WEBVTT - The Battle Over Microseconds in Trading Delay 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.080 --> 0:00:13.399 It's a battle over three hundred fifty micro seconds. You know, 0:00:13.520 --> 0:00:15.800 is there a point where speed is actually detrimental? Should 0:00:15.800 --> 0:00:17.800 we think about slowing things down? And you know, we 0:00:17.880 --> 0:00:21.360 introduced uh an amount of time that's absolutely uh so 0:00:21.440 --> 0:00:25.040 infantestimally small. It's irrelevant to the majority of traditional participants, 0:00:25.480 --> 0:00:27.720 but it's absolutely critical to certain people that have bought 0:00:27.720 --> 0:00:32.080 advantages in the market. It may be infinitesimally small, as 0:00:32.120 --> 0:00:35.559 Brad katsu Yama, CEO of i X Group says, but 0:00:35.640 --> 0:00:39.760 the stock exchange operator made famous by flashboys, is in 0:00:39.840 --> 0:00:44.400 court defending those micro seconds. The electronic trading firms Citadel 0:00:44.520 --> 0:00:48.839 Securities is suing Securities and Exchange Commission to thwart the 0:00:48.880 --> 0:00:51.839 new order type known as D limit, which was approved 0:00:51.840 --> 0:00:55.200 by the federal regulator last year. In arguments before the 0:00:55.320 --> 0:00:58.000 d C Circuit Court of Appeals, a lawyer for i 0:00:58.120 --> 0:01:01.680 e X, Katherine stetson the D limit helps blunt the 0:01:01.840 --> 0:01:05.400 edge of high frequency traders. What we are talking about 0:01:05.560 --> 0:01:09.160 is evidence of a huge amount of trading going on 0:01:09.720 --> 0:01:13.640 in the couple few micro seconds before a price changes. 0:01:14.120 --> 0:01:17.200 I just happened to blink my eyes. That blink is 0:01:17.240 --> 0:01:21.080 about two d times longer than the couple micro seconds 0:01:21.080 --> 0:01:24.839 that we're talking about. But the lawyer for Citadel, Jeffrey Wall, 0:01:25.080 --> 0:01:27.880 criticized the D limit order. But this is just a 0:01:27.920 --> 0:01:31.679 sloppy order. It takes data, it misreads the stats, it 0:01:31.720 --> 0:01:34.360 assumes away all the costs. If you look at both 0:01:34.360 --> 0:01:36.120 the order and their brief to this court, it reads 0:01:36.160 --> 0:01:38.720 like it's all roses and no thorns. It doesn't have 0:01:38.760 --> 0:01:42.200 any consideration of the costs on retail or routing. My 0:01:42.319 --> 0:01:45.280 guest is an expert in securities law. James Cox, a 0:01:45.280 --> 0:01:48.639 professor at Duke Law School. Jim explained the D limit 0:01:48.800 --> 0:01:53.360 or discretionary limit that was introduced by i X. It 0:01:53.400 --> 0:01:55.840 was part of their branding which when they came on 0:01:55.920 --> 0:02:00.040 the States initially and Michael Lewis wrote about them, and 0:02:00.680 --> 0:02:03.160 it was putting in a speed pump. You know. The 0:02:03.240 --> 0:02:06.640 individuals are in the bye side of the market have 0:02:06.760 --> 0:02:10.840 been yelling for some time that they are being disadvantaged 0:02:11.120 --> 0:02:15.080 in not just the price discovery process, but disadvantaged in 0:02:15.240 --> 0:02:18.519 getting a good price by all kinds of mechanisms like 0:02:18.680 --> 0:02:23.440 co location et cetera. And what the exchanges did initially 0:02:23.840 --> 0:02:26.960 was instol of speed pump to take away the edge 0:02:27.080 --> 0:02:32.200 that the algorithmic electronic co located traders have been making 0:02:32.240 --> 0:02:34.520 a lot of money on. The great thing right now 0:02:34.720 --> 0:02:38.800 is that we have a chairman of the SEC joins 0:02:38.840 --> 0:02:41.920 the list of a lot of former very experienced, knowledgeable 0:02:41.919 --> 0:02:46.320 individuals for chairman of the SEC. But this chairman knows markets. 