tv Review of Supreme Court Oral Argument on State Jurisdiction on Indian Lands CSPAN May 11, 2020 1:14pm-2:05pm EDT
fisher conceded. these are the people that will teach the faith to the next generation and if they do not do it, nobody else will. the decision in the framework for hosanna-tabor deciding delicate church-state questions. they should not be reversed. >> thank you, the case is submitted. >> the honorable court is now adjourned until tomorrow at 10:00. this is the second week of live oral arguments from the nation's highest court, 10 cases and all by the end of the week. the justices are continuing to hear arguments by conference call and letting the public listen live. the national constitution center in philadelphia is hosting conversations about today's cases.
>> welcome c-span friends for a day four of the supreme court recap. it has been an extraordinary experiment in public education, to convene scholars on all sides of the cases that the supreme court is broadcasting live for the first time in its history. and at the beginning of the , we have hearde two formidable cases and i am thrilled to join you to understand the spirit of both sides. i'm jeffrey rosen, president of the national constitution center in philadelphia. we begin all of our national constitution center programs by reciting the inspiring constitutional center creed,
which prepares us for the learning ahead. the national constitution center is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the american people. that is what we are going to try to do today. thank you for joining to increase your own understanding of the constitution. that ist case is one deeply important and unfamiliar and i cannot wait to talk about it with our experts. this is mcgirt verse oklahoma. joining us to discuss, lindsay robertson, who joined a brief submitted on behalf of the historian legal scholars and cherokee nation in support of the petitioner, and faculty director for the center of the study of american indian law, chickasaw nation and native
american law, and sam k. -- family foundation presidential professor at the oklahoma university school of law. filed a brief in support of the respondent. he is an associate professor. he has revisited parties in many proceedings, before the u.s. supreme court and u.s. courts of appeals. i am delighted to welcome both of them. thank you so much for joining us, robert sharon and lindsay. >> thank you. >> i am so glad you are here. lindsay, we will begin with you. you filed a brief on behalf of the petitioner's. chief justice roberts asked a question out of the gate, saying the state argues that this indian community is not an independent reservation, but a dependent indian community.
tell us about that rather technical sounding distinction and why so much of the case hangs on it. >> it is unclear that it does, but it certainly became the state's principal argument this go around. it did not appear in the argument in the murphy case, which left some of us scratching our heads. they seem to have shifted course midstream. and are making this different argument. titlenguage comes from 18, section 1151 of the u.s. code, adopted in 1948 to define indian -- as a place where specifically two federal criminal statute would apply, the general crimes act, and the major crimes act, which was the focus of this case. ,he language in that section 1151bis reservations,
1151c, communities, and former indian allotments, which was not part of this case, but the first two were. the language appeared in 1948 in the u.s. code, having been drawn by congress from a series of supreme court decisions on different fronts. the reservation language was what the argument in the precursor to this case was, that was last year's murphy case. and there is loads of history, and everyone who goes to school in the u.s. news about indian reservations, treaties and at, this sort of thing but in the indian community, that is more unusual for people. it is actually a new mexico creation. what happened is new mexico was a territory, a federal territory for a long time. and in the course of new mexico's territorial history, the question arose -- are the
pueblos indians, for purposes of applications of statutes specifically -- statutes, specifically one that among other things prohibited the sale of alcohol to indians in indian country. merchants,as speculators and a indian communities in albuquerque selling alcohol to the pueblos and selling it to the citizens, and then getting busted for it by the feds. prior to statehood, state territorial court said this is fine because that they are not really indians, because they are civilized, etc. the federal government was concerned about it enough that they through language into the new mexico enabling act, saying, yes they are indians. and new mexicans have continued to violate the law. then the sandoval case came up, which was mentioned in the oral argument today. state of all was a fight over
are the pueblos indians, and the bulk of the decision, if you read it, feels very racist and deals with levels of civilization. are they sufficiently inferior to white people that we can consider them indians? the answer to that is yes. and the pushback that comes from the state of new mexico is, yeah, but they are citizens. the supreme court said to that, well, maybe we are not entirely sure, but it does not make a difference. and the final desperate argument, yeah, but they own their land, so they cannot be indians. the reason that they own their land turned out that the boy blows had owned their land under mexican law, and when the united states acquired new mexico we agreed to respect existing property titles. so will blows on their land -- so the pueblos only to their land. the state said that does not disqualify them from being indians outcome because look at
the tribes in oklahoma. we consider them indians and they own land, so that shut it down. so to build an argument that the pueblo situation -- by the way they characterized them as a dependent indian community, and that is the language that is put in 1151 b, in order to make sure that in the future new mexicans, in particular, do not try to treat pueblos as non-indians and exploit them and consequent of that. >> thank you for that. that is a helpful beginning. robert, we will step back because this is technical stuff. it was well explained, but i need the viewer to understand the basic things. there is a huge question, which is a large percentage of the state of oklahoma, under oklahoma state criminal jurisdiction, are not. or were never. is it still under the control of native americans? help us understand the basic division of the state and why
