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Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 419. Oh jeez, we’re one a way from 420! [Laughs]
Thomas: Ah, that’ll be fun.
Andrew: I got that joke!
Thomas: Yeah! It’s not even really a joke anymore. It’s so dumb, but now it’s funny to me that everybody is like yeah, 69, 420. I’m Thomas, that’s Andrew, how’re you doing, Andrew?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: I’m good. So, listeners will be able to, next episode, they can play episode 69 then 420 then maybe there’s a hidden message if you do that, I’m just saying.
Thomas: All these jokes will be great next week when we do that episode. [Laughs]
Thomas: We’ve got updates on Wisconsin and comments and questions. There’s a lot more to say there, I think, then the main segment today is a deep dive on McGirt v. Oklahoma. I know, Andrew, you’ve promised that deep dive a while back and unlike eminent domain, we’re actually doing it!
Andrew: [Laughs] We are!
Thomas: Cool! Queue the listener comment segment going 70 minutes and we run out of time! No, no, we’re really getting to it.
Andrew: That would be amazing.
Thomas: That’d be funny.
Andrew: I kind of want us to do that now. [Laughs]
Thomas: [Laughs] No, we can just sit here, we’ll fix it. The Wild Card segment is eminent domain, we’ll see if we get to that.
Thomas: Okay, now we’ll get to McGirt v. Oklahoma.
Andrew: There we go.
Thomas: Alright, let’s get to our first segment.
Listener Comments and Questions
Thomas: We had a couple commenters who are probably more upset by my naming the episode, and I’ll go ahead and if there is blame, I’ll take it. I’ll take the accountability for the episode names, usually I am forced to do that.
Thomas: I called it the Kenosha Terrorist-
Andrew: Forced, I like that.
Thomas: Yeah, and I think – we talked a little bit about this on the Q&A but I think, you know, putting it out on the main show is a good idea too. It might be true that the Kenosha shooter was not your typical, you know, white nationalist or incel with a hit list and a manifesto out to just go intentionally shoot people. I think it’s fair to say that this 17-year old kid was not precisely that kind of terrorist, but I think I stand by the episode name because when you are a white Trump supporter and you arm yourself – illegally, by the way – illegally arm yourself and drive across state lines to go defend property that isn’t yours from Black Lives Matter protestors?
In my opinion, and this is my opinion and I’ll stand by it, you are engaging in the centuries old white terrorism, you are a part of that long process of scaring people who want to maybe just have some civil rights away from, you know, engaging in and utilizing their right of protest. I think you are participating in that, especially when you end up killing two people. We’ll talk about that in a minute. So, I stand by that name, with the caveat it’s not as though he was one of the shooters you see who’s like “I’m gonna go kill a bunch of people today,” okay, there’s a small distinction there. Maybe in his mind he wasn’t 100% gonna murder people that day, for whatever that’s worth, but what do you think about it?
Andrew: I will say a couple of things. Number one, like I said on the Q&A, I think when you travel across state lines with an assault weapon in response to what appears to be, as far as we can tell, radical right wing-
Andrew: Requests for-
Thomas: Yeah, call to arms.
Andrew: -people to do that. Call to arms, that’s exactly right. Your job there is to spread terror, and so I think that that is an accurate assessment. As I said on the Q&A, I support the naming then, I support it now. I think that you are right to draw the distinction that you’re doing there, which is to say yes, there is a difference between a 17-year-old kid who was radicalized by right wing extremism and the people doing the – creating the propaganda in the first place. I think that’s an important distinction, I think that highlights how important it is to be vigilant about these kinds of things. We’re the party on the left, right? So, we’re supposed to understand a series of causes, but that doesn’t mean we can’t decry those underlying causes, and the underlying causes are very, very clearly racism. I would encourage you, if you’re thinking about – when you talk about the history of white terrorism against Black people, do a google search for the Wilmington Massacre. That’s what comes to mind. In particular you can find, if you type in Isaac Stanley-Becker, that is a hyphenated last name, Isaac Stanley-Becker, you can read about the only violent coupe that ever took place on American soil-
Andrew: To summarize it, it was immediately after the Civil War at the end of the 19th Century and white Republicans collaborated with black voters, they elected a handful of alderman in the city of Wilmington, North Carolina, and the Democrats made race the explicit issue of their statewide campaign across North Carolina the next year. They were swept into power but a handful of those black alderman remained n power in the city of Wilmington and, as a result, the Democrats issued the (quote) “white declaration of independence.”
Thomas: What- they actually called it that?
Andrew: They called it the “White Declaration of Independence.”
Thomas: Yeah, back when things weren’t all PC, guys.
Andrew: They marshalled 2,000 armed men, first they marched on the city’s African American newspaper which was called The Daily Record and burned it to the ground, then they went to the capitol and killed 300 Black people, rode the rest out of the State. The article uses the phrase “premeditated acts of terrorism” which I think are correct. Incidentally there were no white casualties as a result of this insurrection. The reason it’s called an insurrection or a coupe is that the Republican mayor, the three Black aldermen, the African American Chief of Police, were all either killed or forced to resign and they were replaced with the white leaders who led the rebellion. By the way, those people were reelected the next year, 1899.
Andrew: They passed a whole bunch of Jim Crow laws making it difficult or de facto illegal for Black people to vote. So yeah, there’s your recap, read the whole story, but yes, when Black people managed to get a handful of folks elected in Wilmington, North Carolina, white people gathered up a militia and overthrew them by force in what can fairly and legally be called the only successful coupe on American soil in American history.
Andrew: So, there you go.
Thomas: I wanna run this one by you. One thing that I’ve gathered from a lot of people on the right lately is they’re really playing up the, like, “well businesses are burnt. Businesses are looted, blah blah blah.” On one hand, I’m not in favor of just anyone who’s out there capitalizing on mayhem and stealing stuff for no reason and blah blah blah, you know. And you know obviously some of that’s out there. Now other parts of it might be an expression of the disgusting income inequality in this country that we need to fix as Amazon is becoming a trillion-dollar company and all that, meanwhile people are starving, people don’t have healthcare, people are not making a living wage. So, you know, I kinda feel like there may be some, if not logic to it, I understand it. But I just have to say, Andrew, you’re a business guy, you consult businesses.
