civil cases, not in criminal cases, and it's also problematic because it has a very fact-based, case specific, and unpredictable outcome, so not the type of thing that you want involved in a criminal case, or really any case, but particularly in a criminal case, where people's lives and liberty are at stake, and so this application of Bracker balancing test here is both significant and I think troubling for those reasons. The court says state jurisdiction would not infringe on tribal self government because tribes don't have criminal jurisdiction over non-Indians, and there's no exercise of state power over any Indian or tribe here, so here the court, I should say, is applying the Bracker balancing test, and it's balancing the interests of the tribe, the state, and the federal government, and so that first point that I just made was balancing the tribe's interests. Then the federal interests are not harmed because state prosecution would supplement, not supplant, federal authority. And then the state has a strong interest in public safety and criminal justice, and in protecting crime victims, both Indian and non-Indian, and punishing offenders. The court says that it declines to treat Indian victims as second class citizens, and so this is sort of an interesting take on things, and it also may foreshadow a bit the upcoming case of Haaland versus Brackeen, in which there are equal protection issues being raised. And then in a footnote, the court minimizes the long history of state enmity towards tribes, just kind of disregards almost this long history of states being oftentimes the tribe's worst enemies, which the Supreme Court has previously stated, and he's, well the court here just sort of relegates it to a footnote and really just minimizes that history. The court then turns a fundamental principle of Indian law, that states lack jurisdiction in Indian country absent a congressional grant of jurisdiction, and that goes back more than 200 years to Worcester v. Georgia, or I guess nearly 200 years I should say, and it turns that fundamental principle on its head, stating that the default is that states have criminal jurisdiction in Indian country unless that jurisdiction is preempted. And that's just sort of, as I said, the opposite of what I as an Indian law practitioner and I think other Indian law practitioners have long understood, and so it's just that statement was quite shocking, I would say. The court also disregards the history of Indian country being considered separate from states, and so again, this is just sort of a fundamental principle that all of us who practice in this area had always considered Indian country as being jurisdictionally separate from states, and yes there's some overlap and some gray areas because of prior Supreme Court decisions largely, but it's still sort of a separate jurisdiction, and here the court is essentially disregarding any of that history as well as that as sort of a current fundamental principle, and the court concludes that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion. Gorsuch of course writes the dissent, and he's not happy, and at oral arguments he at times sounded almost angry. McGirt was sort of his baby. He wrote that decision, and this is a very, it's essentially an attack on McGirt coming very soon after the McGirt decision, and so I think he feels quite strongly about this issue, and so he goes back to 1831, the Worcester versus Georgia decision, and he says that that decision established a foundational rule that would persist for over 200 years. Native American tribes retain their sovereignty unless and until Congress ordains otherwise. Where this court once stood firm today, it wilts, and Gorsuch undertakes a much more in depth historical analysis than Kavanaugh did. He notes, as I did previously, that this decision comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly a more ahistorical and mistaken statement of Indian law would be hard to fathom. Gorsuch then calls the court's use of the Bracker balancing test mistaken root and branch, and says the court invokes it with no appreciation of that decision's history and context. He criticizes the court for not grasping why the tribe might not want state prosecutors enforcing state law in Indian country. He also notes the practical consideration that concurrent jurisdiction has sometimes created a pass-the-buck dynamic, where because multiple jurisdictions have jurisdiction, maybe nobody really wants to take the responsibility to prosecute a given case. He also acknowledges that McGirt would've required and will still require a period of readjustment, and so I think that should have been expected as a result of such a significant decision as McGirt, but that that was only necessary because of Oklahoma's overreaching, and he notes that the tribes have already hired more police, prosecutors, and judges. They've signed cross-deputization agreements. Congress has allocated additional funds for law enforcement in Oklahoma, and more, and so the various jurisdictions were already working to readjust, and so there should have been expected a period of readjustment, and then we did see tribe, state, federal government all working together to readjust already. Gorsuch suggests that the court's decision to apply a balancing test may actually work in the tribe's favor here because it does require a case-specific analysis, and so it limits, potentially, the applicability of this decision despite the court's statement that it applies throughout the United States. And interestingly enough, Gorsuch suggests a legislative fix for this decision, and he even provides possible language for that legislative fix. And he concludes, "Oklahoma's courts exercised the fortitude to stand athwart their own state's lawless disregard of the Cherokee's sovereignty. Now, at the bidding of Oklahoma's executive branch, this court unravels those lower court decisions, defies Congress's statutes requiring tribal consent, offers its own consent in place of the tribes, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding. One can only hope the political branches and future courts will do their duty to honor this nation's promises even as we have failed today to do our own." This decision has been widely condemned in Indian country. I think it'll take some time to see the extent of the fallout from this decision. I do think it's also important to recognize what this decision does not do, so for one thing, it does not impact tribal criminal jurisdiction. It also does not permit states to exercise criminal jurisdiction over Indians in Indian country, and it does not overrule McGirt. This is still Indian country. The creation of a presumption in favor of state jurisdiction unless Congress has preempted it, and the application of the Bracker balancing test in this case both raise concerns for future cases, in my mind. There is already talk of a possible Castro-Heurta legislative fix, and there are proposals moving forward for that, including some that even go beyond a Castro-Huerta fix and include aspects of an Oliphant fix, which is a case that we haven't discussed here today, but it's a previous Supreme Court case that held that tribes don't have jurisdiction over non-Indians, which has been problematic for decades, and so there are aspects