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tv   Supreme Court Oral Argument in Mc Girt v. Oklahoma  CSPAN  May 11, 2020 9:03pm-10:36pm EDT

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hears oral arguments on criminal jurisdiction over indian territory in oklahoma. at the center of the case is a native american man convicted of sex crimes who claims state courts had no right to triumph a crime committed on indian land that remains under dispute. the justices must decide if the scene of the crime is to be considered indian territory and whether it was appropriate for the state to pursue criminal charges into the federal prosecutors. the honorable, the chief justice and the associate justices of the supreme court of the united states. >> all persons having business before the honorable, the supreme court for the united states are admonished to give their attention for the court is now sitting.
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we will hear arguments first this morning case 189526 mcgirt versus oklahoma. >> mr. chief justice and may i please the court, this case is resolved by the fundamental proposition that decisions about sovereign rights are for congress to make an congress makes those decisions by the text.learly and the decision must be reversed because the text makes clear congress never terminated the reservation and never transferred federal criminal jurisdiction to oklahoma. i have four basic points to make this morning. first, there was a reservation. the relevant treaties preserve the land to solemnly goin guarad to govern. the text of the treaties and statutes expressly identified the land of the reservation. nothing more was needed. second, congress did not establish, disestablish the reservation. in fact they considered a disestablishment and rejected it
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and initially sought the section yet instead only for the allotment. then when congressional inaction would have dissolved, congress preserved the tribe and its government for all purposes authorized by law. it's against the backdrop of existing tribal authority to legislate over the legislation land. those congressional adjustments should be respected. third, congress didn't transfer the jurisdiction to oklahoma. aat statehood the major crimes act with jurisdiction over enumerated crimes in any state of the united states when congress overrides the act and transfer statistics into the state it does so expressl expred it didn't do so here. finally, the rhetoric about the disruption doesn't change the result. on the criminal side of the court's decision in on the civil side the main issues are tax and other regulatory issues that are routinely resolved by tribal state agreements.
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in any event, parker makes clear the questions are distinct from the claims of reservation status accord should resolve the reservation question leading the jurisdictional disputes to congress, the relevant sovereign independent escort when they arise. the state argues the territory should be analyzed as a defendant in the community under the 1151 and not as a reservation. they based this argument on. the decisions as the creek nation and the fact that they've always maintained and have been adamant about the fact they are not reservation indians. you refer of course to the many times which the treaty is referred to as a reservation. but for the story analysis of the president? >> this is not independent indian community. what the court said it with a
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thin judge gorsuch said is it's a catchall for those that didn't have a reservation and are not on restricted land. the best evidence of what the congress thought about whether the greek fans were a reservation under the statute is that congress referred to them as a reservation under the statute. other it's crystal clear that when they are using the term dependent and begin community and that they are describing tribes and other groups within congress's broad power to legislate or for tribes broadly they are not excluding the cre creek. >> yes, counsel. in the solomon parker, those
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cases only involved the disposition of the land in here of course therehe is much more being done. can you point to any case in which we have applied the solemn fact framework and much is being done in this case. -> as pointed out in that opinion and analysis doesn't derive from anything special about how much more congress is doing. the reason they've required the plaintext is because the treaty rights arerear in issue.
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the plaintext is required to aggregate so there's nothing magic about it in terms of the lambs or not. the key point is that the plaintext is required to do the kinds of transfers that are in issue here and when you look at the case it is even stronger for three main reasons. first of course the tribe wasn't absent in the same way that it wasn't parker. second, it was all wanted almost entirely to the tribal members themselves and third, congress took steps to preserve and i guess the thing i would point to this is stronger than other cases because it isn't just what did congress failed to do.
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>> i want to get this point in that if we are only dealing with one statute here we are dealing with a series of statutes and to the reduction and the authoritye of the tribe. the congress observed the tribe that had the chance to would have dissolved the tried and so tribe and soi think that makes r than in other cases. the federal prosecutor.
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federal penalties are at least as the state and in both forms of state and federal would have due process protections. [inaudible] i think t it flows any time thaa criminal defendant is tried by this author and lacks jurisdiction. i don't think that this court hacourthas ever said that therea kind of harmless error analysis on a sovereign jurisdiction, particularly a criminal jurisdiction over a defendant and that you would like to see are the penalties the same. of course it is a different germ pool and a different set of
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potential penalties. so i guess i don't think that the fact would be a rigorous trial. to make the case easier in some ways we are not claiming immunity as your honor pointed out and there will be a retrial in federal court if the court were to reverse. >> what makes this case hard is that there haved been hundredsf prosecutions from heinous offenses of the state law on your view they would all become undone and if you could compare that to the situation in the case.