Don’t businesses usually have insurance? In fact, usually isn’t a requirement of opening an establishment that you have some insurance? I get that it’s not great if someone burns down your business, I understand, I wouldn’t love it. But we’re talking on one hand human lives, like on one hand Kyle Rittenhouse needs to go murder people in cold blood to protect a car dealership; and on the other hand we have let’s say something bad happens, which also, by the way, happens all the time after sporting events when someone’s team wins the championship or whatever. Cars are flipped over, businesses are burned. There’s a think called insurance, that’s just money, that can be replaced, right? It’s like these people have never heard of insurance.
Andrew: So, let me try and steelman the other side as much as I can. Because look, I agree with the general principle that it is not equivalent to equate property loss with loss of human life. And I would add the additional point that you didn’t quite make but I think is implicit in that is I think there’s also a difference between protecting your family home-
Andrew: And protecting your business.
Andrew: So, the argument to the contrary is business insurance is often like all of our collective experience with insurance in other contexts.
Thomas: Sure, yeah.
Andrew: And I say this as somebody who represented insurance companies for two decades. Could you still suffer a loss as the result of that because the insurance company is making it difficult for you to collect on your policy.
Andrew: Yeah. I just want to acknowledge that those are real arguments. I have been very public, and I remain on this, but I recognize the privilege inherent in my belief in protesting, which is, you know, I think protests should be nonviolent and protests should not attack and burn down other people’s properties, but I’m also cognizant of the position of privilege that that comes from. Those are the arguments that I would muster, but I don’t see how any of that gets you to a kid reading Infowars and saying “hey ma, I want you to let me take this illegal firearm and transfer me across the border and drop me off”
Thomas: To protect a car dealership! Like, come on!
Andrew: That seems – I don’t get it, and I wanna add as a point of hypocrisy that the Republican voices who are papering over the fact that he committed multiple felonies before Kyle Rittenhouse started firing a single shot are the same people that lump all undocumented aliens into the category of “illegal” immigrants. Again, these people have violated paper statutes regarding how you fill out your application, and many times what they’ve done is they’ve overstayed a student visa. So, yeah, they are (quote) “illegal,” well you know, if everybody who breaks a law gets dumped into the same category, I do not see how you can hold that position with respect to immigrants and not hold that position with respect to Rittenhouse unless …. It’s about race.
Thomas: Yeah. Which it clearly is.
Andrew: Which it obviously is.
Thomas: And you know, of course the whole thing of we somehow hold a miscellaneous, unorganized group of civilians who are really upset about injustice, we hold them to a higher accountability threshold than the police who’s job it is to not kill people? Or should be to not kill people? I mean there’s so much in it that seems unjust to me, but let’s get to what we wanted to talk about.
Thomas: We have a few comments. I wanted to ask you just kinda a catch all question, because it’s been now, what, a week or two since this happened. It’s hard to keep track of dates, but it’s been a minute. Couple things, first off I’ve seen a lot of people commenting places that the fact that Rittenhouse was breaking the law at the time means he cannot claim self-defense, and we addressed that a little on the episode but I just wanted to clarify because I wonder if people are maybe using that too broadly. It’s not as though – it seems to me that it can’t be true that if he’s, you know, jaywalking at the time someone can just hit him with a baseball bat and no self defense because he was committing a crime, but what’s the line there and can you clarify that? Was the fact that he was in illegal possession of this firearm, is that enough to say absolutely no self-defense? Someone can just attack you, or is there a little more nuance there in terms of that argument?
Andrew: Yeah, so you are 100% correct that there is nuance in that argument. Again, this varies state by state, but typically what happens is there are the commission of certain statutory felonies will disqualify a person from being able to rely on self defense while committing, attempting to commit, or escaping from the commission of said felonies. Like we said on the YouTube, in our Q&A, the classic example of this is you and I go into knock off a 7-Eleven, you panic at the last moment and the shopkeeper shoots you while you’re trying to run away. Not only do neither you nor I get to shoot the shopkeeper in self-defense-
Andrew: But also, I’m guilty of felony murder, because I committed the felony and then you are dead as a result of it even though you are my co-conspirator, that is-
Thomas: Wait. If the shopkeeper kills me, you’re guilty of murder?
Andrew: Yup. Correct.
Thomas: That’s interesting.
Andrew: Because think about it, felony murder rule, I engaged in an activity committing a felony that resulted in your death. So yes, even though you and I were coconspirators, if the shopkeeper blows you away, the shopkeeper has a defense of self defense and I do not because we were in the commission of a disqualifying statutory felony. It is 100%, and this goes to the larger question that you’ve asked. A lot of people have shared a bunch of different like YouTube, trying to frame by frame-
Andrew: -and argue self-defense and the problem is we do not have video of what happened before Rittenhouse started running away.
Thomas: Yeah. That’s the thing-
Andrew: What we do have-
Thomas: [Sighs] Yeah.
Andrew: We have a police report that a protestor was shot in the back multiple times. Now, again, everyone is guilty until – [Laughs] Everyone is guilty. Everyone is innocent until proven guilty.
Thomas: Yeah, it was a shot in the back, there’s a shot in the groin, there’s a shot in different places, so you know, we don’t know for certain what’s going on.
Andrew: So, we do not know that those came from Rittenhouse’s firearm, but if they did – and this is all that we’re saying – if they did that plainly negates the claim of self defense when people are running after him and trying to tackle him. The idea that folks are piling on with supposed sympathy right now is kind of shocking because the same folks who are now saying “well look, they’re trying to take him down with a skateboard.” These are the people who keep saying, every time there’s a school shooting, “well I don’t understand, why don’t the victims try and tackle the shooter?” Well that’s what happened here! The victims, again if the video, from what we can tell it looks like the victims tried to tackle the shooter before he could get away, and to then focus in on that second period.