0:02:46.360 --> 0:02:48.160 He came out of the market, didn't come out of 0:02:48.200 --> 0:02:50.720 the securities markets, but now the derivative markets, which are 0:02:50.760 --> 0:02:55.359 actually a better insight about how markets operator ought to operate, 0:02:55.600 --> 0:02:58.760 and these committed to the idea and bringing change to 0:02:58.960 --> 0:03:03.280 the markets. So the complaint is being made against the 0:03:03.320 --> 0:03:06.359 exchange about this speed pup is going to follow in 0:03:06.440 --> 0:03:09.280 death ears at the SEC and should in the courts 0:03:09.320 --> 0:03:14.480 as well. What's I x's argument before the circuit court. 0:03:15.120 --> 0:03:18.600 This is a legitimate practice of saying, look, we have 0:03:18.680 --> 0:03:21.920 a market, here's our protocols. Nobody's going to get an 0:03:22.040 --> 0:03:26.440 advantage because their computers are located closer to the exchange. 0:03:26.680 --> 0:03:29.960 Everybody's going to be the same level playing field. And 0:03:30.040 --> 0:03:32.520 to the extent of that, the roads an advantage that 0:03:32.840 --> 0:03:36.000 some of these market participants have had will so be it. 0:03:36.000 --> 0:03:39.440 It's better to have individuals on the bi side finally 0:03:39.480 --> 0:03:42.480 hearing their voice is raised, and having an exchange where 0:03:42.480 --> 0:03:45.040 they can go to. What I find interesting here is 0:03:45.080 --> 0:03:50.200 whether this changes things enough so that other exchanges will 0:03:50.240 --> 0:03:53.480 develop and find it to be competitive, that they're going 0:03:53.520 --> 0:03:55.680 to have to have a speed pup as well. Citadel 0:03:55.720 --> 0:03:59.240 Securities is suing the SEC. What's the cause of action? 0:03:59.280 --> 0:04:02.560 What are they allowed change? The alleging that the SEC 0:04:03.160 --> 0:04:08.080 is approving a practice that is, according to them, inherently 0:04:08.200 --> 0:04:13.120 anti competitive. Is an artificial device that is going to 0:04:13.280 --> 0:04:17.360 slow down trading in price discovery, and therefore, the argument 0:04:17.400 --> 0:04:22.400 would be that you're disadvantaging the public interests because you're 0:04:22.400 --> 0:04:25.719 slowing down price movements, and what we should be doing 0:04:25.800 --> 0:04:29.760 is trying to facilitate beating up price movements. That's the argument. 0:04:30.320 --> 0:04:35.040 The attorney for Citadel says that the order type interferes 0:04:35.040 --> 0:04:38.280 with the natural course of the market. The display price 0:04:38.560 --> 0:04:42.560 isn't real, it's phantom. How would you address that? I 0:04:42.640 --> 0:04:46.440 think it's hard to say that as dhantom because the 0:04:46.600 --> 0:04:50.520 orders are all coming in and what is actually happening 0:04:50.839 --> 0:04:53.880 is Citadel is wanting to start off three feet ahead 0:04:53.960 --> 0:04:56.080 in the race for the Finch line to determine what 0:04:56.120 --> 0:04:58.080 the price is going to be. So essentially what the 0:04:58.120 --> 0:05:01.080 Exchange is doing here is say starting line is the 0:05:01.120 --> 0:05:04.799 same for everybody, so it's putting everybody on the same plane. 