Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Creek Nation was one of five American Indian tribes
Speaker 1: forced west by the federal government on the Trail of
Speaker 1: Tears to present day Oklahoma. That dark history was part
Speaker 1: of the Supreme Court oral arguments in the case of
Speaker 1: Jimmy McGurk, who was convicted of trial rape in Oklahoma
Speaker 1: State Court and says the state did not have the
Speaker 1: power to prosecute him for crimes committed on Creek Land,
Speaker 1: but Oklahoma says there was no reservation to begin with.
Speaker 1: The case has vast implications for criminal, tax and regulatory power,
Speaker 1: and Justice Neil Gorsuch may hold the key vote, joining
Speaker 1: me as Jordan Reuben Bloomberg Law editor. So Jordan explained
Speaker 1: the controlling issue here. So this case is an appeal
Speaker 1: from a defendant named jim c McGurk, and he was
Speaker 1: convicted in Oklahoma State Court. And he readed the really
Speaker 1: interesting argument on appeal recently, and that's that Oklahoma state
Speaker 1: officials actually didn't have jurisdictions to prosecute him because he
Speaker 1: is a Native American and his crime technically took place
Speaker 1: on Native American land, and so that's his argument anyway,
Speaker 1: which raises the question of whether that land actually still
Speaker 1: is technically a reservation, which the state contests, and so
Speaker 1: that raises all sorts of issues beyond just this one prosecution.
Speaker 1: And if it does turn out that that land technically
Speaker 1: is a reservation, then that means that the federal government
Speaker 1: actually had exclusive jurisdiction over those prosecutions, as that would
Speaker 1: call into question a lot of prosecutions aside from just McGirt,
Speaker 1: in addition to civil consequences as well, not just criminals.
Speaker 1: Why is there even a question about whether or not
Speaker 1: it's a reservation. Isn't that something that's usually clear, right?
Speaker 1: So Jim c mcgert certainly says that it's clear. He
Speaker 1: would point to the fact that in the Creek Nations
Speaker 1: nineteenth century treaty it does explicitly use the term reserve vation.
Speaker 1: But there's really a complicated history of Native American lands,
Speaker 1: and really the history between the government, the federal government
Speaker 1: and Native Americans and the state government that makes it
Speaker 1: complicated in some ways to figure out what the actual
Speaker 1: status of the land is. But one thing about this
Speaker 1: case is that even beyond the technical status of the land.
Speaker 1: The justices really, in some ways we're more focused on
Speaker 1: the consequences of their decision. You could tell that some
Speaker 1: of them were really worried that if they were to
Speaker 1: rule in favor of Mr mcgart, of the consequences of
Speaker 1: that decision, rather than simply the question of whether, in
Speaker 1: fact that land still is a reservation. It seemed like
Speaker 1: several justices did ask questions about, but if we do this,
Speaker 1: then what happens in this case or that case? Just
Speaker 1: in terms of the general consequences point. You did have justices,
Speaker 1: for example, also Justice Ginsburg pointing to the fact that
Speaker 1: if the Court was to rule for Mr mcgurt she
Speaker 1: was questioning mcgret's lawyer and saying, you know, all of
Speaker 1: these really terrible cases are gonna be opened up. So
Speaker 1: that was one thing that they were really concerned with.
Speaker 1: And then also you saw, for example, a Justice Alito,
Speaker 1: he was questioning mcgurt's side as to the effect of
Speaker 1: the case on non Indians if it turns out that
Speaker 1: the implication of the ruling is that the eastern half
Speaker 1: of Oklahoma is technically still sitting on in Indian reservation,
Speaker 1: which the other side is saying is totally different from
Speaker 1: how people have been living their lives in the last
Speaker 1: over a hundred years. When the Justice asked these questions
Speaker 1: about if we rule this way, it's going to change
Speaker 1: so much. What was the answer of McGirk and the
Speaker 1: Creek Nation, Right, So, I think there's there's probably two
Speaker 1: levels to that. In the first instance, they would say
Speaker 1: that the consequences that the state claims really aren't that bad.
