0:00:00.4 Speaker 1: We will hear arguments this morning in case 21-429 Oklahoma versus Castro-Huerta.

[music]

0:00:08.9 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Oklahoma v. Castro-Huerta. The case, which was decided this summer was about jurisdiction and about who has the right to prosecute crimes that occur on tribal land.

0:00:30.9 Speaker 3: Victor Castro-Huerta who was not native, was convicted of neglecting his 5-year-old native stepdaughter so severely, she weighed just 19 pounds. But that state case was thrown out. Now, this Supreme Court case is simply asking one question, whether any state has the authority to prosecute non-natives who commit crimes against Native Americans on tribal land.

0:00:52.0 Leon: The court ruled in favor of Oklahoma, overturning centuries of precedent and paving the way for a continued campaign to erase tribal sovereignty all together. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:12.0 Peter: Welcome to 5-4, where we dissect and analyze Supreme Court cases that have ruined our nation's promise like a shark sighting ruining our producer's beach day.

[laughter]

0:01:20.6 Rhiannon: Rachel loves the beach.

0:01:24.3 Michael: Yes.

0:01:26.4 Peter: I am Peter, I'm here with Michael.

0:01:29.6 Michael: Hey, everybody.

0:01:31.4 Peter: And Rhiannon.

0:01:32.2 Rhiannon: Hi.

0:01:32.3 Peter: Yeah, shout out to our producer, Rachel, who, when I said, "Hey, do you have any ideas for a metaphor?" She was like, "Shark sightings are getting in the way of everyone's beach day."

[laughter]

0:01:45.8 Peter: A situation that is completely localized to Rockaway Beach. [laughter] Alright, today's case, Oklahoma v. Castro-Huerta. This is a case about tribal rights, and to understand tribal rights law, you need to understand some history. As many of you know, several centuries ago, European settlers traveled to North America in search of a new life. However, it turns out there were people already living here.

0:02:21.9 Rhiannon: Yeah.

0:02:23.4 Peter: And as I imagine you know, what followed was not great, war, disease, genocide, etcetera.

0:02:32.6 Rhiannon: Yeah, long list.

0:02:33.4 Peter: And all throughout the federal government and the states in this country were entering into agreements and treaties with various Indian tribes. Those treaties were frequently violated by the colonists but the tribes were never fully absorbed into the control of the American government, instead what has persisted is an arrangement between the remaining tribes and the states and federal government that is controlled by a mix of treaties, statutes and common law, rules and norms. The question in this case is who has jurisdiction over crimes committed by non-Indians against Indians on Indian land? In this case, Manuel Castro-Huerta, a non-Indian, was convicted in Oklahoma State Court of child neglect of a tribal citizen on Indian lands. However, per most of the applicable law, as well as the most recent rulings of the Supreme Court, Oklahoma did not have jurisdiction over the case. The crime was after all committed against an Indian on Indian land. It is functionally a tribal matter, but the Supreme Court, in a 5-4 decision written by Justice Brett Kavanaugh, says that Oklahoma does have a jurisdiction, taking a large step towards erasing the ability of the tribes to govern their own people.

0:04:06.7 Peter: So before we get going here, worth noting that terms like Indian, Indian country, these are terms that the laws use, that the court uses and that the tribes themselves use when discussing these matters, so it's certainly potentially antiquated to some degree, but that's why we're using that language. We're just sort of using the language as written in this case and as utilized by the tribes and everyone else who discusses these laws.

0:04:39.2 Michael: Yeah.

0:04:39.5 Rhiannon: Yeah, that's right.

0:04:40.8 Peter: So, Rhi, take it away. There's a bunch of background here.

0:04:44.2 Rhiannon: Yeah, okay, so I have background here, but I gotta say the important background to understand for this case is really legal background, a long history of Federal Indian law, because this is really a case about Federal Indian law and tribal sovereignty, even though this case does start because of a criminal case against Manuel Castro-Huerta in Oklahoma. But turning to that history, let's just go ahead and start with the Constitution, shall we? When the Founders got together and drafted this little document, one of the major issues to work out at the founding of the United States was how the United States would conduct relations with tribes, with Indian tribes. A problem before ratification of the Constitution was that states were basically conducting their own relations with tribes while the federal government was also doing the same thing, and it didn't work, it was chaotic, different agreements, contradictory agreements were being made, states were acting of their own accord, where the federal government wanted to act differently. So it didn't work.

0:05:49.8 Rhiannon: So literally right up top, in the Constitution, Article 1, Section 8 gives the federal government authority over Indian affairs. The federal government has the power to go to war and enter into treaties with tribes, and the Constitution explicitly bars states from doing either of those things on their own. George Washington, Thomas Jefferson, many of these OG Americans, not that they should be praised for anything, but many of them agreed that under the Constitution, states did not have the right to conduct their own relations and enter into their own treaties or agreements with Indian tribes.

