OA598: No, Tribal Sovereignty Will Not Save Abortion Access

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 598. And I'm Thomas. That's Andrew Torres, lawyer extraordinaire. How are you doing?

0:01:26 Andrew: I'm great, Thomas, how are you?

0:01:27 Thomas: Doing well. These days tough it's with the imminent loss of even more rights to reproductive freedom in this country. And today's episode is talking about that. There's sort of I a, think I would classify it as a bit of a one weird trick-esque take about this. Is that right? Is that fair, you think?

0:01:45 Andrew: I think that's right, and it will also be a kind of a back-to-back deep dive into, you some tough niche areas of law, so.

0:01:54 Thomas: All right, well, let's get to it.

0:01:57 Clip: Down the law, down the law.

0:02:01 Thomas: So, Andrew, might remember if they've been listening for a while, I don't know, like 200, 150 episodes ago or something, McGirt v. Oklahoma. That was the kind of rather surprising decision decision that said that, I don't know, a ton of Oklahoma is Native American land, if I remember correctly. Now people are proposing a one weird trick around the end of Roe by suggesting that perhaps reservations are going to somehow be save us. I'm not clear on how it would work. So how would it work and would it works?

0:02:30 Andrew: Setup is exactly perfect. But before we dive into sort of the deep dive here, let me give two content related warnings. The first is there will be non-graphic discussions of sexual assault, particularly on Native reservations. It's a real issue. And with respect to the overlap, again, we talk about it from a legal, how it informs our legal analysis. It's not going to be graphic, but you don't want to hear those discussions, will flag when, when that's about to come up. The second is the thing I struggle with whenever we hit these topics, which is infrequently, um, but that is that, uh,

0:03:12 Thomas: The wording of old laws and stuff yeah

0:03:13 Andrew: Yeah. Well, in, the legal community, this branch of law is called Indian law, and, You do not need to tell me that that is a problematic, or potentially problematic, I will tell you, I have spoken with native scholars, Native American lawyers, uh, indigenous, uh, individuals, and, and this seems to be the consensus, right? Problems that I could begin to describe that indigenous scholars will say with using indigenous law or Native American law. So I think a lot of that stems from the wording of these ancient treaties. So I'm going to continue with that practice. If you are an indigenous person and a lawyer and a scholar in this area, and you think there has been, and you'd like to let us know about developments, or sort of an emerging consensus, or even if it's not a consensus, sort of what the position is, you know, among your tribe and your community.

0:03:15 Thomas: Yeah yeah

0:04:10 Andrew: I'd love to hear from you. I struggle with this. Okay. So I'm going to call it Indian law. Uh, that's, that's the reason for, doing for so. And again, I do want to hear from you if, if you are an indigenous scholar.

0:04:19 Thomas: Either way, sounds like it's a choice that you're not making out of some sort of ignorance of what's going on.

0:04:24 Andrew: I'm doing my best, I'm doing my best, so now to answer your question, can we count on Indian reservations to save us from our Supreme Court? Not only no, but every part of this argument is as wrong as you could possibly get. And I want to break down the law, I want to dispel some assumptions, and I want to cite again to some indigenous scholarship and experience. It, if you're thinking about this, I can tell you our indigenous communities have already spoken out and said, hey, this is no, you know, don't.

0:04:59 Thomas: Yeah.

0:05:00 Andrew: Sit here and think like, oh, well, hey, we gave you some casinos, so now you can give us some abortion clinics, right? Like, it's just, I get the idea of wanting to come up with solutions and seize power. This is not what indigenous communities want. So let's kind of start at top, the, because the first major misconception that I see is the idea that American tribes are sovereign, and that therefore reservations are sovereign land, and they're their own nation, and they are not subject to any laws, and they can disregard our Supreme Court. And that's not true. Reservations enjoy a kind of sovereignty, that we're going to talk about what tribal sovereign powers are.

0:05:46 Andrew: That makes them generally, but put an asterisk by that, not subject to the laws of any particular state. And that has to do with numerous treaties that have been entered into by the United States government over the past 250 years. But the fact that the United States Congress has entered into those treaties should carry with it the idea that the position of the U.S. government is that sovereign tribal nations within its borders are nevertheless subject to federal law. And so there is a ton of federal Indian law. There are thousands, thousands of statutes, regulations, treaties, courts decisions over the past 250 years with respect to the interaction between the federal government and tribes.

0:06:33 Andrew: And then that's sort of layered on top of state sovereignty, but the idea, uh, you know, I've seen it in multiple places where folks have said, nope, uh, if, they're sovereign, sovereign means not subject to any other laws, therefore they can ignore it, that's not the case. Secondly, the law in this area is, is a mess because, as you might imagine, differing administrations have swung wildly from one pole to another, particularly during the 19th century, in terms of supporting tribal sovereignty, not supporting tribal sovereignty. Sovereignty. And because this is kind of a niche area, you will have contradictory statutes in effect, and it's right?

Sort of up to the courts in the handful of cases that come before them to try and reconcile these inconsistencies. So I guess I want touch to on some of the principles, Again, noting that these are With one another, if not outright contradictory. But these are some of the touchstones that a court will use in determining what laws apply to people, and in particular to apply to indigenous people who live on tribal lands, on reservations, that sort of thing, because it's, multi-tiered in terms of physical location as well, so that's, I've kind of made some notes with respect to the concepts that come up in these cases again and again, the first is the notion of inherent sovereignty, right, that indigenous tribes have inherent powers to govern themselves, stemming from the fact that they were doing just fine before we got here, right.

And again, remember that you're, you're building this principle from a history that is heavily colonialist, so you have to build that from the the 16th and 17th and 18th century recognition of those inherent self-governing powers. So when you're looking for this, you will, you will find a tremendous amount of racism, right, a tremendous amount of, you colonial, you, we're, are civilizing our little brown brothers with Christianity. There's awful lot of that. But there's some doctrine in the law, the handbook of federal Indian law puts it this way.

