NICK EICHER, HOST: It’s Monday morning and a brand new week for The World and Everything in It. Today is the 22nd of June, 2020. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Before we get into Legal Docket today, I wanted to take a moment to thank you for your response so far to our June Giving Drive. Now, we do have nine days to go and about 30 percent more still to raise.
But I just want to say this: since we’ve started doing these, I’ve been humbled by the generosity of our listeners every single time.
The mission of our organization is compelling to me personally. It’s why I left behind a legal career to pursue this kind of journalism, because it’s what I believe in. What’s amazing to me is the belief you demonstrate by consistently supporting this work, and it just leaves me profoundly grateful and humbled.
EICHER: I feel the same way. This is my life’s work. I’ve been at this for three decades. Good years and lean years. We’ve had periods where I feared we wouldn’t survive, but God has always been faithful to raise up an army of support.
We’ve seen it time and time again.
And these past few years, even especially now as the world seems to be losing its collective mind, you have provided the resources so that we can stand strong.
We continue educating reporters, publishing print magazines, building up our online resources with daily news, producing not only this program but expanding both quality and quantity with new podcasts, and we’re revitalizing our efforts for young people by adding WORLD Watch.
Quick word on that: The big TV networks that have done so much damage have aimed programming at young students. And so we feel duty bound to make quality daily news videos for your family, too. So that’s why we’re producing WORLD Watch.
But the point is, we’d have never considered something this ambitious were it not for your support.
And it’s important that we say this before we reach our goal. We’re not just grateful at the end of these campaigns. We’re grateful now, and I just wanted you to hear.
WNG.org/donate—that’s the place to go to give if you’ve not done so already. Thank you so very much.
REICHARD: Well, it is our fundraising season, but it’s also the time of year when the U.S. Supreme Court hands down opinions in batches. So we expect decisions this morning and two more days by the end of the month.
Today, the final oral argument left to cover from this term. In just a few short minutes, if you’ve been listening since October, you will have come to the end of the 55th of 55 oral arguments.
So congratulations are in order. I hereby confer upon you this virtual Legal Docket diploma!
Now, the legal question in this last case may sound familiar. The Supreme Court considered it last term, but shelved it, ostensibly because with Justice Neil Gorsuch recused from the case, that left eight justices and the possibility of a 4-to-4 tie.
The legal issue is back before the high court again with no conflicts-of-interest and all 9 justices engaged.
ROBERTS: We’ll hear argument this morning in case number 18-9526, McGirt v Oklahoma. Mr. Gershengorn?
The facts are different, but not by much. Heartbreaking facts.
Perpetrator and victim are both Native Americans. Jimcy McGirt received 500 years plus life without parole under state law for a violent assault against a four-year-old girl near Tulsa, Oklahoma. The crime is unspeakable and the details of the case really have no bearing on the question before the court—so I’d just as soon not go into them.
The perpetrator does not contest his guilt and at age 71 he’s served 23 years of his sentence.
EICHER: The argument this man makes is that the state of Oklahoma was not the rightful prosecutor of him, that it lacks jurisdiction.
His lawyers cite the Major Crimes Act. In this law, Congress gave the federal government jurisdiction. It holds exclusive authority over qualifying crimes on Indian reservations within any state. No state authority to prosecute, and that is without exemption.
REICHARD: That is what the law says. But the question has to do with whether the land is or was an Indian reservation.
Oklahoma and the federal government says it isn’t and wasn’t, and so the Major Crimes Act doesn’t apply to this case.
Listen to Deputy Solicitor General Edwin Kneedler arguing for the federal government in support of Oklahoma:
KNEEDLER: In preparing the Indian territory for statehood, Congress eliminated all the hallmarks of a reservation. Congress broke up the tribe’s national domain and extinguished the tribe’s interest in it. Congress likewise eliminated the tribe’s territorial sovereignty over that area by abolishing tribal courts and prohibiting enforcement of tribal law in territorial courts.
Hallmarks of a reservation gone or not, Justice Neil Gorsuch found no clear language from Congress.
GORSUCH: And that things got very complicated and they came mighty close to ending the reservation but never quite passed the kind of language that we typically see when that happens: reversion of all lands to the public domain or cessation or anything like that.
