Summary

  • On July 9, 2020, the Supreme Court of the United States ruled in the case McGirt v. Oklahoma that much of the state of Oklahoma falls within an Indian reservation, potentially one of the most consequential legal decisions for Native Americans in decades that could have far-reaching implications. The FPC hosted a briefing with legal expert Dr. Lindsay Robertson, Director of the Center for American Indian Law at University of Oklahoma, who explains what the ruling means for the future of Native American rights.

THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C. 

MODERATOR:  Okay, so good afternoon.  My name is Jen McAndrew, I am a media relations officer with the Washington Foreign Press Center, and the moderator for today’s on-the-record (inaudible) and the Supreme Court case McGirt vs. Oklahoma.  Today’s briefer is legal expert Dr. Lindsay Robertson, Chickasaw Nation Endowed Chair in Native American Law at the University of Oklahoma, and director of the Center for the Study of American Indian Law and Policy.   

On behalf of the Washington Foreign Press Center, we extend our thanks to Professor Robertson for giving his time today to discuss this landmark Supreme Court case and the future of Native American rights.   

And now for the ground rules.  This briefing is on the record and the views of today’s briefer do not represent the views of the U.S. Government.  We will post the transcript and video of this briefing later today on our website, which is fpc.state.gov.  If you publish a story as a result of this briefing, please share your story with us by sending an email to dcfpc@state.gov.   

Professor Robertson will give short opening remarks, and then we will open it up for questions.  If you have a question, please go to the chat box and virtually raise your hand.  At that time we will unmute you and turn on your video so that you can ask your questions. 

And with that, I will pass it over to Professor Robertson. 

MR ROBERTSON:  Thank you, Jen.  It’s a delight to be here.  I am thrilled to have a chance to speak to people in the foreign press corps as a lot of my work is international, including in most of the countries I think that are represented.  And so I invite your questions on any topic.  Jen asked me to come and say a few words about the McGirt decision, and so I have – I went ahead – I never write things out to read, but I did for today’s event so there’d be something a little more coherent for you guys to use.  And so momentarily I’ll read a brief piece on the McGirt case.  But I want it to be clear that I’m open to any questions on anything having to do with indigenous rights in the United States, or if you’d like to visit about international indigenous legal issues as well, that’s another area in which I’m fairly well versed.  And you may have – my experience in dealing with persons from other countries is there are often issues about which you may have been curious, and this – so this is your chance, if you want.  Feel free to ask me absolutely anything. 

The – a word quickly about – briefly about how tribes – which is the legal term that we use – operate in the United States.  First, since I mentioned tribes, a word on vocabulary.  The popular term internationally now for indigenous people is “indigenous peoples.”  In the U.S. we have a history of using the term “Indian,” and so you’ll hear that.  And I’ll – I may well use it today.  That’s a term that’s fairly common out here.  It’s also more importantly the term that’s used throughout the United States code.  So when we talk about federal statutes dealing with Indian law, Indian country, et cetera, that word crops up.  And I know that’s a troublesome word in certain parts of the world where it isn’t used anymore, but it still is a term that’s conventionally used in the U.S.  “Native American” is another phrase that you’ll hear commonly, and I’ll probably use that.  And then the term “native,” too.  So if I use any of these words, I’m talking about the same thing, which are indigenous communities in the United States that actually operate as separate political communities.   

And that’s the second thing I’ll say an introductory word about.  Tribes in the United States, or indigenous nations, or native nations, are federally recognized political communities.  They exercise sovereign power that is inherent to them.  So it’s not power delegated to these communities by the United States Government.  They aren’t agents of the federal government, they are separate political communities who have existed here since before Europeans arrived.  And that circumstance is recognized, and always has been, by the United States to mean that the power that they exercise, their governance power is internally generated.  That has a number of consequences which I’m happy to speak about later, if you’re interested.  But it is the reality, and it’s virtually a unique situation globally, that indigenous communities are recognized as separate political sovereigns who share territory with the United States and who exercise inherent power. 