0:09:07 Andrew: Perhaps the most basic principle of all Indian law, supported by a host of decisions, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of And this is kind of a rough, but weaker, analog to the plenary powers model that exists at the states. So, right? For example, Congress cannot use as the justification for passing a law, general welfare. You can't just say, hey, we're going to do X because we think everybody would be better off. And, you know, let's say, oh, pass a nationwide mask mandate.

0:09:57 Andrew: Right. Justification. Yeah. Everybody's lives would be better off. Well, that's not good enough. It's not an enumerated power to Congress. But any particular state could and did use its plenary powers to go, hey, we're super concerned about the health of our citizens, we're going to pass a mask mandate, and those, those, despite the best workings and machinations of our crazy Supreme Court, um, worked, right.

0:09:57 Thomas: Yeah, also another example, we talked about this before, and it's it's still surprising to say Congress can't just pass a health care bill because it's like, yeah, we want everybody to be happy and have health care. It has to have some other like, interstate commerce justification or some sort of taxation justification, which is really wild when you think about it.

0:10:32 Andrew: Yeah. Yeah, that's right, so, and think about the inherent sovereign power of tribal nations, that's roughly equivalent to the plenary power that a state executive would have. But sitting against that principle is the principle of domestic dependent nations, right? And that is, if you look through the case law, you will see that reference time and time again. Although the tribes are recognized as having some inherent sovereignty, they are referred to as domestic dependent nation. Domestic because they're within the boundaries, the territorial boundaries of the United States. Dependent because they are subject to the power and responsibility of the federal government. And then nations, because, because they exercise some sovereign powers over the people that reside within them,

0:11:23 Thomas: Is this more like RICO or something? Is that like more akin to that, where it's like a, it's not, I guess it's not its own nation, but it is like, with a territory, and it's not a state, and is it kind of like that? Yeah.

0:11:35 Andrew: Kind of, I, right, think that overlaps with principle that when the US Congress deals with a particular tribal government, they, the phrase that they use is a government to government relationship, right. So, they, a lot of these are ideals. But But the ideal is you are engaging with a sovereign tribal nation, government to government, rather than with the people, the, or the residents. And this was a 17th and 18th century battle over, are our laws going to apply to Indians as a race, right? Is it going to be, you know, based on their racial inferiority or is it going to be based on, right, the sovereignty of their tribes? And we chose the latter, okay?

Again, I'm not saying there's a lot to commend about 18th century but our chose the less bad out of those options. Dual-edged sword, as I say this, is the federal trust responsibility, right? That is the notion that the U.S. federal government has an obligation to protect tribes, their way of life, and to provide services, including health care, that ensure the survival and welfare of indigenous people. This is based on treaty obligations to protect tribes. In recognition of their aboriginal claims to, the you land that we now inhabit. So a part of the resettlement process, the Trail of Tears, our shameful history, you know, Indians were relocated to smaller and smaller areas, right?

0:11:54 Thomas: Oh.

0:12:21 Thomas: Or Where They Are Yeah.

0:12:36 Thomas: Seems like the less bad choice, yeah. Yeah. Right.

0:13:26 Andrew: Right. They gave up large tracts of land in exchange for being relocated to much smaller tracts of land. And so in a treaty, you have to say, OK, well, here's how we're balancing that out. Even at the time, the idea was, you Know, you had to convince yourself that you were being fair. Right. And so we're balancing that out by, you're going to be in smaller area, but we're going, going to protect you, who We

0:13:43 Thomas: Yeah, we're Also Going to Be terrible to You, I mean, yeah.

0:13:51 Andrew: Yeah. Who Are we going to protect you from, well, largely us, um, but also people like us. So, uh, that gave root to the the doctrine of trust responsibility, and and the reason I go through this historical doctrine is because the way in which health care is primarily delivered to tribal citizens are through Indian Health Service facilities on reservations. And that's going to become really, really important when we talk about the relationship between IHS and abortion. So the reason that we provide health care services on reservations, and we don't provide health care services, you in inner cities, stems from this doctrine of trust responsibility from our efforts.

0:13:53 Thomas: Right.

0:14:40 Andrew: Like I said, some misguided, some genuine to interpret and apply and uphold those treaty obligations from the 18th and 19th centuries. Really, really important concept, we talked about this in episode 417, which is when we discussed McGirt versus Oklahoma, which was the decision that was widely reported as saying 40% of Oklahoma is about to be ceded back to indigenous people. Notice, by the way, we're two years out and that hasn't happened, just like we told you wasn't going to happen. But it's the question of what counts as Indian country. Indian country is a phrase that's throughout our laws. And generally speaking, it refers to the area over which a tribe has jurisdiction.

0:15:26 Andrew: In 1948, Congress enacted a statute and defined by law that Indian country includes reservations, dependent Indian communities and allotments. And basically, you as we've been kind of putting together, the amount of sovereignty that a tribe has is vastly larger within Indian country than outside of it. So the McGirt case was a question over what counted as Indian country resolving that question is not the same as saying, oh, right, this is Indian country, therefore it belongs to this. That's that's Not the saying. It is to say it has a precise legal definition and that certain rights and obligations attached to a thing that is considered Indian country. Finally, kind of as we are setting up revisiting a of McGirt, is the notion of criminal jurisdiction. And this is going to impact both on the discussion on abortion and also on the issue that occurred in McGirt. Generally speaking, here's the way this breaks down. Now, tribes do not have criminal jurisdiction over non-members, right? So in other words, if you or I go on to an Indian reservation and commit a crime on native land, we are not subject to the criminal jurisdiction of that tribe.