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here it pales in comparison to what is involved with hundreds of prosecutions. these would all have to be done. it may not be there anymore. there's hundreds of cases. >> in truth we don't know how many cases have suggested that there are fewer and any of that is no reason to disregard the plaintext. one of the argument is whether
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they are a reservation or not, congress wanted the state courts to try the major state crimes and in reference to that, i think that he was a great expert in this area i looked at his letter and he does seem to say that so if you have any comments about that or that particular aspect i would like to hear. >> the law is clear congress did not intend for the tribal claims to be tried and i think this is one of the most straightforward construction cases the court will ever see. itac provided that it applied to any state of the united states there isis no exception for oklahoma and there was none before or after statehood. second, but they've pointed to is what happened before statehood and what happened
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after is that the claims were being prosecuted in the courts set up by congress applying federal law which had adopted arkansas. it's the opposite of the jurisdiction on the states to try. third, there was nothing that would have changed that. indeed if sent all cases which had they been committed in a state would have been subject to federal prosecution. that described it perfectly and finally, your honor when congress transfers jurisdiction to restate it does so expressly which the court described a coue first major transfer of jurisdiction the language used estate shall have jurisdiction. in new york new york shall have jurisdiction and even with respect to oklahoma in 1908 when congress transferred prorate
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jurisdiction of said state shall have jurisdiction. >> justice alito. >> you referred to the oklahoma enabling act, but the language in that is the case was pending in the territorial court at the time of statehood would be sent to one of the federal district courts were one of the state courts depending on where it would have been prosecuted and if it had been prosecuted in the state so isn't the meaning of that that they would be treated like these cases? >> treated like any place else meaning subject to the major crimes act i agree there is no exceptionalism but i think that is in our favor but oklahoma is
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saying is among all the states in the union it is exemp union m the major crimes act. i think the language, your honor, does exactly the opposite. >> det 97 statute which he said the wall of the united states and force in the territory shall apply to all persons irrespective of the race and you are saying at the time of statehood they would be treated based on race. how can that be consistent with the act? >> because they think it extends both in the u.s. law. it would eliminate any language within the major crimes act already.
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the major crimes act applies at statehood. it was a major event that transferred oklahoma from a territory to a state. the. they made clear that depend defn the ground don't override the text. some of the penalties in federal court to.
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the risk would be too high for them they will often be higher i think the number of defendants have already served large chunks of their sentence there are reasons to doubt the extent of the state's dysfunction arguments and remember the numbers are all in the states control and so while we have been hearing both in the murphy argument and here about murderers and rapists getting through, there is no evidence the state has put forward that there would be large numbers and the kind of hideous petitions one would expect to see what has been predicted and hasn't materialized. i agree with your honor's
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clustering. >> number two, there is so much discussion about the dependent indian community. and i to take it that your argument is that is almost irrelevant? >> it is almost irrelevant. but i will hit that first. regardless of what you call it, the reason we have a plaintext requirement is less to do with whether you call it a reservation and everything toeno with the fact that these boundaries were set up by so if you are going to undo that, congress needs to speak and speak clearly we are talking about the transfer of sovereign rights and that has to be in the text and you can call it a reservation that test would be the same. the chief justice asked you
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about the cases and i wasn't quite sure i understood your answer to him about how those cases were used in the term and whether that is consistent or inconsistent with your argument. >> it is using the term dependent indian community to describe the detroit is tribes broadly that have the power to legislate under its indian related powers in other words it wasn't using it in sort of the narrow and technical sense that congress did that enacted in 1948 statute. >> it is supposed to be done on the long-term in the standard reservations. >> involved it is not limited to
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standard reservations. >> how do we know that? >> that is what the court said is that the id was trying to figure out whether congress had the power to legislate to legislate with domestic with old and new communities and use the term dependent indian communities. but again, regardless, the time has always been -- the reason they were compared is because the creek was consideredas at te reservation. it wasn't a problem and everybody understood they had a reservation and i think that is the sense in which the court was using the term. >> thank you, counsel. justice gorsuch.
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>> thank you, chief. counsel, we've heard a little bit about if they would like to give you the chance to discuss it further the argument that they are going to be terrible, practical consequences that would follow from the ruling for your clients. we can c put aside the criminal convictions. you've addressed those but on the ground of difficulties that we have heard about administering .-full-stop. they want to respond to the generally igenerally in-house sm our analysis of interpretation of the statute in the treaty? >> here is what i would say. there would be consequences far from any of the court ruling nor are they overly serious. but more important, they are the kind of consequence that have routinely. they are routinely resolved as
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representatives brief in the case and throughout the nation the mci agreed and experience of tacoma indicates. these are routinely addressed by congress. it shouldn't affect the reading of the text and that is true for several reasons. it is but it is into the court's job is to interpret it. second in parker itself, the court distinguished the two and separated reservation status from the impact on the ground, and i think this court should take the same approach. those two questions are distinct. andd, third, it shouldn't affect ththe court analysis because congress is in the best place to change the text and add it if it wants and congress routinely does and has in oklahoma. there are oklahoma specific statutes that address environmental matters and that and sure the power stays with
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the state and not the tribe. congress knows how to do this and theix job to fix any consequences if they pursue them is with congress. >> thank you, counsel. justice kavanaugh. >> good morning, i want to talk about the history and maybe make a comment that congress has arguably diminished the reservation. this is a case for the territory that by 1890 indian territory was predominantly white about 60% of the population also significant black population about 10% and about 30% indian and the question as of 1890, how do we get there to that situation.
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and then there is a new treaty in 1866 because the united states is and happy that the tribes have aligned in the confederacy or the need for those thatat are predominantly white so there's an odd situation of the indian territory nominally, it's predominantly white so congress's options at this time or to remove and neither of those was going to happen so the other archrival government over non-indians which of course is contrary to tradition were to create a new state, and congress chose the new state option and a lot of things happened over the
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next 17 years. i think we are talking about indian territory reservations, when in fact it was 60% white, 10% black, 30% indian and the relevant territory. >> we have time for a brief comment. >> i will say briefly after statehood, t 85% of the indian territory remain in indian hands from taxation. the idea that the status is inconsistent is refuted by the fact that tennessee was 75% reservation in the statehood. the incompatibility of the reservations in statehood is not historically accurate. >> thank you, counsel. thank you, mr. chief justice. i'd like to go straight to the question about the governing framework.