0:06:27.9 Rhiannon: And Congress acted around the founding by passing laws about relations with Indian tribes, especially around commerce and trade, but also in 1790, said that the federal government had jurisdiction over crimes by non-Indians against Indians on tribal lands, not the states.

0:06:47.5 Rhiannon: And remember, jurisdiction just means who has the power to prosecute crimes under what law in a certain area, right? So as early as 1790, Congress was saying that the federal government had jurisdiction over crimes by non-Indians against Indians on tribal lands, but the states did not. So not only did Congress act in this way, but the Supreme Court was acting against this background also. In the 1820s, the State of Georgia started passing laws to abolish the Cherokee Nation when gold was found in Cherokee territory. There were laws enacting seizure of Cherokee country and instructions to destroy Cherokee political and social existence, these state laws were challenged and taken up by the Supreme Court in a case called Worcester v. Georgia, that was in 1832. And in that case, Chief Justice Marshall said that Georgia's exercise of authority was void because under the Constitution, only the federal government had power to manage relations with tribes.

0:07:51.8 Rhiannon: In addition, the Worcester case said that states lack criminal jurisdiction on tribal lands, so we have it kind of set up in the Constitution, we also have it set up by congressional action, by statute and here in the 1830s, the Supreme Court is also emphasizing that states do not have criminal jurisdiction on tribal lands. And remember, the idea animating all of this is that Indian tribes are separate sovereigns, they're like a foreign country that the federal government has the exclusive power to deal with, the federal government can make trade agreements with them, go to war, enter into treaties. Native American tribes are separate political entities than the states and the United States. So the State of Georgia and the Jackson presidential administration totally disregarded the Worcester Supreme Court decision. And of course, our listeners in the US will know that significant resources and violence were spent on Indian tribes in the South and Southeast to forcibly move tens of thousands of Native Americans out of that region and into territory that was not the United States at the time. But regarding criminal jurisdiction in Indian country, the federal government and the Supreme Court continued to recognize only federal authority. So in 1834, Congress passed the General Crimes Act, which said that the federal government has jurisdiction over crimes committed by or against non-Indians on Indian land.

0:09:25.2 Rhiannon: And in 1836, Congress entered into the Treaty of New Echota with Cherokee Nation. I wanna stop here and make sure that we're emphasizing that the US is not acting benevolently towards the tribes, while like the states are the ones who are evil and committing genocide. The Treaty of New Echota is the legal basis for the forced removal of the Cherokee Nation from its historical and native territory, pushing them west into present-day Oklahoma. But we bring up the treaty because it further establishes that Congress, not the states, is in charge of legal and political relations with the tribes, and the treaty also establishes an important promise between the federal government and Cherokee Nation. Cherokee Indians would cede their native territory to the US in exchange for a new home in Indian country where they could establish a government of their choice, and the tribe would remain forever free from state sovereignties, that is in the treaty.

0:10:24.8 Peter: A quick addition here, I mean, the Treaty of New Echota is what precipitates the Trail of Tears, right?

0:10:30.2 Rhiannon: Yeah.

0:10:30.3 Peter: So first, a small group of Cherokee who verifiable did not represent the rest of the tribe, negotiate the treaty.

0:10:38.4 Rhiannon: That's right.

0:10:39.3 Peter: Sort of hoping to save the tribe, I suppose, and the vast majority of Cherokee do not move west as they were supposed to under the terms of the treaty, that leads to the forcible removal that is known as the Trail of Tears, where troops are sent in, and they are marched west and huge percentages of them die along the way.

0:11:00.9 Rhiannon: Right, that's right. So after the Treaty of New Echota, about 50 years later, Congress passed the Major Crimes Act, which said that for certain very serious crimes committed in Indian country, the federal government would have jurisdiction whether or not the crime was committed by or against tribe members. But still even with the Major Crimes Act and all the laws passed since then, all the Supreme Court cases about Federal Indian law, Gorsuch points out in his dissent that still "At least one promise remained, states could play no role in the prosecution of crimes by or against Native Americans on tribal lands." So let's turn quickly to some Oklahoma history, because this case originates in Oklahoma. When Oklahoma was admitted to the Union as a state in 1907, Congress required Oklahoma to "Declare that it forever disclaims all right and title to all lands within the state's limits, owned or held by any Indian tribe," and that tribal lands would "remain subject to the jurisdiction, disposal, and control of the United States." So again, this is a requirement for Oklahoma to enter the Union, the State of Oklahoma can make no claim to tribal lands that are located in Oklahoma, and tribal lands were subject to federal, not state jurisdiction. Oklahoma had to agree to that.