when the state became independent in 1906, did the state gain jurisdiction over the lands in opposition to what the other side is arguing? robert: the implication question is one that has been discussed at length. there has been back and forth on it. but if you talk to the local elected district attorneys, who were on the brief that was filed by marty and i, when you talk to them and learn from them and learn about what is going on in eastern oklahoma, there are a huge number of consequences, immediate consequences, difficulties, unanswered things about what happens if you suddenly apply federal indian country status to half of a state, one point 8 million people 1000 miles from washington. it is enormous. but that is not the simplest way for you to understand what are the implications of this. the best way is to imagine that you are in a state, that means
most of the decisions and that deeply impact your day-to-day life are made at the local level. the federal government has limited power over you in the state, only addressing certain things. that is helpful, especially when you live in a place where it does not line up with whatever the majority policy in washington might be, and where you are living with people who are governing you, they are close to you, and you are more likely to get the quality inappropriate government that you want. we need people to protect us from crime. we need people to invest in our communities. and we need people to set the rules of the road for local law issues. so if you put federal indian country status suddenly after 100 years over all of eastern oklahoma, you are not giving it to the tribes, you are giving power to congress, to the federal government, which is very far away. and the relationships in eastern oklahoma, some of which were
said today, some of the views unrecognizable to oklahomans, where they tribes in oklahoma and of the state government and people who are indians and non-indians, it is a wonderful society. one of the great stories in the history of the union. they can work together and they do work together. but what we have not done, what we have not had to do is a hand over half of the state of washington. now you have washington, congress, special interests, and it is not the people making the fundamental decisions, they are not the ones who live in oklahoma together and have done so for 100 years. that andthank you for for that interesting point that if the state of oklahoma, if they were to lose that, the ultimate authority up to congress, and as we heard in the argument any criminals would be convicted under state law in those territories, could then file habeas corpus and refile his or her case in federal court.
i do want to ask about the particle consequences the a great general said -- deal of convictions were at stake. 1700 inmates who have committed crimes in indian territory. the state would not have jurisdiction. it would probably be half that number. and that does not include crimes committed against indians. we are talking about 3000 inmates that would have to be turned over. thousands of felonies committed in indian territory. that would be 4000 new felonies a year. that could double to 8000 if it included native american victims. so is this correct, or not, in your view that if your side was to win that many existing criminal convictions would be overturned or would have to be revisited? lindsay: there are two parts we do not know. and one of the troubling aspects of the oral argument for me,
this happened in the murphy case, is statistics are thrown out and oral arguments, so there is no real opportunity to dig into them. i know as in oklahoma that has worked in state government for 20 years, including for the governors, that we do not keep the sorts of records we would need to keep at the district attorney level in order to know what the numbers actually were. we do not keep information on the tribal identity of victims, so that would make that calculation problematic. and i think a lot of this is through self identification and as robert would agree, there are many who self identify as indians or are, who are not citizens of tribes. so will there be consequences on the criminal side? yeah. so this is the other question i heard, there is the prospect of side and retrospective side. and prospect of lee i think that the answer is if there are problems, congress will have the power to fix them. if on the retrospective side, i
think of the federal system is severely limited, but by the increased penalties that were alluded to, and by the time limits imposed under federal law in filing habeas petitions -- so i do not know there would be that many people who would file. we do not know either. the only concrete number we have is the number of people who have filed since the decision in murphy, that number is fewer t han 200. and we do not know what that position will be. so i think my answer is there will be consequences. we do not know what they will be. they could be fixable. but retrospectively they may be smaller than people might imagine. jeffrey: thank you for that. the question of consequences is one that the court dealt with recently in the ramos case, which came up several times. ramos decided a few weeks ago, held that there might have to be many cases retried because of
the incorporation of a previously unincorporated criminal procedure requirement, and the court was willing to take that risk. robert, as you listen to the argument -- listened to the argument, what did you hear the eight where what w they giving to those particle considerations? seemed torsuch suggest that if congress never did in fact turn over jurisdiction to the states, would we have to take the consequences and let the -- fall? other justices were more pragmatic. tell us about the competing approaches is within the justices on whether the practical effects should matter. robert: so, i just want to be clear on this because there has thisthis perception anin case that ok, you have the law, the law is not really good so we are appointed to the consequences to say let's ignore
the law. but could not be further from the truth, because that would be wrong. however, what we are talking about is not really about consequences of the court's decision. what we are talking about is the instances that have occurred for 100 years, and which the issue would come up. first of all. and that has many implications for how you analyze this. equally importantly is the consequences are just enough, i think we can all agree, that you have to look everywhere, under every rock. and you have to be thorough. because the consequences, at a minimum, the federal government is telling the supreme court that we do not have the resources. i am telling you that the district attorneys do not have the resources to be able to help facilitate that process and hand off attorneys in order to go back and retry the convictions.