0:16:07 Thomas: Yeah. Interesting.

0:16:58 Andrew: We are subject to federal law, you might imagine, this has created a rather important loophole that I'm going to discuss in a second. The flip side of that is that when members of the tribe commit crimes on Indian lands, that they are subject to tribal jurisdiction and the jurisdiction of the U.S. federal government, but not the jurisdiction of the state in which those Indian lands may be. Does that make sense? I'm not saying as a matter of policy.

0:17:30 Thomas: Interesting. Yeah.

0:17:32 Andrew: I'm saying did that. So, yeah. So in other words, you and I sneak onto a reservation, commit a crime. We are only subject to U.S. federal law, not state law and Not Indian law. Tribal member commits a crime on tribal lands. They are subject to tribal law and federal law. A tribal member commits a crime on state lands, they are subject to tribal law, if it applies, and if they can get it, state law and federal law. Right. All of the jurisdictions all overlap at once, and again, this illustrates kind of the the difference, right? This is not a one-to-one correspondence. These are not completely sovereign nations within the jurisdiction of the United States. This is going to be the first content warning. Go ahead. Skip ahead 30 seconds if you don't hear that.

The literature is robust that women are subject to sexual assault by non-tribal members on tribal lands, lands that that's uh a real problem, particularly with, um, know, transients that come, that in that are, you know, constructing, this happens in the construction of casinos, but also, you know, when when you have large communities that up but up against uh Indian reservations and other tribal lands, um, I suppose we shouldn't be surprised, but it is horrifying, uh, and again, not going to get into the the the details or even the numbers, other than to say that that is that a massive issue. So now

0:17:32 Thomas: Okay. I think I'm with you, yeah. Right. Right. Oh.

0:18:02 Thomas: Oh.

0:18:56 Andrew: Out that pin in which I was telling you about, that care services on tribal lands are provided by the Indian Health Service. Indiana Health Service is subject to to the Hyde Amendment of 1976, which prohibits expending federal funds for abortion services, except in the cases of pregnancies resulting from rape or incest, or those that pose a threat to the life of the mother. And I need to tell you that there is, as far as I can tell, I'm going to link it in the show notes, one study, it's from 2002, right? So it's two decades old. It was by the Native American Women's Health Education Resource Center that comprehensively looked at IHS and women's health, and in particular, abortions.

0:19:45 Andrew: I'm going to ask you an impossible question, and the fact that I'm asking you to fill in the blank is the point. That 2002 study looked at 20 years of longitudinal data. Again, it's the most recent that we have. Knowing that the Hyde Amendment prohibits spending money on abortions, but allows in the cases of rape, incest, or those that pose a threat to the life of the mother, understanding the of rough populations, conversations, 20 years, how many abortions do you think IHS performed? And feel free to use round numbers.

0:20:21 Thomas: 20 years, so this was then like 1982 to 2002 ish or something like that, I no idea, I don't know any of the populations involved, I, oh.

0:20:24 Andrew: 1981 to 2001, that's right. Roughly 2.7 million Indigenous people in the United States?

0:20:32 Thomas: Well, then I'm gonna guess, uh, I'm going to guess 300,000.

0:20:39 Andrew: 25. 25 total, right? Yeah. Just over one per year in the entirety of the United States. Yeah. Further information. 85% of IHS facilities were not in compliance with IHS internal and Hyde Amendment regulations. In other words, they did not have abortion services services available, did not refer tribal members out to abortion providers, even for women who were the victims of rape or incest, and even in cases to save the life of the mother. Only 5% of facilities were equipped to provide abortion services on-site. Right. Zero kept RU-486. Again, this is 81 to 2001. So, you wouldn't surprise me if there's been some modest change.

0:20:49 Thomas: Yikes. Oh.

0:21:30 Andrew: But these these numbers and situations are intolerable. 62% of IHS personnel interviewed reported that IHS funds could not be used for abortion, period. Two thirds were just misinformed Yeah.

0:21:42 Thomas: My. Gosh, or Lying.

0:21:46 Andrew: Or lying. That's right. So we have a real crisis in pregnancy, women's health and care issues on reservations right now. Again, I'm going to give you a little bit of a content warning. Skip ahead about a minute or so. Native American women disproportionately at risk for sexual assault and adolescent pregnancy. Nearly half are under the age of 20 when they give birth to their first child. Uh, 87 percent, um, of of uh, native high school seniors have reported having sexual intercourse, which would be fine if not for 92 percent of that, 82 of that 87 percent reported that they were forced to engage in said, yeah, nine out of ten native high school seniors, uh, reported that they were forced.

0:22:30 Thomas: Report. Essentially being raped, that's how is that possible?

0:22:38 Andrew: Yeah. There's a significant amount of literature on the problem of non-tribal members that commit crimes of sexual violence on Native lands. Obviously, we can't get into it. But I need you to know this is a pervasive and real problem in Indigenous communities. If you skipped ahead, I'm going to do one more set of statistics here. So skip ahead another 30 seconds. One in three Native American women will be sexually assaulted in her lifetime. 3.5 times higher risk than other ethnic groups within the U.S. because the majority of those perpetrators are non-native. They can't be prosecuted under tribal law, put all of that together, we have a crucial situation involving reproductive and women's care on reservations.

0:23:26 Andrew: And the idea that they should pick up the slack for non-tribal members, is I think a lot of people are well-meaning in this, but deeply offensive to members who have spoken out about this. And and I can, give you a comparable precedent. OK. In in South Dakota, right, took no step, made a public statement that said that she would consider having a their tribal nation opening an abortion clinic, um, because, you know, South Dakota, this 2006, South Dakota had to then, and will have now, very, um, restrictive abortion laws. Her name was Cecilia, uh, Fire Thunder. The backlash to that was instant and severe. Again, again, I agree with what she said.