That federal recognition – and this is the – the penultimate point I guess I’ll make – is an important component of this.  The tribes that are considered to be subject to the rules of what we call federal Indian law, who are perceived by the federal government as exercising inherent power, are those that have been federally recognized, which is to say the United States either through a treaty or a statute or a court decision or an administrative process has recognized that, yes, this particular group is one of those indigenous groups that was here before we arrived.  It’s this – before we arrived, and so we recognize them.  And there are literally hundreds of these.  Between five and six hundred separate tribal communities have been federally recognized. 

There are other groups that are in process of applying for federal recognition, may get it, and then there are some that are state-recognized tribes.  We have a number in Virginia who were recently federally recognized as well, and so the rules governing those tribes are a little bit different.  All of the tribes that I’m going to talk about today and that are involved in the McGirt decision and its aftermath are federally recognized tribes.  So if I talk about the Muscogee (Creek) or the Cherokee Nation, these are tribes that are recognized by the United States Government as being separate sovereigns who share territory with the United States, who pre-exist the United States, and who exercise inherent powers, including powers of self-governance and some powers over others, over non-members of their community.   

The sort of things that they do – and this is the last introductory remark I’ll make before talking about McGirt – include all of the things that governments do.  Most tribes in the United States have their own judicial systems, their own courts.  I happen to be a supreme court justice for the Cheyenne and Arapaho tribes who are in western Oklahoma.  They have their own police departments, most of them.  They have their own civil courts as well as criminal courts.  Beneath the supreme court level they have constitutions.  Most have written constitutions.  They have legislative branches, executive branches.  Some of them – they all have their own unique arrangement.  Some of them have additional branches – the Cheyenne and Arapaho, for instance, we have a fourth branch of government called the tribal council.  Some are more traditional than others; some apply traditional law, some apply laws that would be more familiar to non-native people.  But they are governments who exercise jurisdiction over territories all within the broader territorial limits of the United States, and it’s a system that we’ve been living with since the U.S. became a country.  So we have more than two centuries of experience of this sort of plura-national existence – not just federal, state, as most Americans know, but federal, state, tribal.  They’re actually three separate forms of sovereign power in the United States.  And again, I’m happy to talk about the details of any of that later.   

So let me, and with apologies, read this quick statement, sort of a summary of the McGirt decision.  And this’ll be available – I’m happy to provide a hard copy to Jen if she wants it, and of course it will be in the transcript, I suppose, too. 

So on July 9th, the Supreme Court issued its decision in McGirt v. Oklahoma, the most important indigenous rights decision issued by the Supreme Court in the 21st century.  The case was a challenge to the prosecution of Jimcy McGirt, a citizen of the Seminole Nation, by the state of Oklahoma for the commission of a crime that occurred on land that, according to Mr. McGirt, was Muscogee (Creek) Nation reservation land, in consequence of which under federal law Oklahoma had no jurisdiction and the crime should have been prosecuted by the United States.  The Muscogee (Creek) Nation is an indigenous nation that was forcibly removed from the southeastern United States to what’s now Oklahoma in the 1830s, and the reservation lands McGirt claimed for them included all or part of 11 Oklahoma counties and most of the city of Tulsa. 

The question for the court was:  Was Mr. McGirt right that the land was Muscogee (Creek) Nation reservation land, or was Oklahoma right that while the land had once been reservation land, the reservation had been disestablished by Congress more than a century ago?  The land had been allotted – divided up into individual farms and ranches and distributed to individual Muscogee (Creek) citizens – in the early 20th century, and the court had decided in earlier cases that if Congress clearly expressed in allotting indigenous lands that the lands were no longer reservation lands, then they weren’t.  If the allotment act were unclear, the court could look to surrounding circumstances, including subsequent changes in land ownership, to decide if a reservation had been disestablished, so that if, in theory – so that, in theory, if, as here, most of a major city with hundreds of thousands of non-native residents were within the reservation, the court could find it disestablished. 