Speaker 1: They would cast it as a creative harribles that won't
Speaker 1: actually come to be. For example, one thing that they
Speaker 1: point to is say, for example Mr mcgret were to
Speaker 1: win this case, and then that would then trigger a
Speaker 1: bunch of state convictions getting overturned. Those cases could then
Speaker 1: be retried in federal court. You have the other side saying,
Speaker 1: with the federal government supporting Oklahoma here, that these federal
Speaker 1: prosecutors would be too overwhelmed if now they have all
Speaker 1: this new jurisdiction to deal with. So that's one level
Speaker 1: to it. Another is that mcgert and the Creek Nation
Speaker 1: would say that the consequences of the decision really aren't relevant. Really,
Speaker 1: the relevant question they're focused on is just simply the
Speaker 1: question of does the Creek Reservations still exist, and they
Speaker 1: say that the state and federal government just haven't shown
Speaker 1: enough to prove that Congress undid the reservation through legislation,
Speaker 1: as is required under a Supreme Court precedent. So you
Speaker 1: heard Justice Scorsages name several arms by the lawyers in
Speaker 1: the case because they were citing Corsige opinions explain why
Speaker 1: he seems to be at the heart of this case. Sure, so,
Speaker 1: this same exact issue was in front of the justice's
Speaker 1: last term in a different case. But the problem is
Speaker 1: that Justice Gorsis was refused from that case because it
Speaker 1: came from the federal appeals Court that he sat on
Speaker 1: when he was a judge there. And so the Supreme
Speaker 1: Court deadlock four to four, it seemed in that prior case.
Speaker 1: And so now with disappeal, which comes from Oklahoma State Court,
Speaker 1: Justice Corsi is free to weigh in because he's not refused,
Speaker 1: and so he can break the apparent deadlock. And so
Speaker 1: what we saw at the argument was the lawyers really
Speaker 1: pitching their cases directly to Justice Gorsis, even though all
Speaker 1: nine justices were on the line. There was an interesting
Speaker 1: phenomenon where it was almost an argument tailored specifically to
Speaker 1: Justice Corsage. There was also a lot of discussion of
Speaker 1: following the text wherever it leads. So Justice Course, which
Speaker 1: is known as a textualists in the tradition of Justice
Speaker 1: Anton and Scalia, the late Justice Anton and Scalia, So
Speaker 1: how will that affect his decision in this case? Well,
Speaker 1: McGirt in the Creek Nation, Uh, they tribe that's supporting
Speaker 1: mcgert here at the Supreme Court would say that this
Speaker 1: is an easy case for a textualist and an originalist
Speaker 1: like Justice Coursis, because their argument is that they're simply
Speaker 1: not clear enough of a congressional statement showing that Congress
Speaker 1: wanted to disestablish the reservation. Under the Supreme Court precedents,
Speaker 1: Congress needs to make a clear showing that they're trying
Speaker 1: to undo a reservation, and the defendants argument is that
Speaker 1: that really just hasn't happened here. So a ruling that
Speaker 1: comes down to just a straightforward ruling on the text
Speaker 1: as opposed to worrying about the consequences of the decision.
Speaker 1: McGirt is arguing anyway, then that's an easy win for him.
Speaker 1: So they're hoping that Justice Corsage does wind up ruling
Speaker 1: in what they're anyway, viewing as this textualist way. So
Speaker 1: what could you tell from the questions that he was
Speaker 1: asking at the oral arguments anything, Yes, the questions definitely
Speaker 1: favored McGirt and the tribe. You're probably if the case
Speaker 1: is going to come down to justice scorsages vote, um,
Speaker 1: as it does seem that it could be, then it
Speaker 1: really does seem like it is looking good for mcgert
Speaker 1: and the tribe. And if you're the state, you're probably
Speaker 1: concerned with the questions that he was asking them. Really,
Speaker 1: Gorse had a bunch of questions for the state's lawyer,
Speaker 1: essentially saying that he disagreed with their approach and also
Speaker 1: disagreed with their claims of negative practical consequences. So, if
Speaker 1: this is coming down to justice scorsages vote, then that's
Speaker 1: probably good news for McGirt and the tribe. Hasn't Justice scurse.
