In an era of sharp and often predictably partisan disagreements within the Supreme Court, it might surprise some that Neil Gorsuch, one of the court’s 6 conservative justices, has emerged as one of the fiercest proponents of tribal sovereignty to ever serve on the bench.
That fact doesn’t surprise Stetson Law Professor Grant Christensen, however. Christensen is a specialist in Federal Indian Law, the unique mixture of federal regulations and tribal sovereignty that governs the lands set aside for Native American communities within the states.
In this episode, we discuss the unexpected Supreme Court majorities that can emerge in Indian Law cases that test questions about federalism, recent decisions about the Indian Child Welfare Act and tribal lands in Oklahoma, and how indigenous legal traditions can propose models for reforming corporate governance.
Speaker 2 (00:01.942)
It's really incredible the strength of the advocacy program here and how students are kind of thinking all the time about how to be advocates and how to present arguments and how to explain things. Right. It's fun to be in a community with that kind of engagement, especially coming from an Indian law background where we desperately need advocates. We need people who can explain tribal law and customary practices.
right to a largely non-Indigenous federal bench, right, so that we can go ahead and continue to secure protections in the Indian long-term community.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file. Episode 27, American Indian Law and the Supreme Court. I'm Daniel O'Keefe, Master of English Literature from Indiana University.
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Speaker 2 (01:04.558)
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Speaker 1 (01:09.804)
Today we're joined by Assistant Professor of Law, Grant Christensen. Professor Christensen is a nationally recognized expert on federal Indian law. He has served as a tribal appellate judge for the Standing Rock Sioux and Fort Peck and Assinibund Sioux tribes. He's the co-chair of the ABA Business Law Section's Tribal Litigation Subcommittee, and he's a peer reviewer for the American Indian Law Review.
Professor Christensen has published extensively in the area of federal Indian law, particularly its intersection with corporate law, criminal law, and civil procedure. He joined the Stetson University College of Law faculty in 2021.
So I guess my first question is just what initially got you interested in tribal law?
Yeah, so I grew up in Northwest Ohio, where we had a bunch of place names, but no actual reservations and no large indigenous population at all. And when I went off to college, my first year of college, I joined the debate team. And the policy debate topic for the entire year was about changing federal policy towards Indian country.
And so Indian country is this legal term of art, right? That defines these spaces, including reservations, land set aside for Indians, dependent tribal communities, tribal allotments, right? The places where special laws for Indians apply.
Speaker 2 (02:34.806)
And so that freshman year of college is, I think, a special year for a lot of people because it's your first year kind of away from home. And it's an opportunity to go ahead and be on a university campus where there's experts in everything. So if you have questions, you can go find answers. And so over the course of that first year, whenever I ran into a problem or whenever I was at a competition and we would lose around, I would go back looking to learn more. And by the end of the year, I had become so fascinated in just how different.
and how interesting and sometimes how tragic the world in Indian country is. And other times just how empowering and tribal sovereignty is and how resilient native communities are that I was hooked. So I took an American studies major that was really a native American studies major, but we didn't have that. So I had to take an English class and I took tribal literature and we had to take a religion class and I took comparative tribal religions.
And it kind of all grew from there. So I went to law school at Ohio State. And when I was there, there was a brochure for a summer program in Indian law. So I went out to Lewis and Clark the summer after my first year and did a whole kind of summer semester in Indian law, including an externship with the Bonneville Power Authority, which was working on water rights in Indian country out in Morgan. And when I came back, I was hooked. And that
Right, I've been working kind of or interested in and working with Native communities ever since.
That's a really remarkable story. I feel like all the more striking for the fact that you discovered what it was that you wanted to focus on for the rest of your career, like in your freshman year of college. That seems like quite the year to discover it, you know?
Speaker 2 (04:19.63)
I will credit, I think we all have those handful of people in our lives that change our lives, right? And my debate coach that freshman year of college, Kevin Kuswa, he's one of those people for me, right? My entire life would have been different if not for him, right? And that year of debate.
Yeah, that's amazing. So you're the co-author of Reading American Indian Law, Foundational Principles, and also Introduction to American Indian Studies, Policies, Histories, and Contemporary Issues. So in light of the fact that you've written these two very, very expansive books on the topic, I guess I'd like to start us out by asking
For someone who really doesn't know much about it, for the lay person, how would you begin approaching the topic of how tribal laws work?
So I think it goes back to just trying to think about how we created the country and the constitution, right? So we talk about the constitution and we the people as kind of the progenitor of the country, right? And so it wasn't that all of a sudden we had some kind of popular national vote and it's not like general Washington, right? Wanted to name himself King, right? And take over.
It was a decision made by the 13 states, right, or colonies in order to go ahead and ratify a document. And so notably absent from that document was any consultation with native peoples. And so Indian tribes are then largely, right, they're a part of the country, but they aren't really part of any state when you're on reservation land, right? It's like these little holes in the state because the people there, no one ever quieted title.
Speaker 2 (06:04.6)
to all of those lands and converted those lands over into state property. So in the country, we have these little holes. And so what does the legal space look like in those holes, right? Where generally Florida law doesn't apply, right? When you're on a reservation in Florida, there are some exceptions and the tribe can always consent to parts of it. But generally, right? When you're on a reservation, state law doesn't apply. So if state law doesn't apply, you can't have a lawless place.
And so you have some federal rules that are created. In fact, chapter 25 of the US code is an entire chapter of laws written by Congress to kind of fill that gap for what happens on an Indian reservation. But Congress also can't legislate all of the little local zoning ordinances and marriage and custody rules. all of that stuff is left to the tribe. The tribe is empowered through its sovereignty to make any law unless the federal government has prohibited it.
from doing so. And so in Indian law, we often say that which wasn't taken away remains, right? Tribes have the full panoply of powers unless it's been expressly relinquished, either through a treaty, right, or through an act of Congress. And so it's a combination of tribal law and federal law that fills that legal gap when you're on reservations in the States. And so from that, we get all kinds of interesting corollaries.