In McGirt, the majority of the court decided that the surrounding circumstances were irrelevant and if the text of the allotment act did not clearly disestablish the reservation, it was not disestablished, whatever the possible consequences.  Mr. McGirt, the court found, was correct:  The Muscogee (Creek) reservation had not been disestablished and Oklahoma had no jurisdiction to prosecute him.  This followed the opinion of the court, incidentally, in another disestablishment case, Nebraska v. Parker, in which a small non-native town in Nebraska was held to be within a reservation. 

The McGirt decision is important for a number of reasons.  First, it’s important because the indigenous side won.  This hasn’t been the norm in many years, and many indigenous rights advocates are now hopeful we’re at the dawn of a new era for native rights. 

Second, it reinforces the rule in Parker that externalities are irrelevant in disestablishment cases; the clear language of the statute alone answers the question.  This means that indigenous tribes should now be able to make claims based on historic promises without fear that they will be defeated by subsequent, often unjust events.   

And it also has practical consequences in eastern Oklahoma.  Four indigenous nations in addition to the Muscogee (Creek) – the Seminole, Choctaw, Chickasaw, and Cherokee Nations – were also forcibly removed to Oklahoma from the southeastern United States in the 1830s and ’40s.  All four, like the Muscogee (Creek), had their lands allotted in the late 19th and early 20th centuries by the United States.  Because their allotment acts are all similar to the Muscogee (Creek) allotment act, it’s widely believed that the McGirt reasoning would apply to these other four as well. 

What would that mean?  First, federal criminal jurisdiction rules will apply in the Muscogee (Creek) reservation and possibly in the lands of the other four nations, which together make up the eastern half of Oklahoma.  Where crimes are committed in these lands by or against tribal citizens, in most instances the United States and in some instances the tribes will have jurisdiction to prosecute and not the state.  On the civil side, the tribes will have jurisdiction to regulate the activities of tribal citizens and, in limited instances – for example, where non-members voluntarily engage in commercial relations with the tribes – the conduct of non-indigenous people as well. 

Because the exercise of criminal and some civil jurisdiction raises some logistical challenges, and to eliminate uncertainty as to how jurisdiction will be exercised in the future, the five indigenous nations, the state, and the federal government are now engaged in discussions to reach agreement on how all this will work.  All parties have publicly expressed their commitment to a negotiated solution, and because all are experienced in working through jurisdictional issues, those of us who are following the talks are confident that they will succeed. 

That’s my McGirt overview and a brief intro to federal Indian law, and I am more than happy to spend the rest of our time taking any questions. 

MODERATOR:  Thank you for that.  I will now invite our participants to ask questions by raising your hand in the chat box.  I will then call on you.  If you could please state your name and your outlet, and if you have not already, please rename yourself with your name and your media outlet. 

I see the first question is from Elena Luntza from LUSA, a Portuguese media outlet.  Elena, I will now unmute you. 

QUESTION:  Hello.  Hi, can you hear me?  I’m from LUSA, from the Portuguese news agency, but I’m located in New York, and I would like to ask some questions to Dr. Lindsay Robertson.  The first one would be:  During this times of the pandemic, do you consider that the indigenous Americans are being treated as citizens of their own countries and are getting the help that everybody in the country needs, like food help, and are they getting health care? 

MR ROBERTSON:  Yeah.  Well, it’s a funny – so the way you asked the question invites two different answers.  So are they being treated as citizens of their own country?  I assume, based on the end of your question, you mean citizens of the United States. 

QUESTION:  Yeah, exactly. 

