Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: It's a battle over three hundred fifty micro seconds. You know,
Speaker 1: is there a point where speed is actually detrimental? Should
Speaker 1: we think about slowing things down? And you know, we
Speaker 1: introduced uh an amount of time that's absolutely uh so
Speaker 1: infantestimally small. It's irrelevant to the majority of traditional participants,
Speaker 1: but it's absolutely critical to certain people that have bought
Speaker 1: advantages in the market. It may be infinitesimally small, as
Speaker 1: Brad katsu Yama, CEO of i X Group says, but
Speaker 1: the stock exchange operator made famous by flashboys, is in
Speaker 1: court defending those micro seconds. The electronic trading firms Citadel
Speaker 1: Securities is suing Securities and Exchange Commission to thwart the
Speaker 1: new order type known as D limit, which was approved
Speaker 1: by the federal regulator last year. In arguments before the
Speaker 1: d C Circuit Court of Appeals, a lawyer for i
Speaker 1: e X, Katherine stetson the D limit helps blunt the
Speaker 1: edge of high frequency traders. What we are talking about
Speaker 1: is evidence of a huge amount of trading going on
Speaker 1: in the couple few micro seconds before a price changes.
Speaker 1: I just happened to blink my eyes. That blink is
Speaker 1: about two d times longer than the couple micro seconds
Speaker 1: that we're talking about. But the lawyer for Citadel, Jeffrey Wall,
Speaker 1: criticized the D limit order. But this is just a
Speaker 1: sloppy order. It takes data, it misreads the stats, it
Speaker 1: assumes away all the costs. If you look at both
Speaker 1: the order and their brief to this court, it reads
Speaker 1: like it's all roses and no thorns. It doesn't have
Speaker 1: any consideration of the costs on retail or routing. My
Speaker 1: guest is an expert in securities law. James Cox, a
Speaker 1: professor at Duke Law School. Jim explained the D limit
Speaker 1: or discretionary limit that was introduced by i X. It
Speaker 1: was part of their branding which when they came on
Speaker 1: the States initially and Michael Lewis wrote about them, and
Speaker 1: it was putting in a speed pump. You know. The
Speaker 1: individuals are in the bye side of the market have
Speaker 1: been yelling for some time that they are being disadvantaged
Speaker 1: in not just the price discovery process, but disadvantaged in
Speaker 1: getting a good price by all kinds of mechanisms like
Speaker 1: co location et cetera. And what the exchanges did initially
Speaker 1: was instol of speed pump to take away the edge
Speaker 1: that the algorithmic electronic co located traders have been making
Speaker 1: a lot of money on. The great thing right now
Speaker 1: is that we have a chairman of the SEC joins
Speaker 1: the list of a lot of former very experienced, knowledgeable
Speaker 1: individuals for chairman of the SEC. But this chairman knows markets.
Speaker 1: He came out of the market, didn't come out of
Speaker 1: the securities markets, but now the derivative markets, which are
Speaker 1: actually a better insight about how markets operator ought to operate,
Speaker 1: and these committed to the idea and bringing change to
Speaker 1: the markets. So the complaint is being made against the
Speaker 1: exchange about this speed pup is going to follow in
Speaker 1: death ears at the SEC and should in the courts
Speaker 1: as well. What's I x's argument before the circuit court.
Speaker 1: This is a legitimate practice of saying, look, we have
Speaker 1: a market, here's our protocols. Nobody's going to get an
Speaker 1: advantage because their computers are located closer to the exchange.
Speaker 1: Everybody's going to be the same level playing field. And
Speaker 1: to the extent of that, the roads an advantage that
Speaker 1: some of these market participants have had will so be it.
Speaker 1: It's better to have individuals on the bi side finally
Speaker 1: hearing their voice is raised, and having an exchange where
Speaker 1: they can go to. What I find interesting here is
Speaker 1: whether this changes things enough so that other exchanges will
Speaker 1: develop and find it to be competitive, that they're going
Speaker 1: to have to have a speed pup as well. Citadel
Speaker 1: Securities is suing the SEC. What's the cause of action?