0:12:27.1 Peter: Yeah so against that backdrop, it would seem pretty clear that the State of Oklahoma should not have jurisdiction in this case and yet, of course, the majority of the court says that they do. Now, I wish I could tell you what their reasoning was, but honestly, it's not very clear. So again, like Rhi said, you have this 1831 case, Worcester v. Georgia, which says that states don't have jurisdiction on tribal land. And the court says, "Well, yes, but that case has been abandoned over the years." And to support that, they don't cite any specific case, but rather like a patchwork of cases and other sources, none of which are directly relevant. They cite McBratney, a case from the late 1800s, as their primary authority, but that case was about state jurisdiction over crimes by non-Indians against other non-Indians on tribal land. This case is distinctly about crimes committed against an Indian citizen, so it's unclear why that case would be particularly relevant here.

0:13:37.0 Peter: There's also a handful of other sources they cite, none of which, in my view are strong, and to give you a sense of how weak they are, one of the sources is like notes from a legislative committee from 1954 where some random Congress people said they thought that Oklahoma had criminal jurisdiction in these cases, just being like, "Oh, you think I'm wrong? Well, what if I told you that these congressmen from the 1950s agreed with me."

[laughter]

0:14:07.9 Rhiannon: Forget all of Federal Indian law. All of the last 200 years of precedent, right?

0:14:13.3 Michael: What if the '50s Matt Gaetz was like, "Yeah Oklahoma has jurisdiction here." That's authoritative.

0:14:23.4 Peter: Right, right. It's like whatever. So in general, if you're trying to cite what a handful of politicians from the 1950s who had no role in making any relevant law here thought about to support your argument, it's a good sign that your argument sucks.

0:14:39.6 Michael: You're basically conceding you have nothing.

0:14:40.0 Rhiannon: Right, right.

0:14:42.5 Michael: To even cite that is like what... "I'm pretty much out of everything else."

[laughter]

0:14:47.6 Rhiannon: Yeah, it's embarrassing.

0:14:47.8 Peter: Why not just ask people on the street? Fuck it.

0:14:51.8 Rhiannon: Right, exactly.

[laughter]

0:14:51.8 Peter: The real tell here is that the court describes Oklahoma's right to enforce criminal laws within its borders as inherent, which is interesting because there's all of this law precedent, statutes, etcetera, that make it clear that Oklahoma does not really have jurisdiction here.

0:15:09.0 Rhiannon: Yeah.

0:15:10.9 Peter: And when you say that it inherently does, what you're really saying is like, "Well, all of that law doesn't matter because the state's jurisdiction sort of transcends the law." It's like it's inherent, it's built into the metaphysical fabric of the state. It's just a way for the majority to assume their conclusion, they believe in their gut that Oklahoma should have control over tribal lands and nothing else matters, and so they just say, "Well, it's inherent."

0:15:38.8 Rhiannon: Right, right.

0:15:39.4 Peter: It's inherent.

0:15:40.8 Rhiannon: Yeah and note the kind of like mysticism around the language, inherently, which totally coincides, there's a clear parallel or a clear line from A to B with this kind of language and an ideology like Manifest Destiny, right?

0:15:55.0 Michael: Right. Yeah, when the court in its history had said that like their inherent powers, it's almost always to justify something truly awful and unjustifiable.

0:16:07.8 Rhiannon: Yeah, heinous. Yeah.

0:16:08.4 Michael: Because there's no way like any reading of the Constitution would allow it, by which is the case here. The Constitution is very clear. The laws are very clear. Congress's passed explicit laws.

0:16:19.9 Peter: And you know what? It really feels like a lot of this is just the court putting... Like mapping its sort of like preconceptions about what a state is onto this.

0:16:29.3 Rhiannon: Yes, yes.

0:16:29.3 Peter: And it's like, they're like, "Well, states should have control over this stuff," and it's like, "Woah, woah, woah, they built that state on top of tribal land."

0:16:35.9 Rhiannon: Right.

0:16:36.2 Michael: Right.

0:16:36.3 Peter: That's the whole fucking point.

0:16:38.8 Rhiannon: Exactly.

0:16:38.9 Peter: Not a normal situation. This isn't just like, "Well, states should have power within their borders," like, no, it's like some fucking nuance here that you need to engage with because... Yeah. [laughter]

0:16:46.3 Rhiannon: Exactly, exactly, yeah.

0:16:48.8 Peter: So Rhi mentioned earlier, there's a law from the 1830s called the General Crimes Act that gave the federal government jurisdiction over crimes like this in Indian Territory, there's also Public Law 280, which grants states jurisdiction over certain specific crimes within tribal lands, though not this one. And so Castro-Huerta argues that these laws make it clear that Oklahoma doesn't have jurisdiction here, you have one law saying that the federal government does have jurisdiction, and another that give states some jurisdiction, but not over this. So the really compelling point to me is basically this argument, if states had inherent jurisdiction over all crimes within their territory, why would Congress need to pass a law to give them jurisdiction over some crimes within their territories?

0:17:42.3 Rhiannon: Period.

0:17:42.4 Michael: Yeah.

0:17:42.8 Peter: Right?

0:17:44.0 Rhiannon: Right.