0:24:18 Andrew: Right. She said to me, if a woman who's been sexually assaulted finds herself pregnant and she makes the decision to terminate that pregnancy caused by violent, that's her choice. I don't know what state legislatures were thinking. So that's what she Said publicly in 2006. That led to her impeachment and removal as president of the tribe. The

0:24:37 Thomas: Like the tribe didn't like that she said that, yeah.

0:24:39 Andrew: Yeah here's someone who was interviewed in response to that, citizen of the Muskogee nation Sarah Deer said, look, no one wants to be the abortion tribe. You don't want to be known as. This is what we're doing. We are opening up our lands for non-members to come in and have abortions.

0:24:59 Thomas: Like their lives are already hard enough, I imagined attracting that awful attention from our country doesn't seem great. Well,

0:25:01 Andrew: Yeah. Yeah exactly right. And now let me layer kind of one more thing on top of this, which is I also think, even if all you care about was the pragmatic implications, that there are things that folks are not thinking about, so out, for example, um, if you are a state licensed doctor and you open an abortion clinic on tribal land, then yeah, you cannot be criminally prosecuted by the state for opening up that clinic. Could they take away your medical license? 100%, they could take away their medical license.

0:25:46 Thomas: Plus, I, I thought federally they could get you, right?

0:25:49 Andrew: That that federally they could come and get you, that is that is true as well. Fortunately, right, there are no federal laws yet, but federal rulemaking, will have, God help us. Like to make sure we never have another Republican president again in my lifetime. I think I would take the over on that bet. And Right. So, yeah, federal regulations, federal agencies can still carry impose consequences that are short of criminal consequences. And think about how this interacts with Texas SB8? Texas SB 8 imposes civil liability. There's, yeah, there's no immunity for that. Doctrine does not confer immunity from civil

0:25:54 Thomas: Well, for now, yeah. Right.

0:26:32 Thomas: Oh,

0:26:32 Andrew: Suit because the activity took place.

0:26:33 Thomas: That's an interesting question. Okay, so Native Americans are still subject to like civil whatever, even on... Oh, okay. Interesting. Makes sense.

0:26:35 Andrew: Correct. Yeah. Yeah. Yeah. So, You if the response to creating abortion safe havens on native land would be the rise of more of these vigilante copycat SB8 bills, right? That seems like a terrible trade-off, right? So in other words, you know, if we're one weird tricking our way to the bottom, their one weird trick seems way more horrible, uh, than not going down, uh, that line. Way I put it all together, I I have a little more that I could talk about in terms of, uh, McGirt versus Oklahoma. But I think the way that that I would revisit that is is to say what we said in episode 419, that case involved Jimsy McGirt, member of the Creek tribe, who was convicted of three counts of sexual assault, ahead 15 seconds, three counts of sexual assault against a four-year-old girl. Yeah.

0:27:29 Thomas: Oh, my God.

0:27:30 Andrew: And was convicted, convicted by a state court in Oklahoma. And the assault occurred on lands that were described as the Creek Reservation by an 1866 treaty. Oklahoma argued that, you know, that was abrogated in a whole bunch of ways. And again, the sole question that was at issue in that case was the Major Crimes Act, 18 U.S.C. 1153A. We've alluded to that throughout this discussion. That is, any Indian who commits against the person or property of another Indian or other person any of the following offenses, and then it lists them: murder, right, manslaughter, kidnapping, maiming, assault against an individual who's not attained the age of 16 years, which is the count here, felony child abuse, neglect, arson, burglary, robbery, and then a couple of others, shall be subject to the same law and penalties as all other persons committing any of above of offenses within the exclusive jurisdiction of the United States.

Right, so that's what the law says, and what that means is if if you are an Indian and you've committed one of those offenses, then you can be prosecuted by the U.S. government but not by the state government. But the question is, did you commit that offense on, as the law says, within the Indian country. So all McGirt was set that to adjudicate was what constituted within the Indian

0:28:53 Thomas: Yeah.

0:28:53 Andrew: Country. Right. Were these in Indian country?

0:28:55 Thomas: For the sake of that law, not for... Yeah.

0:28:57 Andrew: Right. Right. And the court basically says, yeah, no, it's up to you to kind of figure out, you know, states to figure out the implications of this in terms of other laws. But, you what we're saying is the argument that these particular treaties were abrogated that that's been made in this case is just not the case. And Right. So the implication that, you knows, much of the state of Oklahoma, including much of of the city of Tulsa, that Indian country for purposes of the major crime act? Yes. Does it mean that it's going to be decolonized and returned to indigenous folks? Not a chance, right?

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0:32:03 Andrew: I want to return to the language in that opinion, because on the one hand, it's sweeping and it is really inspiring. But on the other hand, and it also illustrates the limits where of we're coming from. This is a Gorsuch opinion, I'm going to speak to the implications of that in a second. Gorsuche begins with, "On the far end of the Trail of Tears was a promise.

Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding all of their land east of the Mississippi River, the U.S. government agreed by treaty that the Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians," then cites to the treaty, "both parties settled on boundary lines for a new," end quote, "permanent home to the whole Creek nation," end of quote, located in what is now Oklahoma, then citation of the next treaty, 1833, the government further promised that "no state or territory shall ever have a right to pass laws for the government of such Indians, but they shall be be allowed to govern themselves." Citation back to the 1832 treaty. Now that all sounds really sweeping and soaring, but you know, it's Neil Gorsuch. So the next sentence, I think, has not gotten a lot of attention and is really crucial.

"Whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law," right? So, So, again, narrow script of the question. And in this sentence, "because Congress has not said otherwise, we hold the government to its word." So on the one hand, good for not, you know, rubber stamping a bunch of pretextual allegations after the fact of this, you know, and on Neil Gorsuch for, know, you sort of going through the history and figuring all of that out.