So a lot of the listeners might be familiar that tribes have casinos, even in places where states don't have casinos, because the Indian Gaming Regulatory Act requires that states bargain in good faith for casino gaming, because state law doesn't apply. State law prohibiting the building of casinos doesn't apply on Indian reservations. So you can have the casinos on reservations even if you can't have them elsewhere in the state. And that's just one of thousands of examples of things that tribes do.
right, because of their unique status. And then as a corollary to that, we have to have a development of a body of law in order to manage those relations, right, both internal law, like tribal law, that manages what happens on the reservation itself, and the field of federal Indian law, which manages the relationship between states, tribes, and the federal
Speaker 1 (08:21.262)
Since you mentioned a little bit about gaming, you talk a little bit about how did that develop? How did that become? Because I feel like for a lot of people for a long time, if you mentioned the idea of an Indian reservation, that was one of the primary things that would occur to people as being relevant to their experience of it.
So it happened because a tribe wanted to play high stakes bingo. So our entire world of the large scale casinos that exist today happened because the Cabezon Band of Mission Indians in California was engaging in a set of high stakes bingo, which under California law was bingo with a pot more than $500. They had a card club and the revenue generated from the bingo games
was the tribe's virtually only source of revenue in terms of paying for tribal services. And the state of California came in and tried to shut the bingo club down because under California law, high stakes bingo, bingo with pots of more than $500 is prohibited. the pots at the card club were more than $500. And so the challenge went all the way to the US Supreme Court. And the US Supreme Court ultimately said, as long as California does not prohibit all gambling.
I mean, they have a lottery, they have racetracks, they have race. As long as they do not prohibit all gambling, instead they regulate gambling, the tribe can have regulations and they can be different than the regulations imposed by the state. So essentially the Supreme Court gave states just a little bit of power. If a state wants to ban all gambling, then correspondingly the tribes in the state won't be able to build casinos, because there is a prohibition on the gambling.
And Utah and Hawaii are the only states in the US that do so. There are no Indian tribes, or indigenous Hawaiians, but there's no Indian country in Hawaii. So Utah is the only state that's affected by that rule. And otherwise, tribes are allowed to have their own different regulations. Well, tribes immediately saw that this didn't have to apply only to high stakes bingo, but could apply across the gambit of gaming or gambling enterprises. And Congress also realized the immediate risk that that posed.
Speaker 2 (10:31.574)
And so Congress wrote the Indian Gaming Regulatory Act or IGRA, which just formalized the Supreme Court's opinion. So it said, before you go ahead and build these large scale gaming enterprises, you need to enter into a compact with the state so that that way there is some negotiation in advance about how tax revenue is going to be shared, right? Because of course the state might have to deal with problem gambling. The state's gonna have to have some different infrastructure, especially if it's a particularly large facility, right? There's gonna be more traffic. There's gonna be, right, just...
in recognition that the state's gonna bear some costs when tribes build these large properties, we have a gaming compact. And the compact includes a bunch of things, including jurisdictional decisions and taxation rules so that the gaming operation can operate successfully. But that's the history of Indian gaming goes down to a very small tribe in California trying to engage in high stakes bingo. And as a result, we now have an almost $40 billion gaming industry.
right on tribal reservations around the country.
Wow, that's fascinating. When was that, by the way? Do you know when that Supreme Court decision was?
So, Cabazon was 1987 and then Yggdras followed just a year or two later. Yggdras might be 1989, right? It's the end of the 80s. We didn't have large-scale casino gaming on reservations before that.
Speaker 1 (11:50.626)
Forgive me if this is a very broad question here, but my understanding is that when it comes to tribal law in general, there are a lot of just kind of broad concerns about the ways in which the system is outdated. And I'm curious to ask you a little bit about that.
Well, so I would push back on that a little bit. So I think that if anything, we've seen both Congress and the courts constantly expanding the authority of tribal government and tribal law over the last 20, 20, 30 years. You know, the Rehnquist court in the 90s was maybe a little bit less supportive. But since then, we've seen large scale expansions of tribal power. And I think in large part, it's because Congress has finally realized
that there are issues in Indian country that federal solutions maybe aren't the best way to resolve. And trusting tribes to come up with their own local solutions to local problems is a better way to accomplish, right? Combating, whether it be violence or economic development or poverty alleviation or giving tribes back some of that power and authority is a better answer.
And so, know, we go back to the 1960s and tribal courts were limited to impose no more than a six month penalty, right? For any crime that was committed in their tribal courts. They had essentially misdemeanor jurisdiction, right? So murder, six months, rape, six months, right? And so for larger or major crimes, they relied on federal prosecutors to come in. And there are all kinds of problems with federal prosecutors declining or to prosecute or tribal members
not wanting to cooperate with the federal government because of a storied history between tribes and the feds. And so that made it more difficult sometimes in order to punish criminal activity that occurred on reservations. And so in response, we've gotten just a kind of consistent support in the 21st century for tribal governments. So we amended that kind Tribal Law and Order Act in 2010.
Speaker 2 (13:55.564)
which allows tribes to impose sentences felony jurisdiction up to three years per offense, nine years per proceeding, right? Which is a lot more kind of penalty essentially. The Violence Against Women Act was expanded to allow tribes to criminally prosecute non-Indian persons for the first time. And in the expansions that came through just a year ago, right? In the more recent 2023 reauthorization,
even the tribal courts ability to punish non-Indian on non-Indian crime, which is something that the Supreme Court had taken away all the way back in the 1880s. And so we're seeing those powers kind of being consistently restored, trust in the tribal court system and trust in tribal governments. I think in part because they've shown their mettle, right? They have not gone ahead and used the prosecutorial powers
in abusive ways, right, treating non-members differently than members. Tribal governments are getting more sophisticated as they develop sources of economic development. Some of them are managing hundreds of millions or even billion dollar budgets, right, and we're seeing, right, as they do so successfully, a lot more faith being placed by both the courts and by Congress in the development of tribal law.