Speaker 1: What are they allowed change? The alleging that the SEC
Speaker 1: is approving a practice that is, according to them, inherently
Speaker 1: anti competitive. Is an artificial device that is going to
Speaker 1: slow down trading in price discovery, and therefore, the argument
Speaker 1: would be that you're disadvantaging the public interests because you're
Speaker 1: slowing down price movements, and what we should be doing
Speaker 1: is trying to facilitate beating up price movements. That's the argument.
Speaker 1: The attorney for Citadel says that the order type interferes
Speaker 1: with the natural course of the market. The display price
Speaker 1: isn't real, it's phantom. How would you address that? I
Speaker 1: think it's hard to say that as dhantom because the
Speaker 1: orders are all coming in and what is actually happening
Speaker 1: is Citadel is wanting to start off three feet ahead
Speaker 1: in the race for the Finch line to determine what
Speaker 1: the price is going to be. So essentially what the
Speaker 1: Exchange is doing here is say starting line is the
Speaker 1: same for everybody, so it's putting everybody on the same plane.
Speaker 1: Whereas as I read the argument, Citadel says, no, now
Speaker 1: we're ahead of the starting line and we want to
Speaker 1: preserve that position, and by doing that we can get
Speaker 1: to the price first. It's not clear to me that
Speaker 1: the price is going to be any different if everybody
Speaker 1: starts off the same point. Then it is presently with
Speaker 1: Citadelle starting off earlier, and so we're still going to
Speaker 1: have the same sort of pricing that goes on. It's
Speaker 1: just a question about who gets that price first. And
Speaker 1: so the current arrangements where you have co locations and
Speaker 1: other devices that Citadel and a few other market traders
Speaker 1: use give themselves a competitive advantage over others, and they
Speaker 1: want to preserve the competitive advance. The Exchange is proposal.
Speaker 1: The one that's being challenged is the Exchange is saying, no,
Speaker 1: we want to get everybody a chance to get the price,
Speaker 1: and by doing that, if you make the market pure fairer,
Speaker 1: we more individuals wanting to get that price, and we'll
Speaker 1: have a deeper market and better price discovery. So the
Speaker 1: lawyer four I X said that high frequency traders profit
Speaker 1: by exploiting the micro second differences. Others are in the
Speaker 1: middle of a speed war. They never signed up to fight.
Speaker 1: Do you think that's a good description of what's happening.
Speaker 1: I think that's exactly right. I mean, all this happening
Speaker 1: is Toudadelle and lawyers have been able to put the
Speaker 1: odor of money in the air so that they can
Speaker 1: gain an advantage that others who weren't willing to pay
Speaker 1: for co location or some other devices that give them
Speaker 1: a competitive advantage. Not a question of somebody is saying, well,
Speaker 1: you know, we're the first ones to lay the cable
Speaker 1: across the Atlantic, so we should be able to charge
Speaker 1: a fee for everybody's going to use it. Everybody's just
Speaker 1: using the same cable. But what's happening is that the
Speaker 1: exchanges for a payment of money by citadel and others
Speaker 1: have allowed the Citadels of the world to have a
Speaker 1: special entrance into their trading floor that gives them a
Speaker 1: competitive advantage. And the result of that means that price
Speaker 1: that's going to be out there for a nano second
Speaker 1: is always going to be gobbled by the people who
Speaker 1: paid for that competitive advantage, and the various other traders
Speaker 1: who don't pay for that advantage are always going to
Speaker 1: be disfavored. I X is actually created on the whole
Speaker 1: idea that everybody's in the same line and they start
Speaker 1: off at the same place. Tell me what you think
Speaker 1: of this assertion that Judge Justin Walker made to Citadel's lawyer.
Speaker 1: It's you who is going to a federal agency and
Speaker 1: saying stop a private entity I e X from doing
Speaker 1: what they want to do. You're the one who's trying
Speaker 1: to kind of regulate your way into a market victory.
Speaker 1: You know. The challenge to the faces is that they
Speaker 1: are challenging a development that is very arcay market structure.