0:33:45 Andrew: On the other hand, if it ever got particularly onerous, all that you would need is a single act of Congress, right? Congress can abrogate these treaties whenever it wants. So let's be careful. This was part of the lesson of 419. Let's be fearful on exactly how powerful this protection is. This a limited ruling on a limited area that could be undone by a single act of Congress whenever they want. And right, me add, I told you to put a small pin in the alignment. This was a 2020 case. And I know 2020 doesn't seem, you know, that was still, you know, the Trump presidency, uh, but this was while this was before Amy Coney Barrett joined the court, and uh, the descent, so Gorsuch joined the liberals, and the descent was Thomas, Alito, Cavanaugh, and Roberts. If you're asking yourself now that uh Ginsburg has been replaced by Barrett on the court, would this court even view McGirt as good law two years later? Again, a sane Supreme Court, you know, would say okay, this is settled, but who knows. Mean, Roberts vigorously dissented in this case.

0:33:51 Thomas: Yeah.

0:34:55 Thomas: Was the reasoning

0:34:55 Andrew: The Reasoning of the dissent essentially essentially amounts to, um, nobody has really treated this like a reservation. Yeah. You're really saying 40% of Oklahoma is a reservation? Come on. That's essentially what it amounts to.

0:35:09 Thomas: Interesting. Interesting. So that's I mean, weirdly, that's the more like starry decisive type ruling. And then Gorsuch is actually just like trying to be a textualist, I guess.

0:35:20 Andrew: I, I,I think that's right. So again, Roberts wrote the dissent, and I'm going to read to you directly from, from what he says. First it describes the crime, we don't need to to do that again. "Today, the court holds that Oklahoma lacked jurisdiction to prosecute McGirt on the improbable ground that, unbeknownst to anyone for the past century, a huge swath of Oklahoma is actually a Creek Indian reservation on which the state may not prosecute serious crimes committed by Indians like McGirt.

Not only does the court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the court's reasoning pretends that there are four more such reservations in Oklahoma. The rediscovered reservations," again, this is Roberts's language, right, this is not, you know, Alito writing this, and you can hear the sarcasm dripping from it, "the rediscovered reservations encompass the entire eastern half of the state, 19 million acres that are home to 1.8 million people, only 10 to 15 percent of whom are Indians. Across this vast area, the state's ability to prosecute serious crimes will be hobbled, and decades of past convictions could well be thrown out," uh, spoiler alert, that that hasn't happened. "On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.

The decision creates significant uncertainty for the state's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law. None of this is warranted. What has gone unquestioned for a century remains true today. A huge portion of Oklahoma is not a Creek Indian reservation." So that's, that was the dissent. Come right, on. What, what does it matter what the treaties say?

0:36:04 Thomas: Yeah. But

0:36:50 Andrew: We haven't been treating it like a reservation, so therefore it isn't. Ordinarily I would say this would be settled law from a deeply conservative court in year four of the Trump administration.

0:37:00 Thomas: Who knows? All that matters is if they feel like it being settled law or not.

0:37:04 Andrew: Yeah. And that that's a terrifying conclusion to, you where we began in in starting the show, right, which was the idea that the rule of law does mean something and, you laws are not just, you what Sam Alito thinks they are. But that's, um, a topic for a larger and different and show. This, I, I hope this was at least informative, uh, on the the the, um, basics of of what we call Indian law and how that interacts with a a bunch of issues, including the, and again, I don't, I do not doubt that many people who, you know, we're sort of coming up with the one weird trick. We're, um, you know, looking for ways to retain agency and looking, you're well-meaning folks, but, I think we should call that out as, as not, not well-informed and, and not likely to, to help. Help

0:37:49 Thomas: So the top line is like, oh, I know we can do this one thing to get better access to reproductive health care. And the people concerned were like, hey, we have worse access to reproductive health care, basically. Is that okay? Yeah. All right. Well, yeah. Thanks for the deep dive. It's it's a one weird trick, it's it's, as you say, perhaps unintentionally offensive, one weird trick though, so don't engage in it.

0:38:00 Andrew: Yeah yeah that's right that's

0:38:16 Thomas: Andrea, enough time for a wild card, a quick question that some people had uh, as to whether or not Kavanaugh, Gorsuch, Amy Coney Barrett, I guess all of them really, but those three in particular, perjured themselves in in their testimony, in their hearings, because they went on to completely disregard Roe as president. And what's going on? It seems like they are directly contradicting themselves. And as some prominent Twitterers say, that's called perjury. What do you think?

0:38:11 Clip: WOAH-

0:38:47 Thomas: Cuff them!

0:38:47 Andrew: So Yeah, number one, even if this were perjury, perjuring, being convicted of perjure would not remove you from the Supreme Court to be removed from the supreme court. You have to be impeached.

0:38:48 Thomas: No. Oh, yeah. Yeah.

0:38:57 Andrew: So it's not a one weird trick to get them off the court. And they

0:38:57 Thomas: Yeah. Yeah. They could do their, their jurisprudence from perjurer's prison. Have, do we have those

0:39:05 Andrew: Could and then number at two, you know, you have to parse these. Uh I'm going to give you examples of what each of these justices said at their confirmation hearings, uh, and we can decide, sort, how much that's shaded versus stomped on the truth, right? Um, the best case is, is probably against Samuel Alito, right, who, uh, finally given uh four minions to sign on to his opinion, uh, writes, right, remember that the core holding of this draft opinion in Dobbs is Roe v. Wade was egregiously wrong from From the start. Yeah, from the start. So what he said during his confirmation hearings, quote, "Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It is a precedent that has now been on the books of several decades. It has been challenged, it has been reaffirmed," but it is an issue that is involved in litigation now at all levels. And then, uh, when, asked, right, but where do you come down on that

0:39:21 Thomas: Yeah. Yeah. Wrong from the beginning.