That's fascinating. I didn't realize that weird situation also that you just described where there was this limitation between either you would have a tribal court or you would have a federal court, but like.
Very often you'd have both.
Speaker 1 (15:30.314)
Yeah, and I don't mean to say that you didn't have both. just mean the way you were describing it just now, I had never really considered that you had like limitations imposed upon what tribal courts could do. And the only other alternative was trying someone federally in a way that would end up, like you said, being inconsistent and inconsistently applied.
Yeah, was, I mean, plenty of federal studies have shown right and Kevin Washburn, who is now the dean at the University of Iowa has written about this extensively in the late 90s and early 2000s. The rates of declination of federal prosecutors very often prosecutors are based at federal courthouses in large cities far from reservation communities. And so it would take days of their life to go out and investigate a crime and to prosecute a crime and
And then they faced some unwillingness, at least among certain tribal communities in order to cooperate. And so they just, started to decline the prosecutions and the most the tribe could do to an Indian offender would be six months in jail. And so you get these kind of repeat offenders, right? United States versus Bryant is a case that ended up in the Supreme court in 2016. And Mr. Bryant had been convicted in tribal court of more than a hundred domestic violence offenses.
But the tribe lacked jurisdiction to go ahead and impose large penalties, much longer than three months, six months for the charges. And so the federal government finally stepped in after he'd been prosecuted or convicted of more than 100 domestic violence actions and imposed a four-year criminal sentence, which he appealed all the way to the US Supreme Court, although not successfully. Wow.
My understanding is that you do some research specifically in the area of how tribal law intersects with corporate law. you talk a little bit about that?
Speaker 2 (17:24.407)
Sure. So I think that there's a movement now. There have been different movements in Indian law and Indian law scholarship since about the 1960s when our first kind of scholars emerged. And the movement that we're in now is really trying to learn what can we take from autochthonous or thonic law, a legal tradition developed in indigenous communities, one that might be based on tradition, one that's based on stories, one that's based on kind of community goals.
Right. And one that evolves, you know, we get the idea of healing instead of punishment, right, as the goal of justice systems. And so there's been a lot of work on how we can take some of these legal principles developed over centuries, right, by Indigenous communities and apply them in other contexts. And so I'm one of a handful of folks in the country that uses or does some of that application in the context of corporate law and corporate governance, because, of course,
A corporation, almost by its definition, separates labor and capital. So you have investors or owners who get to profit from the labor produced by salaried employees. And then they get to share in the benefits of the corporation just by virtue of being owners of the corporation as opposed to contributing something through their labor. And that idea would be anathema into Indigenous communities traditionally, that you should be able to profit from something that you didn't yourself contribute to.
And so in the context of reforming social governance or corporate governance, my work has looked at how indigenous communities who have the models of the corporation have done corporations differently. so Alaska Native corporations are my favorite example, but they're by no means the only example. The Indian Reorganization Act provided for the development of IRA Section 17 and IRA Section 18 corporations throughout the country. But
Alaska Natives have this really interesting kind of setup in their corporate structures. The Alaska Native Claims Settlement Act, or ANSCA, went ahead and instead of creating the traditional kind of tribal governments that we have in the lower 48, it encouraged the development of tribal corporations. This was under the Nixon administration, a goal to try to be a little bit more kind of capitalistic in their development.
Speaker 2 (19:51.67)
And so these corporations developed and emerged and their ownership structure is really interesting. So for example, there are corporations where everyone is issued, you know, a hundred shares of stock upon birth. And then the stack as cheats or it disappears upon death. So, and it's not alienable. It can't be sold, right? It can't be used as a security in that sense. And so no one individual is ever able to accumulate a majority of shares.
In fact, no minority of the community is ever able to own a majority of shares, which ultimately means that the governance has to be majoritarian, right? You have these corporations that are then governed, right, by a majority vote, everyone voting their 100 shares and no one having more than 100 shares to vote. And that, it just, it ends up resulting in different outcomes. When a corporation has to look out not for its largest shareholder,
but it has to care about the majority of people in the community, it makes different decisions. Rather than overfishing for a short-term profit, it manages fisheries in order to ensure the sustainable catch over a long term. Instead of strip mining land in order to take the resources, it conserves the land for whatever can be profitably harvested in a sustainable way, whether that be timber and resources or farming resources, et cetera.
And so trying to apply some of these same principles by imagining what it would look like if, for example, shares in other corporations, corporations issued under state law in other contexts, had some of these same rules. Rules that said that they were non-heritable, rules that prevented the accumulation of a majority stake. So playing around with the difference maybe between voting and non-voting shares.
so that you can maybe have a majority of shares, but not a majority of votes in order to ensure that the corporation is run more democratically. And that's just one of many examples. And if you want, we can talk about others that we take from ANC or from other corporations. But trying to look at a world where there's definitely a movement in corporate law to kind of explore these sustainability goals, Corporate governance and corporate governance reform. And my scholarship in this area kind of intersects with that.
Speaker 2 (22:11.82)
by suggesting some ways that reforms could be moved forward, drawing on models that are already established and working in the United States that achieve more like both profitable corporations who are acting in more environmentally conscious and sustainable ways. And so if we can mirror some of those voting structures, maybe we could get some of the similar outcomes.
Wow, no, that's really fascinating. I wasn't certain whether or not I was going to ask you about this because I thought that maybe it would be a little bit frivolous, but since you brought up this topic, I can't help but, my mind can't help but go there. Did you see Killers of the Flower Moon?
I have. It's a little bit long, but it's incredibly well done.
Yeah, I'm curious to hear your thoughts about it.
