Legal Docket - Prosecuting crime in Indian territory

MARY REICHARD, HOST: It’s Monday, May 16th, 2022 and a brand new work week for The World and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The subterfuge behind the leak of a draft opinion that if final would overturn Roe v Wade remains in the news.

On Friday in Dallas—in an interview with a former law clerk of his—Justice Clarence Thomas said the leak has done grave damage to the court. This is an extended comment. Let’s listen.

THOMAS: If someone said that one line of one opinion would be leaked by anyone, and you would say that, ‘Oh, that's impossible. No one would ever do that.’ It was beyond … anyone's imagination that someone would do that. And look where we are: Where now that trust or that belief is gone forever. … And when you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder, it's like kind of an infidelity. …Anybody who would, for example, have an attitude to leak documents. That general attitude is your future on the bench. And you need to be concerned about that. And we never had that before. We actually trusted— it was— we may have been a dysfunctional family, but we were a family.

REICHARD: Well, on to oral arguments. Two of them today.

The first one I’ll make quick work of. The court heard argument back in March. It deals with how much a health benefit plan reimburses for dialysis treatments.

The case involves the health care company Davita, it’s the leading provider of dialysis in the country. Davita argues that the health benefit plan that Marietta Memorial Hospital provides for its employees violates Medicare rules. The reason is that it reimburses Davita at the lowest level relative to all other providers of medical treatments.

Federal law does not allow health plans to treat people with kidney failure any differently in terms of benefits.

Listen to Justice Elena Kagan address the lawyer representing the health plan:

KAGAN: I mean, we could go down a list of these kinds of diseases with these kinds of treatments that are always necessary for that disease and only used for people with that disease. You know, we can -- we can do diabetes Type I and insulin, or we could do antiretrovirals and AIDS. And these are -- you know, you understand why people don't want to pay for these things. They're expensive. But isn't that exactly what Congress was trying to do? It's saying stop trying to get out of paying for the only treatment that is appropriate for a particular disease.

The tenor of the justices’ questions and the fact the court took this case in the first place leads me to think Davita will win the case.

EICHER: Next, a case touching the relationship among Native Americans, the federal government, and state governments.

It’s peculiar and complicated, a relationship that goes back to the founding of this nation, and it’s replete with broken promises.

One area of great confusion has to do with who has jurisdiction to prosecute crimes that happen in Indian territory.

Jurisdiction, meaning the power to adjudicate cases and issue orders. When a crime happens on a reservation, is that a matter for tribal governments to handle? Or the state where the reservation lies? Or is it the federal government that handles it?

Or maybe some combination of all three?

REICHARD: A decision of the Supreme Court two years ago upended years of practice. Used to be, both state and federal governments could prosecute crimes involving non-Indians on Indian land. Until, that is, a bombshell, 5-4 ruling in McGirt v Oklahoma. Literally overnight, the legal status of half the state and a million Oklahomans changed. They found out they are now living on an Indian reservation. That includes 400,000 people living in the state’s second biggest city, Tulsa.

The implications are enormous and even now far from sorted out.

EICHER: The legal question in this case is whether the state of Oklahoma had jurisdiction to prosecute a man named Victor Manuel Castro-Huerta, a non-Indian. The state prosecuted Castro-Huerta for extreme neglect of a Native American child on the Cherokee Reservation. He received a sentence of 35 years for his shocking level of neglect.

But now he argues Oklahoma lacked jurisdiction to prosecute him—because the crime happened on Native lands.

REICHARD: Arguing on behalf of Oklahoma to uphold the state conviction, Kannon Shanmugam. Because the victim is Native American, he argued, the state can prosecute Castro-Huerta, if only for the sake of expediency:

SHANMUGAM: This is an extraordinary situation, I think, unlike any situation in recent history where what's going on right now in Oklahoma is a giant law enforcement experiment. You have half -- almost half of an American state now, at least as to this category of crimes, under the exclusive criminal jurisdiction of the federal government, and the federal government is failing in that task.

He went on to note that a lot of perpetrators are escaping prosecution since the McGirt decision.

Justice Samuel Alito picked up on that practical aspect. He questioned just how committed the federal government is to prosecuting crimes in Indian country. Alito wanted to know: How does this help Indian victims?

ALITO: Is it -- is it a sustainable situation? Is the federal government going to be able to provide enough federal agents, enough federal prosecutors, enough federal judges, enough federal courtrooms, enough federal probation officers, to handle the caseload that was previously handled by state law enforcement?

In response, Deputy Solicitor General Edwin Kneedler for the federal government in support of Castro-Huerta. He could only point to what resources the Department of Justice had already provided.