0:40:05 Thomas: Yeah, you're just saying things about the thing that we all know. What do you actually

0:40:10 Andrew: Right and consider this example because this has provided the road map of what you, every judge has said since: "It would be wrong for me to say to anybody who might be bringing any case before my court, if you bring your case before your court, I'm not even going, going to listen to you. I've made up my mind on this issue. I'm not going to read your brief. I'm not going to listen to your argument. I'm not going to discuss the issue with my colleagues, go away, I've made up my mind." That's the antithesis of what courts are supposed to do, and if that's what settled means, I think that's not what judges are supposed to do. Yeah.

0:40:10 Thomas: Think about it? Would it? So if anything, he was pretty open about the fact that this is not really perjury. They told us what they were going to do.

0:40:45 Andrew: Yeah. I mean, that's, he said, "If what you're saying is settled law means settled law, then no, I'm saying I will always listen," uh, it comes forward. That's, uh, that's Alito

0:40:59 Thomas: I also love the idea of that logic. Like if someone comes and asks you as a judge, like, do you think that the idea that we can't segregate schools is settled? And you're like, "Well, I can't say that because, you know, then I'm like telling people how I'm going to," know, you can just tell people, yes, that is settled. I would rule against something trying to segregate our schools in 2022. Like there's no, there's no, the law doesn't fall to pieces because you said that.

0:41:00 Andrew: Yeah No, that is exactly right. It shows the hollowness, the emptiness, um, but nevertheless, right, and I said that was a roadmap. Obviously, um, you know, Clarence Thomas, his confirmation hearing was 15 years earlier, used essentially the same language, right? Said, said, "I can say on the issue of Roe v. Wade, on that issue and on those cases, I have no agenda.

0:41:44 Andrew: I have an open mind. I can function strongly as a judge." Now, that might be as close to perjury as any of them come. But again, when pressed on, is Roe's settled law, he says, "It would be inappropriate for a judge to take a stance on an issue in which he or she has such strong views that he or she cannot be impartial

0:41:44 Thomas: Inappropriate like sexually harassing your, uh, co-workers, that kind of inappropriate, or a different kind of it

0:42:02 Andrew: Yeah that kind of inappropriate you quote, "You have to listen, you have to hear the arguments, you have to allow the adversarial process to think, you have to be open, and you have to be willing to work through the problem. I don't sit on any issues on any cases that I have prejudged. I think it would totally undermine and compromise my capacity as a judge." Uh, what did Gorsuch say? Gorsich said, uh, "Roe v. Wade is precedent," uh, made a statement that uh, I think is absolutely a lie, but not a provable lie, right, because he was explicitly asked, because remember, Donald Trump promised that he would nominate justices that would overturn Roe v. Wade.

And so, uh, as part of the setup, when, when Trump's lapdog Lindsey Graham, was trying to diffuse that, Lindsey Graham asked him, um, "Did Donald Trump explicitly ask you to overturn Roe v. Wade?" And Neil Gorsuch looked into the camera and lied and said, "Senator, I would have walked out the, the door had Donald Trump asked me to overturn Roe v. Wade." That's a lot, but, like, how you gonna prove, you're gonna call Donald Trump to the stand? No, because Donald Trump, 100, the only question Donald Trump asked him was, "Hey, man, you're going to overturn Roe vs. Wade, right?" And he was like, "Yeah, yeah, of course, you know," know, this, ask Leonard Leo, "You put me here for

0:42:41 Thomas: Yeah yeah sure yeah yeah

0:43:23 Andrew: That purpose."

0:43:23 Thomas: Well, I don't even know, you probably didn't even need to ask, like, they just know. No.

0:43:28 Andrew: Right. So Gorsuch also said Roe is precedent, which, again, is not not that that's not perjury here. He said, I would tell you that Roe v. Wade decided in 1973 is a precedent of the United States Supreme Court.

0:43:33 Thomas: Yeah. I love how it turns into, all their answers turn into like, you didn't actually read the book that you're doing a book report on and you're just saying, totally surface level facts about it. Like that's, it's funny in retrospect that that's how all their answers read. Like, do you respect Roe? Roe is a Supreme Court decision from,

0:43:59 Andrew: Yeah. And I respect it as much as I respect any Supreme Court decision. That's been true, true, so, uh, yeah, that's, uh, that's Gorsuch. Uh, "A good judge will consider it as precedent of the United States Supreme Court and worthy of treatment as precedent like any other." So, yeah, um, that was the same, uh, with a little bit of a twist for Brett Kavanaugh.

This is when you might recall Susan Collins's fears were assuaged because, uh, Brett Kavanaugh said he considered Roe to be, be settled law, uh, allegedly told her that in private. In public he didn't quite go that far. He said, "It is settled as precedent of the Supreme Court, entitled the respect under principles of stare decisis. The Supreme Code has recognized the right to abortion since 1973, Roe v. Wade. It has reaffirmed it many time I, you you want to, uh, uh, chant along with me, "I listen to all arguments. You have an open mind.

You get the briefs and the arguments. Some arguments are better than others. Preston is critically important, but you listen to all the arguments." And then finally, Amy Coney Barrett, incubated literally from birth to overturn Roe v. Wade, says, "I can't pre-commit or say whether Roe has been correctly decided or not." Yes, I'm going in with some agenda because I'm not. "Judges can't just wake up one day and say, I have an agenda, I, I like guns, I hate guns, I like abortion, I hate abortion, and walk in like a royal queen and impose their will on the world."

0:44:47 Thomas: Again, Again, it's just describing things that happened. Yeah, mm-hmm, yeah.

0:45:26 Thomas: Weird, because that's what she did.