Andrew: The one that you’re claiming people should do and then say well that then gives rise to self-defense? That’s nonsense.
Thomas: So, there’s a couple levels. I wanna differentiate. There is the total troll POS, one of the worst people in the planet, I mean this with all sincerity, is Andy Ngo-
Thomas: Someone I actually met back at the Sargon debate, he was just a student at Portland back then, I think, and was like covering-
Andrew: Yeah, you posed with him, right?
Thomas: Yeah, apparently.
Andrew: Shook his hand!
Thomas: I had no idea, he was a student, there’s no reason I would have known he would later become one of the worst people in the history of the world. But he really is one of the worst people in the planet. So, there’s that level where they’re like “look at this awful,” he made up – he actually fabricated or grabbed it from somebody else who fabricated, I guess I don’t know, but he shared a totally fabricated like sex registry hit on one of the victims-
Thomas: -and said he was a sex offender, which was not true. People shared the same search criteria for the guys name and were like “when I do this nothing comes up, yet in your screenshot it does, what the hell man?” He’s awful. And people like that, so there’s one level where they’re saying look, this evil sex offender with a skateboard tried to attack him as though he would’ve known that the guy had a record somehow, like that makes any difference. So, there’s that level. Now we all know, anyone who is at all rational, knows that the skateboard guy – who was a hero, by the way – tried to take him out after he had already killed somebody. We all know that.
But I will say, there is a level of uncertainty around the first killing. Anywhere that I’ve seen as of now, and I’ve tried to seek this out, we don’t exactly know why the first group of people was pursuing him. There was a first one or two or three people that were kinda chasing him and a guy throws like a plastic bag toward him or something? We don’t know why that was, and it’s not fair to say – I’m just clarifying, it’s not fair to say that that was after he killed somebody. That wasn’t after he killed somebody that we know of, unless there was like another victim or something that just hasn’t come up? But I don’t think there is. So, we don’t know, maybe he threatened them, who knows what it was, he was being kinda chased. Now I do not still think, and I wanna get your opinion on this, Andrew, I still do not think the proper response to having a plastic bag thrown at you is murder, but I’m not the lawyer. What do you think?
Andrew: I think you’re the lawyer enough on that one.
Thomas: [Laughs] But I do wanna clarify, because I think it gets mixed around and people are – I wanna make sure we’re responding to the correct part. If anyone is arguing that he was attacked with a skateboard and that’s why he killed somebody they’re just flat out wrong, they’re making a terrible argument, that was after he already killed somebody. But we still don’t entirely know about the first-
Thomas: And, by the way, even if you wanna go, and I wanna ask you this as a question, Andrew. Say you put the facts totally in Rittenhouse’s corner on that, hypothetically. Totally signal that we don’t know this, but let’s say under the best of circumstances for Rittenhouse that he was under some sort of attack initially. A, he kills a person, and then he continues running away with a gun and instead of, like, dropping the firearm, or surrendering or anything like that, he kills another person and shoots another person. Even under the greatest of facts there he would still be guilty of homicide, right?
Andrew: Oh yeah. He would still be guilty of at least one statutory homicide under Wisconsin law. The real question there, and this overlaps with, you know, we’ve talked about stand your ground laws and the like.
Thomas: Yeah, stand someone else’s ground laws.
Andrew: [Laughs] Well, and that’s really important to identify here. At common law – the reason, just to reiterate, the reason that some states have stand your ground laws is that at common law you had a duty to retreat from a situation that began with serious risk of imminent bodily harm under which self defense is justified, but then deescalates. So again, think about it. A guy pulls out a knife in a barfight, you pull out a gun, and then the guy with the knife backs off and is like-
Andrew: “Okay, alright man.” Then you shoot him anyway, right? No. At that point that he’s put the knife away you have a duty to retreat, to deescalate the situation. Some people didn’t like that, and there are related doctrines, including the common law, the Castle Doctrine-
Andrew: A person’s home is their castle. You have no duty to retreat from your own home, which is the case in some states, or that has then been supplemented, because you can supersede the common law rules with a statute and that’s where most of the stand your ground statutes come from. They replace the common law duty to retreat with some modification that says “yeah, but in some circumstances, you don’t have a duty to retreat.” Let’s be very, very clear – and again, I do not know where Wisconsin stands on having modified the common law duty to retreat. There is no state that I know of in which the duty to retreat is completely supersede- the bar fight example is not homicide.
Andrew: Because we all agree with that.
Andrew: Somebody comes after you in a bar and all of a sudden it deescalates; well you’re not defending the bar.
Andrew: [Laughing] And same thing! Your home may be your castle but, you know, a public street is not your castle. Somebody else’s car dealership is not your castle. So yes.
Andrew: Is the answer to all of that, there may be some interaction, we have a good listener question, listener comment regarding self defense in Wisconsin, but no. Put that all together, there certainly is nothing I have seen that leads me to reconsider our conclusions in that show.
Thomas: Alright. Well the President disagrees, by the way, we all knew that was coming. Let’s get to our listener comment here, the first one we have says “Hi Thomas and Andrew, I’ve been a prosecutor for five years and my husband was previously a prosecutor. While listening to episode 416 I couldn’t help but take issue with your characterization of Wisconsin’s self defense statute. Wisconsin’s statute, while worded slightly weirdly, operates exactly like self defense does in a majority of jurisdictions. The defendant bears the initial burden of presenting some evidence to support a self defense claim, but once he does the prosecution bears the burden of disproving the claim beyond a reasonable doubt. It’s a majority rule, this is precisely what makes self-defense cases so difficult to prove.”
Okay, I know you had the question about that at the time, so sounds like a prosecutor is saying this isn’t much different than any other jurisdiction?