Speaker 1: There's no crisp guidelines as to what the law expects
Speaker 1: with respect to how markets are to operate. Therefore, you
Speaker 1: start off the idea that it's a natural situation for
Speaker 1: deferring to the expertise of the sec it's economists in
Speaker 1: evaluating how these markets are operating, and that strengthens, I
Speaker 1: think dramatically the case of the SEC sir saying look
Speaker 1: to deceive reasonable to us is with our mandate and
Speaker 1: the other thing that fits into this dynamics. I E
Speaker 1: X is not the only market. If buyers and sellers
Speaker 1: thought that what I X was doing was a bad idea,
Speaker 1: then they can send their trade to someplace else. You know,
Speaker 1: there's numerous market centers where trades can be crossed. And
Speaker 1: what I feel is going on here with Citadel is
Speaker 1: they're fearful that if I expands this market here is
Speaker 1: going to be because of installing the speed up, and
Speaker 1: therefore other markets made do the same thing for realizing
Speaker 1: they have more trades as a result, making markets competitive,
Speaker 1: and consequently that operates to the disadvantage of Citadel. So
Speaker 1: quite frankly, what's happening with X's development and the ANTEC
Speaker 1: going along with it, it dramatically challenges the business model
Speaker 1: that's made pretty much what Citadel is. So how do
Speaker 1: you think the d C circuit will rule here? I
Speaker 1: think I X is going to win this case. I
Speaker 1: think the SEC is going to win this case. I
Speaker 1: think within their power to think about what the microstructure
Speaker 1: of the market is. There's a lot of intuitive appeal
Speaker 1: to thinking that everybody should be on the same plane
Speaker 1: the same starting line. I'd be very surprised cited otherwise.
Speaker 1: Do you think that SEC Chair Gary Ginsler is on
Speaker 1: a collision course with some of Wall Street's biggest names
Speaker 1: as he absolutely, absolutely, I gave him a lot of
Speaker 1: credit from I'm sure he's aware of that. But it's
Speaker 1: not just the biggest Wall Street names. Those Wall Street
Speaker 1: names all have a name associated with them, and that
Speaker 1: is there on the dull side, and individuals, entities, pension funds,
Speaker 1: what have you. They're on the by side, and they've
Speaker 1: been the ones that have been disapenged for way too
Speaker 1: long through a series of market microstructure anomalies that favors
Speaker 1: the Citazaels of the world and doesn't do enough for
Speaker 1: the people who actually buy the stalks have to earn
Speaker 1: a return for their beneficiaries. Thanks for being in the show, Jim.
Speaker 1: That's Professor James Cox of Duke Law School. The state
Speaker 1: of Oklahoma wants the Supreme Court to reverse its ruling
Speaker 1: in MC the Oklahoma, a ruling hailed by Indian tribes
Speaker 1: as a long overdue endorsement of their sovereignty in much
Speaker 1: of the eastern part of the state. Joining me is
Speaker 1: Bloomberg Law reporter Jordan Ruben start by telling us about
Speaker 1: the ruling in mcg the Oklahoma So mcgurt was a
Speaker 1: criminal keys and they're the defendant who is a Native American.