Ian Gershengorn is the lawyer for the criminal offender. He aimed his argument at Justice Gorsuch’s fondness for textualism. That is, a way of interpreting a law using plain text to figure out what it means.
That, in lieu of trying to figure out a law’s purpose or intent.
Gershengorn argued that the text of the law neither terminated the Creek reservation nor did it transfer federal criminal prosecutions to Oklahoma.
Justice Brett Kavanaugh looked to history for context, which he outlined. In the 1830s, five tribes entered into treaties with the federal government that granted them land. Those were the Creeks, Choctaw, Chickasaw, Cherokee, and Seminoles. Then came the Civil War.
KAVANAUGH: But then the Civil War is key. The Five Tribes all align with the Confederacy in the Civil War. The tribes have black slaves, lots of black slaves. And then there’s a new treaty in 1866 because the United States is not happy that the tribes have aligned with the Confederacy. Why’s that matter for us? Because in that new treaty of 1866 that grants rights of way to railroads. The railroads lead to settlements. The new settlements lead to new towns that are predominantly white.
By 1890, the territory’s demographics had changed dramatically: 60 percent white, 30 percent Indian, and 10 percent black.
Congress considered options: remove the white people, remove the Indians, put the whites under tribal governance, or create a new state. That last option is what Congress chose, and in 1907 Oklahoma entered the union.
The lawyer for Creek Nation calls this a federal shenanigan, and it ought not to be the deciding factor in this case. Listen to Riyaz Kanji:
KANJI: We know — we know that federal officials were subverting the will of Congress in Oklahoma. After statehood, they would not allow the Creek Nation to hold elections for its chief, for its national council, even though the Five Tribes Act clearly preserved those powers. So why we should pay heed to the acts of federal officials when they were clearly acting illegally is something that the state has — has never explained?
Federal officials may have misbehaved, yet practical considerations were on Justice Samuel Alito’s mind. Listen to this exchange with the Creek Nation lawyer:
ALITO: Am I correct that more than 90 percent of people who live in the area directly affected by this case are not members of the Creek tribe?
KANJI: That is correct, your honor.
ALITO: Well, what would you say to those people if we decide this case in your favor? Won’t they be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way?
KANJI: There are a number of responses to that …
Kanji going on to say not a lot will change because non-Indians would still be mostly subject to state law.
But some things will change, and Justice Ruth Bader Ginsburg asked about Native Americans already tried and convicted under state law.
GINSBURG: What makes this case hard is that there have been hundreds, hundreds of prosecutions, some very heinous offenses of the state law. On your view, they would all become undone … . Hundreds of prosecutions for murder, terrible sexual offenses. These would all have to be done years later when the witnesses may not be there anymore. Hundreds of cases …
GERSHENGORN: So your honor there are …
The lawyer for the criminal offender going on to say those are not good enough reason to disregard the plain text of the law.
But the lawyer for Oklahoma returned to Justice Kavanaugh’s earlier take on demographics by 1907 when Oklahoma became a state. You can figure out congressional intent by looking at that and the fact that land was sold to non-Indians. Here’s lawyer Mithun Mansinghani for the state.
MANSINGHANI: By statehood, 90 percent of the area was non-Indian. Congress is trying to undo the tribe’s exclusive ownership of the land and exclusive governance of the land, because there was no territorial government. To give it to a new state that would govern the land of non-Indians and Indians alike and where non-Indians and Indians alike would own the land.
One point eight million people live on the land in question: Nineteen million acres, 40 percent of the state’s land mass. That includes Tulsa, with 400,000 people.
If a majority of justices decide the Creek reservation exists, almost half the state will be no longer under state jurisdiction.
One of the many consequences would be upending long-settled criminal convictions under state law. Specifically, McGirt’s sentence could be set aside and he’d get a new trial in federal court. Federal officials take on additional duties. Economic questions would have to be worked out.
Industry groups, the city of Tulsa, several other states align with the state and federal government in this case, urging the court to reject reservation claims.
A friend-of-the-court brief filed by some current and former elected state officials as well as the Chickasaw nation urges cooperation among all parties. That’s happened on a number of issues in the past. And Congress can work out conflicts, if it only will do it.
And that’s this week’s Legal Docket.