Well, think so, not necessarily an Indian law world, right? But in Indian studies world, right? I've taught, you know, Killers of the Flower Moon alongside, right? You know, other kind of texts, just because it provides such wonderful context. And that the con for our listeners, Killers of the Flower Moon is the stories of or the story of the Osage Indians in Oklahoma.
Speaker 2 (23:22.158)
The Osage owned their land a little bit differently than other Oklahoma tribes. They actually owned the entire thing in what we would legally call fee simple absolute, right? They had the perfect rights or all of the rights to the property, including its subservice minerals, which just happened to include an incredibly large amount of oil and gas. And so the Osage went through a process of allotment where they divided the reservation up, each Osage having
a certain acreage on the reservation that was theirs and theirs alone. And then that land would be tapped for the mining of oil and gas. an unfortunate development, white persons and particularly white men would marry Osage women. And the killers of the flower moon is the story of at least some of them, right, conspiring together after their marriages to kill their native wives.
and inherit the head rights to the oil and gas in a concerted and deliberate way that resulted in dozens, if not hundreds of Osage murders over a period of 20 to 30 years. And the movie is well done. think, right, Lily Gladstone and her recent, I think, win, right, for best actress or Golden Globe win. I should know the difference. I'm not a good awards person. know the truth. just don't remember which awards you won, right?
But for the movie? Because if so, I presume it would have been a Golden Globe, yeah.
Yeah, for the movie. Yes. So Lily Gladstone won best actress, the first Indigenous woman ever to win the award for her portrayal in Killers of the Flower Moon. And the book is fantastic. If a three and a half hour movie isn't your cup of tea, the book is even better than the movie. Right. This is is, course, a Leonardo DiCaprio. And right. But it's it's a great movie. It's just the book is an even more compelling story.
Speaker 2 (25:21.326)
One of the things that you find in the book is that you don't know who the good guys and bad guys are until about halfway through. And in the movie, it's kind of intimated in the first 15, 20 minutes that there's something shady going on. And in the book, it's hidden a little bit more. There's more suspense, which is strange. It's weird to say a book is more suspenseful than the movie, but I think it's kind of true.
At the risk of getting a little bit too into the weeds about the movie though, I did find that the movie did manage to maintain a strange level of ambiguity about exactly what was happening or about whether or not certain characters were acting in good faith or obvious bad faith throughout a surprisingly long amount of the film, even though the scale of what was happening became increasingly clearer.
Very evident, right? And I mean, this is a legacy that has been documented well and Killers of the Flower Moon, a fantastic book and now brought to the theater with some real deliberate consultation with the Osage and a real intent to use indigenous actors in the portrayal in a way that maybe we wouldn't have seen 20 years ago. And so the film has received a lot of plaudits in Indian law world and around the country for...
really its sensitivity towards displaying Indigenous cultures.
Yeah. Okay. So moving a little bit to talking about the Supreme Court. Yeah, sure. So first off, so one thing I wanted to ask you about, I saw and forgive me, I wasn't sure if it was an article or a book, but you wrote something called Predicting Supreme Court Behavior in Indian Law Cases.
Speaker 2 (27:03.522)
Yeah, I have a couple different articles that use regression or quantitative models over a period of the modern Supreme Court, 1959 or so, in terms of modern Indian law opinions. We dated back to this case of William V. Lee in 1959. And try to make, using quantitative models, some predictions about the direction of the court, about what factors the court picks up and considers when it looks at Indian law cases.
factors that, so as an advocate for tribes, right, what makes a good case and what makes a potentially dangerous case so that we can be a little bit more selective and try to win more often when we get to the Supreme Court.
Yeah, and I was fascinated to ask you a little bit, if you could talk a little bit about what were some of your findings about how this worked. I know that I was reading a little bit in the abstract that said that you found that there wasn't an especially strong correlation between how quote unquote liberal a justice is and their likelihood to vote for generally pro-Indian outcomes in cases, that you instead that you kind of broke it down into a series of potential variables.
And I think we ask a little bit about what those variables are and what were some of your findings.
So I think that in the context of civil rights and civil liberties, there's a general assumption by the public that
Speaker 2 (28:23.692)
Democrats are more, know, Democratic appointees are more or less liberal or more likely to find for minority groups. And conservative appointees are, because they're appointed by Republicans, a little bit more conservative and less likely to find in favor in some of what we would consider like civil rightsy kind of cases. And Indian law really kind of bucks that trend for a lot of different reasons. Because...
there is a certain kind of Indian law case that even very strong conservatives on the bench relate to. So when tribes are being bullied by the federal government, right, there is this kind of federalism principle that more conservative justices respond to. They see the tribe being bullied by the federal government like a state being bullied by the federal government and in response might be more protective of tribal sovereignty, right, or a tribe's ability to go ahead and protect itself.
in that kind of context and really then move forward, they end up moving Indian law forward, right, in order to advance other objectives, you know, related to federalism that maybe we don't see in cases where the plaintiffs represent other minority groups because they write that we don't have our Black or Hispanic or Asian communities don't have sovereign governments, right, in the same way. And so the federalism concerns in those civil rights cases don't appear in the same
to present the same kinds of issues that Indian law cases present. And we also have a history of some justices, depending on where they kind of worked before they got to the bench. So Justice O'Connor, who was a judge in Arizona before coming to the Supreme Court, had to work regularly with tribal courts and with tribal governments as sovereigns. And so was...
not always the most pro-Indian justice on the bench, but certainly not the most anti-Indian justice on the bench and more understanding of Indian law than a lot of her democratically appointed colleagues, right, in both in terms of her writing about the law. There are, of course, exceptions, but just in general. And we see Neil Gorsuch now, right, being maybe the largest champion, right, he and Justice Sotomayor of Tribal Rights. Just this last term in July,
Speaker 2 (30:39.882)
a case out of Lac de Flambeau in Wisconsin, he the sole dissenter in an 8-1 opinion on sovereign immunity that was written by Justice Jackson. So the other conservatives and all of the liberals found against the tribe that sovereign immunity had been waived. And Gorsuch as a conservative justice opined strongly and for many pages.