Speaker 1: It's recently written an opinion that indicated that at some point,
Speaker 1: if you're going to follow the statute, let the consequences
Speaker 1: be what they may. Right. So there was a recent
Speaker 1: opinion that came out in another context that came up
Speaker 1: during the argument today, and that was Justice gors Wich
Speaker 1: is somewhat recent opinion in the case called Ramos against Louisiana,
Speaker 1: and that was a case that involved unanimous jury verdicts,
Speaker 1: and that was another somewhat close case where again similar
Speaker 1: to hear somewhat, you have the state arguing that if
Speaker 1: the defendant Ramos won that case, there'd be all of
Speaker 1: these negative consequences of previous non unanimous convictions getting overturned
Speaker 1: and gorship and Gorsich said, essentially in one part of
Speaker 1: his opinion, well, whatever the consequences, maybe we just have
Speaker 1: to render the decision that we think is the correct
Speaker 1: one here. And so in this argument today, which of
Speaker 1: course was in a different context, mcgert's lawyer, he cited
Speaker 1: the Ramo's opinion right at the beginning of his argument.
Speaker 1: And so it seems that McGirt and the Creek Nation
Speaker 1: are hoping that Gorsich takes that same sort of approach
Speaker 1: that he did in the Ramos case and just straight
Speaker 1: up rule on the law without worrying about what the
Speaker 1: state is saying is going to be these disastrous consequences.
Speaker 1: With the four to four decision, was that along ideological lines,
Speaker 1: was it conservatives versus liberals. So the thing is given
Speaker 1: sort of the opaque nature of how the Supreme Court
Speaker 1: operates in some ways, We actually don't know what the
Speaker 1: internal vote breakdown was of that last case. All we
Speaker 1: know is that the Court said that it's going to
Speaker 1: step down the decision to decide at a later point,
Speaker 1: and so it just so happens that the speculation from
Speaker 1: that is that the Justice were in fact deadlock, because otherwise,
Speaker 1: if there was able to be some kind of five
Speaker 1: three decision, one imagines that they would have rendered it.
Speaker 1: And so this is something that court watchers are speculating
Speaker 1: was an internal deadlock. There hasn't really been an argument
Speaker 1: showing otherwise, and so that's what lends people to say
Speaker 1: that you have course that she's going to come in
Speaker 1: and break this four four deadlock by casting the fifth vote.
Speaker 1: And how would a decision in this case affect other
Speaker 1: tribes lands and whether their reservations would have an effect
Speaker 1: on other tribes. It definitely could, and that's part of
Speaker 1: where the state's concerns come from. So the Creek Nation,
Speaker 1: along with four other tribes, basically take up the eastern
Speaker 1: half of Oklahoma. They were the five tribes that were
Speaker 1: forced west by the federal government on the Trail of
Speaker 1: Tears in the eighteen thirties. And so given that these
Speaker 1: other tribes also have similar histories and set ups to
Speaker 1: the way that the Creek Nation was established. If in
Speaker 1: this case here the justices say that the Creek reservation
Speaker 1: still stands in that same logic could apply to the
Speaker 1: other four tribes too. And that's what leads Oklahoma officials
Speaker 1: to worry about losing jurisdiction over Indians and half the
Speaker 1: state because this law, called the Major Crimes Act, gives
Speaker 1: the federal government exclusive jurisdiction over crimes in Indian Country
Speaker 1: involving Indians. Let's say mcgt wins he right now is
Speaker 1: racing a life sentence in Oklahoma State prison for raping
Speaker 1: a four year old girl? Can he Can he be
Speaker 1: retried by the federal government or is the constitute of limitations? No,
Speaker 1: he can be retried by the federal government. And that's
Speaker 1: an argument that he himself makes, not just as applied
Speaker 1: to his own case, but as applied to other cases too.