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first there is nothing radical about the framework to the principles of statutory construction and fundamental principles regarding the separation of powers. the state can't win under that test and hence it is advocated the alternatives. i think justice thomas nothing about the fact that there's a series of statutes here changes the fundamental principles that should apply. there are to answer your question directly other cases that have been involved in c the statutes, the case involving a tremendous amount of the history ofons california in the statutes and executive orders over time and involve the creation of the reservation only eight months before statehood.. everyone claimed it is exceptional but there's nothing about oklahoma here that should cause a divergence from the quartz text. >> thank you, counsel. i would like to return to
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justice alito's question. congress passed legislation in the prior century saying the united states wall and that of arkansas would be applied in oklahoma would apply to all persons therein irrespective of race. noww if you prevail the law and the eastern half of oklahoma will be different to the applicable law tha it would be different dependent on race so how is that consistent with congress's legislation tax >> it is a critical question with the 1890s and statute it applied federal law irrespective of race. theec territorial wall and arkansas has assimilated. there was nothing radical about that other than the crimes act to state law was often applied where the federal law did not exist but then what happens of course is a watershed moment of statehood and it always changes the status quo and when it comes to indians would does typically
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is reserved for federal power over while of course getting state power over non-indians too the states. there's nothing in the enabling act or the five tribes act that suggests that status quo the normal way of dealing with it was supposed to be deported from. >> i would like an answer to the precise question which is the wall would be different depending upon race. >> under the enabling act, yes. the transferred to the states was a case that would arise under the state law with the federal courts the case arises under federal law and that included the majo major crimes t crimes act. >> thank you, counsel. justice thomas. >> yes, please question. and this isn't necessarily dispositive in this case but i'm interested in o your answer do u
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think it can be divested to its title of land and its sovereignty and still maintain the status of reservation? all disestablishment cases involve the transformation of title. whether you talk about trust cases or prepaid cases they are getting rid of the title and transferring titles to individuals, so the question in that regard it goes beyond that to the reservation values. here it's into the rubric over at the reservations that remain intact with respect to sovereignty if it is to be completely that isn't what happened yet and if it does the
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question the court would ask is ithat you would maintain its own purposes. if it didn't then it would dissolve.ul here they make it clear that i understand this isn't the premise of your question. if the state lacks authority to buy its own law and remaining
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all of this there are many cooperative agreements but in the states authority and its own law, what becomes of those state tribes? >> v. agreements remain in full force and effect and this is critical if we prevail, state law doesn't evaporate under this court's doctrines. the state law applies in many situations with respect to the non-indians an area and that is what leads to the cooperative agreements. it involvess the different jurisdictions all having a party. and that has been the premise of the shared jurisdiction that underpins these cooperative agreements and the best thing i can point you to is not my word for thwordsare the words of the congressman's brief and that is a remarkable brief. i think very few briefs like that have been filed in this
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court in the state relations where you have senior members of congress, foreign governments, , former state legislators saying please do not disestablished the reservation because the exercise of the cooperation and the state has underpinned these agreements into the options of the briefs or the agreements on the stateside if this premise of the shared jurisdiction that allows oklahoma to have. >> this is beside the point. if congress gave the power and felix points to three things
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which the answer to the question is yes it seems to. in the indian territory courts and federal courts the territorial courts which are federal have the power to try state law cases. the laws of the territory of oklahoma. in the 1907 act. they shall be preceded with handheld and determined by the courts of the b state coming about. the successors and united states courts in the indian territory, so it's rather ambiguous given
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the practice what do you think? >> it would make my life much easier in this case to say there was plaintext transfer jurisdiction of the state but we can't bind that. in the amended section 16 prosecutions of the crimes which haven't been committed and the case. justice alito. justice alito on the justice sotomayor? >> can you finish your answer to justice breyer, please click
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>> absolutely. the cases that would have been recognizable in federal court as oklahoma has been the state included. they are arrogating to jurisdiction to themselves and federal government was advocating even in cases where the reservation is clearly intact that happened in south dakota and nebraska and washington state. the court unanimously across different cases paid no heed to the practice.