Andrew: Yeah, that’s exactly what she said and I looked it up and she’s 100% right. This is why I try and put error bars when I’m opining about practice in criminal law, I make it very clear I am not a criminal attorney and I have a limited range of experience with that. I’m gonna link a case in the show note, United States v. Thomas, 34 F.3d 44 from the 2nd Circuit from 1994 that is illustrative that says it’s not just at the state level in virtually every state but also at the federal level that the court – and this is how this comes out in how the judge issues instructions to the jury. In this case the defendant successfully challenged the jury instructions as being insufficient that the government has the burden of disproving self-defense beyond a reasonable doubt once it is raised by a defendant. So, she’s right and I’m wrong, there’s a little bit of a nuance to that, but no. Thank you. We put out the call, I asked, and I really, really appreciate being so informed.
Thomas: Asked and answered, as you might say.
Andrew: [Laughs] Indeed.
Thomas: Alright, so that’s everything that we see as an update on Wisconsin, so just for the record, Andrew, YouTuber after YouTuber aside who seems to have some special Zapruder film analysis of what’s going on-
Thomas: You stand by what we’ve said.
Andrew: I do.
Thomas: Nothing new has come out that suggests this was anything other than what we already said it was.
Andrew: Yeah, and again I think it’s always good, I appreciate the nuance with which you described your position. I think we try to be open about this, but yeah, I concur.
Thomas: Alright, we have one more listener comment, it is on a different topic though. J.A. writes “In OA 415 you stated that DeJoy purchased Amazon options in June after selling off his Amazon stock. While true, the purchase of the options appears to be just a closing of a previous position in the market. This means he used to own a covered call option, basically he shorted the stock, but hedged his bet by purchasing stock as well so probably the ethics team at USPS told him to divest from all his Amazon positions, so he one, sold all the Amazon stock he owned and two, closed all the options positions he owned, meaning he had to purchase back the calls he initially sold even if it means a loss. Thus, he now owns zero financial interest in Amazon, whether stock or calls. Unfortunately, I cannot find DeJoy’s USPS periodic transaction report (PTR), but the existence of the PTR is mentioned in this letter from CREW who did appear to incorrectly read his disclosure as well. Walter Shaub does make it clear that if DeJoy was telling the truth about not having a financial interest in Amazon he did a bad job of both reporting it that way and clearing up the confusion.
Thomas: So, Andrew was probably wrong, but so was everyone else and this still doesn’t make DeJoy a good person and his XPO holdings are highly suspect.”
Andrew: [Laughs] Yeah.
Thomas: Okay, so that clears – we were confused about, you know, whether or not – that makes sense. So, he had a position, a short position, so therefore it looked like he was buying stock but really was just closing that position, I guess.
Andrew: So, I would have read this email from listener J.A. regardless, but it’s such a great email. Number one because he found and went through the underlying Citizens for Responsibility and Ethics in Washington, the CREW document-
Andrew: That I was using as the factual basis for my analysis.
Andrew: Because again, I trust those folks, I looked at it, they said X, so went to exactly the source that I was using. All of this seems plausible to me and I do wanna piggy back that we learned the end of last week that the U.S. Postal Service, this is from a report in the New York Times, has paid $286 million dollars over the past 7 years to XPO Logistics, which is the holdings that Louis DeJoy did not divest himself of.
Andrew: He holds at least a $30 million dollar stake in the company, ramping up its business with the Postal Service since he took the helm, so drain the swamp. But no, look, it’s important to be correct about the replacing the call position. It is also important to say every piece of evidence we have is that Louis DeJoy is impermissibly conflicted from serving in the position in which he now serves, which is to say he’s a typical Trump appointee.
Andrew: So, there you go, but I love the email and-
Thomas: Yeah, good detective work, there.
Andrew: I think he’s right; it makes sense.
Andrew: We can’t quite tell because as he points out I’ve been unable to find the PTR either, but you know, Walter Shaub is a Republican lawyer but Walter Shaub is a government ethics lawyer. I trust them, I think that it is correct, it seems very plausible to me and I’m happy to do that as a correction on my end.
Thomas: Yeah, we’ve got the best listeners. Thanks!
Andrew: We do, absolutely.
Thomas: That’s a great clarification, great detective work. Thanks so much for writing in, we appreciate it.
Breaking Down the Law: McGirt v. Oklahoma
Thomas: Alright well I think we’re gonna have to cancel eminent domain, Andrew.
Thomas: [Laughs] But we are gonna get to McGirt v. Oklahoma, I know you’ve wanted to talk about this for a while. Give us the Andrew Torrez signature breakdown here.
Andrew: Yeah, I wanna go through because I think there’s a lot of hyperbole about this case. It is stoked by people like Ted Cruz saying things that are ridiculous. Again, Ted Cruz, a year ahead of me at law school, when this decision came down, said on Twitter, (quote) “Neil Gorsuch and the four liberal Justices just gave away half of Oklahoma, literally. Manhattan is next.” (End of quote).
Thomas: [Laughs] Yeah.
Andrew: Which is – it is the most perfect Ted Cruz moment of feigning stupidity in order to be racist.
Thomas: Yeah, well I’m surprised – he always sneaks in a latte sipping, soy latte, there’s always a coffee drink in his tweets, I’m surprised he didn’t slip that one in.
Thomas: Try harder next time to get one in there. A Frappuccino drinking – also why go for Manhattan? If you’re trying to scare the Republican base pick … I feel like, you know Manhattan they’re gonna be like, “oh, okay, that’s fine.”
Andrew: No, I think that’s right. I think he wanted to be racist more than he wanted to play to his base.
Thomas: [Laughs] Oh, okay.
Andrew: Again, that is indirectly playing to his base.
Andrew: But seriously, because when you start to unpack that everyone knows the sale of Manhattan cannot possibly be justified under any reasonable legal theory. Now the question then becomes what do you do about that? But yeah. [Laughs] It’s mind boggling to me. So, you have that kind of hyperbole, I’m gonna explain where I think that comes from, I will also say our friend Devin, Legal Eagle himself, did a really great YouTube breakdown that I’m gonna try and make sure we cover different areas. But his stuff was great and we’ll link his video in the show notes because he covered this – one of the few things he managed to cover before we did, so he did a good job.