MR ROBERTSON:  But they’re certainly being treated as citizens of what they would consider to be their own country, which is the tribe of which they’re a citizen.  And so the answer is yes and no.  I think there is – there’s certainly certain indigenous nations – Navajo is one that’s been in the news a lot – where for a variety of reasons treating COVID-19 for tribal citizens has been a real challenge.  Part of the challenge has to do with just the topography of Navajo Nation and the location of a lot of their citizens in rural communities, but a lot of it has to do with lack of federal financial support, of federal logistic support, and I think that’s made this – the situation particularly dire in much of Indian country.  Navajo, I think, are at one extreme, but they’re certainly not unique.  We have a number of students from tribes all over the country in our various – in Indian law programs at the University of Oklahoma, a number of them working as online student on the frontline of the COVID fight, and they’ve been attempting to use whatever they – resources they have to access more federal resources in order to more effectively fight the virus.  And then of course the other major news story that we’ve seen is tribal communities unaffected by the coronavirus, attempting to keep non-native people off their lands in order to prevent the virus from coming in, and that’s created conflicts in certain states in the Northern Plains region.  It’s a great question and I’m – I’m personally grateful that you’re attentive to the issue because it is one that people should be paying attention to, and to the extent that we can continue to raise broader public awareness of the particular problems being faced in what we call Indian country in fighting COVID, that’s all for the good.  

QUESTION:  Thank you.  I have a second question, if I may, about the – about your experience in international field and the indigenous Brazilian people.  They are facing also attacks from the federal Government of Brazil, and they also may be facing the risk of being exterminated, like we can get to this – even to this risk.  Look at the Amazon fires that burned massive area of the land.  How do you think that they can – the indigenous Brazilian people defend themselves?   

MR ROBERTSON:  Well yeah, so the indigenous in the – in Amazonia – are facing something that indigenous peoples around the world have faced in – and continue to face, which is a battle between sort of their own continued existence and the natural resources and developmental interests of non-native peoples.  Here in the U.S., this was a major problem in the 19th century.  It continues to be to a certain extent, but what we’re seeing in Brazil now is the government favoring the natural resources exploitation over the continued subsistence rates of native peoples.  And so as you say, there’s – there are fires but they’re with the goal of making more land available for agriculture, an attempt to extract natural resources.  And these aren’t completely irrational goals, but they’re certainly running up against the interests and rights of the people who actually live there at this time.   

The indigenous peoples themselves, I think, have certain resources or avenues available to them through the Brazilian system, to a certain extent through the international system.  There are a number of treaty bodies that exist in order to protect the human rights of, among other things, groups – indigenous peoples.  The UN Human Rights Council is concerned, through their universal periodic review process, the CERD, the convention – or the Committee on the Elimination of Racial Discrimination, which is the treaty body that sort of monitors compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, regularly hears reports from indigenous groups concerning violation of rights, of international human rights obligations by states exploiting or attempting to extract natural resources from indigenous territories.   

And so those are avenues.  And then the other – there are a number of really talented and well-educated indigenous rights advocates, attorneys, and law professors, and others in Brazil who – many of whom are involved in sort of attempting to protect the rights of these communities now.  But it’s likely that there are some who haven’t become directly involved, and if I were visiting with an indigenous group sort of facing – I know there’s accusations of genocide currently – certainly facing dispossession of land and threats to habitats, et cetera – I would be in contact with those folks.  

QUESTION:  Thank you.  I might have another question, but let – I don’t want to monopolize the (inaudible) anybody else wants to talk.  Thank you.   

MODERATOR:  Thank you, Elena.  If anybody else would like to ask a question, or if they have technical difficulties they can write your question in the chat box.  Let’s see, I do have a question from Gabriela Martinez with El Universal.  We will now unmute you.  Gabriela, go ahead. 

MR ROBERTSON:  I think you’re muted.  

MODERATOR:  Do we have you, Gabriela? 

MR ROBERTSON:  We can see you but not hear you. 

MODERATOR:  Okay, while we’re waiting for her to resolve her technical issues, we can go back to Elena. 