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here is all the reason not to pay those people. we know federal officials were subverted in oklahoma and after statehood they wouldn't allow the national to hold elections r the national council even though it clearly preserved those powers. it's something the state has never explained. >> am i to understand existing reservations there are simple positions by non- indians were living and working on the reservations. am i to understand there is
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conquering federal state and indian jurisdiction over many of the uses involved in those people? >> correct. the simple land in the reservation. >> am i correct that more than 90% of the people that live in the area directly affected by the case are not members. as we decide the case inif your favor would you be surprised to learn that they are living on the reservation and that they a now subject to the law and approached by a body that is not accountable to them in any way? >> very little will change for them certainly very little they will largely remain subject to
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the state law and benefit in significant ways from reservation status. justice breyere asked a questi. he could wake up the day after the argument and qualify for an enterprise grant that attached to the reservation status. >> what would be the extent for example that any member of the tribe has dispute with a nonmember will the tribal member be able? >> it takes place as you noted the majority under this court's precedents it's clear that this kindat they would presumptively not apply with respect to
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activity taking place. >> if this were a different reservation and they chose to do business and knew he or she was doing business there that would be, would it not? >> they are still unclear on that but if there is a form of consent the case within tribal jurisdiction. >> justice kagan? >> can i ask you to continue and you are talking about the consequences of this i know that there is concern about that. >> thank you, your honor. there's the rhetoric about the edits misplaced on the ground the state agency into the nation
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cooperate that will not change if the reservation boundaries are affirmed. they allow the state and the nation to continue sharing jurisdiction for the state courts to retain jurisdiction whether they are existing pigmented replacements or to ordain those placements there is simply no cause to think they will be disrupted and that isn't in the interest of the nation. >> with respect to all of these questions, what role do you thinkan our decision plays? >> cheryl is always in the room when the states and tribes are negotiating agreements in the
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agreements those will continue. we have turn affect working relationships and will continue to play that role. nowhere the nation were to assert sovereignty in a way that goes beyond the bounds of those agreements, and arsenal in the field states. discussion so far it is inconceivable congress would have admitted a new state as a
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significant portion of the state would have been a federal reservation subject to the crimes act and i'm not sure we've given you a fair chance to havewe at-bats so i appreciate a response to that question. >> there's nothing inconsistent between the advent of the statehood and reservation boundaries. the solemn case makes that clear the reservation was ordained months before congress for about 10% of the state's landmass alone and congress clearly understood at this time states could come into being with a significant reservation shortly after oklahoma that was 27% of the states landmass. the court by that time had recognized the state of jurisdiction in the criminal area in civil area could pertain to non- indians with the
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jurisdiction that still exists today. >> thank you, chief justice and good morning. as i mentioned the last comment in the situation i want to focus on the text in particular the text of the statute that creates within the indian territory and what the significance of those two statutes are in assessing sovereignty because ultimately the question of justice thomas is the status of the legislative and judicial power.
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it is critical. with respect to the court that is critical to remember most tribes do not have this pure coup of time. in restricting and limiting, congress was merely puttingri tm on the same plane as other tribes and then more generally speaking with the governmental powers you know congress has regularly adjusted the bounds of the tribal sovereignty and that is what the court recognized that it never eat created the power. >> on the tribal court point, the difference i think some would say if the other tribes were not governing the jurisdiction that was predominantly bought indian, which is what was going on here. >> exactly what happened there
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afterwards. the tribal courtsts were gone at they continue to enforce the legislative authority to make it very clear it persisted into the court's decision in the eighth circuit make it crystal clear that it persisted. >> thank you, mr. chief justice, and may i please the court. oklahoma has jurisdiction over the eastern half ofe the state because it was never reservation land and it's certainly not reservation land today. to start, it wasn't public land reserved from sale where it remains in the united states but instead of patented to the nation. that is why the court called it
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a former dependent community and clearly lost the status when it was dismantled. now congress stripped away all the semblance of the status and they ask us whether congress's purpose was all the interest in the land and here statute after statute was precisely that. the act and tribal governments ofri the land, the allotment agreements they vested the life title interest in allotments were stripped of the federal superintendence. everyone at the time read the statutes to mean the state had jurisdiction into the land wasn't a reservation. >> thank you, counsel. in response to a question from justice kagan argued that the dependent indian community was an umbrella term that included reservations. i would like to get your response to that.
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>> i think that definition would completely make e-book and 51 b.. it would rewrite the statute. the court said is w that tribes are, quote, not unlike living on these reservations which compares the plainclothes that had the dependent indian community as the five tribes and then congress went out and codified. it's the kind of land is to separate and apart from reservations which is what thiss court held. >> thank you, counsel. justice thomas.
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in why that matters and opposing counsel seems to think that it's irrelevant and said as i recall that it's wrong your assessment of that, so it gives you an opportunity to both respond to that and could explain to us why it is important. >> first the tribes holding the land and mr. d. r they are unlie indians living on reservation, the creek nation confirmed that and it doesn't be that definitionon. in pine river the court said it reserved to the united states. issuing the patent isn't reserved from the sale.
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why it makes sense making the land alienable in the dependent community status is what the court said and that is what then judge gorsuch said on the hydro resources on 1153 and footnote 11 and 30 of his opinion and thats makes the textual and logical sense because there's a differencece between 1151 that says the reservation remains one, notwithstanding the issuance of any patent and 1151 b. that doesn't continue the language. again the judge pointed that out in hydro resources and it also sense because if what created the land the offices for this establishes it is with the court's decision where access reservation is reserving land from the public domain to restoring land to the public
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domain and the reservation. >> justice ginsburg. >> if the reservation had been disestablished, would they have any governing authority and if so, over what? of the major crimes act apply or state crimes in state court? >> they would have control to the tribal understanding what anthey have authority over land there is some land that is under the original patent is built on the riverbed of the arkansas
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river because it was never allotted but the state nonetheless has jurisdiction over all of the states pursuant to the transfers. what congress had done his save area where they are treated alike and the enabling act and section 21 extended federal law except where not locally inapplicable and the major crimes act in the indian territory because the act confirmed jurisdiction which is why a petitioner cannot cite a major crimes act case during this period before statehood or after. >> this question was asked before about what of the congressional description that
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an oklahoma all residents are subject to the same law at least the framework of what congress was trying to do in creating the state of oklahoma to transform the governance of the state and land ownership to replace they could be governed by the same state government. if you look at pages 22 to 25 wheeling out the history and that is what congress had explicitly. that is what the tribes recognize in their understanding. >> justice breyer. >> thank you, i will pass. >> justice alito.