Speaker 1: If these convictions get overturned, then people can be retried. Now,
Speaker 1: it's another question entirely whether the federal government would be
Speaker 1: able to put on an effective prosecution if a lot
Speaker 1: of time has gone by since the alleged crime has
Speaker 1: taken place, and that's something that came up during the
Speaker 1: argument as well, going against McGurk. But at least in theory,
Speaker 1: if these cases are getting overturned, then the federal government
Speaker 1: can pick them up. But in practice it's probably more
Speaker 1: of an open question as to whether the federal government
Speaker 1: would actually seek to reprosecute every single state conviction that
Speaker 1: might get overturned if mcgart wins. So. Going broader than
Speaker 1: this case too, the oral arguments themselves and how they've
Speaker 1: been going. It seems as if things are going quite
Speaker 1: well until the flush in the last case on Wednesday.
Speaker 1: How are people reacting to that? Is it likely to
Speaker 1: scare the justices off from these kinds of oral arguments?
Speaker 1: You know, they might use that as an excuse to
Speaker 1: not do this sort of thing in the future, But
Speaker 1: I think it actually serves to underscore how well these
Speaker 1: remote arguments were going. Besides all of that, and so
Speaker 1: I don't see why something like a toilet flushing during
Speaker 1: a remote argument, I don't see why that would stop
Speaker 1: the justices from doing live streaming of arguments in court
Speaker 1: where there's not a toilet, and I think if anything, um,
Speaker 1: it speaks to the fact that they should be doing
Speaker 1: these arguments over video, because one hopes anyway that that
Speaker 1: would act as a detern to that sort of thing.
Speaker 1: Thanks Jordan's that's Jordan Reuben Bloomberg, Law editor. Lawsuits to
Speaker 1: hold China accountable for its handling of the COVID nineteen
Speaker 1: pandemic are multiplying, seeking billions of dollars in what is
Speaker 1: a real uphill legal battle. Joining me is Patricia Hurtado,
Speaker 1: Bloomberg Legal reporter. So Patty, who is filing the lawsuits.
Speaker 1: It's a variety of different entities. There are lawsuits filed
Speaker 1: by the state of Missouri, and the state of Mississippi
Speaker 1: is also threatening to file a lawsuit. Different individuals are
Speaker 1: finally lawsuits, and there's a two class action lawsuits filed
Speaker 1: in Florida. The lawyers for their groups say they're getting
Speaker 1: tens of thousands of people signing up. Everybody from a
Speaker 1: surfboard shop owner injured in Florida because the businesses died down,
Speaker 1: restaurants that have collapsed because there's no business because of
Speaker 1: the stay at home orders to people, the healthcare workers
Speaker 1: that were injured on the job or that victims of
Speaker 1: COVID nineteen. Who are they suing. Are they just suing
Speaker 1: the government of China. Well, they're suing the Communist Party
Speaker 1: as well as the government of China under a nineteen
Speaker 1: seventy six law is the Foreign Sovereign Immunities Act, which
Speaker 1: allowed lawsuits to go forward against state governments, but with
Speaker 1: some restrictions. And it actually stems from early lawsuits that
Speaker 1: people were individuals trying to sue for claiming ownership of
Speaker 1: a warship that was taken in Philadelphia in eighteen twelve.
Speaker 1: So this goes back to the schooner times of trying
Speaker 1: to sue entities and hold who owns something, who's responsible?
Speaker 1: And this is a tort lawsuit. So they're saying injury
Speaker 1: China held secret the virus and the outbreak, kept it
Speaker 1: from the World Health Organization and therefore they should be
Speaker 1: held accountable. They're also suing the Inese Communist Party as well. Yeah,
Speaker 1: that appears to be an attempt to get around there
Speaker 1: are sovereign protections and some some experts say that these
Speaker 1: lawsuits won't survive challenges in the courts because China as
Speaker 1: a country is a sovereign and it has immunity. It's
Speaker 1: a it's a state, a government that has immunity. Under
Speaker 1: the Sovereign Immunities Act, there are some exceptions which say
Speaker 1: you can sue for tort for injury of some kind
Speaker 1: of commercial exception that if there were some kind of
Speaker 1: commercial activity that causes damage in the US, those tortious
Speaker 1: acts or those harms that injury and it injured Americans
Speaker 1: can render the protections and valid. So, but this suit
Speaker 1: alleges that the Communist Party is also susceptible to the
Speaker 1: lawsuits because in essence, they're arguing the Chinese Communist Party
Speaker 1: tells the Chinese government what to do, so that Chinese
Speaker 1: Communist Party can be help responsible. So all these attempts
Speaker 1: to get around the sovereign immunity problem are they usually
Speaker 1: successful in court? Now? There have not been successful in court.