we are telling you that at a minimum, even when you look at that one piece, let alone everything else, let alone handing the eastern side of the state to the federal government, we need to look carefully and at everything. the challenge, the reason why we keep talking about the consequences for that reason, is that this is an enormous historical record over 70 years. it is not a single statute. and it is so exceedingly difficult to go through all of difficult to go through all of this. this whole argument. when you are dealing over a case over a border dispute, you so much more process than we have had here, that is why we keep talking about the consequences to say, we know this process is not ideal. we know it is a massive record, confusing, and when you look at
the usual place for what you expect, we do not find it. however, please keep looking because eastern oklahoma is not federal indian country at the whim of congress, it is a place where oklahomans have been united for 100 years and they want to keep it that way. we are not sure that congress will just hand it back if the court issues a decision in the wrong way. jeffrey: that is a powerful way to put it. for more than 100 years, oklahomans have been united and congress wanted to keep it that way, when it admitted oklahoma as a state. justice alito mentioned a statute, he talked about the 1897 statute, which is has the laws and shall be applied to all people, regardless of race. ruling based on race, and much of the argument came down to whether, when oklahoma
became a state in 1906, congress wanted to maintain that nondiscrimination printable. -- rprinciple. what is your broad response to that question? is a topic that has returned to oklahoma when we look at federal legislation, and i will focus on the enabling act, for instance, including that provision. what was missed at the oral argument, i think by both sides, is that that provision was included in the oklahoma enabling act not to ensure that native americans and non-native americans would be treated identically under the law, but to protect the rights of african-americans in the oklahoma territory. president roosevelt, who understood the state process, was concerned there would be, as there was in the rest of the south at the time, jim crow legislation passed that abused african-americans.
so in order to stall the state from adopting a racist institution they sidestepped and directed the legislature to do it, so the first legislature in oklahoma passed legislation segregating schools and other stuff. that was the targeted protective group, not the native americans and tribal rights. you for thatk context. robert, the underpinnings of this case, as justice kavanaugh asked about history, he said the civil war, the five tribes aligned with the confederacy in the civil war, and they had black slaves. in the new treaty, the new towns were predominantly white. you had a situation of indian territories that were white, 60% white, 10% black and a 30% indian in those relevant territories. and he said to what degree does
that suggest there is no incompatibility with reservation status, so unpack what he was getting at. robert: it is an opportunity where he is having to do it as a question in a three minute round of an oral argument under these conditions, where he is going through that. but what he is getting at is when you do the work, the really hard work, and you go through this. justice kavanaugh is known for that. case, heean power plan went through an entire footnote and he said he needed a stiff drink after that. but he said when you go through the whole thing you understand what is going on. and that is how the court has always done it in-state boundary cases. i want to go through the history, but before that, to be clear the constitution of the u.s. says states cannot have their borders diminished or landed diminished without their consent. ok?