0:17:44.5 Peter: And Kavanaugh just hand waves that shit away being like, "Well, those laws don't necessarily mean that states don't have jurisdiction."

0:17:51.8 Michael: Yeah.

0:17:52.5 Peter: Like I mean that really is all...

0:17:53.8 Rhiannon: That's all he does, yeah.

0:17:55.5 Peter: His argument is, he's like, "Well, those laws were complex, there's a lot going on there, so you never know what they mean, so let's move on."

[laughter]

0:18:01.8 Michael: That states, they have to be able to police their land. Is it really their land though?

[laughter]

0:18:09.5 Peter: Right. So we'll get to this dissent in a second, but what I think it very effectively points out is that the majority has this analysis entirely backwards, the majority is looking for reasons why Oklahoma wouldn't have jurisdiction here, but that's not the question, the land is tribal land, the victim is a tribal citizen, the federal government has jurisdiction over these situations, so the question is whether there's any reason to believe that Oklahoma would have jurisdiction. And seeing as Congress has never once said that they do, then they don't. "You fuck," like...

0:18:44.5 Rhiannon: "That's it."

0:18:45.3 Peter: "What the fuck?"

0:18:46.8 Michael: "Yeah. It's done."

0:18:47.0 Rhiannon: "That's it. This is so simple."

0:18:48.5 Peter: "It really is simple."

0:18:49.8 Michael: "End of story. Fuck you."

0:18:50.6 Peter: Let's talk dissent.

0:18:51.6 Michael: Yeah, it's a great dissent.

0:18:52.6 Rhiannon: It's a juicy one.

0:18:53.3 Peter: Gorsuch, our boy Gorsuch on the single issue that he is...

0:18:57.6 Michael: He writes very well on.

0:19:00.1 Rhiannon: Yeah.

0:19:00.2 Peter: Yeah.

0:19:02.6 Michael: It's really remarkable, and it makes me think... Well, I'll get to this, so... But first, let's talk about the dissent, so it's got this great history lesson, that I think is very engaging, that goes through a lot of the history, Rhiannon discussed in detail, and he's clearly just very fluent in the nuances of the history and the development of this law and the agreements, but one thing that I thought was interesting was the way he sketches this history, he tells a story that sort of echoes a lot of the story of slavery and the Civil War, starting with an unworkable compromise in the articles of the confederation in the case of Indian Law, but it was in the Three-fifths Compromise and leaving slavery to the states in the original Constitution, that gives way to conflict and eventually a reordering of political power in the case of tribal law, it's the new Constitution that held the day, and in the case of slavery, it's the Civil War and the Civil War amendments reordering power that gives power to the federal government to set these sort of uniform standards and safeguard rights. Although, I wanna be clear, like Rhi said, we don't wanna pretend like the federal government was looking out for the tribes here.

0:20:17.4 Rhiannon: Right.

0:20:17.5 Michael: But the story he tells in broad brush strokes is very similar, which is kind of fascinating to me 'cause it makes me think I don't fully understand Neil Gorsuch, 'cause if I did, I would be able to reconcile why he's so terrible on things like the 14th Amendment and not on this, right?

0:20:37.7 Rhiannon: Right.

0:20:38.8 Peter: Right.

0:20:38.9 Rhiannon: Right. Like why does he... He clearly gets Federal Indian law, he clearly understands this history, the idea of separate sovereigns, you know, that these are distinct political entities from the United States and from states, and it's just so weird that he gets it so deeply on this issue and other... In other areas he's just...

0:20:58.0 Peter: He's got this like nuanced and common sense approach to the applicability of the history here...

0:21:04.8 Rhiannon: Yeah.

0:21:05.0 Michael: Yes.

0:21:06.5 Peter: That just goes away in other cases.

0:21:09.5 Rhiannon: Right.

0:21:09.6 Michael: It's bizarre.

0:21:10.3 Peter: It is weird.

0:21:10.8 Michael: It's like, it's... I've been thinking about it a lot this week while we've been preparing for this, because I think it's one of the things we do best on this podcast, is like one of our biggest value adds compared to a general legal education, is our understanding of the Justices as people, their failings, their quirks, their pathologies, and how that informs their jurisprudence, and I think a lot of times we see these guys very clearly. I think we have a very clear picture of Antonin Scalia and Clarence Thomas and stuff like that. And I just feel like I read these opinions and I'm like, I don't have the clarity with Gorsuch yet, because...

0:21:46.1 Rhiannon: That's right.

0:21:46.7 Peter: Yeah.

0:21:48.1 Rhiannon: Yeah.

0:21:48.5 Michael: He is an all-time piece of shit, but then he can write something like this and just knock it out of the park.

0:21:53.7 Peter: Yeah. I do think that the best theory to me is the simple one, which is that he's sort of just fascinated with this, is like well-versed in the history, and that sort of allows him to... When he sees the majority giving really short drift to that history, that offends him, that offends his sensibilities as someone who's knowledgeable about this stuff.