right, that there had been no waiver of the tribe's immunity. Of course, he came from the 10th Circuit. He spent his time before he was on the bench in Colorado. The 10th Circuit also has jurisdiction over Oklahoma, right, where we're seeing a lot of these kind of the recent growth and development, a handful of cases. And so he just has a different maybe understanding of tribal courts and having worked with them in that sense. So rather than get back quickly to the article piece, right, rather than suggest that it's the liberalness or the conservativeness of the justice,
that predicts how they vote in Indian law cases. There are other factors that are stronger indicators, such as whether the United States appears as an amicus curiae, whether the United States appears on behalf of the tribe or not, sending a signal that this is important not only to tribal governance, but maybe also in federal governance, when you have the US Solicitor making the arguments, that tends to help sway the justices. It's definitely better to have the Solicitor on your side. They're a repeat player at the Supreme Court and the court listens to them.
maybe a little bit differently in that context. Also having cases that deal with treaty rights, because there's a text that can be interpreted. When you bring a case based on treaty rights instead of more amorphous common law obligations, you're more likely to prevail because there's a text that can be read and interpreted in context. And we've seen that work for tribes in the recent McGirt decision, in a handful of decisions that have been decided in the last 10 years based on
where they've been able to prevail based on an interpretation of treaty rights. The federal government has this kind of double-sided role in Indian country, right? It's in some places, the federal government protects tribes from states, right? And so when the state wants to come in and try to regulate what happens, the federal government steps in to protect tribal sovereignty. And in other ways, the federal government tries to micromanage tribal governments. there are, right, it's a love-hate relationship. There are times where the federal government and its protection is important.
Speaker 2 (33:00.012)
because the federal government is protecting tribes from state interference. And other times where the federal government is directly trying to interfere in its involvement. And that's less welcomed, right, by the tribes. Chief Justice Rehnquist was particularly notable. He was not a fan of Indian law in general. He did not vote for the tribal interest very often. But in a handful of these federalism cases, he made points about limiting the power of the federal government to protect the tribal sovereign. And then,
in future cases about federalism involving states, he would go ahead and string cite these Indian law opinions, showing, look, this isn't new. We've developed this principle. We've said it in this context. If tribes are sovereign and ought to be protected, then states are sovereign and ought to be protected. And so it was a particular strategy deployed by Chief Justice Rehnquist to use a handful of Indian law cases to kind of advance a federalism agenda or a state's rights agenda.
right, in other kind of court opinions. And it's just interesting the role that Indian law has played there.
As you mentioned Neil Gorsuch and how outspoken and how vigorous of a defender of Indian rights that he's been, was this something that was relatively well known about Neil Gorsuch before he got onto the Supreme Court? has this been something that has sort of taken people, court watchers by surprise? I'm curious to know a little bit more about his background in this regard. You mentioned that he was on the 10th circuit and that influences this.
Yeah, so I mean, unlike a number of justices that come from East Coast circuits or the DC Circuit Court of Appeals that hear comparatively few Indian law cases before they get to the bench or no Indian law cases before they get to the bench, the 10th Circuit, that would be impossible. Gorsuch had heard, I want to say the number is 26, but it's more than 20. He had decided or heard more than 20 different Indian or voted in more than 20 different Indian law cases during his time on the 10th Circuit.
Speaker 2 (35:05.166)
The National Congress of American Indians wrote in support of Gorsuch's nomination, right? So this was something that in the Indian law community was not unknown or was hidden, but just how verdant or how strongly he's ended up being an advocate for Indian law and policy, I think very few people would have predicted just how strong an advocate he has become, right? So he hired some of the first native clerks to the Supreme Court.
even in his first term, which also helps. It sets a precedent. We know when you have that voice in chambers and you're able to be talking to the justices, that can change how opinions are influenced, how the court might think about the law in general. And he's also, he's gotten, I think, even more credit just because he is such a strong writer. His prose is particularly good. Among the nine justices, he has a way with words.
And so the McGirt opinion gives just a great example. The number of times this is gonna be cited in courts is gonna be innumerable. So he began the McGirt opinion with a simple sentence, on the far end of the Trail of Tears was a promise. And it kind of lays out a theme for the entire opinion. His rhetoric just goes after again and again the...
the inadequacies of the federal government response and the importance of tribal sovereignty, right, in order to protect these kind of core values in Indian law. And some of that he certainly developed as a justice on the 10th circuit in Colorado and others we've kind of discovered over his Indian law jurisprudence on the bench. I wouldn't be surprised if the positive reactions from Indian country from some of his first opinions didn't help to reinforce
kind of the strength of his prose and his commitment to the Indian law kind of doctrines and principles that exist. And he is now for his remaining time at the bench is likely to be the strongest or among the strongest advocates for tribal rights as a result.
Speaker 1 (37:16.622)
since you mentioned it a couple of times now, let's get into it. Let's talk a little bit about McGirt v Oklahoma, because I think this is something that I know that this was something that I dimly had heard about several years ago, and it seemed like a very big case. And at the same time, I also know almost nothing about the ramifications of it and the consequences of it. And my understanding is that in the years since then,
there was at least one subsequent Supreme Court case that kind of narrowed and restricted what seemed like the implications of that initial decision. So I'm curious to ask you a little bit about how that's been.
Yeah, these pair of five-four opinions, right? So McGirt was a five-four opinion in favor of the tribe. And then, of course, Justice Ginsburg passed on, and Justice Coney Barrett joined the bench. And with her arrival, we had a five-four opinion, maybe limiting a little bit the scope of the McGirt opinion a year or two later in Castro Huerta.