QUESTION:  Can you hear me?  

MODERATOR:  Oh, is that you, Gabriela? 

QUESTION:  Yes.   

MODERATOR:  Please, go ahead.  

QUESTION:  I’m – okay, well, I have (inaudible) if you think the position of the court can set a precedent and serve to other indigenous movement.  Because for example, here in both sides of the border, in Tijuana and then San Diego, we have this community, the Kumeyaays, and they have presence in the both sides of the border, but they are trying to stop these – the work with the wall, because they have some damage.  For example, they say something about the sacred cemetery has problems with all the work.  But also, they lose some activities they share in the both sides, so they are trying to do something in the legal area, but I don’t know with this precedent in the court, can they have an opportunity to do something?  

MR ROBERTSON:  Yeah, I don’t know either in terms of using the domestic legal system.  I will say that there is an international declaration, of which I’m sure you’re familiar – the United Nations Declaration on the Rights of Indigenous Peoples – that includes provisions relating to transport or access rights for indigenous communities whose lands lie on opposite sides of international borders.  This is a declaration that the United States and Mexico have both indicated their support for, so it’s possible that there’s a political solution, simply by reminding the respective governments that there are these rights that the declaration contemplates that the two states have already pledged to work to support.  The problem with those sorts of claims, of course, is that it runs up against national security concerns and these sorts of things which makes any kind of transporter movement problematic, and that’s compounded now by the COVID-19 coronavirus.  And so it may not be the best time, but it certainly – that would be a place to go if you were looking for some sort of international legal support. 

MODERATOR:  Okay, thank you.  I believe we have a question from Helena Gustavsson from ETC Publishing.  We will now unmute you. 

QUESTION:  Hi, I’m here.  Hi, thanks for – can you hear me? 

MR ROBERTSON:  Yes. 

MODERATOR:  Yes. 

QUESTION:  Great.  So I was wondering – so before the court case was settled, I think the argument from Oklahoma, from the state, was that a lot of convicts would be released from prison and it would be a security risk perhaps, and also very unfair to victims of these convicted criminals.  But what’s going to happen in that department?   

And can you say something else about also the practical implications?  You said there’s a negotiation going on, but there has, for example, been talk about domestic violence being – it’s been a problem enforcing that because of – in tribal land, just like here.   

MR ROBERTSON:  Yeah.  Yeah, no, those are great questions.  So the state in its argument in this case and in the earlier case that raised the same issues, the Murphy case from last year, which was never decided because the court decided to go with the McGirt case, raised the same sort of practical consequence problems, and they included on the criminal side that there are lots of people currently incarcerated in Oklahoma State prisons who we will have to release, and they’ll be free and walking the streets and committing more crimes, and this sort of thing.   

I think that a lot of that was in developing arguments based on this earlier view of how we decided this establishment case is that if you could convince the court that it would be sufficiently nightmarish, complicated, and dangerous to find that a reservation still existed, then that might be sufficient grounds for finding that it didn’t.  The majority in this case listened to those arguments and said, in its opinion, we think they’re greatly exaggerated, and even if we didn’t, we don’t care, right?  And that was because all they care about is what the language of the original statute says.   

But on the “We think they’re greatly exaggerated” point, what the majority said was that – the fact is that even if the court finds that the state lacks jurisdiction, or lacked jurisdiction over some of these people who were in state prisons, it’s our understanding that the individual prisoners themselves have to initiate an action to be released from state custody.  And if they – if they’re successful in that, that doesn’t mean that they’re free; it means that they can then be re-prosecuted by the federal government, which in many instances has tougher penalties for the commission of crimes.  So they would actually be making their situation worse by successfully petitioning for release and re-prosecution.  And the majority said, so there are a lot of people who will look at this and decide, I don’t want to do that, I’m going to finish my state term and then be free.   