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>> justice alito. >> there t is a section of the brief labeled the sky is not falling and his argument is that you're exaggerating the effectiveness decision that it won't have such a major impact in the civil area they identify native american superstate presumptively but it has jurisdiction overrie those peoe to release and that is probably have the actual number. they would have to turn over and as far as future cases go there
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ezwere felonies convicted in the area that is up 12% native american so the crimes committed before thousand o but the federl government to prosecute including crimes with the native american is the victim and you could take that to about 8,000. on the civil side, what happens is this creates a differential treatment between mo between nos and indians congress tried to abolish when it created the state of oklahoma so they would be subject to the estate zoning law as mentioned and that creates the disparity between indians and non- indians. so these businesses are competing on an unequal playing field. that is just one example. the tolls for briefing points out examples o of the restrictie allotment how indians are erecting billboards and neighborhoods are selling fireworks in them, but that is
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in the few areas of land that remains in the allotment to the entire area it is a reservation. then you are creating a two separate societies congress has got to abolish when it passes the doesn't statutes. >> justice sotomayor. >> council, with the latter part of which you set forth, congress can come in and change all of that. >> congress can give the state jurisdiction over anything that be missing if we were to hold the reservation with respect to many other reservations across the country. >> so this is easily fixable by congress. putting that aside, what do we do with that treaty language here that resulted as the trail
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of tears in the nation? it was wrenched from its homeland, marched from oklahoma and then the treaty which guarantees the sovereignty. i am not sure there's's any othr dependent indian community that depends on the treaty right r tt extends or recognizes sovereignty. so, can you point to any, number one, number two, if there isn't, why aren't we back in the solomon andno parker? is there anything explicitly that terminated the reservation and the history that you have recounted? >> let me try to take those questions in order. congress can fix the retroactive consequences here.
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as far as the independent community, i think the play blues have sovereignty over their land. it may not have been via treaty, that the idea that the community versus reservation turns on the treaty rights is actually nowhere present in the court's case law. and on top of that, it would actually undermine those that were created b not created by ty but byer executive order for the position but actually undermine around the country and third as far as the specific language, i would loo to go to justice thoms point. the tribal law shall not be enforced. it makes it absolutely clear.
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it's a complicated one because the use of language can chain over such an extended period of time but when i look back and some of the cases that were decided around the same time that the creek nation was decided, it seems as though the case it was meant to be an umbrella term is pretty strong and specifically the case called the mcallen talks about the broad use of the term dependent indian community and said that whether it was something with the reservation or a colony is irrelevant.
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>> i think you have to read it as well to take into account which says tribes with their land in fear unlike indians living on reservations. i don't think you can read 1151b as just completely the same as what's 1151 a and c but more than that reservation has to be land reserved from sale in here the land was not reserved from sale, it was sold, it was given to the greek nation in exchange forr their land. >> that's a different kind of argument, that's a different kind of argument, that the argument in itself is inconsistent with registration
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status, are there other tribes i have been given land in symbol that has been recognizes reservations? >> thank you for the opportunity to address that, the greek nation points to the seneca and new york as he simple but they yielded their land and notby by session but by sailing all their right to private parties in 1797 and 1842, under that olive gardenewestern new york and citf buffalo is indian reservation which would be highly disruptive, they also point to the 18th 17 treaty but forgot to mention the 1818.relinquish the right to upon and is to give them a reservation, it would disrupt no land anywhere and in 2015 by the way, the second circuit looks at seneca land in the buffalo area and says it's dependent indian community. >> ifr questions, i'm going to kick them off as fast as i can.