Now, what happened in this case? This case involves a member of the Creek nation, and I should add I’m going to read from the decision when it comes to the language that is used, and this is an area where I do not – if you are an Indian law scholar, and that’s how it’s referred to in practice areas.
Andrew: So, in other words, Native American is I think common parlance, most lawyers I know who practice Indian law refer to it as Indian law as opposed to Native American law.
Andrew: Some of these treaties and statutes are from the 19th Century, so I’m just gonna use that language. If I’ve done something wrong please do write in and let me know. If I’ve done something right please do write in and let me know. So, member of the Creek Nation, Jimcy McGirt, J-I-M-C-Y M-C-G-I-R-T, I think I’m pronouncing that correctly, committed three serious sexual offenses in the State of Oklahoma, specifically in Eastern Oklahoma, arguing that he was on Creek Reservation lands. By the way, already did an instant wrong. Jimcy was a member of the Seminole Nation, Seminole Tribe and not the Creek Tribe.
Andrew: So, the actions took place on what he claimed were Creek lands and he was convicted in an Oklahoma State court of those three serious sexual offenses. I will add, parenthetically, that this is a real and underreported problem on Native land throughout the United States, is sexual abuse of women by men who believe that they are falling into a legal grey area. That’s not what this case is about, but that’s a real problem endemic in the literature.
Now the question is could McGirt legally be tried in State court in Oklahoma if he committed those offenses on Creek lands? The answer to that is kind of complicated, that’s how it got to the Supreme Court. It has to do with an 1885 law called The Major Crimes Act. Here I’m gonna quote form the statute. It’s 18 U.S.C. § 1153(a), still on the books today 135 years later.
It says: “within the Indian country,” (put a pin in that) “any Indian who commits…” (certain offenses which include the sexual offenses at issue here, “against the person or property of another Indian or any other person … shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”
Okay, so let’s unpack that a little bit. What that means is if you commit one of those serious crimes on Indian land, then you are subject, you must be tried in federal rather than state courts. There are a lot of historical reasons for passing that. So, the question then is was McGirt properly tried in state court or should he have been tried in federal court? That at the outset is, I think, a really, really important distinction to know that again, the remedy here for McGirt would not be “he gets to go free,” the remedy is he has to be tried in a federal court.
Andrew: And he can’t be tried in a state court. You can understand, historically, why that would be a significant protection to Native Americans.
Thomas: So, it’s not as though this person is necessarily trying to do like a “get out of jail with this one weird trick?” I mean, he would still-
Andrew: No, he’s been convicted.
Andrew: So, it would overturn his state conviction and then he could still be tried in federal court.
Andrew: Again, if you’ve been convicted of very serious crimes you’d like to try again.
Thomas: Yeah, sure.
Andrew: Yeah. And the law is crystal clear that states do not have jurisdiction to try Indians for conduct committed in Indian Country. Now we ask, and again I’m reading you a term from 1885. What’s “Indian Country?”
Andrew: Well, again, we go to the statute. It defines it. It says, (quote). Indian Country is (quote) “all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights of way running through the reservation.” Now what the hell does the patent thing have to do with anything in the middle of that?
Thomas: Hmm, yeah.
Andrew: [Laughing] Right? The answer to that has to do with the fact that real property law makes up crazy words that are leftover from 13th Century Saxony that make no sense, and this is actually referring to a land patent. A land patent is what we would just call a conveyance from one part to another where the party that owns the land is a sovereign, is a state. So, when the state owns the land it is called a land patent when it grants that land to you because the state owns it. But notice, the state doesn’t own a whole lot of land.
Andrew: Most property in this country is private property, so that’s why the term land patent seems weird and also because we use patent to mean, like, you know, the patent for the device.
Andrew: For how to build this particular widget. So weird, weird word. But now, when you understand what a land patent is think of what that means. That means Indian country is anything that is within an Indian reservation even if the Indian government has divested portions of that land from itself, as a sovereign, to individuals. That’s really important, obviously we don’t nearly have time to go through the history of that, but getting Indian country to take land that was held in common and divvy it out to individuals was also part of the strategy of breaking up Indian land-
Andrew: -over the 18th, 19th, and 20th Centuries. So that happened a lot throughout Oklahoma. Large swaths of the Indian reservations were patented off to various tribal members, and the Major Crimes Act says yeah, yeah, you can do that, that doesn’t make the whole overall territory not Indian territory. What does make Indian territory not Indian territory? [Laughs] The answer to that – and look, there’s a lot to like about this opinion and there’s a lot to say “oh hey, maybe we are moving forward with respect to Indigenous peoples.” If you’re tempted to feel that way-
Andrew: Remember that the United States Congress can (quote) “disestablish” and Indian reservation.
Andrew: And that means exactly what it says. That if there is an act of Congress we can say yeah, yeah, yeah, I know we gave that to you as an Indian reservation, uh, no. It isn’t anymore. We have disestablished it, we have therefore abolished it, sorry about that. Even if there’s a pre-existing treaty? Too bad.
Thomas: That seems a little unfair.
Andrew: Yeah, it kinda does, huh? So now, armed with that knowledge, we can parse through whether and how McGirt’s claims get analyzed. So, the first question is was there a reservation? You might think that’s a super easy question, and it is, but the dissent in this case [Laughing] piggybacking on the argument that the State of Oklahoma made, tried to argue that there was never an Indian reservation in Oklahoma to begin with.
Again, as Neil Gorsuch – he’s now two for two in breaking from what you might expect – has engaged in surprisingly sympathetic language, recounts a little bit of the AP U.S. history of the trial of tears. The reason that there were massive – that there are massive Indian reservations in Oklahoma is because we kicked the Indians out of all of the desirable southern states that they were in at the beginning of the 19th Century and forced them west via the trail of tears into Oklahoma. So, claiming “oh, there’s not a reservation in Oklahoma,” again actually struck the majority as kind of surprising. [Laughs] Here’s how Gorsuch’s language, this begins on page 28, section 4. In describing the argument Gorsuch says:
“Even if we were to accept Oklahoma’s bold feat of reclassification, it is hardly clear the State would win this case.” What is the bold feat of reclassification? To say that the litany of promises made from 1830 to onward in connection with the trail of tears did not actually establish a reservation but only (quote) “a dependent Indian community” (end of quote). That was actually what was argued in this case. Then Gorsuch says “reservations and Indian allotments, the Indian titles to which have not been extinguished qualify as Indian country under the statute but dependent Indian communities also qualify as Indian countries under subsection (b),” so it makes no difference.
