Welcome cspan friends for day four of the National ConstitutionSupreme Court rec recap, its an extraordinary experiment in Public Education to convene scholars on all sides of the cases but the Supreme Court is broadcasting live for the first time in history and here at the beginning of the second week we just heard to remarkably rich cases and i am thrilled to join you again to understand the best arguments on both sides in the spirit of educating ourselves about the constitution. Im Jeffrey Rosen the president of the National Constitutionn center in philadelphia and we begin all over National ConstitutionCenters Programs by reciting inspiring constitution senator which prepares us for the learning ahead. N e National Constitution center is only constitution chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis in order to increase awareness and understanding of constitution among the american people. That is what we will do today and thank you for joining to increase your own awareness and understanding of the constitution. Our first case is one that is deeply important and unfamiliar and i cant wait to talk about it with her to experts, this is versus oklahoma and joining us to discuss Lindsay Robinson who submitted on behalf of the historianit legal scholars in Cherokee Nation in support of the practitioner and for the center of study of indian lawof and policy chickasaw nation in native american law in sam k in the president ial professor at Oklahoma University school of law, Robert Sharon filed a brief on behalf of the oklahoma District Attorneys Office in support of the respondent, he is an associate at baker hostetler, hes represented parties before the Supreme Court in the u. S. Courts appeals in the delighted to welcome both, thank you for joining us lindsay robertsonro Robert Sharon. Thank you so much. So glad youre here. Lets begin with you since you filed a brief on petitioners chief Justice Roberts right after the gate asked her question, he said the state argues that this Indian Community is not an independent reservation but independent Indian Community, tell us about that, rather technical sunday distinction and why so much of the case hangs on. Its unclear that it does but it certainly became the states principal argument the school around that it did not appear in the argument in the murphy case which left some of us scratching our heads and they seem to have shifted midst under midstream and making a different argument on the Indian Community, the language comes from title 18 section 1151 of the u. S. Code which is adopted in 1948 and defined beauty as a place where specifically to federal criminal statutes applied the general crimes act known as the Indian Country and known as the focus of this case. The language in that section 1151 a is reservations, 1151b is dependent Indian Community and 1151c is former indian allotment but that was not a part of this case, the first two were. The language appeared in 1948 in the u. S. Code having been drawn by congress of a series of Supreme Court decisions. The reservation language was what the argument in the precursor to this case that was last years murphy case and there is loads of history and everyone who goes to school the United States is about indian reservations and treaties in the sort of thing, the Indian Community is a little unusual for people and its actually a new mexico creation, what happened new mexico was a territory, Federal Territory for a long time and in the course of new mexicos territorial history the question arose are the plum blows indians for purposes of application and federal indian statutes specifically a statute called the trading intercourse act among other things prohibit the sale of alcohol to indians in indian countries and a bunch of merchants and speculators in the nonindian communities in albuquerque running out to the problems selling alcohol to the public citizens and getting busted for it by the feds. Prior to statehood, the state turned to real court said this is fine because they are not indians because are civilized, et cetera, the federal government was concerned that they through language into the oklahoma new mexico enabling act, yes they are indian and new mexicans continue to violate this law in the sandoval case came up just mentioned numerous times in the world argument today, sandoval was a fight over whether are the problems indians in the book of the decision if youn, read it, is very racist, deals with levels of civilization, are they sufficiently inferior to white people that we can consider indians. In the answer to that is yes and the pushback that comes from the state of new mexico is the abbot their citizens, the Supreme Court to that said maybe were not entirely sure but it does not make any difference. The final desperate argument, yah they own their land so they cannot be indians and the reason that they own their land it turned out that the problems had owned their land under mexican law and when the United States acquired new mexico we agreed to respect existing Real Property titles. The pope close own their land and the court said that does not disqualify them for being o indians either because look at the five tribes in oklahoma, their land and. Juan and we consider them indians and that shut it down. To build an argument that the public situation and by the way they characterize as an independent Indian Community and thats the language that was lifted and put into 1151b in order to make sure that in the future new mexicans in particular dont try to treat well blows as nonindians and