High Stakes in Reservation Case

Tears to present day Oklahoma. That dark history was part of the Supreme Court oral arguments in the case of Jimmy McGurk, who was convicted of trial rape in Oklahoma State Court and says the state did not have the power to prosecute him for crimes committed on Creek Land, but Oklahoma says there was no reservation to begin with. The case has vast implications for criminal, tax and regulatory power, and Justice Neil Gorsuch may hold the key vote, joining

me as Jordan Reuben Bloomberg Law editor. So Jordan explained the controlling issue here. So this case is an appeal from a defendant named jim c McGurk, and he was

convicted in Oklahoma State Court. And he readed the really interesting argument on appeal recently, and that's that Oklahoma state officials actually didn't have jurisdictions to prosecute him because he is a Native American and his crime technically took place on Native American land, and so that's his argument anyway, which raises the question of whether that land actually still is technically a reservation, which the state contests, and so

that raises all sorts of issues beyond just this one prosecution. And if it does turn out that that land technically is a reservation, then that means that the federal government actually had exclusive jurisdiction over those prosecutions, as that would call into question a lot of prosecutions aside from just McGirt, in addition to civil consequences as well, not just criminals. Why is there even a question about whether or not

it's a reservation. Isn't that something that's usually clear, right? So Jim c mcgert certainly says that it's clear. He would point to the fact that in the Creek Nations nineteenth century treaty it does explicitly use the term reserve vation. But there's really a complicated history of Native American lands, and really the history between the government, the federal government and Native Americans and the state government that makes it complicated in some ways to figure out what the actual

status of the land is. But one thing about this case is that even beyond the technical status of the land. The justices really, in some ways we're more focused on the consequences of their decision. You could tell that some of them were really worried that if they were to rule in favor of Mr mcgart, of the consequences of that decision, rather than simply the question of whether, in fact that land still is a reservation. It seemed like several justices did ask questions about, but if we do this,

then what happens in this case or that case? Just in terms of the general consequences point. You did have justices, for example, also Justice Ginsburg pointing to the fact that if the Court was to rule for Mr mcgurt she was questioning mcgret's lawyer and saying, you know, all of these really terrible cases are gonna be opened up. So that was one thing that they were really concerned with.

And then also you saw, for example, a Justice Alito, he was questioning mcgurt's side as to the effect of the case on non Indians if it turns out that the implication of the ruling is that the eastern half of Oklahoma is technically still sitting on in Indian reservation, which the other side is saying is totally different from how people have been living their lives in the last over a hundred years. When the Justice asked these questions about if we rule this way, it's going to change

so much. What was the answer of McGirk and the Creek Nation, Right, So, I think there's there's probably two levels to that. In the first instance, they would say that the consequences that the state claims really aren't that bad. They would cast it as a creative harribles that won't actually come to be. For example, one thing that they point to is say, for example Mr mcgret were to win this case, and then that would then trigger a

bunch of state convictions getting overturned. Those cases could then be retried in federal court. You have the other side saying, with the federal government supporting Oklahoma here, that these federal prosecutors would be too overwhelmed if now they have all this new jurisdiction to deal with. So that's one level to it. Another is that mcgert and the Creek Nation

would say that the consequences of the decision really aren't relevant. Really, the relevant question they're focused on is just simply the question of does the Creek Reservations still exist, and they say that the state and federal government just haven't shown enough to prove that Congress undid the reservation through legislation,

as is required under a Supreme Court precedent. So you heard Justice Scorsages name several arms by the lawyers in the case because they were citing Corsige opinions explain why he seems to be at the heart of this case. Sure, so, this same exact issue was in front of the justice's last term in a different case. But the problem is that Justice Gorsis was refused from that case because it came from the federal appeals Court that he sat on

when he was a judge there. And so the Supreme Court deadlock four to four, it seemed in that prior case. And so now with disappeal, which comes from Oklahoma State Court, Justice Corsi is free to weigh in because he's not refused, and so he can break the apparent deadlock. And so what we saw at the argument was the lawyers really pitching their cases directly to Justice Gorsis, even though all

nine justices were on the line. There was an interesting phenomenon where it was almost an argument tailored specifically to Justice Corsage. There was also a lot of discussion of following the text wherever it leads. So Justice Course, which is known as a textualists in the tradition of Justice Anton and Scalia, the late Justice Anton and Scalia, So