There are others, the majority suggested, that might not be able to do that because they failed to raise the question of jurisdiction in the initial state appeal that they raised to their initial – in their initial prosecution.  And there is a state criminal law rule that says if you don’t make an argument in the state court appeal of your decision, then you’ve lost it.  And virtually none of these people raised the argument that Muscogee (Creek) Nation still existed so this was Indian country.  So it’s possible that under state criminal procedure, the great majority of those people will not be able to petition again to be retried by the federal government. 

So we don’t know yet.  We don’t have – these things have started to come out.  There are a few, a handful of cases of prosecutions, I think, that were pending where the appeals have now been brought.  So these aren’t people currently incarcerated, but in the appeals, people are now raising this issue of lack of state jurisdiction.  So we’ll see. 

But what’s interesting is that this – the fear that all of these people would be released and walking the streets as a topic of public conversation in Oklahoma has largely disappeared.  The state is now taking the position, well, this is – the criminal side is just something we’re going to have to work out too, so let’s sit down at the table and start working it out.  And we really haven’t experienced anything like the horrible situation that the state was arguing might result from a decision in favor of Mr. McGirt. 

QUESTION:  And the – just – I had the second question as well about domestic violence being hard to enforce, if you have — 

MR ROBERTSON:  Oh, yeah, yeah, yeah.  Yeah, so domestic violence – so all – on all of the criminal jurisdiction side there, the issue isn’t really will people be prosecuted or not; it’s who will prosecute them.  And the domestic violence situation that you may be alluding to is the problem of domestic violence against native women, yeah? 

QUESTION:  Yes. 

MR ROBERTSON:  Which was a big news issue in 2013 when Congress was passing the reauthorization of the Violence Against Women Act, and the – and Amnesty International had produced some evidence that a disproportionate number of native women were victims of native – of domestic violence committed by non-native people.  And that was a problem where those crimes occurred in Indian country because under supreme court case law, the tribes do not have criminal jurisdiction over non-Indians, over non-native people.  So that meant that the federal government was the only power that could prosecute them, and they – and they hadn’t been in many instances, because of lack of resources.  So what this will do, this case may do, is sort of expand the territory over which the solution that was reached in the Violence Against Women Act will apply, which is that if the acts of domestic violence are committed against Native women by non-Natives then the tribal court will have jurisdiction to prosecute those people. 

So in that instance, I think what we’ll see is a shift from state prosecution, which many believe was inadequate, that it wasn’t being  – cases weren’t being prosecuted enough – to tribal prosecution, where there might actually be a greater interest in prosecuting.  So we don’t really know exactly how that will work out, but there are a number of people in the field who are hopeful that this will mean that more perpetrators of domestic violence against Native women will be brought to justice.  

QUESTION:  Just one follow-up.  The resources of the tribal courts – how – is that very different from tribe to tribe, or is that —  

MR ROBERTSON:  Yeah.  It’s very different from tribe to tribe.  But what we’ll – what we all expect to happen is that more resources will be made available, both to tribes who now have enhanced obligations – and we don’t know exactly how enhanced yet, our expanded obligations – and to the federal government, because the federal United States Attorney’s Office in Tulsa in particular is now going to have jurisdiction to prosecute more crimes.  Basically every crime involving a Native person will now be subject to federal jurisdiction, with a handful of exceptions.  So they’re going to need more prosecutors, they’re going to need more investigators, et cetera.   

And so I think part of the discussion is the three parties figure out how jurisdiction is actually going to work.  On the criminal side is who will need what new resources and where will they come from.  And I think most people are expecting most of the resource – supplemental resources to come from the federal government.  That’s a great question.  

QUESTION:  Thank you.  

MODERATOR:  Okay.  If we don’t have any other questions we can turn to Elena Luntza.  

QUESTION:  Yeah.  Thank you so much.  So my other question would be if Dr. Lindsay recommends to create new organizations or associations for the indigenous peoples, the Native Americans, from all the Americas – like from Brazil, America/USA, or Peru or anything else and – or do you think that there are enough and how else can they – what else can they do to also advocate better for the rights of indigenous in the Americas?  