exploit them in consequencend of that. Thank you so much for that, thats a helpful beginning, this is very technical stuff, well explained but i need our viewers to understand the basic thing, theres a huge practical question which is a large percentage of the state of oklahoma under Oklahoma State criminal jurisdiction or not and is still under the control of nativeun americans. Help us understand the basic position of the statesi of oklahoma for when the state became independent sen in 1906 n the state gain the jurisdiction and opposition to what the other side is arguing. The implication question is one that has been discussed at length and theres all this backandforth but if you go and you talk to the local elected District Attorneys who were on the brief that was filed at baker hostetler, you talk to them and learn about whats going on in eastern oklahoma, there are a huge number of consequences immediate consequences, difficulty questions, running two things about what happens if you suddenly apply federal Indian Country status to have an interstate 1. 8 Million People thousand miles from washington, hes enormous, and be a Cottage Industry for lawyers alike. Thats not the simplest way for you to understand what are the implications, the best way to do that is to imagine youre in a state, that means that most of the decisions that deeply impact your daytoday life are made at the local level, the federal government has limited power in the state only addressing certain things, that is helpful especially when you live in ave place that does not line up with the majority policy in washington might be in where youre living with the people who aree governing you, close o you and more likely to get the quality and appropriate government that you want, we need people to protect us from crime, we need people to invest in ouro communities and we need people to set the rules of the road for local law issues, if you put federal Indian Country status and suddenly after 100 years over all of eastern oklahoma, youre not getting into the tribes come youre giving power to congress, to the federal government which is very far away and the relationships in eastern oklahoma, some of what we said today in the views on this case are unrecognizable to oklahomans, in oklahoma, the tribes in the State Government in the people who were indians and on indians is a wonderful society, one of the great states and stories in the history of the union, they can Work Together and they do Work Together, what they havent done and what we havent had to do is suddenly hand over half of the h state of washington. Now you have washington, d. C. , congress,ou special interest and is not the people making the fundamental decisions are not the ones who live in a a coma together and have done so for 100e years. Thank you very much to that and that point that if the state of oklahoma were to lose that would be the ultimate authority after congress and as we heard an argument, any criminal could be convicted under Oklahoma State law in those territories could follow a petition and refile his orrp her case in federal court, i do want to ask about the practical consequences of the attorney general of oklahoma said that a great deal of convictions were at stake, we have over 1700 inmates who committed crimes in the formere indian territory, the state would not have jurisdiction and would have to police half of that number and that doesnt in crimes committed against indians, 3000 inmates may have to be turneded over, 32000 committed in indian territory, a year and thousand that would double to 8000 of that included the native american victim, is this correct or not in your view that if your site were to win, many existing criminal convictions would be overturned or have to be redundant. Theheres two part of question, the answer is we dont know, one of the troubling aspects of the oral argument this happened in the murphy case that the statistics get thrown out an oral argument and theres no real opportunity to dig into them, i know as an oklahoman whos worked in State Government for 20 years including thehe ste governors, we dont keep the sorts of records that we would need to keep at the District Attorney level in order to know what these numbers actually were, we dont keep information on the tribal identity of victims, that will make that calculation problematic and i think a lot of this is done through self identification and as robertt will agree theres a lot of oklahomans to self identify as indiansen were not citizens of tribes which is a n trigger. Will there be consequences on the terminal side, yes, this is the other question theres a prospective and retrospective, prospectively i think the answer is there are problems, congress has a part to fix them, on the retrospective side i think in the i federal system is severely limited by the increased penalties that several of the justices alluded to and by the time limits imposed under federal law in filing petition. I dont know that there would be that many people who would file and on the stateside, we dont know either, the only concrete number we have is a number of people who have filed since the tenth circuits decision in murphy in that number is fewer than 200 and we dont know it that disposition will be. I think the answer is, there will be consequences, we dont know what theyll be prospectively and retrospectively they might be smaller than what people might imagine. Thank you for that, the question of t consequences is oe that the court dealt with recentlywh which came up several times in the