they can sue each other in the supreme court. those cases, the disestablishment indian cases are a subset of that, where you have been expressed constitutional provision that says you have to have consent. you have to fight it. it is a psalm statute in the constitution. the court has addressed these cases and there is a set of factors that are relevant and all three of them broadly mentioned. but with the court has those cases and has had to deal with them, it goes through all the history that justice kavanaugh is talking about. the way that these have gone has made it difficult. justice kavanaugh is saying if you go to the history, you may find the answer you're are looking for in a different place, in a different way and it may be informed by the history. so just really quickly, i will try to tell you a 100 year story that should be a miniseries with six seasons on hbo. when settlers came here and there were different tribes,
there were different responses to what was going on. there was a lot of violent conflict. there were some tribes that didn't engage in -- there was not violent conflict. i hate to use those words, but the way it was put when they were putting the first native american in the statuary hall, they said, they never went on the warpath. they said, we will learn english. we will intermarry and we will have relations. they were in georgia and alabama. what happened was one of the most terrible things, and it still breaks everyone's heart, including people on both sides, including the justices and including everybody involved in this period we are talking about. it was that the federal government removed them forcibly, wrote treaty is not worth the paper they were written on, broke every single provision that was supposed to provide protection, and sent
them to indian territory, decimating and killing all of them. now, right before they did the movement and all the things in broke promises, they wrote a treaty in 1833. i do not think there is one fulfilled in that treaty. it was not anything. sorry, i dropped my outline of 100 euros to. -- 100 year history. so they do the federal removal into the federal government does a terrible thing. in 1856, afterward, the tribes are in the indian territory. it has happened to. they realize what they need is, we will have to build a society, a life and permanent home we can live in. what does that look like? the worthless treaty had said that they were going to a place that would be indian territory forever and it will never be part of a state. time, they, at that superseded that treaty. and they said what we want is a
state that we can live in, we want to go towards statehood. most situations people have wanted statehood. it is good. you bring power locally. so they wanted it. the provision in the 8056 treaty says, you cannot put us in a state without her consent. now, it says without our consent by our legislative assemblies. but that treaty -- i am not making this up, this is what tribes were telling congress. that treaty says we will become a state with our consent. then, however, the civil war breaks out. and given what happened with removal, unsurprisingly many of the tribes, some parts of the tribes, it was just some of them not sided with the south. it was that conflict. following that, that was influenced by the fact of the terrible treatment that had happened to them. there was reconciliation in 1866.
this is symbolized in oklahoma, where some of the land in indian territory, where they said this whole thing will be a state, all of oklahoma was going to be a state, some of it will be split into oklahoma territory. we will bring more white settlers in. now we split up the territory anin two. the civil war happens and we are going to, we are not sure what we will do, we have split it into two territories. and you have lost demographics because we brought in the sooners. this is when they were coming and they said, there were people here before us but they must've left early. so at that point, right, you have got this really -- situation, but everybody inconsistent with the actual language understood that the name of the game of what was going to happen next is we were going to ability state. the question was whether they would get half of it because of the civil war and because the territory was split, separate statehood, or whether we would end up with a single united
states. there was a lot of discussion about that. but for that entire time, until 1906, the tribes were working with the process of how are we going to get this state. there were disputes, badly it of the day in 1906 the way they did it maybe was not what we were expecting. they did not say congress passed a statute and say it is not federal indian country. they said, we need to come together. we have reconciled an we nee to d we need to reunite. so they passed an act, so that they could build on the constitution. and they did. that is how they thought they were doing it. they did not do it with legislative assemblies, they did it with the provision of uniting. that is what they thought. the question in this case is does that work? are we looking in the wrong places? there are questions about that. we know at the time that that is what they thought they were doing, they were going to use
the unification process. we know this because the five tribes submitted on the eve of statehood a petition that said by having everybody vote together and serve as delegates together, 15 members of the five tribes served in the oklahoma constitution, that does the job. they passed the enabling act. and before and after that the chief of the creeks said this will affect the union of these areas, the enlargement of your citizenship, and we will have a single united state. it is complicated and long-winded, but history commanded that is not even scratching the surface. jeffrey: that history was great. thank you for sharing it. what i took from that history, lindsay, and also from the question from justice breyer, is it is crucial to ask with the government and a tribes thought they were achieving in that constitutional convention in 1906. my law breyer asked