Speaker 1: There have been lawsuits that were brought, for example, against
Speaker 1: Saudi Arabia after the September eleventh terrorist attacks. They tried
Speaker 1: to hold the victims of the September eleven attacks, tried
Speaker 1: to hold Saudi Arabia responsible for basically helping indirectly financed
Speaker 1: al Qaeda and Osama bin lawdon and UM those lawsuits
Speaker 1: were uh, were challenged, and then a Congress responded by overwriting,
Speaker 1: so there's a terrorism exception now in in the foreign
Speaker 1: sovereign immunities back. There's also been UH, there was a
Speaker 1: big dispute in Sudan also for trying to hold Sudan
Speaker 1: responsible for terrorist attacks, and that was also UM determined
Speaker 1: that they never could serve Sudan the government, you know,
Speaker 1: serving a country or serving a descendants saying, hey, you're
Speaker 1: being sued. There's difficulty. How do you serve a country? Right,
Speaker 1: So that's what sometimes the lawsuits have not prevailed, but
Speaker 1: there are many legal experts that have said to us
Speaker 1: that the challenges are very significant to this survival of
Speaker 1: these lawsuits. And also some members of Congress are trying
Speaker 1: to pass some kinds of bills to cut more holes
Speaker 1: into the sovereign immunity protection. Yes, they're trying to actually
Speaker 1: hold like a basically whole China responsible uh kind of
Speaker 1: legislation to kind of keep give the loopholes to these
Speaker 1: lawsuits to allow them to survive any challenges China may give. Now,
Speaker 1: one of the claims in this lawsuits are interesting. They're
Speaker 1: arguing that there were these virus labs in Wuhan where
Speaker 1: there was a pathogen leak from the abs. There were
Speaker 1: scientists and virologists studying a horseshoe bat in caves in China,
Speaker 1: and they got the virus and somehow there was a
Speaker 1: pathogen leak. It was a gone you know, that leaked
Speaker 1: out and leached out into the community of Wuhan, and
Speaker 1: that's how it did up in the wet markets. There's
Speaker 1: also a claim um by some that there was this
Speaker 1: is a bioweapon gone terribly wrong, and that China should
Speaker 1: be held responsible. It remains to be seeing how those
Speaker 1: survived because weekly their courts have been very skeptical of
Speaker 1: such claims, and China has said this is completely wrongheaded,
Speaker 1: trying to deny any that happened. They denied it was
Speaker 1: evidence of any bioweapon. And some scientists have also said,
Speaker 1: you know, the the scientists in Wuhan there were studying
Speaker 1: viruses were actually legitimately doing work that was helping helps
Speaker 1: the stars epidemic for example. So this is the way
Speaker 1: science uh virology and scientific advances are made when you
Speaker 1: do these kinds of study these viruses, and there was
Speaker 1: that there's no leak, and from your story, China has
Speaker 1: been pointing to different times in our history when the
Speaker 1: US didn't pay for damages, for example, the two thousand
Speaker 1: nine H one N one flu strain or the two
Speaker 1: thousand eight global financial crisis. Yes, and China has basically said,
Speaker 1: you know, what's good for the United States should also
Speaker 1: apply to China and that you know, this is a
Speaker 1: world epidemic and this one country cannot be held responsible.
Speaker 1: I mean, some of the claims in the lawsuit are
Speaker 1: China hit the information not only from from letting it
Speaker 1: get out, but also that it's basically concealed information from
Speaker 1: the World Health Organization of how serious things were until
Speaker 1: it was too late. So it does you know, I mean,
Speaker 1: it becomes an issue because of course we all now
Speaker 1: know that President Trump and Secretary of State Mike Pompeo
Speaker 1: are all blaming China. Some critics have said that this
Speaker 1: is possibly maybe the administration's efforts to point the finger
Speaker 1: somewhere else rather than owing up to responsibility of what
Speaker 1: we get and did we do it too late? When
Speaker 1: I look at these lawsuits, I wonder, how are they
Speaker 1: going to prove any of this? China is a closed
Speaker 1: country are they going to just let this information out?