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you can choose which one you want to respond to in the times you have. >> can you explain why the fact that the land would lead to a less stringent distance bushman test than solemn. i don't know why that would be the case. second, at least in the briefs you make a lot of later demographics and evidence of what happened, i guess i'm struggling to think why that would be relevant in an interpretation of statutes from the last century especially when later demographic evidence shows nothing more than the states have violated native american rights including oklahoma's enforcement of the state laws on tribal lands against tribal members in the past. third, possibility arguments, if you could address what is wrong in a brief how states work with
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tribal entities. and finally, fourth, i would've thought after carpenter versus murphy reminder sina tsunami of cases, real problem here, you have not seen. any of those you want to take up, y feel free. >> all do my best justice courses, were not seen as less protection or more protection, that's a false paradigm, congressional regardless, 1151 is not a sliding scale of protection with reservation in the communities being more or less, they did have more rights with respect to the title which is congress decided they needed a tribal agreement but the tribe divested themselves of the title. when it comes to dependent indian communities, what you said in resources and what been a tie said is that depending indian communities when it becomes alienable is no longer
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part of the indiana community, that's based on the text of differences between 1151 a and 1151b. what happened, were not relying on what happened 100 years ago it's a tribal understanding, the federal understanding in understanding the federal judges during the process and as a process was being implemented, several judges hard transfer cases involving indians to state courts, the tribes understood as reproving our appendix that they would be subject to statete law. what were talking about here is the original tribal understanding in the original public meaning and what they're trained to do is in pause on statue and acted 100 years ago. if you look at the original understanding about everybody implemented, it's completely as oklahoma is doing today. there is no tsunami, we had 170 people already seek release under murphy, even though the
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murphy mandate has been stated in the oklahoma criminal appeals decision is binding on state courts, 178 cases are cracks in the dam and that does not include the state court filing that our office is not notified of, i don't think that you can say there's no tsunami coming in as far as practical, we will try to work with the tribes as much as we can regardless of how this decision comes out, we work with them on a day-to-day basis and doing a lot of great things in the state of oklahoma. >> thank you chief justice, good morning general, i went to pick up on your comment earlier that pcongress make clear that indis and non-indians will be treated alike to pick up on just a scorcher's demographics and follow up on whatmo i said in my earlier question, my understanding, as of 1890, this
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is a very unusual situation because was predominantly non-indian in indian territory. that put congress in a very difficult position of figuring out what to do and i think that's necessary to understand to figure out what the text of the statutes t mean. i guess my question on demographics, people talk about the denmark graphics now but they were also similar in 1890, how should that affect what wert thinking about and more particular, can you connect that up to the text of the statutes that congress enacted in the 17 year period to transition to statehood. >> certainly, i think that's the right way to look athe it. by statehood, 90% of the area was non-indian. i think what that means, you have to figure out what congress was trained to do which is abundantly clear from the history which is congress is trying to undo the tribes ownership of the land and
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exclusive governance of the land because there's no territory government to give it to a new state that would govern the land, non-indians and indians alike and were non-indians and indians alike would own the land, that is nothing like any of the courts previous cases, it was not able to point to any case that was anything like that and so how that connects to the statute, if what congress is trained to do for my history, there trained to transform the jurisdiction in the land ownership. the transform jurisdiction says tribal law should not be enforced, the allotment agreement transformed a tenure. the other sides wit said we cany taxes, that they were abolished in the five tribes act and no tribal power that existed in the one power they can appoint to was abolished in the five tribes act. >> thank you counsel.
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>> deputy general. >> may i please occur, and preparing the indian territory for statehood, congress has eliminated the hallmarks of the reservation. congress broke up the tribeses national domain and extinguish the tribes interest. congress likewise eliminated the territorial sovereignty of the area by abolishing tribal courti imposing the enforcement and territorial courts, at the same time congress eliminated the indians under federal law, instead suggested all persons in the territory irrespective of race to the same course and body of law largely incorporated the state law of arkansas, congress turned forward the framework for the new state but the oklahoma law would've applied throughout the indian territory and provided for the criminal and
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civil cases involving indians and non-indians alike to state court. congress does not radically change court and impose a reservation jurisdictional regime to allow eastern oklahoma upon statehood. >> the creek land was owned by the tribe and camille c unlike the situation almost reservations. can you explain the consequence of that for the analysis in this case. >> i think it's significant and supportspohe establishment. the tribe had the ownership as part of setting aside the territory for its nation to be undeserved in the treaties provided that no territory or state would be created there. after all the non-indians moved onto the territory, congress concluded that had to break up the nation and that included
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both the feed and the sovereignty. when congress provided for allotment, that is specifically ceded its interest in the land, to the individual and because the sea was the hallmark of the sovereignty, what made them separate, the tribes of conveyance of thedi individual members and all interest is to get their sovereignty at the ty same time. >> thank you counsel, justice thomas. >> thank you. mr. neither, on solomon parker we had clay reservations, it was pretty standard and then you had an effort to expose of organ
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alienate surplus land, here this is entirely different, have you seen a case like this in which we have applied the solomon parker framework? >> i have not, the point you made earlier in all those cases theou court to the consequence f a lame-duck standing alone. here you have other statutes specifically addresses consequences, each of those cases arose in deciding whether federal law would apply or state law would apply, here congress answered that question directly, there is no need to infer that from the surplus lands act alone, congress in preparation for safe would provided that the same laws would apply to indians and non-indians and turned over the territory with the attributes to the new c.