So Oklahoma has always been this kind of strange space in Indian law. It was the original Indian territory. So as we expanded westward, we moved tribes right as far south as Florida, as far north as Wisconsin or Michigan, right? We pushed tribes into the Great Plains on the other side of the Mississippi River and eventually consolidated tribes in what is today Oklahoma. And so there are the Western half of the state, sorry.
That's not right. eastern half of eastern half of the state is composed of or was at one time composed of the five tribes, right? So Choctaw, Chickasaw, Seminole, Cherokee, and Muskogee Creek. And the five tribes have these large reservations that were then through a process called allotment ultimately opened up to non-Indian settlement. So we might remember, right, even the
Speaker 2 (39:16.546)
the story, right, the Oklahoma Sooners, these, you know, big contests where, you know, people would line up and they would fire a gun and there'd be this rush to go ahead and claim free land. And some people would try to beat the gun, right, by leaving a day earlier and staking claims to the best lands. And that's where the Sooners comes from, right? They acted a little too soon. But these lands that were opened up were largely tribal lands. They had originally been reserved to the five tribes.
And because you know so many non Indian persons have moved on to these lands Oklahoma had treated them like they had lost their status as Indian reservations. And in fact, some large cities like Tulsa Oklahoma is in the middle of the Muskogee Creek reservation right where the southern half of the city is on the reservation so well. there was finally a criminal challenge right the the McGirt case is a criminal law case because.
Under the law, the state lacks the criminal authority to criminally prosecute an Indian if they are committing their crime in Indian country. And so Jim Z. Mcgirt had been accused by the state of Oklahoma of committing a crime. He was a member of a federally recognized tribe, and he argued that the state lacked jurisdiction over him. Not that he didn't do what he was accused of, but that the state lacked jurisdiction over him. And so the case went all the way to the Supreme Court, and essentially it was asking
Is the reservation still in existence or right by virtue of the fact that huge numbers hundreds of the million right or more non Indian persons now live in eastern Oklahoma right with no native ancestry has that destroyed the reservation status of the land. And in a five four opinion, the Supreme Court said no, the reservation still exists. And it draws on this this historical line of cases that say once a reservation is created.
the only way to go ahead and remove or destroy the reservation is with an explicit act of Congress, right? And none of the actions that followed the creation of the reservations were sufficiently shown Congress's clear intent to remove the reservation status. And so even though the status of the demographics of the land had maybe changed over time, the reservation itself remained.
Speaker 2 (41:35.818)
And since in McGirt that was true of the Muskogee Creek Reservation and subsequently it's been true of virtually all of the five tribes, right, and a group of other Oklahoma tribes that have had their full reservation lands kind of recognized now. And so that creates some jurisdictional problems for the state of Oklahoma in that they have to now determine if the person committing the crime is an Indian or not. And if so, turn them over to the tribe or to the federal government for prosecution. And if not, they get to prosecute them themselves.
It also created a backlog of challenges, right? The state of Oklahoma, you know, issued a parade of horribles about the thousands of people that were going to be released from prisons, right? In reality, this didn't happen, right? That some persons were given early release or parole, other persons were retried by the tribe or the federal government, right? The parade of horribles imagined by the state of Oklahoma has never come to pass. But it has substantially increased the workload of the federal courts in Oklahoma, right? Because
there's now a lot more criminal cases involving any Indian in Eastern Oklahoma on these now recognized reservations. Or I guess the proper thing to say would be reservations that had always existed, but that we now recognize as to have always existed are gonna be prosecuted in the federal courts instead of in the state courts. So based on these challenges, we got a year later a challenge out of Oklahoma in a case called Castro Huerta. And so this is where the five four opinion went in the other direction.
So historically, if there was an Indian involved in the case, whether a victim or the perpetrator, then because of the Indian interest, right, that there was no state authority. was, criminal prosecution of that individual was left to the tribe or to the federal government. And so in Castro Huerta, we have a case where a non-Indian person committed a crime against an Indian person, right? And the state was trying to prosecute them.
Before Castro Huerta and going all the way back to an opinion from the 1830s, right? That in Cherokee Nation v. Georgia and Worcester v. Georgia, the Supreme Court has been clear that states lack jurisdiction on an Indian reservation, barring an act of Congress or an agreement with the tribe for the state to exercise its rights. And the Supreme Court in Castro Huerta
Speaker 2 (44:00.594)
on did some of that precedent and said when the perpetrator of the crime was a non-Indian, then the special interest of the federal government and the tribe was lessened because the perpetrator wasn't native, even though the victim was. And the perpetrator being a non-Indian person, and so therefore a citizen of Oklahoma or subject potentially to Oklahoma's jurisdiction could be prosecuted in an Oklahoma state court.
And so it did not remove the ability of the tribe to prosecute if it had the power under the violence against women act, for example, and it didn't remove the ability of the federal government to prosecute either. It just recognized that the state would share that prosecutorial powers, right? And so.
The case, we'll see how limited the case ends up being, right? It's a five-four opinion. Is it limited only to Oklahoma? Is it limited only to cases where there are no Indian perpetrators involved, right? If you have a conspiracy involving both Indians and non-Indians, can you separate the non-Indians from the, we don't have those answers from the Supreme Court, right? It's possible that the opinion just becomes relatively narrow. It certainly did not take away tribal or federal jurisdiction.
but it did expand state jurisdiction in Indian country and how much it expanded it will be the subject of future tests, right? Castro were to be decided just in 2021 or 2022. So we have, you know, we'll have to wait for the full effects of the case to be felt. Sorry, that was a really long answer, but- No, no, that's great. are relatively, right? They're both new and in the news and they're relatively complicated, right? With kind of this historical background.
Okay.