Speaker 1: He said the state didn't have jurisdiction to charge him
Speaker 1: because he is an Indian and his crime took place
Speaker 1: on Indian land. That raised the question whether the land
Speaker 1: was still a reservation. And so even though it was
Speaker 1: just a criminal case, that had all of these other
Speaker 1: implications generally for whether this reservation in mcgard's case, the
Speaker 1: Muskogee Creek Reservation still existed, and that had implications for
Speaker 1: whether all these so called five Tribes in eastern Oklahoma's
Speaker 1: reservations still existed. And the Supreme Court in a five
Speaker 1: four decision said that that land was still a reservation,
Speaker 1: that Congress never disestablished it, and so that land still
Speaker 1: stands today as a reservation. Now it was a five
Speaker 1: to four decision. Tell us about the justices in the
Speaker 1: majority and the justice in descent. Sure, so in these
Speaker 1: five four cases, now six three cases, we typic he
Speaker 1: see these divisions along party lines in terms of the
Speaker 1: presidents who appointed the justices. And that was almost exactly
Speaker 1: the case here we had Justice Neil Gorcich writing for
Speaker 1: the majority, joined by the rest of the Democratic appointees
Speaker 1: at the time, Ginsburg, Brier, Soudamior, and Kagan, and the
Speaker 1: dissent was written by Chief Justice Roberts joined by Justices
Speaker 1: Thomas Alito and Kavanaugh. Described the reaction to the decision
Speaker 1: from inside the state. So, starting from the perspective of
Speaker 1: the tribes, it's really difficult to overstate the importance of
Speaker 1: this decision in their view. To take a step back,
Speaker 1: tribes really had not done well at the Supreme Court
Speaker 1: over the years, to say the least, and so they
Speaker 1: viewed this decision, even though it was just a criminal
Speaker 1: case involving that sort of discrete issue, as to the
Speaker 1: part of it which affirms the reservation, they viewed that
Speaker 1: as a long overdue affirmation of their tribal sovereignty and
Speaker 1: a decision that they wouldn't have expected, perhaps even before
Speaker 1: Gorst got on the court, and one that they perhaps
Speaker 1: weren't even necessarily expecting then. And so it was widely
Speaker 1: celebrated there from the tribe's perspective, and it was really
Speaker 1: the opposite reaction from the state government's perspective. Ahead of
Speaker 1: the ruling. They had warned of all of these negative
Speaker 1: consequences if the state lacked jurisdiction in terms of criminals
Speaker 1: running loose on the street and that sort of thing.
Speaker 1: And the state's reaction after the ruling was, Hey, this
Speaker 1: is happening now, and the state is essentially telling the court, now,
Speaker 1: we told you so. So the status said that this
Speaker 1: creates a public safety nightmare for victims and law enforcement.
Speaker 1: It has pitched Oklahoma's criminal justice system into a state
Speaker 1: of emergency. Is that hyperbole or has there actually been
Speaker 1: a change in Oklahoma? So if you talk to the tribes,
Speaker 1: as I've done recently in speaking to some of their lawyers,
Speaker 1: it's hyperbole. The state, at least, they say that the
Speaker 1: governor's claims Governor Kevin Stitt, that those claims are at
Speaker 1: the very least misleading, if not just outright false. They
Speaker 1: say that they're working to implement the ruling and that
Speaker 1: even though that McGrath decision has certainly brought a change,
Speaker 1: a huge change in how criminal justice is addressed in
Speaker 1: terms of increased tribal responsibility and federal responsibility in place
Speaker 1: of the states, they say that it's far from a
Speaker 1: nightmare that they're working to implement the decision, and from
Speaker 1: the tribes perspective, the problem, as they see it, is
Speaker 1: the fact that the governor is trying to now overturn
Speaker 1: the decision, and so they see having to relitigate the
Speaker 1: issue as a waste of time when they're trying to
Speaker 1: address real issues. So the governor is trying to get
Speaker 1: the Supreme Court to overturn a decision it just made
Speaker 1: less term why right, So they're trying to overturn last
Speaker 1: year's decision. Really, it's the same claims that they maid
Speaker 1: heading into the decision, and now they're just saying, Hey,
Speaker 1: all these bad things that we said we're going to
Speaker 1: happen have now happened, and we think this is an
Speaker 1: erroneous decision and you should reconsider it. That's the long
Speaker 1: and the short of their argument. Coming back to the court.
Speaker 1: The governor thinks that the replacement of the late Ruth
Speaker 1: Bader Ginsburg, who ruled against Oklahoma, with any Coney Barrett,
Speaker 1: is going to make a difference. So he's betting on
Speaker 1: the new composition of the court. That's what he said.
Speaker 1: I saw a radio interview that he did in Oklahoma
Speaker 1: earlier this year where the governor said as much, and
Speaker 1: so at least from his perspective, he's hoping that that
Speaker 1: change will help. And it's hard to see how he
Speaker 1: wouldn't need at least that change in personnel, because, as
Speaker 1: you mentioned, this was a decision that happened just last year.