argument, ramos decided a few weeks ago that there might have to be many ascases retried because of the incorporation of a previously unincorporated criminal procedure requirement and it was going to take that risk. Robert as you listen to the argument, what did you hear the justices what weight were they giving to the practical considerations, that they were cited several times seem to do suggest that the statutech was clear and congress did in fact turn over jurisdiction to the state, we would have to take the consequences and let the heavens fall and other justices would want pragmatic and the competing approach that you heard among the justices on whether the practical affection matter. I just want to be clear on this because theres been a perception inn this case that yu have the law and the laws on consumer pointing to the consequences to say lets ignor the law and that could not be further from the truth because that would be wrong it isnt really about consequences of the courts decision, what were talking about is instances that have occurred for 100 years in which the issue wouldan come up, first of all, the has many implications for how you into license, but secondly and equally importantly the consequences are just enough that i think we can all agree that you have to look everywhere under every rock and you have to be thorough because the consequences at a minimum, the United States federal government is telling the Supreme Court we dont have the c resources, im telling you the District Attorney does not have the resources to be able to help facilitate the process and handoff attorneys in order to be able to go back and retrial these convictions, we are telling you at a minimum when you look at the one piece let alone Everything Else in handing the entire eastern half of the federal government, we need to look so carefully and we need to look everything in the challenger, the reason why we keep talking about the consequences forns that reason s that this is an enormous historical record over 70 years that is not a single statute like Justice Thomas said is so exceedingly difficult to go through all of this, there were several instances in the argument after several times around getting the dates of treaties, critical ordering, the british legal system they do skeletons for argument we have chronology and you provide these other things and when youre dealing with an original jurisdiction case over an order dispute, you provide so much more information and so much more process that we cant, thats when we talk about the consequences this a this process is nonideal, we know its a massive record, confusing, we know in the usual place for what we expect we dont find it. However, pleaseus keep looking because eastern oklahoma is not a federal Indian Country at the whim of congress, its a place for oklahomans, non india nonidl like have been together 100 years and they want to keep it that way, were not sure that congress will hinder back if the court issues a decision in the wrong way. Taken for that thats a powerful way to put oklahomas argument for more than 100 years oklahomans have been united in congress wanted to keep it that way when admitted Oklahoma State. Justice alito mentioned the statute which several other justices picked up on he talked about the 1897 statute that the laws of the United States shall be applied to all people regardless of race and he said ruling for the particular jurors side will treat people differently based on race and much of the argument came down to whether when oklahoma became a state in 1906 congress wanted to maintain the nondiscrimination principle. Understanding that there is very technical statute that could be parsed, which are broad response to Justice Alitos question. This is a topic that occurs in the century. In oklahoma when we look at federal legislation and ill focus on the enabling act that includes a provision, that was referenced as well, what was missed at the oral argument via both sides, that provision was included in the oklahoma enabling act, not to ensure that native americans and nonnative americans will n be treated identically under the law but to protect the rights of africanamericans and local matera toward. President roosevelt who oversaw the statehood process was terribly concerned that as there was a much of the south at the time the jim crow legislation passed in the abuse of africanamerican through that into the enabling act to stall the state from adopting racist constitution and they sidestepped it and directed the legislator to do it in the first oklahoma legislator passed jim crow legislation segregating schools and also some other stuff, that is the targeted protective group, not native americans of tribal right. Interesting thank you for the context. Speaking oft the racial underpinnings of this case, Justice Kavanaugh several times a questionable history, he said the civil war is key, the five tribes with the confederacy in the civil war, then lots of black slaves, the new treaty in the grass given to railroads were predominantly white, he had a situation of indian territories are predominantly white, 60 white, 10 black and 30 indian in a relevant territory and he said to what degree did that suggest there is no incompatibility of reservation status to help impact what Justice Kavanaugh was getting at. Is an opportunity for him to do it as a question in a threeminute round of an oral argument under these conditions where hes going throughr er th. What hes getting at, when you do the work, the really hard work and you go through this,