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immediately upon statehood when the compacted statehood was entered into, the state courts started to exercise jurisdiction over indians in that territory in fulfillment of congress preparation and that was done for an act of congress, it's not simply a consequence of surplus land, all that is for consequence preparation for statehood. >> thank you. >> justice ginsburg. >> one of the statements and allotment conveying the title and interest of the tribe, allotment unlike session does not diminish the reservation. >> there is no party test for that proposition, the important point here is when congress started the move toward statehood, the preparation
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toward statehood kicked out the dogs act in 1883, the act provided for the negotiating session for allotment for such other method that could be accomplished in preparation for statehood, congress regarded whatever method could be worked out as a prelude to statehood and the reason foror prelude to statehood is because congress was preparing to substitute the state for territory just thought that's done with all territories in the past, the only difference here there was no territorial government separately established, it was a territory in the government of the tribe which congress essentially prevented from enforcing the laws and created a situation with the land and the characteristic to be transferred to the state for indians and non-indians treated alike. >> i think the session has been
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asked before but when the tribe, not the united states, the tribe the treaty guaranteed land, you say we should apply a less standing of the distance establi think you wouldn't dissipate when is the tribe itself, not the united states. >> i'm not saying it's a less stringent standard i'm saying what congress did needs to be understood in the historical framework in which acted in the framework -- that was understood by everybody's concern at the evtime of statehood, the contact of statehood that provided, it was not confirmed in the state, was part of the contact in which a state came into the union that
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in eastern oklahoma as was prepared by congress, indians and non-indians are treated alike, that was the deal and that was fallen through with transferring cases involving non-indians. >> thank you. if we decide that solum does not apply here or there is not a exception, then you would when i would assume, let's assume that. but would that not cause the same practical problems elsewhere in the country for 35 years people have lived under solum, if we change or make exceptions one to be places where people bring lawsuits and people who are in prison and say we are tried in the wrong court? the same circumstances here, we thought we were tribe and the
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prisoner says no you're not a tribe and vice versa. so why does the parade of wearables work in only one direction. >> you get the wearables. >> we think this is a compelling casewe under solum and also that the court has to consider the applicationle of solum with respect to the history of oklahoma, there is no other territory of the united statess converted to statehood. >> that isn't quite the t question, my question if we make an exception from solum, or if we change solum, is there not likely to be the same kind of parade of portables elsewhere, i don't know the history of every tribe in the united states and though you know great deal, i'm not sure that you do.
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>> go ahead. >> you created an exception to solum, would be in an exception that would be based on the circumstances of this case. again unlike in solum in other cases, that is not just a land fact, young these other specifics directed at the consequences of this establishment that the attributes of this establishment and i'm unaware and we have not seen in the eight or nine or ten establishment cases, anything resembling that with a more separate statutes implementing. >> you know what happened in alaska or hawaii or in wyoming, you all looked into this and said if you create an exception and there's no one else who can qualify for the exception. >> no one has identified -- and course alaska there are no reservations and in wyoming there's one reservation, nothing like this has surfaced, this is
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been the case for 100 years in oklahoma, more than 100 years since oklahoma entered the union under the understanding that indians and indian should be treated alike in eastern half of that new state, there is nothing like that. >> questioning whether the creek nation has a reservation or dependent indian community has implications but what i would like you to address is whether we can decide this case on a narrow ground because after all the only thing that's involved here is a prosecution. if we were to look at the narrow question, whether congressgr has provided for the trial of cases like this one in state court, what would that look like, what
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would it look to, the 1897 act, the 1906 enabling act and the amendment in 1907, the way these laws have been interpreted for e hundred years, what would an opinionrs like that. >> i think it would look at all those things and what happened prior to statehood is highly relevant because everything congress did was in preparation for statehood, the subjecting indians and non-indians to the same laws was part of the package that congress incorporated into the new state at statehood so 1897 in 1904 acts are critical in the statehood act was provided for the cases for assistance and was applied by those responsible for implementing it. >> we should look to the way it was interpreted after statehood or from any decades after that
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because these people were proceeding in bad faith, the statutes were clear and the state was simply authority in the federal government was going alongal with it. >> there is no basis for that, these are federal judges, federal district judges, federal indian court judges and state court judges in state court prosecutor, everybody on the groundto understood that, there was the case called the entrance which proceeded on the assumption in the indian territory committed a crime his face could've been transferred to the state court but the premise of the whole case was that his case would've otherwise gone to state court in oklahoma. it is important to understand the tribe understood that and i urge the court to look at the statements by the principal chief of the creek nation in
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1906 after the act was passed and he said it establishment of the state government, all powers of the governing even a land property will seize except as a distribution of her money is concerned. >> justice. >> i understood that statement was in light of the existing congressional disestablishment legislation that congress subsequently changed and did not go through g with. but putting that aside, i have not figured out whether user accepted the oklahoma suggestion about the dependent community exception or argument, are you endorsing the argument? >> not in terms, this court has
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discussed the communityom separately but some of what informedor the same engine stats argument we said was very important as a symbol for. >> let's go back, is there consequence that were unaware of if we were to describe this creek as dependent in the community, what other things would we put in question -- you saying the things from that discussion informed your disestablishment, i understand your argument but why aren't you endorsing the dependent indian community argument. >> there could be other situations, for example in oklahoma congress has provided various statutes to apply with tribes within formerrm reservations and if these were
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regarded as communities with statutes like that apply, congress referred to them as former reservations but one point that i think -- >> i hate to cut you off but i have one last question, what do we do if we say this reservation was disestablished, under what theory would we recognize indian sovereignty that they kept, it was either disestablished or not, and what the complex laws exist now giving to the indians of reservation of the casino rights and jurisdiction over lands that they own and all those other things, what would be the basis of keeping all of that and it was disenfranchised.