Speaker 1: All of the justices are the same except for that
Speaker 1: Ginsburg to Barrett switch, and so at the very least
Speaker 1: he would need the new justice to think differently, And
Speaker 1: he would also still need all of the justices who
Speaker 1: dissented to vote the same way this time around. And
Speaker 1: I'm not so sure that, for example, Chief Justice Roberts
Speaker 1: would want to go back on that decision, even though
Speaker 1: he wrote the dissent and was very much against how
Speaker 1: the majority came out. So what are Oklahoma's petitions before
Speaker 1: the Supreme Court? How many are there and what do
Speaker 1: they say? So there are over thirty petitions that they've
Speaker 1: lodge in front of the court and we're waiting for
Speaker 1: the justices to consider them in the coming weeks and months.
Speaker 1: And there is one additional claim that they're pressing, which
Speaker 1: is sort of a follow on issue to McGirt in
Speaker 1: terms of how the decision applies to non Indians, and
Speaker 1: that's potentially an issue that the Court could take up.
Speaker 1: But at the same time, they're either additionally or separately,
Speaker 1: just straight up pressing this claim to overturn McGirt. They
Speaker 1: point out that the Court doesn't always follow its prior decisions.
Speaker 1: We've seen in recent years the court overturning precedence. Of course,
Speaker 1: whenever you talk about precedent. Now we have to note
Speaker 1: I think that the Court is considering overruling the longstanding
Speaker 1: abortion precedence, and the state is saying that this was
Speaker 1: an erroneous decision and they just want the Court to
Speaker 1: change its mind. It is remarkable that state officials are
Speaker 1: reminding the justices that they don't always follow their prior rulings.
Speaker 1: I mean, they cited a case that led Justice Stephen
Speaker 1: Bryer to wonder which cases the Court will overrule next,
Speaker 1: something which some of the liberal justices have noted in
Speaker 1: the past. Right, So it is remarkable in the sense
Speaker 1: of seeing it so quickly after a recent decision. I
Speaker 1: think that would be forging new ground if the Court
Speaker 1: were to actually take up this attempts to overturn the
Speaker 1: decision and then side with Oklahoma and change in course.
Speaker 1: So it is certainly remarkable in one sense and another sense,
Speaker 1: perhaps the state thinks that as a shot at doing it,
Speaker 1: looking at how the court has acted recently and given
Speaker 1: the change in composition, I still don't think that that's
Speaker 1: going to be successful. But perhaps the state is looking
Speaker 1: around and seeing that it thinks it might have a shot.
Speaker 1: Have the Indian tribes made real changes because of McGirt,
Speaker 1: So if the court took this an overrule McGirt, would
Speaker 1: there be a lot of reversals necessary? Yes, certainly. So
Speaker 1: since the mcgert decision, there's been a lot of work
Speaker 1: that's gone into implementing it. Everyone agrees that McGirt has
Speaker 1: brought a huge change. There's been a huge increase in
Speaker 1: tribal responsibility in terms of increasing their jurisdiction, in terms
Speaker 1: of their caseload in terms of federal caseloads. So there's
Speaker 1: been a ton of work that's happened, even just since
Speaker 1: the mcgert decision came down in twenty twenties. So to
Speaker 1: say the least reverse and course would throw a wrench
Speaker 1: into that. The state is saying that the McGirt said
Speaker 1: and itself up ended years of a longstanding arrangement of
Speaker 1: how criminal justice was conducted. But there's no question that
Speaker 1: reversing course now, even just a year or so after,
Speaker 1: would be a huge interruption in how tribes are working
Speaker 1: to implement the decision. So to put Oklahoma's request for
Speaker 1: the Supreme Court to hear this in context, the court
Speaker 1: is facing historically low public approval ratings and progressives are
Speaker 1: calling for court packing. And you know, as you mentioned,
Speaker 1: the Court will be considering overturning the abortion precedent of
Speaker 1: Roe v. Wade, So is it likely to take another
Speaker 1: hot button issue? So I think for a lot of
Speaker 1: reasons that the Court is not even going to take
Speaker 1: up the question of whether to overturn the macgurt case.