Then, when faced with that, Gorsuch says “Oklahoma’s answer only gets more surprising. The reason that the Creek’s lands are not a reservation, we’re told, is that the Creek Nation originally held fee title.” That is, they owned the property outright. “Recall that the Indian Removal Act authorized the President not only to ‘solemnly . . . assure the tribe . . . that the United States will forever secure and guaranty to them . . . the country so exchanged with them,’ but also, ‘if they prefer it, . . . the United States will cause a patent or grant to be made and executed to them for the same.’ Recall that when the Creek insisted on this additional protection when negotiating the Treaty of 1833, and in fact received a land patent pursuant to that treaty some 19 years later. In the eyes of Oklahoma, the Tribe’s choice on this score was a fateful one. By asking for (and receiving) fee title to their lands, the Creek inadvertently made their tribal sovereignty easier to divest rather than harder.”
Parsing all of that, Gorsuch is saying essentially Oklahoma is arguing “one weird trick.” In 1833 the Creek asked for “we want to own all of our property,” and they’re now saying ah, because you own all the property you own that in a grant from the government so you don’t have sovereignty over it.
Thomas: Oh wow.
Andrew: Yeah, and Gorsuch says that makes no sense. [Laughs] He says “Admittedly, the Creek’s arrangement was different, because the Tribe held ‘fee simple title, not the usual Indian right of occupancy.’” Which again is a lesser property right. But, “the land was reserved from sale in the very real sense that the government could not ‘give the tribal lands to others, or to appropriate them to its own purposes,’ without engaging in ‘an act of confiscation.’ It’s hard to see … how any difference between these two arrangements might work to the detriment of the Tribe.” Okay, so there’s a reservation.
The next question is was that reservation disestablished by the Congress? This is the meat of the decision and again why we have Gorsuch joining the court’s liberals. Gorsuch’s argument is super simple. He says to disestablish Congress has to pass a law, and the law has to say “I know the treaty says X, but too bad, we’re disestablishing that reservation.” Congress never did, words mean what they say, and therefore-
Thomas: Case closed!
Andrew: Case closed! That’s what he says! Therefore, much of eastern Oklahoma remains Indian reservations under the treaty of 1832, subsequent treaties, and the argument to the contrary that is raised in the Roberts dissent are really twofold. The legal argument is that the subsequent conduct should be treated as an effective disestablishment. Yeah, okay, we get it, Congress didn’t really – never abolished the official reservations that belong to the Five Nations, but you know, Oklahoma’s kinda behaved as if white people own those lands, so we should view it that way. In particular this goes back to the – part of the technical argument that was made here was the fact that tribal lands were granted via land patent to private individuals. But again, the plain language of the statue, the Major Crimes Act, says yeah, you can do that and that doesn’t no longer make it your land. It’s still Indian territory unless Congress says it isn’t, and Congress didn’t say that it wasn’t. So yeah, get it. Seems kinda weird, seems kinda counterintuitive, but John Roberts what are you doing making these arguments that are well the intent was [Laughs] You know, where is your strict constructionism now?
Andrew: Is almost the – it’s certainly the subtext, it’s almost the text of the majority opinion. The Roberts dissent makes a second argument and again it’s a curious argument to see Samuel Alito and Clarence Thomas signing onto, but it is basically a “you can’t be serious about this, all kinds of crazy terrible things will happen if we say that Oklahoma no longer owns the eastern half of Oklahoma.” If it seems like I’m being unfair … start off at page 9 of the Roberts dissent. Virtually the entirety of the rest of dissent are to say, yeah yeah yeah, okay, you might be right about what the law means, but think about all of the consequences here.
(Quote) “But, if that is the right approach, what have we been doing all these years?” [Laughs] “Every single one of our disestablishment cases has considered extratextual sources, and in doing so, none has required the identification of ambiguity in a particular term. That is because, while it is well established that Congress’s ‘intent’ must be ‘clear,’ … in this area” (i.e. governing laws about brown people) “we have expressly held that the appropriate inquiry does not focus on the statutory text alone.”
Again, I’m reading that with a little bit of sarcasm. Opening Arguments listeners can chuckle, you can chuckle. That dry language says yeah, yeah, yeah, I know I go on about the sanctity of the written text of the constitution and its original meaning, but like … come ooonnnn! It’s an astonishing thing to see. It’s plainly inconsistent with the articulated jurisprudence of Roberts, Kavanaugh, Alito, and Thomas in this dissent that basically just says – if you need to be cognizant of the consequences that will happen if we declare the eastern half of Oklahoma to be an Indian reservation. Then you have twenty pages of, you know, well who knows what could happen? That really does – that gets us to why this case was characterized this way and what happens.
As OA listeners know, the court only has the power to award the relief to the parties that are in front of it for the claims that they have raised, right?
Andrew: And here that relief is to McGirt saying that his crime took place on what is defined as Indian lands for purposes of the Major Crimes Act of 1885 and therefore he is entitled to a trial in federal court and to have his state court convictions vacated. Does that have implications for what comes next? It certainly has implications for what comes next and it has implications for other lands throughout the country. But it does not begin to establish that now your maps-
Thomas: Yeah, it’s not like the maps you teach kids with are gonna have a whole in the middle of the country or something.
Andrew: Correct. Because again, this is one of the difficulties of Indian law is that while there is both tribal sovereignty and U.S. sovereignty within the United States. So, the questions of how those two come into play are things that we’re going to have to sort out, but it does not become its own separate nation subject to no U.S. law thanks to McGirt.