0:22:15.9 Rhiannon: Yeah, yeah.

0:22:16.6 Michael: Yeah.

0:22:17.7 Peter: Right?

0:22:18.0 Michael: That's very possible. I do also wonder like, he's originally from Denver, and a lot of families out West have like at least family lore, like they have some native blood and I don't know, I do kinda wonder if maybe Gorsuch just has... There's like a, "Oh, yeah, yeah, yeah, great, great, great, great-grandfather was Cherokee or some shit."

0:22:34.6 Peter: Or just like a single Native American friend.

0:22:38.2 Michael: Yes.

0:22:38.2 Rhiannon: Right, right.

0:22:39.2 Michael: Exactly. [laughter] Growing up who like had an impact on him. Yeah. So I did wanna highlight a passage that I thought was particularly effective, so he's talking about the majority, and he says the court's suggestion that Oklahoma enjoys "inherent authority to try crimes against Native Americans within the Cherokee reservation" makes a mockery of all of Congress's work from 1834 to 1968. The GCA and MCA on the court's account, Congress foolishly extended federal criminal law to tribal lands on a mistaken assumption that only tribal law would otherwise apply. Unknown to anyone until today, state law applied all along.

[laughter]

0:23:20.2 Michael: The treaty, the Oklahoma Enabling Act, in the provisioning Oklahoma's Constitution that Congress insisted upon as a condition of statement, court effectively ignores them. The Kansas Act and its sibling statutes on the court's account, they would need this too. Congress's instruction in Public Law 280, that states may not exercise jurisdiction over crimes by or against tribal members on tribal lands until they amend contrary state law and obtain tribal consent, once more, it seems the court thinks Congress was hopelessly misguided.

0:23:56.5 Rhiannon: "Got 'em."

0:23:56.6 Michael: And it's just... It is pretty incredible though, and I think it highlights something going on here that I think really makes clear that the court isn't just eviscerating a treaty. It is devolving power to itself, right?

0:24:14.3 Rhiannon: Yes.

0:24:14.3 Michael: Power that is explicitly in the Constitution, given to Congress, right?

0:24:20.8 Rhiannon: Right.

0:24:21.3 Michael: Part of the original compromise in light of the failures of the articles of again federation. Congress had this power and the court is taking it for themselves and undoing laws that are over a century old. It's breathtaking, and it's sort of... I don't wanna say ambition, but it's arrogance, right?

0:24:46.2 Rhiannon: Yeah, yeah.

0:24:47.2 Michael: This opinion, the balls to just be like, "Yeah, sure, everything that the dissent says, that's... But we just don't think that Congress and the Constitution and 150 years of history are right. We just think Oklahoma has this right."

0:25:02.6 Peter: Right.

0:25:03.7 Rhiannon: Yeah, and Gorsuch really doesn't mince words about it, right?

0:25:07.2 Michael: Yeah.

0:25:07.3 Rhiannon: Pretty early on in the dissent, he's talking about the majority, and he says, "Truly a more ahistorical and mistaken statement of Indian Law would be hard to fathom."

0:25:15.9 Michael: Yeah.

0:25:17.3 Rhiannon: This is a good spot, it feels like, to take a break.

0:25:19.9 Peter: Alright, we are back.

0:25:21.3 Michael: But we can't talk about Gorsuch without taking a little shot at him, so I do wanna... [chuckle] I do wanna point something out, which is truly incredible, this guy is such a fucking arrogant asshole. He's one of the most arrogant Supreme Court Justices I've...

0:25:34.6 Peter: Yeah, that's...

0:25:35.3 Rhiannon: Oh, absolutely.

0:25:36.5 Michael: That much is clear.

0:25:37.0 Rhiannon: Yeah.

0:25:38.0 Rhiannon: His dissent starts... Literally the very first words of the dissent are, "In 1831, Georgia arrested Samuel Worcester." And then he goes on to describe the Supreme Court opinion, and at the end of that very first paragraph, he says, "The decision established a foundational rule that would persist for over 200 years." And I just wanna say, as a former high school math teacher how fucking offended I am that in the pages of the Supreme Court, it says a decision that is only 191 years old established a rule that would persist for over 200 years.

0:26:23.2 Rhiannon: Over 200.

0:26:24.4 Michael: Over 200 years. [chuckle]

0:26:26.7 Peter: We were discussing this earlier, that got by like six Yale grads on the way to the Supreme Court recorder.

[laughter]

0:26:34.1 Rhiannon: "Clerks, y'all think you're so smart, don't you?"

0:26:36.9 Michael: "You cannot subtract." It's unbelievable. It's unbelievable.

0:26:39.6 Peter: He loves a sort of like poetic opening to an opinion, right?

0:26:43.0 Rhiannon: Oh, yeah.

0:26:43.1 Michael: Yeah.