MR ROBERTSON:  Yeah.  That’s a great question.  There are actually a number of organizations working for the rights collectively of indigenous peoples in the Americas.  They’re – the whole field of indigenous people’s law has become internationalized, and especially in the last 15 years with the adoption of the UN Declaration on the Rights of Indigenous Peoples.  But there’s been more contact through negotiation of that instrument and the American declaration among indigenous peoples from different parts of the Americas.   

I might mention – this isn’t technically the advocacy side, but I’m involved in an organization – or there is an organization – I should – I’ll disclaim that I’m involved in it – called the International Intertribal Trade and Investment Organization, which actually was founded to help build direct trade relations among indigenous peoples, especially in the Americas.  So suppliers of Peruvian fish, for instance – sending fish, selling fish to tribes in the U.S. to sell in their restaurants, at their casinos, for instance, and this sort of thing – there’s a website – international – IITIO is the acronym, IITIO.org, if any of you are interested.  But they’re trying to build these networks, and that’s operating on kind of the private side, I guess, of building community among the Native peoples of the Americas.   

I think all of that’s to the good.  I think the State Department can play a role in that, and has in the past by sending delegations.  I’ve had students from Bolivia come to my law school twice to study indigenous peoples law with me and would love to have more groups come.  And State has also very generously, and I think smartly, sponsored speaking tours by indigenous advocates and professors from different parts of the Americas, coming back and forth.  Organizations are fabulous.  As I say, there are a number; there could always be more.  But they’re valuable, I think, primarily because of the interpersonal relationships that they create.   

And I guess lastly – and so this is a bit of encouragement to folks in the indigenous communities in Latin America – I think language is really important.  And I think part of what’s prevented the formation of those relationships is an inability to communicate in other peoples’ languages.  And I’ve learned that sort of from experience.  (Speaking in Spanish and Portuguese.)   

And it’s much easier for me in consequence to navigate in these worlds than for other people.  So if states were to, for instance, train indigenous leaders in English in Brazil, I think that would open an entire world of connections to them, to help them internally, not only sort of build viable advocacy communities but maybe get outside support to advocate for their causes and the protection of rights.   

QUESTION:  Thank you.  I could understand what you said in Portuguese.   

MR ROBERTSON:  Oh, good.  (Laughter.) 

MODERATOR:  Okay.  We actually have a question from the Asahi Shimbun, Mayako Isihikawa.  We will now unmute you.  

QUESTION:  Okay.  Do you hear me now?  

MODERATOR:  Yes, we can.   

QUESTION:  Okay.  Thank you.  Hi.  I have question.  Will this Oklahoma case have any effect on pipeline cases like the Keystone or Dakota Access pipelines?  

MR ROBERTSON:  It’s a great question, and I don’t know the answer.  In theory, it might if it turns out that the tribes whose lands were affected by the construction of the pipeline have claims based on the new law that we got in the McGirt case to a larger reservation.  As it is, Dakota Access, for instance, didn’t go through the tribe’s reservation, it went near it, and that limited their power to control it.  But in theory, if it turns out that because of this case the pipeline actually went through their reservation, then that would strengthen their claims.  But I’m not sure directly how this would affect those cases otherwise.   

I suppose the one other possibility would be that there is a – there seems to be a new majority on Indian law cases on the court now, including Justice Gorsuch, who has lots of experience working with indigenous law issues because he was a judge on the Tenth Circuit, which includes Oklahoma, before he became a Supreme Court justice.  And the majority opinion evidences a familiarity with the history of native peoples in a way that we really haven’t seen before.  It’s a very powerful opinion about the importance of keeping promises and power imbalances and all sorts of things, and if that sort of new – if that represents a new vision on the court, then that might have an impact on any litigation that might reach the court as a result of the pipeline controversy.  It may be that there’s a new majority that’s willing to take old promises more seriously, maybe, than we’ve seen before, and that might have an impact on the pipeline case.  