Here’s what does happen, and again, the reaction to McGirt has mostly – because what I wanted to find out was how do members of the Five Nations, how do Native Americans feel about this decision? By and large they feel positive about the decision. They’ve had a positive reaction to it, they’ve said this brings issues to the forefront and that the approach taken by the majority of saying hey, we’re not going to allow equitable considerations on the part of “oh, but what about the poor displaced white people in Oklahoma” take precedence over the plain requirements of statutes, treaties, and laws.
I should add, I wanna drop a parenthetical, there’s nothing inconsistent with liberals wanting to join that approach too. The liberal approach is always yes, laws mean what they say consistent with both the principles that are behind those laws and the specifics about how those principles are to be implemented, and we should depart from them when the specifics would contradict the underlying principles. Here the idea is that the underlying principle was to grant more, not fewer, protections to Native Americans as they were being exterminated and forced out of their homes on the Trail of Tears. The idea that you would want to supplement that with a public policy reason that doesn’t benefit Native Americans is bonkers. In other words, you can consistently – you can be a consistent liberal, you can be consistent non-textualist and say yeah, I would sign onto the majority opinion on this. I wanna bracket that parenthetical there.
Here’s the effect of the McGirt decision. One, it means that – and this is why we used this for the show graphic. Oklahoma recognizes the reservations for the five tribes within its jurisdiction. You can see the graphic on that, those five tribes are the Cherokee, the Creek, the Seminole, the Choctaw, and the Chickasaw. So, five nations have land, it’s a significant portion. It’s greater than 50% of eastern Oklahoma that includes a part of the city of Tulsa. Yes. Secondly, it means that Oklahoma cannot sentence tribal citizens to the death penalty for crimes that they commit on their reservations because the Major Crimes Act does not provide for the death penalty, Oklahoma does provide for the death penalty under state law and [Sighs] Oklahoma executes more people per capita than any state. That came as a bit of a shock to me.
Andrew: But I guess – yeah, I would’ve thought Texas would be in the lead on that, but their population is so big that I guess Oklahoma manages to get through. It means that the State of Oklahoma cannot prosecute crimes where either the victim or the perpetrator is Native American. Those crimes are now federal crimes. It means that tribal citizens who live on the reservation and work for their tribe do not have to pay state income tax.
Thomas: Hmm. Cool.
Andrew: Yeah. Notice how narrow that is.
Andrew: It does not mean that Oklahoma can’t collect taxes for Indians who work for anything else in eastern Oklahoma, but it does mean that if you are confined to working for the tribe, for the tribal government, that’s sovereign and we cannot tax citizens of a sovereign nation for income earned in service to a sovereign nation.
There are two things that it doesn’t interact with that I think are really, really important to bring out here. The first is this does not render eastern Oklahoma a lawless zone for nontribal members. If a nontribal member commits a crime against a nontribal member on tribal land the state of Oklahoma can still prosecute those people. In other words, it’s no like “ha ha! I’m out of the state’s jurisdiction!” Again, this illustrates the fact that Native American sovereignty is different than – if we bordered Canada, which we do, if you’re in Canada the U.S. government cannot prosecute U.S. citizens for crimes committed in Canada unless Canada decides to extradite them back to the U.S. for some reason. If you’re just a non-Native person in Oklahoma and you commit a crime in Tulsa against another non-Native resident, yeah, Oklahoma can still prosecute you. So that’s point on.
Point two is the Violence Against Women Act of 2013 allows tribes to prosecute non-Indians for abuse that – for certain kinds of domestic abuse and sexual offenses that occur on Indian land. That is the pin that I had put in at the beginning of this discussion, which is that prior to the passage of VAWA in 2013 there was a significant issue with nontribal members committing sexual offenses on tribal lands and Native Americans wanted the authority to prosecute for those offenses that occurred against their people on their lands.
That’s all of the interactions so far, way less drastic [Laughing] than you might have suspected. It certainly does – the way in which Native speakers have described this is basically like beginning to open up the dialogue and beginning to bring their issues out into the forefront and I think that that’s right. Hopefully we’ll do a little better this time around than the country did in the 19th Century.
Thomas: Yeah. That’s a low bar.
Andrew: Well, I don’t wanna do an Andrew Was Wrong.
Thomas: But we’re a low country, yeah.
Andrew: Yes, we are.
Thomas: Interesting. So, Gorsuch, this is one of those stories where, seems like he came through. Does this mean he’s part of the liberal contingent of the Supreme Court?
Andrew: No! It means that Neal Gorsuch – we talked about this with respect to prior cases. It means that Neal Gorsuch means what he says when he says that I go by – I am a textualist. The law means the plain language of the law itself. In 95-99% of cases that will dovetail with reaching a conservative outcome. In a handful of cases it doesn’t. So, we talked about Gorsuch joining with the liberals in the Title 7 cases. Oh, because of sex means “because of sex.” Look, I still don’t agree that that’s how you ought to interpret the constitution, but if that’s how you’re going to interpret the constitution at least he’s not Sam Alito.
Andrew: At least he’s not Sam Alito who’s like “well, I’m a textualist unless it would mean something that could be adverse to white people,” which is only a slightly unfair way of reading the dissent. It’s awfully close to the policy argument that is advanced in the Roberts dissent. So yeah, I continue to think that is facile and ahistorical and wrong, but I’d rather have somebody who at least-
Thomas: Is consistent about it?
Andrew: Applies that consistent- yeah.
Thomas: Yeah. Yeah.
Andrew: Than somebody who takes that 95-99% and then also jettisons it whenever convenient, which by the way is what the entire right-wing contingent does with respect to the concept of stare decisis, which of course is an ongoing hobby horse here at Opening Arguments but we don’t have time for that.
Thomas: We are way out of time, and you know what that means. It’s time to move on! [Laughs]
[Patron Shout Outs]
Thomas: Alright it’s time for T3BE, answer time! We’ll get to find out if all the suggestions I assume people sent me for something to play if I get a question right, we’ll get to find out if that matters yet or if, you know, there’s still more time. [Laughs] Here we go!