0:26:46.1 Peter: They all start with this breathless sort of... [chuckle]

0:26:48.8 Michael: Yes. Yeah.

0:26:50.9 Peter: McGirt, the last tribal law decision when he was in the majority, and we'll discuss very shortly, he starts off with, "At the end of the Trail of Tears was a promise," right?

0:27:00.2 Rhiannon: Yeah.

0:27:00.3 Michael: Yeah.

0:27:01.2 Peter: Or something along those lines.

0:27:02.2 Michael: Yes.

0:27:02.7 Peter: And it's like, it's good, it's good. It's not bad a writing, but it's like, "Well, just fucking relax, man. Can you fucking take a deep breath?"

[laughter]

0:27:06.8 Michael: And maybe double-check your math. Maybe...

0:27:12.2 Rhiannon: Right, right.

0:27:12.3 Michael: Just maybe. Oh, my God.

0:27:15.0 Peter: You know, he was just like at home looking at that first... That opening paragraph and being like, "Fuck yeah."

0:27:20.2 Rhiannon: "Yeah. I fucking nailed it. Do you See this?" He's talking to his wife. "Do you see this? It's really good."

[laughter]

0:27:26.6 Michael: Yeah. The other thing I wanted to say about the dissent is, something that he gets right, is he sort of skewers the majority for saying Oklahoma's inherent power, but... This is a quote, "but exactly when and how did this change happen? The court never explains." At some point, Oklahoma got this power. The majority doesn't say when or how or why, or what created it.

0:27:52.8 Peter: The power was inside Oklahoma all along.

0:27:55.8 Michael: [chuckle] That's right. And so he's upset that they're just abandoning this case, Worcester v. Georgia that Rhiannon mentioned, but it's just there's something very sort of ironic about this, given that this is exactly what the court did in a case we just discussed with a religious test, a test about religious speech by public officials called the Lemon Test, in the case about the football coach praying.

0:28:25.5 Peter: Yeah, Kennedy.

0:28:26.6 Michael: And the court was just like "Yeah, we abandoned the Lemon Test." And he's like, "What the fuck are you talking about?" And now they're doing it here.

0:28:33.1 Peter: Right, just gaslighting, and now Gorsuch is on the wrong side of it.

0:28:36.5 Rhiannon: Right, right.

0:28:36.8 Michael: Yeah, and he's just like so incensed.

0:28:39.3 Peter: It's so good.

0:28:39.7 Michael: Yeah, it's so good. It's like, "Dude, you can't just do this shit"

0:28:43.9 Peter: "You just did this."

0:28:44.2 Rhiannon: Right.

0:28:44.9 Michael: Once you get into the habit, you're never gonna break it. [laughter]

0:28:47.1 Rhiannon: Yeah.

0:28:47.7 Peter: Right.

0:28:48.1 Rhiannon: Yeah.

0:28:48.5 Michael: You guys have gone down a very dark road, and it really sucks to be on the other side, doesn't it?

0:28:51.5 Peter: Yeah.

0:28:51.9 Rhiannon: That's right.

0:28:52.7 Peter: You can't pretend you're opposed to lying, Neil.

[laughter]

0:28:56.5 Michael: We've seen every other fucking opinion you signed on to.

0:29:00.9 Peter: Yeah.

0:29:01.0 Speaker 3: So we should talk about McGirt, the most recent... Before this case, the most recent Supreme Court case on Federal Indian law, that was back just a couple of years ago in 2020, the case is called McGirt v. Oklahoma. In that case, Oklahoma was arguing that the Muscogee Creek reservation had been dissolved, and so Oklahoma said that it had jurisdiction to prosecute crimes in that Indian Territory. But the Supreme Court in that case, in a majority written by Gorsuch, rejected Oklahoma's argument that the reservation had been dissolved and recognized that much of Eastern Oklahoma was therefore still Indian Territory where the state did not have criminal jurisdiction over crimes committed by or against members of Indian tribes. So in this case now, Kavanaugh and the majority say they're not overruling McGirt, they're just recognizing that the state has concurrent jurisdiction with the federal government with Indian tribes to prosecute criminal cases in Indian country.

0:30:03.9 Michael: Yeah.

0:30:04.8 Peter: Right.

0:30:06.0 Michael: So what changed? Why did the court come out one way in McGirt, and another way in this? [laughter] What happened? [chuckle]

0:30:14.4 Peter: Well...

0:30:16.0 Michael: What happened is Ruth Bader Ginsburg died and was replaced by Amy Coney Barrett and therefore the balance of power in the court changed, so this is another case where liberal sort of carelessness with power has cost us.

0:30:31.5 Peter: Yeah, and another case that highlights the sort of aggression and shamelessness of the conservative legal movement.

0:30:41.1 Michael: Right.

0:30:41.2 Peter: Because Oklahoma's goal is to eradicate tribal sovereignty.