0:05:05.000 --> 0:05:08.760 Whereas as I read the argument, Citadel says, no, now 0:05:08.880 --> 0:05:11.000 we're ahead of the starting line and we want to 0:05:11.040 --> 0:05:13.800 preserve that position, and by doing that we can get 0:05:13.839 --> 0:05:17.000 to the price first. It's not clear to me that 0:05:17.040 --> 0:05:19.839 the price is going to be any different if everybody 0:05:19.880 --> 0:05:22.920 starts off the same point. Then it is presently with 0:05:23.320 --> 0:05:26.120 Citadelle starting off earlier, and so we're still going to 0:05:26.200 --> 0:05:29.320 have the same sort of pricing that goes on. It's 0:05:29.360 --> 0:05:32.280 just a question about who gets that price first. And 0:05:32.400 --> 0:05:36.440 so the current arrangements where you have co locations and 0:05:36.800 --> 0:05:40.239 other devices that Citadel and a few other market traders 0:05:40.320 --> 0:05:44.960 use give themselves a competitive advantage over others, and they 0:05:44.960 --> 0:05:48.200 want to preserve the competitive advance. The Exchange is proposal. 0:05:48.560 --> 0:05:52.400 The one that's being challenged is the Exchange is saying, no, 0:05:52.560 --> 0:05:55.800 we want to get everybody a chance to get the price, 0:05:56.120 --> 0:05:59.400 and by doing that, if you make the market pure fairer, 0:06:00.120 --> 0:06:03.840 we more individuals wanting to get that price, and we'll 0:06:03.880 --> 0:06:07.839 have a deeper market and better price discovery. So the 0:06:07.920 --> 0:06:13.000 lawyer four I X said that high frequency traders profit 0:06:13.080 --> 0:06:16.680 by exploiting the micro second differences. Others are in the 0:06:16.720 --> 0:06:20.200 middle of a speed war. They never signed up to fight. 0:06:20.520 --> 0:06:22.960 Do you think that's a good description of what's happening. 0:06:23.279 --> 0:06:26.760 I think that's exactly right. I mean, all this happening 0:06:26.839 --> 0:06:29.240 is Toudadelle and lawyers have been able to put the 0:06:29.279 --> 0:06:31.920 odor of money in the air so that they can 0:06:31.960 --> 0:06:35.479 gain an advantage that others who weren't willing to pay 0:06:35.760 --> 0:06:39.040 for co location or some other devices that give them 0:06:39.040 --> 0:06:42.240 a competitive advantage. Not a question of somebody is saying, well, 0:06:42.440 --> 0:06:44.400 you know, we're the first ones to lay the cable 0:06:44.440 --> 0:06:46.679 across the Atlantic, so we should be able to charge 0:06:46.680 --> 0:06:49.560 a fee for everybody's going to use it. Everybody's just 0:06:49.720 --> 0:06:54.160 using the same cable. But what's happening is that the 0:06:54.200 --> 0:06:57.279 exchanges for a payment of money by citadel and others 0:06:57.600 --> 0:07:01.479 have allowed the Citadels of the world to have a 0:07:01.680 --> 0:07:05.279 special entrance into their trading floor that gives them a 0:07:05.279 --> 0:07:08.360 competitive advantage. And the result of that means that price 0:07:08.680 --> 0:07:10.920 that's going to be out there for a nano second 0:07:11.400 --> 0:07:13.520 is always going to be gobbled by the people who 0:07:13.600 --> 0:07:18.120 paid for that competitive advantage, and the various other traders 0:07:18.200 --> 0:07:20.520 who don't pay for that advantage are always going to 0:07:20.560 --> 0:07:24.160 be disfavored. I X is actually created on the whole 0:07:24.200 --> 0:07:27.400 idea that everybody's in the same line and they start 0:07:27.440 --> 0:07:30.080 off at the same place. Tell me what you think 0:07:30.080 --> 0:07:34.880 of this assertion that Judge Justin Walker made to Citadel's lawyer. 0:07:35.240 --> 0:07:38.360 It's you who is going to a federal agency and 0:07:38.560 --> 0:07:44.160 saying stop a private entity I e X from doing 0:07:44.200 --> 0:07:46.960 what they want to do. You're the one who's trying 0:07:47.000 --> 0:07:51.760 to kind of regulate your way into a market victory. 