0:45:26 Andrew: Yeah shocker, yeah again, uh, Barrett, I think was probably the most accidentally honest, uh, this is when Amy Klobuchar, and I, I thought this was super not helpful, asked if, if she considered Roe v. Wade to be super precedent. Right. Yeah. Which is, again, those are the things that that lawyers used to just call precedent binding.

0:45:28 Thomas: Huh. Oh, super precedent, yeah, not a thing. Precedent, yeah?

0:45:49 Andrew: You know, the bile's got to be in the back of your throat before you overturn it. And Barrett said super precedent are cases that are so well settled that no political actors and no people seriously push to overrule them. And I'm answering a lot of questions about Roe, which I think indicates that Roe v. Wade does not fall into that category. Roe is not a super precedent because calls for overruling it have never ceased. That doesn't mean Roe should be overruled. It just means it doesn't fall into the small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore. And again, it is just the worst case of bitter irony to watch, to read in the Alito draft opinion of Dobbs that he's using the same logic of Brown v. Board of Education, because each and every one of these would have been on the opposite side of Brown v.

0:46:36 Andrew: Board. And we are seeing rolling back of the Supreme Court as a bulwark for individual rights to the Lochner era as arbiter and enforcer of partiality and injustice on behalf of the wealthiest and most powerful. Terrible. It's terrible so that that's what the justices have said, it's not perjury, even if it were perjure it wouldn't kick him off the court, so, uh, don't say that

0:46:55 Thomas: Yeah, I'll be honest, I don't even see, Occupy Democrats version of this. Like, they didn't say, yes, I will never overturn Roe. I'm 0% with this question. Like they didn't perjure themselves I mean, they just pretty much, we've known they're going to do this. They did the dance of saying nothing in their answers that they all do now. And then they, they did this, they overturned it.

0:47:05 Andrew: Yeah yeah yep

0:47:19 Thomas: So yeah.

0:47:19 Andrew: And and in some ways, you did the dance while winking at us and going, I care about this exactly as much as I care, care about precedent in every other case, yeah yep

0:47:23 Thomas: Yeah. Yeah. Yep. Well, darn, but worth answering for those who were wondering not perjury.

0:47:34 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:47:43 Thomas: And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law, enjoying all the goodies, the new show quote suggestions, the Law'd Awful Movies, which may be out as you're hearing this. I'm not sure the timing, but close, imminently released, least as you're hearing this it will be a lot of fun, make sure to get Law'd Awful Movies, subscribe at that two dollar level, so, Andrew, start us off with our third quartile, I think right yeah if you're using metric no, I don't know, nice

0:48:09 Andrew: Third quartile, fifth octile right, the best octile you a big thank you to, eating too much cake is the sin of gluttony, but eating too, too much pie is okay because the sign of pi is always zero, I love a good math dad joke. Christopher Brown, Philly live show 2022, graduation day from Delaware Law School, can't thank enough OA for helping me learn. Thank you. I, we, please do continue to share out you've graduated from law school, if you aced your exams, when, when you take the bar exam, you know, tag us. Let us know. We will. We'll share your success as much as we can. And we love hearing from you. Seattle Pete, vaccinated Aussie in Germany. If I get the next T3B rate, can you top up my supply of Vegemite and Tim Tams, please? Yeah. Two things I love. Go to DigitalDefenseFund.org to learn how to protect your privacy when searching for info about abortion. DigitalDefenseFund.org. Interesting, the coin is rigging T3BE with a Chinese thermostat controlled by an Italian satellite, that's a, uh, Mike

0:48:24 Thomas: The coin

0:49:14 Andrew: Lindell reference there yeah I know, PSA, once the Supreme Court overturns Lawrence versus Texas, fellatio and cunnilingus may be illegal sodomy, but heating ass will still be okay, um not sure that I don't know about that I

0:49:14 Thomas: Is such old news yeah Yeah.

0:49:25 Thomas: Wow. I don't think that is true, actually. I think that was under the one of the definitions of sodomy that we talked about. I'm pretty

0:49:30 Andrew: Uh yeah we'd have to look, but but still, you know, I did.

0:49:35 Thomas: Sure. Yeah. It's good attempt. I don't know.

0:49:39 Andrew: I will all be looking for the appropriate loopholes. Believe me. Darth Mandy Pants, Robert M. Blue practicing 80s Florida law. Miami Prohawk Fiche. That's amazing. Bob Loblaw's Law Podcast. Ball Arena Live Show after the cup. Polly Hernandez, the impossible Hamburglar. Burglar, that, that still makes me laugh. Donate seized Russian oligarch yachts to one eight seven seven mega yachts for kids, now I'm gonna sing that song. Thanks, ethical Thomas, the real et Jason Copas, Bob Coburn, objection, the witness is a badger, lawful copter says America, where we want our children to breed but not read and stop calling him Uncle Frank, Nate Drex has to call him dad. Take it away, Thomas.

0:50:25 Thomas: And thank you to Ian Hamilton, sir, not appearing in this film, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Definitely not an MSNBC spy. Sexual Anarchy. New band name. Called it. John Bilderbeck. Jennifer Kratch. All right, we admit it. We created Conrad Michaels to get you people to up your pledges. Jeff Gelbach. Stop Aluata slander. It's not illegal to hope bad things happen to Samuel Alito. Yeah.

0:50:28 Andrew: That's

0:50:52 Thomas: Greg Krimer. Stephen Balticate Sandoval. Fun to watch Pennsylvania GOP candidates talk about waiting to count all the votes when they're behind. Yeah. Yep. Philip Kizer, Andrea the Arbitrary and Capricious, Pain Strumpet, Geyer Sergith, Pran G plus Air, then Sure plus Set. Yes, please read all of it. I think they're telling me it's pronounced Gare sure set. Okay, cool. Gare. Sure. Set. Hopefully I got that right. If not, we'll see you next month. When you correct me again, see you X quartile. Andrew could never be in the army because if a fellow soldier pulled the pin on a grenade he'd put it back in.