Speaker 2 (45:41.814)
Right. And that's what makes them maybe so important in the Indian law canon is that, you know, we've now substantially expanded, right, the size of Indian country. Each of these these five tribes is the size of Rhode Island or larger. Right. So we are are largely expanding, right, the role or the extent of tribal authority in Oklahoma and potentially beyond.
Um, so you mentioned these, the, these past two decisions were both five, four decisions. Um, but a, a recent decision just from last year was a seven two decision about the Indian child welfare act, um, or ICWA, uh, as it's called. And this was a, my understanding is that this was a challenge to ICWA. Um, and I'm curious to hear, well, first, uh, first off, I was wondering if you could just tell us a little bit about the background of ICWA, where it came from, what, what.
was the problem that it sought to address. And then just talk a little bit about the specific challenge that was being brought to it recently.
ICWA was designed to protect Indian children on Indian reservations and the sanctity of tribal families. Because in the 1950s and 60s, social workers who didn't have an understanding of tribal culture and values were removing huge numbers of children from their homes. So in Washington state, it reached 30 to 40 % of children.
Right. And for context, right, it's less than one to 2 % of children are ever right. And, you know, removed just generally. Right. And this is this is hundreds of times. Right. You know, more more likely. And so an entire generation of native youth were being removed from the reservation by social workers for reasons that would not justify removing the youth in other contexts. And so there are a couple extreme examples. But for example, having unopened alcohol in the home.
Speaker 2 (47:39.214)
How many of you grew up in a house that had unopened alcohol when a social worker might come to call? And you that is a justification to terminate your parental rights and remove your children. Leaving your children in the care of a grandparent or aunt and uncle, right? Treated as an abandonment of the child and the child was removed, right? Again, not always, not even often. The extreme examples, right? Of the justification that social workers used in order to remove.
Indian children from families. And it was done purportedly for the benefit of the child. They were adopted out often to wealthy, whiter suburban families. Even in the 1950s, it became trendy. I think of Paris Hilton setting the trend of having a little dog in her purse and then all of a sudden little dogs were everywhere. There were a couple of societies that developed even partnerships with the federal government in order to
meet the need or the demand for Native children. Wealthy white suburban families, right, it was very trendy to adopt a Native youth, right, in order to save them from the reservation, the idea of the white savior complex. And so they're created, the federal government was complicit in helping to design programs to meet a demand by wealthy white suburbanites for Native children. We destroyed
hundreds and thousands of Native families, right, by removing Indian children from their reservation communities. And so the longitudinal studies on the children removed in the 1950s show that they had significantly inconsistent worse outcomes, right? Even though they grew up with wealthier parents, right, even though they grew up in a, you know, a white society, it surprised a lot of the country to learn that they had higher risks of suicide, larger rates of depression.
of feeling alienated, right, less likely to graduate college, less likely to be employed, right, than persons that were not removed from the reservation community and maybe grew up with similar or fewer resources, but grew up in a community that knew them and supported them and where they felt that they could identify. And so something needed to be done, right, in order to protect Indian children. And so the Indian Child Welfare Act was enacted by Congress, which created some large barriers.
Speaker 2 (50:01.784)
to state courts terminating the parental rights of Indian children. And so it's not that they could not do so, but they had to go ahead and have testimony from qualified experts. They had to take active efforts to try to unify or preserve the Indian family. There were a set of guidelines in terms of who would be adopted in terms of preferences. So a preference placement to adopt Indian children into other Indian families.
And so that really kind of stemmed the tide of the loss of Native children, right, both living on and off the reservation. it created almost a blanket ban on state interference on the reservation and then made it harder for Indians located outside the reservation to have their parental rights terminated. So Brackin, which is this 7-2 opinion that was just released from the Supreme Court this last term, was a challenge to the Indian Child Welfare Act on a bunch of different
doctrines, right? And the doctrines are legal and complicated. We could do a whole common law study on the anti-commandeering doctrine and on the non-delegation doctrine, right? Essentially, there were a number of arguments, right? And we'll review just a couple of them here in the case, so much bigger than that, right? One of them being that Congress delegated to the tribes the authority to go ahead and create the federal law.
And right, since law has to come from Congress, it can't come from, you know, an alternative sovereign when tribes are allowed to create their own placement preferences or develop their own family codes. Right. There was a challenge by this group of non-Indian persons that wanted to adopt Indian children, but who didn't qualify under the placement preferences. Right. That Congress shouldn't in the Indian Child Welfare Act or ICWA shouldn't have delegated the ability to go ahead and
create rules to the tribes themselves or the anti commandeering doctrine that it could that the Indian Child Welfare Act created requirements that were unfunded mandates on state courts that they had to do active efforts and hear from qualified experts before they could go ahead and remove the parental rights of Indian children living in their state. And so right that is commandeering the the processes of state courts.
Speaker 2 (52:29.494)
right, for federal purposes, or a violation of the Equal Protection Clause, that the Indian Child Welfare Act applies only to Indian persons, right? That's racial discrimination. You're treating Indian children differently than non-Indian children, and without a sufficient justification, runs afoul of the Equal Protection Clause. And other arguments, right? These are just three of a handful of the arguments that were made at the court. It's a complicated case.
The tribes won essentially at least a five member majority on virtually all of them, right? And so for now, the constitutionality of the Indian Child Welfare Act is preserved. There were a couple of justices in that majority that said this isn't the right vehicle. We didn't have the right fact pattern to test in particular the equal protection arguments in relation to ICWA, but we had at least five votes to go ahead and uphold even.
the doctrine or even the statute on that basis. And so, you know, there was a lot of concern, right? There was a lot of pressure for states to adopt their own child welfare acts. Kate Ford at Michigan State and their clinic there has done just tremendous work helping to coordinate state efforts. If Breckin had gone the other way to create some state law safeguards for Indian children in order to prevent the problems that had existed in the 50s and 60s from existing again.