0:30:41.3 Rhiannon: That's right.

0:30:45.2 Michael: That's right.

0:30:46.5 Rhiannon: That's right.

0:30:47.3 Peter: I mean, they made that clear in McGirt, and they made it clear in this case, and you have this case from just two years ago that really should dictate the outcome here, and Oklahoma brought this to the court hoping to overturn McGirt, which the court didn't do, but another situation where the only thing that's changed is the composition of the court, and they're not pretending that recent precedent reigns, right? They are going for it immediately, right?

0:31:15.6 Rhiannon: Yeah.

0:31:16.9 Peter: You said this in 2020, but what about now?

0:31:19.5 Michael: Yeah.

0:31:21.6 Peter: Just sort of goes to show how little they give a shit about sort of pretending that the rule of law is like this coherent and steady thing.

0:31:26.9 Rhiannon: Yeah.

0:31:28.2 Michael: Right, right. And that stability in the law is some sort of virtue that's worth preserving.

0:31:34.0 Peter: Right.

0:31:34.6 Michael: It is worth noting that there is a "liberal" or progressive law professor at Harvard, who I hate with all my heart by the name of Noah Feldman.

0:31:47.1 Rhiannon: We've mentioned him, right?

0:31:47.3 Michael: We've definitely mentioned him and...

0:31:50.4 Peter: Oh, yeah.

0:31:50.6 Michael: I've definitely told Harvard students to vandalize his office. [laughter] None of them today have acted on that to my knowledge.

0:32:00.3 Peter: 'Cause they're cowards.

[laughter]

0:32:00.6 Michael: That's right. He apparently... It's not clear if he was directly advising Oklahoma or not, but he wrote a memo about McGirt and his belief with Amy Coney Barrett on the court now, that they would be willing to overturn it, sketching out the arguments for what Oklahoma should be relying on when asking the court to overturn McGirt, and we know the governor of Oklahoma has read this memo because he has cited to it and quoted from it when talking about this case and bringing this case. And so I just wanna take a moment to call out an all time piece of shit, like you could do literally anything with a platform of being a law professor at fucking Harvard, and what he decides to do with that is help one of the most regressive reactionary states in the country eliminate tribal sovereignty and finish 150-year-old ongoing attempts at genocide.

0:33:05.9 Rhiannon: Right. Yeah, that's exactly right.

0:33:08.5 Peter: And worth noting that Noah Feldman was one of the people responsible for drafting the new Iraqi Constitution.

0:33:18.0 Rhiannon: Oh yeah, I always forget that.

0:33:18.1 Michael: Yeah. That's right. Yeah.

0:33:19.8 Peter: Is there anything this guy likes more than just dicking around with the rights of colonized people?

0:33:23.5 Rhiannon: Right, right.

0:33:24.5 Michael: Yeah.

0:33:25.0 Peter: I think there's a very fundamental reactionary belief system coursing through the veins of the majority opinion here, Kavanagh just sort of like assumes the state has power over what appear to be tribal affairs, and again, describes that power as inherent, but there's this baseline question of why the state has power over tribal affairs, and Kavanaugh's answer is just sort of, "Well, because it does." And I think that is sort of reflective of a reactionary belief that power doesn't really need justification. It's just sort of effect, it's self-justifying. But if you actually believe in democracy as an aspirational value, you have to believe in some form of popular sovereignty, some form of the idea that government power emanates from the consent of the governed, and the tribes were given this land, at no point did they voluntarily cede the state this power, right?

0:34:30.7 Rhiannon: Right.

0:34:31.0 Peter: So where does the power come from? And Kavanaugh's opinion doesn't really reckon with that, which results in this sort of circular reasoning where Oklahoma has jurisdiction because it inherently has jurisdiction, and I think that demonstrates a complete indifference to popular sovereignty as a value. The court is granting Oklahoma jurisdiction over Indian people, not because those people have consented to their governance, but because they've been subjugated.

0:34:58.8 Rhiannon: That's right.

0:34:58.9 Peter: And to Brett Kavanaugh, that's enough.

0:35:01.1 Rhiannon: Yes, yeah.

0:35:02.3 Michael: I do think it's worth noting like the stakes in this too. This guy was convicted in state court, he went to state prison, that was nullified because the state did not have jurisdiction to convict him in the first place, and so he was released but for no time at all, the federal government re-indicted him, arrested him, convicted him. And the only real dispute here is whether this guy spends the next however many years in federal prison or in state prison. That's it. And he is given the responsibility of defending tribal rights here, the tribes are relegated to amicus status, it's just a fucking travesty, this whole thing, it's a joke. It's a joke and sort of gives the lie to the pretext that this is about anything other than just abolishing tribal sovereignty, right?

0:36:07.1 Rhiannon: Yeah.

0:36:07.2 Peter: Right.

0:36:07.6 Rhiannon: Yeah.