0:50:52 Andrew: True okay, we'll try it again yeah

0:51:34 Thomas: Seriously, the live show in Minneapolis. Maybe. To Zespri, Kiwi Fruit, Disco Dancing, to Funeral Music, welcome to Japan. Medicon 7, still waiting for a legendary multi-part long-form deep dive on karaoke law. All right. Thanks so much, top patrons. We love you. You're the best. My favorite quartile, I think. Pretty sure that was my favorite quintile.

0:51:55 Andrew: A strong contender, anyway

0:51:58 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:52:03 Thomas: And now it's time for T3B answer time. Let's find out how I did this time.

0:52:05 Andrew: Whoo yeah, this was 16 year old boy operating a motorboat, while doing so got distracted by text messages, oh, those teenagers, inadvertently struck but don't boat and text, inadvertently stuck a woman sitting in a canoe, did not know she was there, and the woman suffered serious injuries, sued the boy for battery, will the women succeed? You said no. See, no, because the boy did not intend to strike the woman. Thomas, this is exactly correct.

0:52:17 Thomas: Always boating and texting. All right.

0:52:36 Andrew: A battery is an act with intent to commit a harmful or offensive contact or imminent apprehension of such contact, and the harmful or offense of contact directly or indirectly results. So, no intent. Therefore, this could not be a battery. I think you parsed that through, again, exactly correctly.

0:52:41 Thomas: There we go.

0:52:56 Thomas: Yeah, I think I pretty much

0:52:58 Andrew: The only thing that I would say is you thought that the intended to drive the boat was perhaps mixing up a negligence standard. It's actually a that is the negligence standard. Right.

0:52:58 Thomas: Nailed this one.

0:53:10 Andrew: So this is typically if you if you were saying, did a person exercise due care in the operation of the motorboat? Yes. If the trier fact found that, you know, yeah, a 16 year old should have been a better driver. Survivor, this this is the, the bar's way of saying a real lawyer would, would not sue for battery here. Well, we're, a real lawyer would sue for everything they could plausibly claim, but a real, a real lawyers would not pin all their eggs in the battery basket because this is a pretty clear negligence case, but right, it's not battery.

0:53:09 Thomas: Oh, okay. Yeah. Yeah. Mm-hmm. Yeah. Yeah. Right, right, right.

0:53:44 Andrew: Because no intent. So

0:53:44 Thomas: So what was B questioning? Is it just a gobbledygook or is there some theory behind B?

0:53:50 Andrew: It was parsing out whether, you know, what counts as intent, right? So an act with intent to commit a harmful or offensive contact. If, if what you intended to do was drive the boat, right? Yeah. And you would contrast that with, for example, if, if we added in here that, um, the boy got drunk and then did that, that courts have said the intent to become drunk is the intent to do all the things that flow from being drunk, which include potentially running people over. So just intending to drive the boat doesn't directly get you there.

0:53:57 Thomas: Oh, right. Yeah. Hmm. Right. Okay.

0:54:29 Andrew: But yeah, that

0:54:29 Thomas: So B was trying to get at like battery is a crime of intent is a tort involving intent. And then someone's like, well, he intended to drive the boat. It's like yeah, but that's not has to be like directly intending to hit somebody or whatever.

0:54:42 Andrew: Is exactly right.

0:54:43 Thomas: Gotcha. Okay, I could have could But all right, got one right. Man, it's been a while or I don't know. I think I've got like two of the last seven. I don't even know. But got to start somewhere.

0:54:44 Andrew: Yep. Yep. Yeah. Well, and you eliminated D, right? Right. Which is which is correct that the have to intend to commit an offensive conduct and then that contact directly or indirectly results. Right. So I can strike somebody with my boat or my hammer, as you pointed out. And, you

0:55:11 Thomas: So if you just tried to ride someone over, like, you know, you're running someone down with a boat, would Is that battery exactly? I guess that's

0:55:18 Andrew: You intend to run them down, that's battery. But but but really the situation is there for, you I run after you and I pull my fist back to give you a huge haymaker. And as you're cowering, you trip and fall and hit the ground. Right. And are hurt that way. Well, your your physical conduct with the ground right directly or indirectly resulted from my swinging at you. So the fact that like I missed but you still hurt yourself.

0:55:22 Thomas: Battery. Okay.

0:55:34 Thomas: Ah, yeah. Yeah.

0:55:45 Andrew: Right is still battery. Yeah, exactly. You battered this question into next week good work and

0:55:46 Thomas: Yeah. Okay. Still battery. Gotcha. All right. Cool. Well, I committed battery against this question. Yeah. So let's find out who else did well on this question, who's our big winner.

0:55:59 Andrew: Well Thomas, a lot of people played along this week. A lot of people got it wrong because a lot of people thought you didn't have to demonstrate intent for battery. About a fair number of people got it right. The earliest comes from Craig who writes, Thomas prevails with C. This boatery is not battery as there was no intent behind the collision. A good lawyer would have canoed. This was negligence. Well those are some exceptional dad jokes slash puns, and congratulations, Craig, on being this week's winner. Everyone, let's give them a follow. They are at Craig K. Bryant on Twitter. That is C-R-A-I-G-K-B-R‑Y-A‑N-T. And congratulations Craig on being this week's winner.

0:56:44 Thomas: And that's our show. Joe, thank you so much for listening. Again, look for that Law'd Awful Movies coming at you very soon. Good reason to pledge. Plus the ad-free stuff. Always, always good. And we'll see you for Rapid Response Friday.

0:56:44 Andrew: Nice

0:56:55 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:57:29 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.