But it looks like ICWA survives to fight another day, which in Indian law world is tremendous for us. A recognition that Congress has a special responsibility, given its history, to protect the next generation of Indian youth and that ICWA is an acceptable way to go ahead and ensure those protections. It's important probably to note that ICWA only creates a floor. States can be even more protective of the relationship between tribal youth and their reservation communities.
Right. And so state equal laws sometimes provide even more protection and additional legal requirements imposed by the state legislature when Indian children are in front of the courts. Right. And Bracken had nothing to do with any of these state laws, but the existence of these state laws is very beneficial.
Speaker 1 (54:43.906)
That's interesting, I didn't know that. I also, didn't realize that it was being, I didn't realize that the law was being challenged on so many different fronts also.
Yeah, it was a real concerted effort, Challenges to the Indian Child Welfare Act have been made in districts around the country, but it wasn't until, right, we got an eight-eight split in an en banc opinion from the Fifth Circuit Court of Appeals, right, that finally, the most conservative appellate court right now in the country, right, that finally precipitated, you know, where the tribe lost on some of the issues.
or where tribal interests lost on some of the issues and required the Supreme Court to take the case. They had refused to hear earlier cases upholding the constitutionality and the legality of the Indian Child Welfare Act. When the federal appellate courts had found that it was proper, the Supreme Court never accepted those challenges to invalidate or overturn the decision, right? And so they took an opinion from our most conservative court and an opinion that was deadlocked eight, eight.
for the Supreme Court finally to have a vehicle to address these issues at all. And with the, just the seven two majority, I think it's unlikely that we, the ICWA ends up, at least the constitutionality of ICWA ends up squarely in front of the Supreme Court for, you know, another number of years. The seven two opinion sends a pretty clear signal to our lower courts on ICWA is constitutional. Congress has the authority to protect Indians in this way. And so.
Hopefully we have those kind of protections established in the law.
Speaker 1 (56:18.776)
So I just wanted to ask you a little bit about what brought you to Stetson.
I really enjoyed the six years that I spent at North Dakota, but the opportunity to move to a different climate and the opportunity to work at a school that was so social justice and advocacy focused, right? It's really incredible the strength of the advocacy program here and how students are kind of thinking all the time about how to be advocates and how to present arguments and how to explain things, right? It's fun to be in a community with that kind of engagement.
especially coming from an Indian law background where we desperately need advocates. We need people who can explain tribal law and customary practices, right, to a largely non-Indigenous federal bench, right, so that we can go ahead and continue to secure protections in the Indian law kind of community. And it's been really rewarding just how many students have responded to these kinds of issues, you know, around campus. And it's...
I mean, it's fantastic the the trial or the school even flies right the seminal flag right in addition to the state of Florida flag and the. Right it's that there is a recognition here, even before I got here right this wasn't something I needed to do. There was a recognition here on campus about the importance of our fellow Florida sovereign communities right. And being able to to embrace them i've been able to teach the federal Indian law class here at Stetson every year i've been here and it's been.
just really incredibly rewarding.
Speaker 1 (57:53.726)
Speaking of those other Florida sovereign communities that you mentioned just now, I'm curious to ask a little bit about what are some of the unique issues in tribal law that are unique to Florida?
Yeah, so you're at least from a litigation perspective, the Seminole tribe with its large gaming operation, right? And in about 2000, 1999, somewhere around there, they took over a large number of Hard Rocks operations, right? At least domestically in the US. And so the gaming operation here with Seminole definitely presents a lot of gaming law is kind of developed, right? There's a lot of kind of issues and questions there. The Seminole tribe have casinos.
not only in the Tampa, but also in the Miami kind of communities. And so with multiple casino properties, there's a lot more Indian gaming here in Florida than say in North Dakota, where there are virtually no people. And so there are casinos, but not large scale gaming operations like there are down here. And most recently here in Florida, we've had some challenges to the ability of the tribe to start running a sports book.
After the Supreme Court struck down some federal prohibitions on sports book betting, the tribe entered into a compact that was signed by Governor DeSantis here in Florida to give it more or less exclusive rights to operate a sports book in exchange for billions of dollars in contributions to the state, right, education and general treasury funds. And that's a win-win. It's a win for the Seminole tribe and it's a win for the state. But
a number of persons that do greyhound racing or horse racing or a number of other persons that engage in kind of the gaming industry have really objected to the tribe being given this special consideration when sports betting is otherwise not allowed in the state of Florida. And so that challenge went all the way up to the DC Circuit Court of Appeals and the Seminole Tribe prevailed. And in December, they opened the sports book, I think, for the first time here.
Speaker 2 (59:57.024)
And so recently here in Florida, there's been a lot of Indian gaming work that's been happening out of the Seminole Nation. And the Miccosukee tribe in southern Florida has a reservation that spans a chunk of the Everglades. And so they've done a lot of work on water quality and water quality standards on pushing Florida to be more protective of better environmental stewards of the property. So it turns out that if water flows through a reservation,
the tribe can change its water quality standards. And if the water reaches the reservation and it fails to meet the tribe's stricter water quality standards, it can litigate upstream, even outside the reservation boundaries to force Florida polluters to go ahead and ensure that the water is clean by the time it reaches the reservation. And Mikasuki have been particularly active in using the ability to create different water quality standards.
to really clean up the quality of the water that's running through large chunks of the Everglades, which has helped to restore the environment, not only of the reservation, but of all of South Florida. And so not to say that the Seminole don't also do environmental work and not to say that Miccosukee, but if I had to with our two federally recognized tribes kind of identify where is there kind of comparatively more Indian law work down here, that.
On the seminal side of things, it's with Indian gaming and on the Mikasuki side of things, it's with more environmental loss.
Wow, that's fascinating.
Speaker 2 (01:01:31.95)
Alright, well thank you so much Dan, it's been really lovely to talk with you.
Yeah, it's been great talking with you. Thank you so much. This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law. Learn more at stetson.edu.