of sort of broader fix to criminal jurisdiction in Indian country, which is in need of some fixes, but still, any fix likely is not gonna be able to address that problematic presumption that Justice Kavanaugh created, or the application of Bracker balancing. Any fix, any legislative fix, is probably gonna be focused on just the practical aspects of who can exercise criminal jurisdiction. It's probably not going to be able to address those aspects of this decision, so that's concerning and will remain concerning even if there is a legislative fix. So that is the summary of the cases that the Supreme Court decided in June of 2022. In my mind, all was well up until Castro-Huerta, and Castro-Huerta is definitely a concerning case, and we did see sort of all of the justices align in the ways that we might have expected, and so if that continues, we could have had a brief winning streak, and then we could be right back to tribes doing very poorly at the Supreme Court, but I still think it remains to be seen. I'm holding out hope that there could still be cases in which we would see some of the justices moving around. I mean we've seen that in some of these recent cases where there have been some somewhat strange bedfellows in some of these cases, and justices not necessarily aligning along ideological lines, but the next case that is on the court's Indian law docket is Haaland versus Brackeen, and oral argument is scheduled on that case in just a couple of weeks here. November 9th, 2022 is the date for the oral argument. In that case, the area of law is the Indian Child Welfare Act, and the issues are various provisions of the Indian Child Welfare Act, but namely the minimum standards of section 1912 A, D, E, and F, the placement preference provisions of section 1915 A and B, and the record keeping provisions of sections 1915 E, and then 1951 A, and the issue is whether those violate the anti commandeering doctrine of the 10th Amendment. Also, whether the individual plaintiffs have Article three standing to challenge the Indian Child Welfare Acts' placement preferences for other Indian families and for Indian foster homes, and those are provisions under 25 USC 1915. And then whether section 1915 A three and B three are rationally related to legitimate government interests and therefore consistent with equal protection, and I think that is the really concerning aspect of this case, and could potentially, if it comes out against tribal interests, because almost all of Indian country here is aligned in wanting to defend the Indian Child Welfare Act against the claims that are being made in this case, and so almost all of Indian country, I would say, really pretty much all of Indian country in my opinion, is aligned. You see almost all federally recognized tribes have signed on to briefs here, and you've got multiple amicus briefs on both sides, and this is a case of really significant concern, and so it potentially could have a significant impact on the Indian Child Welfare Act, which was a very important piece of legislation designed to prevent the removal of Indian children from their homes, or if they do need to be removed, then to make efforts to keep them within their community, within their culture, and to ensure that Indian children are not just adopted out by non-Indian families and lost to the communities. and lost to their culture as well, forever. And so it's a really important piece of legislation, because without your children, without your next generations, what are you? And so that's significant in and of itself, but then also the repercussions, if this comes out the wrong way, could also be significant for other pieces of legislation that pertain specifically to Indians, and there are many of those, so this case is definitely one to watch, definitely one for concern. There are also a number of pending cert petitions, and the topics include, again, a full range of Indian law topics, including not only treaty rights, but also sovereign immunity, official immunity, the tribal exhaustion rule, tribal and state civil jurisdiction, the Indian Child Welfare Act, whether the bankruptcy code waves tribal sovereign immunity, equitable estoppel, and three more Oklahoma criminal jurisdiction cases, because the State of Oklahoma is really intent on attacking McGirt, so three more of those. So what are the takeaways here? I think that the recent winning streak for tribal interests was truly remarkable. After decades of dismal losses, Cougar Den Herrera and McGirt breathed new life into treaty rights cases, and McGirt is particularly significant and will be cited for decades to come, but after the loss of Justice Ginsburg, it became uncertain whether this winning streak could continue, and it was also uncertain what the court's approach would be to issues other than treaty rights, but Cooley and the shifts in some justices' approaches, at least initially, gave some reason to hope that tribal interests could continue to prevail. The three June 22 cases do not shed as much light as hoped on the future direction of the court. It is interesting though that the justices are not always aligning along ideological lines, which does leave some flexibility and some room for hope. Denezpi and Ysleta del Sur were both positive outcomes, but there of limited relevance to most of Indian country, Denezpi because there are not many CFR courts out there nowadays, most tribes have their own tribal courts, and in Ysleta because it involved a very specific statute for that tribe, one that does not apply to other tribes, so they are of somewhat limited relevance, whereas Castro-Huerta is much more broadly applicable and it is concerning. The outcome and also just how Justice Kavanaugh reached that outcome are both of some rather significant concern. Justice Gorsuch has further cemented his role of a staunch defender of tribal sovereignty, but the question will remain, I think, for a while here at least, will he be able to win over Barrett or other conservative justices in future cases? And that's really gonna be the key, because I think we will often see Gorsuch and the more liberal justices aligning on these Indian law issues often, but not always, 'cause I do say, you know, you don't always see them aligning on ideological lines, but that's what I would expect in many cases, and so then the question will be, can he get another vote? Can he get Barrett, or can he get another conservative justice? And if not, then we are probably on track to return to the more dismal outcomes of prior decades, but hopefully they will sometimes come over to Gorsuch's or the other justices' side, and I think there is some hope for that, and particularly if it's an issue that involves something where they can apply a plain language approach that will be effective and will result in a positive outcome. I think we can still see that happen, and so there is some hope, but it is somewhat concerning, and I think that Brackeen is a very significant case, and the outcome of that case will be very important and will really show us a lot for what's ahead. So with that, I will wrap things up. Thank you again for joining me today for this Indian Law Outlook, and give a listen to the Brackeen case in a couple of weeks here.

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