school classmate, who did a great job arguing today, he said, i am still interested in the claim the state makes whether it is a reservation or not is beside the pokemon we need to decide is if they give them the ability to try state crimes. yes, becauser says in 1906 the convention abolished tribal courts and put jurisdiction in the federal courts, and said that these courts had the authority to try these cases. and elsewhere that counsel suggested that this 1906 constitutional convention was a case where all sides came together and about that they were turning over jurisdiction to the state courts. lindsay, are you persuaded by that claim? lindsay: no. i want to make a brief modification to the history. picture of twoof sides willingly coming together,
um, i do not think stands the scrutiny of the supreme court in 1903 in a case with hitchcock in which congress saw plenary power over indians, the power to aggregate indian treaties with no judicial consequence. indianused a scramble in country in eastern oklahoma, wash was mentioned, and being overrun by non-indian settlers, which happened because of the railroads and acquisition of california gold and that sort of thing. in a desperate attempt to preserve their independence, they convened a constitutional convention of their own in muskogee, oklahoma to create the state of sequoia. they sent the draft constitution to washington. present roosevelt rejected it, frankly, on the grounds that if thedmitted it sequoia and oklahoma territory as a state,
that would give extra electoral votes in the upcoming presidential election to the democrats, who were predicted to dominate the parties. so he forcibly crammed them together. the population, it is worth noting at the time, of each of the territories it was more than half a million. collectively, they were 1.4 million people, which does not sound like much until you realize that five years later new mexico and arizona were each entered into the union with half or a third of the number of people in just the indian territory. so at the time it was seen as a ridiculous crowding of people in order to avoid adverse electoral consequences. and the sequoia participants in the oklahoma constitutional convention went in a desperate attempt to take control of the thing, to attempt to preserve tribal autonomy. the transfer jurisdiction to
courts was a routine element of any transition from territorial status and state status. you had to provide for what happened with pending litigation. i think there was nothing exceptional there, certainly related to continuing reservation status from the muscogee creek nation. permit me one other thing. i see muscogee creek nation deliberately because robert said the attorney -- or rather oklahoma said, and ed neither -- needler said, eastern oklahoma is at stake here. i want to know if the muscogee creek nation would be justified in treating that as a concession theaterial identical to between muscogee creek allotment treaty and chickasaw choctaw cherokee and a seminal, so if the tribal position prevails here, we can dispense with litigation on whether those were
disestablished. jeffrey: i take it that that is a significant point, because as you are suggesting there is a on whatamount of -- is designated, which is why the case is important. justice thomas seemed scissors as this was unusual. he said in previous cases, solomon parker, those cases only involved the disposition of surplus land. here there is much more being done and statutes involving --. can you point to any case where so much is being done? and if you could help listeners and me understand, is this the only case that involves a big chunk of a state? is that because of the 1906 convention, that it was unusually unclear or is something else going on to make moreseem to sweep a broadly than previous cases? robert: sure.
solemn,e never heard of that is the case about disestablishment question of what was the status of certain land that was sold from a particular reservation at a particular time, usually with a single statute. occasionally there have been ones with the three statutes, it got a little more complicated. that is also dealing with the process caught allotment. hese are manageable -- these are manageable cases. important, most of the time, you know, the tribes and the consequences of that would incur -- either it is large and the tribal attorneys and counsel and people involved, they will identify the issue and litigate it. or it is not a big deal and it is just a small little town with 1000 people, right? what is phenomenally god smacking the hard to cup her head in this case is the idea
that nobody thought about this for 100 years. i want to be particular, because you need to look at the real oklahoma, not the one you might imagine based on the way that the native americans have been treated everywhere else. the -- if the court has recognized, ok, that because it was successful, the union, the constitution at sequoia where the five tribes wrote a constitution, read it side-by-side with the oklahoma constitution. the tribes wrote the oklahoma constitution basically. they designed it was implement did. they got a lot of resources, the population was high. this is a state where indians participated in creating the state, they worked on a rough draft of the constitution and tacky civil rights until day one, not in like arizona. in that state, the key thing is it is just incredibly difficult to consider how could this have hadcome up, because they