0:36:07.8 Michael: Nobody actually cares which prison this guy is in. Nobody. Nobody cares.

0:36:11.1 Rhiannon: Exactly, right. What Oklahoma cares about is whether tribes have their own jurisdiction, their own power.

0:36:18.4 Michael: Yeah.

0:36:18.7 Peter: Yeah. It's worth noting that the way that criminal proceedings under tribal jurisdiction work is that tribes can essentially either set up their own courts or there's a federal court system that they can access that operates under tribal law. So it's not like people are over there getting away with crimes, it just sort of goes into another jurisdiction. It's under a different court system.

0:36:42.7 Rhiannon: Yeah. It's a different court system. Right.

0:36:43.3 Peter: And that's really it. That's all we're talking about here.

0:36:45.1 Michael: Yeah.

0:36:45.4 Rhiannon: Yeah, exactly. And in talking about Oklahoma's real goals, which is abolishing basically tribal sovereignty, we have to talk about the ongoing attacks on Federal Indian law. Next term, the Brackeen case will be heard. And that is a challenge to ICWA, the Indian Child Welfare Act. We talked about ICWA in our episode on Adoptive Couple v. Baby Girl, but just have to highlight that the conservatives are not stopping here, and what it looks like is that conservatives, maybe not Neil Gorsuch, but the rest of the conservatives are ready again to disregard congressional and constitutional authority as it relates to Indian tribes and overturn ICWA on the basis that it's not race-neutral and gives racial preference to Indian citizens when adopting Indian children.

0:37:44.0 Michael: Yeah, that's right. And just a reminder, ICWA was passed when people realized that something like... Was it one out of three native babies were being adopted by white couples and removed from the reservation?

0:38:00.3 Rhiannon: That's right.

0:38:00.4 Michael: So a minute ago, when I said Noah Feldman was aiding an attempted genocide, I was not exaggerating. That's not a hyperbole. We're talking about ethnic cleansing, we're talking about a movement that is making an effort to remove children from tribal lands, this is just a different piece of that same project.

0:38:21.6 Rhiannon: Exactly.

0:38:21.8 Peter: Yeah. Absolutely. There's this long, rich history of how we got to this point, and the court is not in this case or in any other case it seems, interested in any of it and doesn't care about the independence of the tribes, it appears to just want to absorb the tribes into the broader populous and put the finishing touches on the genocide that the colonists started, right?

0:38:46.3 Rhiannon: Yes.

0:38:47.4 Peter: It's the same phenomenon that has always driven the ethnic cleansing of the Indians in this country. The colonists had their own concerns and didn't care about native populations as human beings, didn't care about their history, didn't care about their culture, they just viewed them as being in the way. So they moved them out of the way, forcibly, from the Southeast to Oklahoma and let them retain much of their sovereignty until the colonizers moved west, and then they were in the way again. And they moved them out of the way again, just in a different sense. Power was stripped from the tribes, promises were broken.

0:39:24.5 Michael: Mineral rights, robbed of the wealth of the land.

0:39:27.1 Rhiannon: Yeah.

0:39:27.2 Peter: Time passes. And now Oklahoma wants to expand its jurisdiction within its ostensible borders, and the tribes are in the way again.

0:39:36.3 Rhiannon: That's right.

0:39:36.8 Peter: And so the court steps in to move them, they might not be the troops marching the Cherokee down the Trail of Tears at gun point, but they are engaged in the same project.

0:39:47.4 Michael: That's right.

0:39:47.5 Rhiannon: That's right. This is what we mean when we say that law is an act of power.

0:39:50.7 Michael: That's right.

0:39:50.8 Rhiannon: Right?

0:39:50.9 Peter: Right. Well...

[laughter]

0:39:52.5 Michael: Next week...

[laughter]

[music]

0:40:01.1 Peter: Next week, New York State Rifle and Pistol Association v. Bruen, a recent Second Amendment case. As we continue our tour of the brutal 2021 term, not a bad one. Not a bad one.

0:40:19.2 Rhiannon: Yeah.

0:40:20.0 Michael: Yeah.

0:40:20.7 Rhiannon: One for the books.

0:40:22.2 Michael: Yeah.

0:40:23.2 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon, Patreon.com/fivefourpod, all spelled out, premium and ad free episodes, special events, access to our Slack, all sorts of shit. Plus, you get to support our producer so that she may go on beach trips without fear of financial ruin.

0:40:48.9 Michael: That's right.

[laughter]

0:40:50.6 Peter: We'll see you next week.

0:40:51.0 Michael: Bye bye. 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks, at CHIPS NY, and our theme song is by Spatial Relations.

[music]

0:41:22.0 Michael: I was trying to do like A Mighty Wind impersonation, any of you remember that movie?

0:41:25.0 Rhiannon: No.

[chuckle]

0:41:27.0 Michael: The, "Hey, what happened?" Do you remember that guy? No. Alright. Well...

[laughter]