how will that affect his decision in this case? Well, McGirt in the Creek Nation, Uh, they tribe that's supporting mcgert here at the Supreme Court would say that this is an easy case for a textualist and an originalist like Justice Coursis, because their argument is that they're simply not clear enough of a congressional statement showing that Congress

wanted to disestablish the reservation. Under the Supreme Court precedents, Congress needs to make a clear showing that they're trying to undo a reservation, and the defendants argument is that that really just hasn't happened here. So a ruling that comes down to just a straightforward ruling on the text as opposed to worrying about the consequences of the decision. McGirt is arguing anyway, then that's an easy win for him. So they're hoping that Justice Corsage does wind up ruling

in what they're anyway, viewing as this textualist way. So what could you tell from the questions that he was asking at the oral arguments anything, Yes, the questions definitely favored McGirt and the tribe. You're probably if the case is going to come down to justice scorsages vote, um, as it does seem that it could be, then it really does seem like it is looking good for mcgert and the tribe. And if you're the state, you're probably

concerned with the questions that he was asking them. Really, Gorse had a bunch of questions for the state's lawyer, essentially saying that he disagreed with their approach and also disagreed with their claims of negative practical consequences. So, if this is coming down to justice scorsages vote, then that's probably good news for McGirt and the tribe. Hasn't Justice scurse.

It's recently written an opinion that indicated that at some point, if you're going to follow the statute, let the consequences

be what they may. Right. So there was a recent opinion that came out in another context that came up during the argument today, and that was Justice gors Wich is somewhat recent opinion in the case called Ramos against Louisiana, and that was a case that involved unanimous jury verdicts, and that was another somewhat close case where again similar to hear somewhat, you have the state arguing that if the defendant Ramos won that case, there'd be all of

these negative consequences of previous non unanimous convictions getting overturned and gorship and Gorsich said, essentially in one part of his opinion, well, whatever the consequences, maybe we just have to render the decision that we think is the correct one here. And so in this argument today, which of course was in a different context, mcgert's lawyer, he cited the Ramo's opinion right at the beginning of his argument.

And so it seems that McGirt and the Creek Nation are hoping that Gorsich takes that same sort of approach that he did in the Ramos case and just straight up rule on the law without worrying about what the state is saying is going to be these disastrous consequences. With the four to four decision, was that along ideological lines, was it conservatives versus liberals. So the thing is given sort of the opaque nature of how the Supreme Court operates in some ways, We actually don't know what the

internal vote breakdown was of that last case. All we know is that the Court said that it's going to step down the decision to decide at a later point, and so it just so happens that the speculation from that is that the Justice were in fact deadlock, because otherwise, if there was able to be some kind of five three decision, one imagines that they would have rendered it. And so this is something that court watchers are speculating

was an internal deadlock. There hasn't really been an argument showing otherwise, and so that's what lends people to say that you have course that she's going to come in and break this four four deadlock by casting the fifth vote. And how would a decision in this case affect other tribes lands and whether their reservations would have an effect on other tribes. It definitely could, and that's part of

where the state's concerns come from. So the Creek Nation, along with four other tribes, basically take up the eastern half of Oklahoma. They were the five tribes that were forced west by the federal government on the Trail of Tears in the eighteen thirties. And so given that these other tribes also have similar histories and set ups to

the way that the Creek Nation was established. If in this case here the justices say that the Creek reservation still stands in that same logic could apply to the other four tribes too. And that's what leads Oklahoma officials to worry about losing jurisdiction over Indians and half the state because this law, called the Major Crimes Act, gives the federal government exclusive jurisdiction over crimes in Indian Country

involving Indians. Let's say mcgt wins he right now is racing a life sentence in Oklahoma State prison for raping a four year old girl? Can he Can he be retried by the federal government or is the constitute of limitations? No, he can be retried by the federal government. And that's an argument that he himself makes, not just as applied to his own case, but as applied to other cases too.