chief justices of the supreme court in oklahoma, one was a member of the tribe. the second daughter was a member of the tribe. one of the first senators was a member of the tribe. five or six members of congress. they were not just sitting on small plots of land. they were among the most powerful and successful people. and none of them? so there is something more to the case, that is the mystery of the dog that did not bark. the issue isn't usually do not have that many instances and that much empowerment, and not have people raise it. is it unprecedented? no. this comes up in cases where there is either a mistake or it is really difficult. oh my gosh, it was this other piece of paper. it is a huge record. in state border cases you find it. then you say, what if i can't? i will give you an example where you can't. the state of ohio, congress
forgot to admit us. there are different ways to admit a state and congress forgot to finish the job in 1803. everybody thought it was good, but 150 years later they said, where is that piece of paper? nobody could find it. it literally happened. congress quietly passed a statute that said we will retroactively admit ohio into the union. congress has not done that here, which is incredibly important. it is not like they cleared this up and they had plenty of time. so i think they will keep the power. in the state border cases you have sovereign acquiescence. even if you respect the tribes and estate as much as you possibly can, as much as most oklahomans do, and the supreme court does, which a lot of folks respect in the state, even if you could enforce that there is a sovereign acquiescence. it has never had to come up in these cases. i do not think we need to get there, i think we need to work hard in the most difficult case i have ever seen, to really look
at everything, read the massive record and find it. you have to read long things, winston churchill called it the , perplexing coral over the admission of a new state in any instance. in this one camille at everything else going on. you have to read all these pages to get to one potentially relevant piece of information. when you do things like that, you find why hasn't anybody complained for 100 years. for one think by the cherokee nation, the brave professor robertson was on, the cherokee nation had an attorney before statehood and right after statehood. a top lawyer. william, i forget his last name because i am thinking it is robertson. he is one of the most popular members of congress. he was their lawyer for this crippled time when everybody thought it had been done. and he explained the way he had done it was, go look at the
seal, we had everybody participate in the constitutional convention, that is how we united it. that is what the lawyer thought at the time. and they did it in this unusual way. jeffrey: thank you for that great winston churchill quote, i could not help but look it up. and you are absolutely right, he sping coralhe raps over the -- new state in washington. so, lindsay, one of our listeners asked, this is for robert, for those who have not followed this closely what is the end result, bottom line, depending on which side wins and will it affect india right outside of oklahoma? lindsay: it depends on the basis for the court's decision. if they decide an oklahoma particular decision, probably not. it is less likely to have an impact outside of the state.
if they apply more broadly general rules of a federal indian law, then almost certainly it could have impacts outside of oklahoma. and i think what the tribe is is a resolution in support of a finding of a continued preservation. -- reservation. i is a simpler analysis than think it might be if we follow nebraska v. parker, because the intention was to look at the allotment act. and if you do not see clear evidence that congress, the guardian, intends to disestablish the reservation, then it has not been disestablished and we go forward and figure out what the consequences are. i will give you another quote, this from justice who go black, and i will paraphrase it, is
that great nations should keep their word. that is what is at stake for the muscogee creek nation. this scenario that if a tribe with a reservation that is guaranteed continuity of existence loses that separate self-governing status over its own lands as a consequence of some particular number or an excess of it of non-native people moving in, is appalling to consider. that is overrun. that is conquest by relocation with no need to actually take military action. because once there is enough of us, it is ours. and that cannot be a fundamental principle in the way that the united states of america deals with its indigenous people. jeffrey: you guys are on fire with the relevant quotations. you are decidedly right in
quoting justice black, great nations it should keep their word. i and getting that in a book about a review of the u.s.'s failure to keep its word when it comes to native american treaty rights. one more question and then we will move on. forgive me,- what about the effects of the decisions, something tech shoeless never considered. is that what you are getting, robert? that they focus on the precise text of the enabling act or did you hear something else? robert: that is not what i heard. i heard that there is no question that, you know, that the text matters and what happens matters. but there is a perplexing about what is going on here. it is very difficult to
understand unless you look at so much text. again, it is really hard. it is like 1833 treaty says one thing, the 8056 treaty says another. you go back and you see the tribe saying, reciting that treaty because it they were there, and there are documents from the tribes saying to congress, this is what happened. he read them and you do not know what is going on. so you have to spend time to understand the original meaning of the text. and there is so much. it is seven years of text. and you have to know the history of what is going on. it is a bunch of decisions wrapped up in one. so i think what you are hearing is the textualists want to be able to do their job and this process makes it difficult to make a case where a convicted person is trying to get out of jail, and the case goes to the supreme court and we are supposed to file. that is not how the supreme court has done in state border cases, where you do the same sort of thing. but that is where we are in what