Speaker 1: Of course, the Court has discretion over its docket in
Speaker 1: almost every situation, so it's not just that I think
Speaker 1: the Court is not going to reverse course. I think
Speaker 1: it would be very surprising if the Court even granted
Speaker 1: cert and agreed to take up the question of whether
Speaker 1: to reverse course. I think there are other questions post mcgert,
Speaker 1: like the question of how it applies to non Indians,
Speaker 1: whether the ruling is retroactive, other aspects besides just the
Speaker 1: straight up question of whether to overturn it. So for
Speaker 1: a lot of reasons, I don't think the court is
Speaker 1: going to be interested in taking up the claim. If
Speaker 1: it does even agree to hear the case, I would
Speaker 1: be very surprised. Lawyers for tribes say that the governor's
Speaker 1: fixation with overturning McGirt is hampering progress. What do they
Speaker 1: mean by that? Well, from the tribes view, they don't
Speaker 1: see this criminal dystopia that the governor has portrayed. They
Speaker 1: see themselves as being busy with actually implementing the ruling,
Speaker 1: which is a significant expenditure in both time and money,
Speaker 1: and they see the mere fact of this litigation as
Speaker 1: being a distraction and something that's hampering progress. So from
Speaker 1: the tribe's perspective, it's almost that the biggest problem that
Speaker 1: they see is the mere fact of the governor now
Speaker 1: trying to overturn the decision that they're working to implements.
Speaker 1: And though the governor has called the case the most
Speaker 1: pressing issue for Oklahoma, only a small percentage of Oklahoma's
Speaker 1: registered voters agree with that. That's right. According to a
Speaker 1: poll that I saw, only of registered voters agree with that,
Speaker 1: and so that would bolster the tribes claim that it's
Speaker 1: not the criminal dystopia that the state government is claiming
Speaker 1: it to be. How much of Oklahoma's land has reverted
Speaker 1: to Indian jurisdiction percentage wise, So we're talking about, at
Speaker 1: least so far pretty much the eastern half of Oklahoma
Speaker 1: where reservations have been affirmed, as courts saying not just
Speaker 1: really that it's reverted, but technically that it's never gone
Speaker 1: away in the first instance. So we're looking just in
Speaker 1: the eastern half. And as I mentioned, the so called
Speaker 1: Five Tribes, which in addition to the Creek which were
Speaker 1: at the center of the McGirt case, the Cherokee, Chickasaw, Choptaw,
Speaker 1: and Seminole tribes, those are really the main tribes at issue.
Speaker 1: Just recently we saw a sixth tribe that the Oklahoma
Speaker 1: State Court added, the Clappaw Nation. So we've seen the
Speaker 1: ripple effects of McGirt expanding even beyond the Five Tribes.
Speaker 1: But really for now we're talking about essentially the eastern
Speaker 1: half of Oklahoma, which is significant. Turn into another case, Jordan's,
Speaker 1: the Supreme Court agreed to review whether double jeopardy bars
Speaker 1: prosecuting a defendant in federal district court after he's convicted
Speaker 1: in a court of Indian offenses. Tell us about that case. Sure, So,
Speaker 1: the Supreme Court recently agreed to review a double jeopardy case,
Speaker 1: and the question there is whether double jeopardy rules bar
Speaker 1: prosecution of a defendant in federal district court after he's
Speaker 1: convicted in what's called a court of Indian offenses. And
Speaker 1: so the question there is going to be whether this
Speaker 1: Court of Indian Offenses counts as a tribal court or
Speaker 1: a federal court. And that's because under double jeopardy as
Speaker 1: it exists now, there's something called the separate sovereigns or
Speaker 1: dual sovereignty doctrine, which says that the law doesn't barb
Speaker 1: multiple prosecutions for the same offense so long as they're
Speaker 1: being prosecuted by separate sovereigns, meaning the state versus the
Speaker 1: federal or tribal versus federal. So the question here is
Speaker 1: whether we're in fact talking about separate sovereigns when we
Speaker 1: talk about the Federal District Court and the Court of
Speaker 1: Indian Offenses. Just describe what the Court of Indian Offenses is. Sure, So,
Speaker 1: these are courts that are operating in places where tribes
Speaker 1: have jurisdiction over American Indians and states don't, but where
Speaker 1: there haven't been tribal courts that have been established to
Speaker 1: take on that task. So they're essentially filling a gap there.