If these convictions get overturned, then people can be retried. Now, it's another question entirely whether the federal government would be able to put on an effective prosecution if a lot of time has gone by since the alleged crime has taken place, and that's something that came up during the argument as well, going against McGurk. But at least in theory, if these cases are getting overturned, then the federal government

can pick them up. But in practice it's probably more of an open question as to whether the federal government would actually seek to reprosecute every single state conviction that might get overturned if mcgart wins. So. Going broader than this case too, the oral arguments themselves and how they've been going. It seems as if things are going quite well until the flush in the last case on Wednesday.

How are people reacting to that? Is it likely to scare the justices off from these kinds of oral arguments? You know, they might use that as an excuse to not do this sort of thing in the future, But I think it actually serves to underscore how well these

remote arguments were going. Besides all of that, and so I don't see why something like a toilet flushing during a remote argument, I don't see why that would stop the justices from doing live streaming of arguments in court where there's not a toilet, and I think if anything, um, it speaks to the fact that they should be doing these arguments over video, because one hopes anyway that that would act as a detern to that sort of thing.

Thanks Jordan's that's Jordan Reuben Bloomberg, Law editor. Lawsuits to hold China accountable for its handling of the COVID nineteen pandemic are multiplying, seeking billions of dollars in what is a real uphill legal battle. Joining me is Patricia Hurtado, Bloomberg Legal reporter. So Patty, who is filing the lawsuits. It's a variety of different entities. There are lawsuits filed by the state of Missouri, and the state of Mississippi

is also threatening to file a lawsuit. Different individuals are finally lawsuits, and there's a two class action lawsuits filed in Florida. The lawyers for their groups say they're getting tens of thousands of people signing up. Everybody from a surfboard shop owner injured in Florida because the businesses died down, restaurants that have collapsed because there's no business because of the stay at home orders to people, the healthcare workers that were injured on the job or that victims of

COVID nineteen. Who are they suing. Are they just suing the government of China. Well, they're suing the Communist Party as well as the government of China under a nineteen seventy six law is the Foreign Sovereign Immunities Act, which allowed lawsuits to go forward against state governments, but with some restrictions. And it actually stems from early lawsuits that people were individuals trying to sue for claiming ownership of a warship that was taken in Philadelphia in eighteen twelve.

So this goes back to the schooner times of trying to sue entities and hold who owns something, who's responsible? And this is a tort lawsuit. So they're saying injury China held secret the virus and the outbreak, kept it from the World Health Organization and therefore they should be

held accountable. They're also suing the Inese Communist Party as well. Yeah, that appears to be an attempt to get around there are sovereign protections and some some experts say that these lawsuits won't survive challenges in the courts because China as a country is a sovereign and it has immunity. It's

a it's a state, a government that has immunity. Under the Sovereign Immunities Act, there are some exceptions which say you can sue for tort for injury of some kind of commercial exception that if there were some kind of commercial activity that causes damage in the US, those tortious acts or those harms that injury and it injured Americans

can render the protections and valid. So, but this suit alleges that the Communist Party is also susceptible to the lawsuits because in essence, they're arguing the Chinese Communist Party tells the Chinese government what to do, so that Chinese Communist Party can be help responsible. So all these attempts to get around the sovereign immunity problem are they usually successful in court? Now? There have not been successful in court.

There have been lawsuits that were brought, for example, against Saudi Arabia after the September eleventh terrorist attacks. They tried to hold the victims of the September eleven attacks, tried to hold Saudi Arabia responsible for basically helping indirectly financed al Qaeda and Osama bin lawdon and UM those lawsuits were uh, were challenged, and then a Congress responded by overwriting, so there's a terrorism exception now in in the foreign

sovereign immunities back. There's also been UH, there was a big dispute in Sudan also for trying to hold Sudan responsible for terrorist attacks, and that was also UM determined that they never could serve Sudan the government, you know, serving a country or serving a descendants saying, hey, you're

being sued. There's difficulty. How do you serve a country? Right, So that's what sometimes the lawsuits have not prevailed, but there are many legal experts that have said to us that the challenges are very significant to this survival of these lawsuits. And also some members of Congress are trying to pass some kinds of bills to cut more holes

into the sovereign immunity protection. Yes, they're trying to actually hold like a basically whole China responsible uh kind of legislation to kind of keep give the loopholes to these lawsuits to allow them to survive any challenges China may give. Now, one of the claims in this lawsuits are interesting. They're arguing that there were these virus labs in Wuhan where