we are trying to do. the text is incredibly important. when you look closely, you see what is going on. but you need to have the history and get it right, and not get things wrong, saying the 1833 treaty was coming after forced removal. it came before. you have got to get it right. it is very difficult. but there is no desire to get away from the text here. closing time for brief arguments in this complicated but important and fascinating discussion. lindsay, the first one is to you. why do you agree with the petitioners that and no statute did congress deploy language disestablishing the reservation and that the creek reservation and jurisdiction in eastern oklahoma therefore enters? -- and therefore endures? lindsay: because they didn't. they tried to patch together an argument based on multiple statutes and attempted to
for what ise it sadly for me, a lot of history. i think that the tribe is right. i think that this is not as complicated a case as it needs to be. i think that we have clear precedent on how to determine whether it congress has disestablished a reservation. the question came up multiple times, you asked as well, jeffrey, what about the surplus land cases and how do they fit in. this is like a surplus land case, but surplus land cases, that is just a case where a tribe has agreed to have its reservation all lauded or not. the reservation has been forcibly allotted, but where you get into fixed amount of land. you have stuff left over. what do you do with that? you sell it or the u.s. buys it. that is surplus land. that is where we have that
solemn case, people making those claims. what we do not have in this case is people saying, what about the allotted land, may be that is not indian country other. no one has ever made that claim because it has never occurred to at might not th still be part of the reservation. that includes the allotted lands subsequently bought by non-indians. they are clearly part of the reservation. the irony in this case is it is the first time we have seen a challenge to allotted land as being non-indian country. and that makes this in some ways even more appalling than it might have been. i really think this comes down to consequences -- i think if this were smaller land in the middle of the desert, no one would care. i think it is because there are non-indian and economic interests involved, so the case has been built up, a case built on fear and anxiety.
and i believe the tribe's position is legally correct in that it would serve us well as a country. i hope the court will step back and do what is fair and right, and keep in mind -- and this is the last thing i will say -- not just our own national history, but the history of the muscogee creek people who have been forcibly relocated, made all sorts of promises, have those promises end up being not worth the paper they were written on. this is an opportunity for the supreme court to actually reverse that for these people, treatsue an opinion that these promises is worth something more than the paper that they were written on. and i hope that is what the court decides to do. mr. rosen: thank you very much for that. robert, the last word is for you. please tell our great viewers why you believe that congress disestablish the creek reservation, and therefore, for purposes of this
petitioner can be --secuted as an under exclusive federal jurisdiction. mr. cheren: thank you everyone for listening. i think it all boils down to this. if you are someone and you believe that the forced removal from the trail of tears was one of the worst things that has ever been done, and you believe that great nations should live up to their word, and you vehemently want to see justice done for that, what you should do is go back and read what happened in eastern oklahoma, because that was known as of the 1890's, and because they worked with the tribes to get them to give them the best thing they possibly could, was a permanent home with people in local government and their neighbors, not federal superintendents from washington and congress, they
gave them a state, a united states. and their ancient seals are emblazoned on the seal of that state. this was given to them. there was reconciliation, there was recompense, and it was creating a state that would have the economy and the cultural sensitivity and the appreciation for history in order for these tribes to be successful. they had been for 100 years. you know who was right about this case? the tribes, when they said over and over and over again that they do not have some federal indian reservation under the auspices of the federal government. they have a whole state, the entire state. and that is the right legal result, and unfortunately it is a very difficult case and it takes a long time to understand. but if you do not take away what congers gave them as recompense, do not take away this and take it into a federal freestone. the tribes didn't bring this case. i am not sure it is good for the tribes to hand this over to the federal government. mr. rosen: thank you so much, robert cheren and lindsay
robertson, for a vigorous, deep, helpingionate argument, us understand the complicated and very important arguments in this first case we heard this morning. robert, lindsay, thank you very much for joining. great pleasurey to bring in our panelists for the second case that we heard this morning, which was our lady of guadalupe versus morrissey baruch. and i have the pleasure of introducing them now. , joined a group of professors in support of the petitioner. he is the distinguished professor of law at the ucla school of law, where he teaches the first amendment. he is the author of important textbooks on the first amendment and founder and co-author of the bolick conspiracy, a leading legal blog.