0:07:52.000 --> 0:07:55.800 You know. The challenge to the faces is that they 0:07:55.880 --> 0:08:01.720 are challenging a development that is very arcay market structure. 0:08:02.040 --> 0:08:07.240 There's no crisp guidelines as to what the law expects 0:08:07.280 --> 0:08:11.000 with respect to how markets are to operate. Therefore, you 0:08:11.080 --> 0:08:13.440 start off the idea that it's a natural situation for 0:08:13.600 --> 0:08:17.880 deferring to the expertise of the sec it's economists in 0:08:18.000 --> 0:08:22.400 evaluating how these markets are operating, and that strengthens, I 0:08:22.440 --> 0:08:26.000 think dramatically the case of the SEC sir saying look 0:08:26.080 --> 0:08:28.640 to deceive reasonable to us is with our mandate and 0:08:28.680 --> 0:08:31.680 the other thing that fits into this dynamics. I E 0:08:31.840 --> 0:08:34.679 X is not the only market. If buyers and sellers 0:08:34.679 --> 0:08:38.000 thought that what I X was doing was a bad idea, 0:08:38.800 --> 0:08:41.680 then they can send their trade to someplace else. You know, 0:08:41.720 --> 0:08:47.160 there's numerous market centers where trades can be crossed. And 0:08:47.600 --> 0:08:51.400 what I feel is going on here with Citadel is 0:08:51.480 --> 0:08:55.280 they're fearful that if I expands this market here is 0:08:55.320 --> 0:08:58.360 going to be because of installing the speed up, and 0:08:58.400 --> 0:09:01.720 therefore other markets made do the same thing for realizing 0:09:02.160 --> 0:09:06.640 they have more trades as a result, making markets competitive, 0:09:06.880 --> 0:09:10.719 and consequently that operates to the disadvantage of Citadel. So 0:09:10.800 --> 0:09:15.400 quite frankly, what's happening with X's development and the ANTEC 0:09:15.559 --> 0:09:19.480 going along with it, it dramatically challenges the business model 0:09:19.640 --> 0:09:23.240 that's made pretty much what Citadel is. So how do 0:09:23.280 --> 0:09:26.360 you think the d C circuit will rule here? I 0:09:26.360 --> 0:09:28.480 think I X is going to win this case. I 0:09:28.480 --> 0:09:30.640 think the SEC is going to win this case. I 0:09:30.640 --> 0:09:34.000 think within their power to think about what the microstructure 0:09:34.000 --> 0:09:36.520 of the market is. There's a lot of intuitive appeal 0:09:36.600 --> 0:09:39.400 to thinking that everybody should be on the same plane 0:09:39.520 --> 0:09:43.520 the same starting line. I'd be very surprised cited otherwise. 0:09:44.559 --> 0:09:47.800 Do you think that SEC Chair Gary Ginsler is on 0:09:47.840 --> 0:09:51.600 a collision course with some of Wall Street's biggest names 0:09:52.440 --> 0:09:56.880 as he absolutely, absolutely, I gave him a lot of 0:09:56.920 --> 0:09:59.800 credit from I'm sure he's aware of that. But it's 0:09:59.840 --> 0:10:02.720 not just the biggest Wall Street names. Those Wall Street 0:10:02.800 --> 0:10:05.199 names all have a name associated with them, and that 0:10:05.280 --> 0:10:09.839 is there on the dull side, and individuals, entities, pension funds, 0:10:09.920 --> 0:10:11.920 what have you. They're on the by side, and they've 0:10:11.960 --> 0:10:14.400 been the ones that have been disapenged for way too 0:10:14.440 --> 0:10:19.640 long through a series of market microstructure anomalies that favors 0:10:19.720 --> 0:10:22.560 the Citazaels of the world and doesn't do enough for 0:10:22.600 --> 0:10:25.680 the people who actually buy the stalks have to earn 0:10:25.679 --> 0:10:29.920 a return for their beneficiaries. Thanks for being in the show, Jim. 0:10:29.960 --> 0:10:34.840 That's Professor