KNEEDLER: But I think we have to assume Congress will live up to the responsibilities that -- to enable the Justice Department to do everything that is necessary. It -- it is prosecuting major crimes and violent crimes. It is prioritizing that, as it necessarily must. And as they -- as things hit their stride, then some of the less serious crimes will be prosecuted. It's not like they’ve been dropped. They're in the queue to be prosecuted as time comes along.

Yet Kneedler had to admit that the resources provided so far depend upon funding and are temporary.

Against that backdrop of unprosecuted crime, the justices turned to the legal question before them.

Chief Justice John Roberts homed in on the meaning of another federal law called the General Crimes Act—and specifically the question of whether it supersedes state law to prosecute criminal activity in Indian lands.

ROBERTS: Counsel, if I could just -- I don't think we've gotten to the critical language in the statute yet, and, of course, in the General Crimes Act, this is what the language says: "Except as otherwise provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except D.C., shall extend to the Indian country.” Now, as I read that, that's taking a body of law, the laws that apply in places within the sole and exclusive jurisdiction, and say that that extends to Indian country. Now where do you get any notion of the preemption of state jurisdiction in that?

Preemption, a legal doctrine that allows a higher level of government to limit or even eliminate the power of a lower level of government. It’s based on what we know as the Supremacy Clause of the U.S. Constitution. That says federal law is supreme over state law, that even when the laws conflict, it preempts state law.

The Chief Justice wondered why Congress didn’t clearly say it intended to preempt state laws, if that’s what it meant.

One wrinkle argued by Shanmugam (lawyer for Oklahoma) is this: Yes, it’s true that in a previous high court decision the court did say that the General Crimes Act preempts state prosecutions, but it said so as “dicta.”

Dicta is a legal term meaning a comment or suggestion made by a justice in an opinion that isn’t necessary to resolve the case. In other words, words that are not legally binding.

But the liberal leaning justices didn’t buy that argument. Here’s Justice Elena Kagan:

KAGAN: Well, I don't know if you get to talk about precedent, you know, because you're up here and six times we have said the exact opposite of your position. And you say, well, it's dicta. But it's not normal dicta. It's -- it's in six cases this Court has laid down the jurisdictional rules and has specifically rejected your position. So, you know, in terms of what this Court has said, I'm sorry, but this Court has -- has indicated six times that you're wrong. You know, you're asking us to do a big lift on the basis of language that, as I say seems to me more naturally read against you.

Justice Neil Gorsuch weighed in most heavily in the end. He wrote that 2020 McGirt decision, joined by the four liberals on the court at the time that included Justice Ruth Bader Ginsburg.

Justice Gorsuch pointed to treaties the federal government made with Native Americans. Listen to this exchange with Zachary Schauf, attorney for Castro-Huerta, the non-Indian criminal defendant:

GORSUCH: Do you think the preemption analysis is affected by treaty promises?

SCHAUF: I do think the preemption analysis is affected by treaty promises. And, you know, one other place you could start this case is the treaty promise to the Cherokee Nation that it would be under the protection of the federal government and no other sovereign whatsoever. You could add the promise that the federal government is going to be the one to protect Indians from crimes by non-Indians. And you could take the promise that Cherokee lands would not be included within state jurisdiction without Cherokee consent. And I think, when you put that set of treaty promises together, the only understanding you can have is that they expected the federal government alone to prosecute these types of crimes. And so, if you've got an available reading of the statute that vindicates rather than breaks those treaty promises, I think you take that reading of the statute.

It’s my educated guess that Justices Roberts and Alito will side with Oklahoma and Justice Gorsuch with the defendant.

The others? A toss up. Meanwhile, things in Oklahoma will stay muddled.

On another note: this argument is the last one to be argued this term.

And that marked the final argument with retiring Justice Stephen Breyer on the bench.

Chief Justice Roberts paid him an emotional tribute.

I want to play it in its entirety:

ROBERTS: And now, as many of you may know, uh, Justice Breyer has announced his retirement from the court, effective when we rise from the summer recess. That means that the oral argument that we have just concluded is the last the court will hear with Justice Breyer on the bench. For 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly. This sitting alone has brought radioactive muskrats and John the Tigerman. Now, at the appropriate time, we will in accordance with tradition and practice read and enter into the record an exchange of letters between the court and Justice Breyer marking his retirement. For now, we leave the courtroom with deep appreciation for the privilege of sharing this bench with him.

BREYER: Thank you. [Gavel]

Farewell, Justice Breyer, and I wish you a very happy retirement.

I’ve said it before, but I’m going to miss you. You and your loveable hypotheticals. Contra the chief, I don’t think they’re silly at all.

That’s this week’s Legal Docket.

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