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>> they disestablished those partials that we made at the allotment or tribal plus lien or of the sort remain enduring country into saying the reservation was disestablished was the assumption toward over 100 years would not change anything on the ground because oklahoma has been understood that allotments are the tribal and individual activities. >> justice kagan. >> i understand you want to support oklahoma's position in this case but just a follow-up owon his question about what indian communities were or were thought to be a 1935, do you think those concepts were mutually exclusive or reservation an independent indian community? >> i think there was a lot of
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overlap in the court often decides them in general terms set apart for the use for superintendent of the government in that freezer. in pottawatomie and is there a difference between trust and reservation into the same general concept except for a reservation as opposed to an allotment, it's owned collectively, when the land is broken up as it was sealand broken up and someone conveys their interest to somebody else, they are conveying all their interest, it's not like trust property on the typical reservationic or when it's allotted the united states retained an interest and therefore on behalf ofer the tre in some sense retention interest, when it sealand is conveyed out of the tribe and all of the interest in the land
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and that's particular clear under this allotment agreement because it provides the united states also extinguished by approving the deeds and extinguished its interest in the land and was an interest for when the tribe was disappearing and so by relinquishing the united states interest in that land at the same time it was conveyed to the individual allottees, it made clear the tribe as sovereign authority over the land was being eliminated. >> thankg you. >> justice. >> tell me what's wrong with the sequence of my understanding that congress did establish something it called a reservation with respect to this property ath some point time through the 1890s and the early part of the last century, there was awful lot of debate of hot
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in that reservation whether they could ended in anticipation of oklahoma being part of the union, things got very i complicated and they became mighty close to ending the reservation but never quite passed the kind of language that we typically see when that happens a reversion to all lands of the public domain or cessation or anything like that and the commission could not quite get there so you really left to rely on a lot of demographic evidence, then in now which while not everybody is acting in good faith, not everybody is acting in bad faith as someone pointed out and it's a mixed bag and it's hard to make much of it and to rely too heavily on demographic evidence is dangerous because in some ways you incentivize people to ignore the terms of the law and for example as i pointed out,
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until the 1970s the oklahoma continue to try to enforce state law against native americans on a lot of territory, i believe i have that right, tell me what's wrong with the understanding. >> first of all i think is a big difference between demographics before and after statehood, the overwhelming presence of non-indians in the territory was precisely the reason by congress said they won't work to have tribal governments running this in the tribes cannot exercise jurisdiction over the non-indians to what congress said this area need to government foreign by both indians and non-indians in and establish that in the territory so it can hand the arrangement over to the new state and it was a its decisions that the contemporaneous understanding of what congress is doing is significant, the original public meaning of what was done and everybody, the state understood
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it, the state obviously implemented its contact of statehood, the federal government understood it, felix cohen understood it, the commissioner of indian affairs said the tribal government left, the tribal chairman sent the chief and said the same thing that we are in a position to distribute the property and even the case of petitioners in the tribal to rely upon the specifically says that the tribe lost its territorial sovereignty even though it had the authority in the internal affairs. >> justice, no. >> thank you chief justice and good morning mr. neither, i want to follow up on a question, they
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mentioned the 1832 and 1830 through treaties, my understanding however, was that the 1866 trudy made clear that those treaty rights -- i don't know if the word is superseded but diminished because the tribes had aligned and made a treaty with the confederate states of america and the treaty language in 1866 said that the had unsettled the treaty relations anything you want to add on the 1866 treaty, the relevancef of that. >> i don't think add significantly to the point except it's reflected as an assertion of greater federal responsibility in the territory and it was contemplated to congress could pass laws governing the territory, i did want to make one point about practical consequences on the criminal side, not only will
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this jeopardize all the prior convictions on the stateside but it would impose great burden on the federal government and its estimated a 1300% increase in criminal prosecution brought in the state court. and of course for the state there would be questions of taxation and whatnot and i don't think the city is a solution for that. >> one other question to follow-up, my understanding given the demographics as of 1890 it would be very hard to have a tribal government over the whole territory because of ythe population at the time and my question is what tribal authority judicial authority or legislative authority to your knowledge was exercised over the whole territory including the white settlers in 1890 - >> it was good, the tribes had no authority, which is why
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congress put in place the courts for the indian territory and put in place federal law mostly incorporating t arkansas to indians and non-indians alike and that is the regime that congress passed on from the territory to the new state in the new state received and has applying thaty ever since statehood. >> thank you mr. neither. >> you have two minutes for rebuttalha. >> thank you mr. chief justice, number of states, justice courses, you're right, this court may not be able to determine what party has a better meeting 120 years ago but is well-positioned to determine which party has a better reading of the text and on that i submit this case is not closed. >> justice ginsburg, two points, with respect to the title that was meant to be an additional protection because everyone understood the imperfection in indian title but they did not
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even get the patent until 1852, 20 years after the reservation was given, elimination of the title does on the many treaty promises, those have to be disestablished in plain text, in addition you're exactly right, the title and interest language is only text the other side can point to conveys proprietary interest, not sovereign interest so there is no textual transfer. there has been a lot of talk discussion about your respective race, one quick point on that, the enabling act and section 13 what congress put in place was the laws of the territory of oklahoma which did not have this magic language about a respective of race, that suggested that congress understood the argument, the sg are making for up today, there was a lot of discussion about whether there was a compromise
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available on criminal jurisdiction, there is not, justice alito mentioned a lot in one of the missing ones is the text, it is very clear, i was amazed that mr. said there was no basis for believing and ignoring of the text and they said that is true, secretary udall memo listed seven states which are true, the numbers today are mind-boggling in the back of the envelope they don't appear many in the briefs and the only fixed number is 170 petitions. i understand the court's concerns about jurisdictional consequences but there's no serious disagreements that these disputes are common -- >> the cases submitted. >> now legal experts review the supreme court case in conversation when national constitution center president and ceo jeffrey rosen


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