QUESTION:  Thank you.  

MR ROBERTSON:  It’s a great question.  

MODERATOR:  Okay, I’d like to return to Helena Gustavsson with a follow-up question from ETC. 

QUESTION:  Yeah, thanks a lot.  So you – sorry if I missed a little bit in the beginning.  I hope you don’t have to repeat, but you talked about some – that indigenous advocates are seeing this as maybe the beginning of a new era of sorts.  Could you talk a little bit more about that?  What could happen next, either in – legally or in the legal area, or maybe more general also, if you – if you would like?  

MR ROBERTSON:  Yeah, well, I can certainly talk about the legal area and the Supreme Court, and I think the reason that a number of people are optimistic that that may be happening is what I said a minute ago, that Justice Gorsuch, who is again from the Tenth Circuit, which includes Oklahoma, has arrived on the court.  But there have always been a number of justices including Justice Sotomayor and Justice Breyer, who are well versed in Indian Law, interested in the topic, have researched and studied, but this is the first justice we’ve had who spent a significant part of his professional life working in Indian country, in a part of the country where there are lots of indigenous peoples, and working while in that part of the country on resolving legal claims of those tribes.  And his familiarity with the issues is really well evidenced in the majority opinion he wrote that was joined – and this may be important also – by all of the other justices in the majority with no concurring opinions, meaning everybody said we agree with Justice Gorsuch for the reasons that he said.   

And that’s also unusual in modern Indian law cases.  We usually have a run of concurring opinions – I think the result is right but I’m not sure that’s how the law works.  So the fact that we have this union of views around a very sensitive understanding of the history of native peoples and the law of native peoples suggests that maybe there is a majority in the court now that will be sensitive to other sorts of claims that the court has not been particularly sensitive of from other areas, areas different from disestablishment cases – treaty interpretation cases, for instance, or old land claims that the court – that the tribe was unable to bring for a variety of reasons.  The court in recent years has said, well, there’s a lot of non-native people living there now; it wouldn’t be fair to them to allow the tribe to bring this claim.  Maybe there’s now a majority that would say there are a lot of non-native people living there, but maybe they shouldn’t have been there in the first place.  Yes, we’re willing to see what the original promise was in your treaty, and as in McGirt, whatever the consequences happen to be, we’re prepared to live with them so that the nation keeps its word.   

QUESTION:  Do you think there’s a specific case or geographic area or tribe that’s really – that’s going to be the first to — 

MR ROBERTSON:  I – yeah, I don’t know.  I suspect the first cases will probably be cases from Oklahoma, but beyond that I do not know.  We’re all waiting to see.  

QUESTION:  Thank you.  

MODERATOR:  Do we have any remaining questions from our participants?  I’ll give you just another minute.   

(No response.) 

MODERATOR:  Professor Robertson, would you like to give any concluding thoughts or we can conclude it there?  

MR ROBERTSON:  No, I think that’s great.  I do have to say, since we have at least one correspondent from Japan, if you would give my best wishes to my good friend Doctor Teruki Tsunemoto at Hokkaido University, who runs the Ainu Center in Japan, have lots of really interesting indigenous rights issues to deal with, and I love – I’ve been to Japan several times and really have enjoyed my time there.  And Japan in a way could be the – sort of the new cutting edge on indigenous rights.  Brazil also, but they have sort of different issues, as Elena mentioned there.   

MODERATOR:  Okay, with that, I want to thank Professor Robertson for sharing your expertise on this very complex and timely topic, and to all of our participants for your excellent questions.  And that concludes today’s briefing.  Good afternoon.  Thank you.   

MR ROBERTSON:  Thank you.  

U.S. Department of State

The Lessons of 1989: Freedom and Our Future