Andrew: [Laughs] Well, I am gonna cut to the chase. We are gonna play that brand-new music.
Andrew: You got back on that hobbyhorse-
Andrew: Is that right? With a real property question. So, you guessed B, answer was B, let’s go over the question again. This was a businesswoman owns two tracts of land, conveys one – one has a building on it, the other one is vacant. Conveys the vacant tract by a warranty deed to somebody else who then says yeah, yeah, I’m gonna use this as a nature preserve. That conveyance contained a covenant that said neither you nor your heirs or assigns would ever erect any building on the vacant tract in order to preserve the view from the other lot. The buyer says yeah, I’ll abide by that, purchases the lot, does so, records the deed. There’s a red herring about not signing it-
Andrew: Which doesn’t matter at all.
Thomas: I sussed that out as the powerful attorney that I am!
Andrew: Yeah, signature does not matter. Grantee accepted the deed and recorded it. This is – and the term is given to you in the incorrect answer, Answer C.
Andrew: This is an equitable servitude, which again because real property has to use names that make no sense like “land patents.” An equitable servitude is a restriction on a conveyance for certain public uses like making a park.
Andrew: And the important thing here is – you narrowed it down to either B or C, so we said, right, the signature thing-
Thomas: A was nonsense, right?
Andrew: A, the businessman because the commercial building was constructed before the cousin began his construction project? Yeah, high grade nonsense.
Thomas: Okay, good. You never know with real property!
Thomas: One of these days it’ll be the right answer. But A was nonsense.
Andrew: Not relevant when the first building was constructed because this is not done to preserve the rights of the people who work in the first building to have a good view. Right? Because that’s sort of what that implies. That says oh, the first building came around and since they were first and they wanted the view, that’s what counts. No.
Andrew: It has to do with – when I own land and I convey that land can I specify how I want that land to be conveyed? The answer is yes you can. You can have an equitable servitude; you can say I’m gonna sell you this land but only if you promise to make a park out of it. We want people to do that. So, then the question is does an equitable servitude terminate upon the death of the promisor? The answer to that is no! That also makes perfect sense. We wouldn’t want you to be able to like get out-
Thomas: Just buy something then kill yourself? [Laughs]
Andrew: [Laughs] You know, put up a straw-
Thomas: I would be a real, like, Moriarty level plot there. Ah, you’re not gonna have your view, Sherlock! Anyway.
Andrew: An equitable servitude must satisfy the statute of frauds; it must be in writing. The promise must (quote) “touch and concern the land.” So, in other words, I can’t say I’m gonna convey this land to you-
Thomas: Oh, yeah.
Andrew: So long as you promise to attend the Methodist church for the rest-
Andrew: No, it’s gotta be with respect to the land. And the subsequent parties to which they must be bound must be on notice of the conditions in the equitable servitude, which again you sussed out with 100%, you were like yeah, yeah, they recorded the deed.
Andrew: It says it right there, you gotta not erect a building on it, and that is in fact the case. You asked the question is this gonna stay vacant for a million billion years?
Andrew: The answer to that is no, when you have – an equitable servitude means – the way we were taught in law school to think about property that I think is actually super helpful is to not think about conveying property as picking up a thing and giving the thing from person A to person B, but to think of it like a big bundle of sticks. There are lots of different uses of the property that are those sticks. So, when you convey something in fee simple, you are conveying the entire bundle. You’re saying yup, all of the rights that I have in this property, all of the bundle of sticks, I’m packaging it up, putting a deed, it’s called fee simple, that’s the rubber band, and I’m giving you all my sticks. But you can convey less than the whole bundle.
Andrew: I could sell you a right of way. I could sell you an easement.
Thomas: So, is there any way for ever, throughout the rest of the existence of this land on earth, for someone to build a building on there?
Thomas: That was what I was worried about.
Andrew: Right, here’s the way that works. So, person A sells to person B all the sticks but one basically.
Andrew: Says hey, you can do whatever you want with this-
Thomas: So hypothetically the construction person still owns that stick right now, we’re saying.
Andrew: Correct. The original-
Thomas: Original businessman.
Andrew: Heirs of the businesswoman.
Thomas: Yeah, yeah.
Andrew: Now the businessman, owns that remaining stick and the cousin could go back to the businessman and be like “hey man-
Thomas: How much you want for that stick?
Andrew: How much you want for that stick! That’s exactly right. That’s how real property resolves this.
Andrew: If the businessman never sells the stick and his heirs never sell the stick, that’s fine.
Andrew: We live in a free country.
Andrew: I never conveyed to you the right to build a building. I conveyed to you everything else about this piece of land-
Thomas: Very interesting.
Andrew: If you wanted more you should’ve bought more. And, you know, libertarian paradise. So, there you go.
Thomas: Huh! Stick law, everybody.
Thomas: Now he tells me! Hundreds of questions later he gives me the secret formula for real property, which was stick law all along.
Andrew: Yeah, think about, this is absolutely right. So, think about every real property question, think about which sticks are being conveyed.
Thomas: Well anyway, I nailed this one, play the new sound, me!
[T3BE Victory Sound]
Thomas: Andrew, who’s our big winner this week besides me?
Andrew: Well Thomas, this week’s winner is Nathaniel Rictor on Twitter who has an adorable screaming cat as their icon, who says “T3BE Real Property, always fun. I’m gonna guess answer B. the agreement and recorded deeds were both plain in their intention for preservation. Unless something was improperly recorded it should stick. Otherwise what would preservation land grants be for?”
Reasonable analysis, I love the idea of applying common sense principles to 13th Century Saxony law, and congratulations Nathaniel on being this week’s winner. So, everyone give him a follow, that is @Forensic_Ling, F-O-R-E-N-S-I-C underscore L-I-N-G on Twitter. Just look for the screaming kitty and congratulations Nathaniel on being this week’s winner.
Thomas: Alright, that’s our show. Thanks so much for listening, everybody, we’ll see you on Friday for Rapid Response as always!
Andrew: Until then!