Speaker 1: The proof seems like it might be really difficult. It's
Speaker 1: not only the proof, but if you think about it,
Speaker 1: this would be many steps to getting to a point
Speaker 1: where you'd actually have the case would proceed before a
Speaker 1: federal judge and it would it would you know, go
Speaker 1: to trial, or there would be some kind of evidentiary
Speaker 1: decisions made where there would be an exchange of evidence. Right,
Speaker 1: it's called discovery. But whether or not the cases even
Speaker 1: get to that stage remains in question. The judge who's
Speaker 1: presiding over one of the lawsuits in Florida that's got
Speaker 1: a purported ten thousand members, you know, the ones of
Speaker 1: the people that either got sick or their businesses were
Speaker 1: harmed terribly as a result of the outbreak in Florida
Speaker 1: and Southern Florida. That judge is set a September for
Speaker 1: hearing in the matter. Some experts say, you know, ever
Speaker 1: we even get to the point where there would there
Speaker 1: would be an exchange of evidence and there would be
Speaker 1: discovery may not happen just because it couldn't survive the
Speaker 1: built in challenges to suing, suing and prevailing. Even at
Speaker 1: the early, early, fundamental stages and if they do prevail,
Speaker 1: let's just say they go to trial, they win the case,
Speaker 1: how would they collect a judgment from China. Yeah, there's
Speaker 1: some they lawyers that we spoke to that brought the
Speaker 1: Florida lawsuits said that they think that they could possibly
Speaker 1: collect from UM. There's judgments of property that's owned by
Speaker 1: the Chinese government slash Communist Party in the United States,
Speaker 1: for example, there's businesses that are owned by the Chinese government,
Speaker 1: so UM. One possibility is suggested, you know, hotels and
Speaker 1: entities UM. And the US government has actually done this.
Speaker 1: They did it against Iran and it was Park Fifth
Speaker 1: Avenue skyscraper six fifty fifth Avenue, and the U s
Speaker 1: Attorney and the US government sued for RAND sanctions violations
Speaker 1: and they collected UM and they seized UH skyscraper at
Speaker 1: six fifty fifth Avenue. So, I mean, it's that kind
Speaker 1: of thing where it's amazing to think that the United
Speaker 1: States that there's property and skyscrapers all over the country
Speaker 1: who owned by countries, foreign countries. So that's one of
Speaker 1: the places the way that these guys would like to collect. Also,
Speaker 1: there's a danger that they might start suing Americans in
Speaker 1: China because Americans hold a lot of assets in China
Speaker 1: as well as Chinese holding assets here. Yes, and there's
Speaker 1: also a worry that, um, the Chinese government has also
Speaker 1: threatened sanctions against the US and they can try to
Speaker 1: create havoc, trade havoc with the United States. At these
Speaker 1: kind of cases prevail, I mean currently right now, the
Speaker 1: administration has left it up to states, some of them
Speaker 1: read states to file lawsuits against China. And the next step,
Speaker 1: of course, will be that these bills that have been
Speaker 1: introduced in the Senate and in the House to strip
Speaker 1: China of its community and they would like to also
Speaker 1: prompt international investigations into Beijing's conduct. So those kinds of
Speaker 1: things are going on in the US, but it depends
Speaker 1: on whether they stopped China measures will get major retaliation
Speaker 1: from the Chinese in trade and other avenues to go
Speaker 1: after the United States. Thanks Tad. That's Patricia Hurtado, Bloomberg
Speaker 1: Legal Report her and that's it for this edition of
Speaker 1: Bloomberg Law. I'm June Blosso, thanks so much for listening,
Speaker 1: and remember to tunity to the Bloomberg Law Show weeknights
Speaker 1: at ten pm Eastern or Bloomberg radio