James Cox of Duke Law School. The state 0:10:34.880 --> 0:10:38.960 of Oklahoma wants the Supreme Court to reverse its ruling 0:10:39.000 --> 0:10:43.120 in MC the Oklahoma, a ruling hailed by Indian tribes 0:10:43.200 --> 0:10:47.040 as a long overdue endorsement of their sovereignty in much 0:10:47.080 --> 0:10:49.839 of the eastern part of the state. Joining me is 0:10:49.840 --> 0:10:54.800 Bloomberg Law reporter Jordan Ruben start by telling us about 0:10:55.080 --> 0:10:59.000 the ruling in mcg the Oklahoma So mcgurt was a 0:10:59.200 --> 0:11:04.760 criminal keys and they're the defendant who is a Native American. 0:11:04.840 --> 0:11:07.880 He said the state didn't have jurisdiction to charge him 0:11:07.920 --> 0:11:10.400 because he is an Indian and his crime took place 0:11:10.559 --> 0:11:13.800 on Indian land. That raised the question whether the land 0:11:13.880 --> 0:11:16.679 was still a reservation. And so even though it was 0:11:16.720 --> 0:11:18.480 just a criminal case, that had all of these other 0:11:18.559 --> 0:11:23.560 implications generally for whether this reservation in mcgard's case, the 0:11:23.760 --> 0:11:27.840 Muskogee Creek Reservation still existed, and that had implications for 0:11:27.880 --> 0:11:31.760 whether all these so called five Tribes in eastern Oklahoma's 0:11:31.760 --> 0:11:35.240 reservations still existed. And the Supreme Court in a five 0:11:35.280 --> 0:11:38.640 four decision said that that land was still a reservation, 0:11:38.720 --> 0:11:42.960 that Congress never disestablished it, and so that land still 0:11:42.960 --> 0:11:47.000 stands today as a reservation. Now it was a five 0:11:47.080 --> 0:11:51.360 to four decision. Tell us about the justices in the 0:11:51.400 --> 0:11:56.120 majority and the justice in descent. Sure, so in these 0:11:56.160 --> 0:12:00.079 five four cases, now six three cases, we typic he 0:12:00.160 --> 0:12:03.440 see these divisions along party lines in terms of the 0:12:03.480 --> 0:12:07.320 presidents who appointed the justices. And that was almost exactly 0:12:07.360 --> 0:12:10.560 the case here we had Justice Neil Gorcich writing for 0:12:10.600 --> 0:12:14.360 the majority, joined by the rest of the Democratic appointees 0:12:14.440 --> 0:12:17.720 at the time, Ginsburg, Brier, Soudamior, and Kagan, and the 0:12:17.800 --> 0:12:21.640 dissent was written by Chief Justice Roberts joined by Justices 0:12:21.720 --> 0:12:26.400 Thomas Alito and Kavanaugh. Described the reaction to the decision 0:12:26.600 --> 0:12:31.880 from inside the state. So, starting from the perspective of 0:12:31.920 --> 0:12:35.360 the tribes, it's really difficult to overstate the importance of 0:12:35.400 --> 0:12:38.160 this decision in their view. To take a step back, 0:12:38.760 --> 0:12:41.640 tribes really had not done well at the Supreme Court 0:12:41.679 --> 0:12:43.960 over the years, to say the least, and so they 0:12:44.040 --> 0:12:46.400 viewed this decision, even though it was just a criminal 0:12:46.480 --> 0:12:50.439 case involving that sort of discrete issue, as to the 0:12:50.480 --> 0:12:53.600 part of it which affirms the reservation, they viewed that 0:12:53.720 --> 0:12:57.680 as a long overdue affirmation of their tribal sovereignty and 0:12:58.040 --> 0:13:02.199 a decision that they wouldn't have expected, perhaps even before 0:13:02.240 --> 0:13:05.000 Gorst got on the court, and one that they perhaps 0:13:05.080 --> 0:13:08.240 weren't even necessarily expecting then. And so it was widely 0:13:08.280 --> 0:13:11.280 celebrated there from the tribe's perspective, and it was really 0:13:11.320 --> 0:13:16.000 the opposite reaction from the state government's perspective. Ahead of 0:13:16.040 --> 0:13:18.160 the ruling. They had warned of all of these negative 0:13:18.160 --> 0:13:22.400 consequences if the state lacked jurisdiction in terms of criminals 0:13:22.480 --> 0:13:24.720 running loose on the street and that sort of thing. 