Speaker 1: And so that sort of quasi tribal quasi federal nature
Speaker 1: of them is what's leading to this question of what
Speaker 1: does the Court of Indian Offenses actually count as? Is
Speaker 1: it federal or tribal for purposes of this double jeopardy analysis,
Speaker 1: why would it be considered federal and not tribal? Well,
Speaker 1: these courts are called CFR courts. They're governed by the
Speaker 1: Code of Federal Regulations. It's in the name itself. When
Speaker 1: we're talking about Indian law, we're talking about a lot
Speaker 1: of its stemming from federal law. So it's easy to
Speaker 1: understand how the state isn't involved. But the line between
Speaker 1: whether something is happening via federal jurisdiction or tribal jurisdiction
Speaker 1: can sometimes be blurry. This is coming from the Bureau
Speaker 1: of Indian Affairs. We're talking about the federal government here,
Speaker 1: and so the line can be blurred sometimes, and so
Speaker 1: the question here is which side of the line does
Speaker 1: it fall on at least for these double jeopardy purposes.
Speaker 1: And tell us a little about the facts of the case.
Speaker 1: So this case involves Mr Denesbi and he was a
Speaker 1: Navajo tribal member. He was arrested by tribal authorities with
Speaker 1: violating tribal assault and battery law and with Code of
Speaker 1: Federal Regulations, violations of terroristic threats, and false imprisonment. And
Speaker 1: he was charged in one of these CFR courts. He
Speaker 1: entered a plea and his remaining charges were dismissed, but
Speaker 1: he was later charged in a Colorado Federal District court
Speaker 1: with aggravated sexual assault. He was convicted there, sentenced to
Speaker 1: thirty years. And so he's raising a double jeopardy claim.
Speaker 1: And you can see just from this case itself how
Speaker 1: significant the issue is, given how we're talking about either
Speaker 1: an added punishment of thirty years or just the hundred
Speaker 1: forty days of incarceration that he faced through this CFR court.
Speaker 1: So there are big implications for everyone involved. And tell
Speaker 1: us about that case in involving double jeopardy. Sure, So
Speaker 1: there was a case called Gamble against United States that
Speaker 1: was pending at the court a few years ago. They
Speaker 1: decided it in. People were looking to that case to
Speaker 1: see whether the court was going to overturn this longstanding
Speaker 1: dual sovereignty or separate sovereigns dropped in. A lot of
Speaker 1: people were looking at it as something that was really unfair.
Speaker 1: You can be prosecuted for the same offense twice, regardless
Speaker 1: of whether it's in a separate sovereign. People don't necessarily
Speaker 1: care about that. People are looking at the fact that
Speaker 1: you're being prosecuted twice, regardless of whether it was in
Speaker 1: a federal jurisdiction one time, a state jurisdiction, another tribal
Speaker 1: jurisdiction a third time. And so people were looking at
Speaker 1: that case. Critics of this dual sovereignty doctrine were anyway
Speaker 1: hoping that the court might reconsider it, but the Court
Speaker 1: declined to do so. So there's no question that this
Speaker 1: doctrine is still alive, and now we just have a
Speaker 1: question of how it applies in this discrete situation involving
Speaker 1: these courts of Indian offenses. Thanks for being on the show.
Speaker 1: Jordan's that's Jordan Reuben of Bloomberg Law and that's it
Speaker 1: for this edition of the Bloomberg Law Show. Remember you
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