there was a pathogen leak from the abs. There were scientists and virologists studying a horseshoe bat in caves in China, and they got the virus and somehow there was a pathogen leak. It was a gone you know, that leaked out and leached out into the community of Wuhan, and that's how it did up in the wet markets. There's also a claim um by some that there was this is a bioweapon gone terribly wrong, and that China should

be held responsible. It remains to be seeing how those survived because weekly their courts have been very skeptical of such claims, and China has said this is completely wrongheaded, trying to deny any that happened. They denied it was evidence of any bioweapon. And some scientists have also said, you know, the the scientists in Wuhan there were studying viruses were actually legitimately doing work that was helping helps

the stars epidemic for example. So this is the way science uh virology and scientific advances are made when you do these kinds of study these viruses, and there was that there's no leak, and from your story, China has been pointing to different times in our history when the US didn't pay for damages, for example, the two thousand nine H one N one flu strain or the two

thousand eight global financial crisis. Yes, and China has basically said, you know, what's good for the United States should also apply to China and that you know, this is a world epidemic and this one country cannot be held responsible. I mean, some of the claims in the lawsuit are China hit the information not only from from letting it get out, but also that it's basically concealed information from the World Health Organization of how serious things were until

it was too late. So it does you know, I mean, it becomes an issue because of course we all now know that President Trump and Secretary of State Mike Pompeo are all blaming China. Some critics have said that this is possibly maybe the administration's efforts to point the finger somewhere else rather than owing up to responsibility of what we get and did we do it too late? When I look at these lawsuits, I wonder, how are they

going to prove any of this? China is a closed country are they going to just let this information out? The proof seems like it might be really difficult. It's not only the proof, but if you think about it, this would be many steps to getting to a point where you'd actually have the case would proceed before a federal judge and it would it would you know, go to trial, or there would be some kind of evidentiary decisions made where there would be an exchange of evidence. Right,

it's called discovery. But whether or not the cases even get to that stage remains in question. The judge who's presiding over one of the lawsuits in Florida that's got a purported ten thousand members, you know, the ones of the people that either got sick or their businesses were harmed terribly as a result of the outbreak in Florida and Southern Florida. That judge is set a September for

hearing in the matter. Some experts say, you know, ever we even get to the point where there would there would be an exchange of evidence and there would be discovery may not happen just because it couldn't survive the built in challenges to suing, suing and prevailing. Even at the early, early, fundamental stages and if they do prevail, let's just say they go to trial, they win the case,

how would they collect a judgment from China. Yeah, there's some they lawyers that we spoke to that brought the Florida lawsuits said that they think that they could possibly collect from UM. There's judgments of property that's owned by the Chinese government slash Communist Party in the United States, for example, there's businesses that are owned by the Chinese government, so UM. One possibility is suggested, you know, hotels and entities UM. And the US government has actually done this.

They did it against Iran and it was Park Fifth Avenue skyscraper six fifty fifth Avenue, and the U s Attorney and the US government sued for RAND sanctions violations and they collected UM and they seized UH skyscraper at six fifty fifth Avenue. So, I mean, it's that kind of thing where it's amazing to think that the United States that there's property and skyscrapers all over the country who owned by countries, foreign countries. So that's one of

the places the way that these guys would like to collect. Also, there's a danger that they might start suing Americans in China because Americans hold a lot of assets in China as well as Chinese holding assets here. Yes, and there's also a worry that, um, the Chinese government has also threatened sanctions against the US and they can try to

create havoc, trade havoc with the United States. At these kind of cases prevail, I mean currently right now, the administration has left it up to states, some of them read states to file lawsuits against China. And the next step, of course, will be that these bills that have been introduced in the Senate and in the House to strip China of its community and they would like to also

prompt international investigations into Beijing's conduct. So those kinds of things are going on in the US, but it depends on whether they stopped China measures will get major retaliation from the Chinese in trade and other avenues to go after the United States. Thanks Tad. That's Patricia Hurtado, Bloomberg Legal Report her and that's it for this edition of

Bloomberg Law. I'm June Blosso, thanks so much for listening, and remember to tunity to the Bloomberg Law Show weeknights at ten pm Eastern or Bloomberg radio