0:13:25.200 --> 0:13:28.600 And the state's reaction after the ruling was, Hey, this 0:13:28.679 --> 0:13:32.480 is happening now, and the state is essentially telling the court, now, 0:13:32.920 --> 0:13:36.200 we told you so. So the status said that this 0:13:36.240 --> 0:13:40.719 creates a public safety nightmare for victims and law enforcement. 0:13:41.280 --> 0:13:44.800 It has pitched Oklahoma's criminal justice system into a state 0:13:44.800 --> 0:13:48.960 of emergency. Is that hyperbole or has there actually been 0:13:49.000 --> 0:13:54.000 a change in Oklahoma? So if you talk to the tribes, 0:13:54.400 --> 0:13:57.240 as I've done recently in speaking to some of their lawyers, 0:13:57.800 --> 0:14:01.199 it's hyperbole. The state, at least, they say that the 0:14:01.360 --> 0:14:05.520 governor's claims Governor Kevin Stitt, that those claims are at 0:14:05.520 --> 0:14:08.839 the very least misleading, if not just outright false. They 0:14:08.880 --> 0:14:11.040 say that they're working to implement the ruling and that 0:14:11.400 --> 0:14:15.400 even though that McGrath decision has certainly brought a change, 0:14:15.440 --> 0:14:19.360 a huge change in how criminal justice is addressed in 0:14:19.480 --> 0:14:23.840 terms of increased tribal responsibility and federal responsibility in place 0:14:23.840 --> 0:14:25.600 of the states, they say that it's far from a 0:14:25.720 --> 0:14:29.160 nightmare that they're working to implement the decision, and from 0:14:29.200 --> 0:14:33.000 the tribes perspective, the problem, as they see it, is 0:14:33.040 --> 0:14:36.000 the fact that the governor is trying to now overturn 0:14:36.080 --> 0:14:39.080 the decision, and so they see having to relitigate the 0:14:39.160 --> 0:14:41.520 issue as a waste of time when they're trying to 0:14:42.080 --> 0:14:46.400 address real issues. So the governor is trying to get 0:14:46.400 --> 0:14:50.440 the Supreme Court to overturn a decision it just made 0:14:50.680 --> 0:14:56.000 less term why right, So they're trying to overturn last 0:14:56.080 --> 0:15:00.240 year's decision. Really, it's the same claims that they maid 0:15:00.360 --> 0:15:03.240 heading into the decision, and now they're just saying, Hey, 0:15:03.280 --> 0:15:06.080 all these bad things that we said we're going to 0:15:06.160 --> 0:15:08.480 happen have now happened, and we think this is an 0:15:08.600 --> 0:15:12.600 erroneous decision and you should reconsider it. That's the long 0:15:12.680 --> 0:15:15.520 and the short of their argument. Coming back to the court. 0:15:16.440 --> 0:15:20.600 The governor thinks that the replacement of the late Ruth 0:15:20.640 --> 0:15:25.760 Bader Ginsburg, who ruled against Oklahoma, with any Coney Barrett, 0:15:26.320 --> 0:15:29.120 is going to make a difference. So he's betting on 0:15:29.320 --> 0:15:33.360 the new composition of the court. That's what he said. 0:15:33.400 --> 0:15:37.120 I saw a radio interview that he did in Oklahoma 0:15:37.200 --> 0:15:40.160 earlier this year where the governor said as much, and 0:15:40.200 --> 0:15:42.920 so at least from his perspective, he's hoping that that 0:15:43.440 --> 0:15:45.840 change will help. And it's hard to see how he 0:15:45.880 --> 0:15:49.840 wouldn't need at least that change in personnel, because, as 0:15:49.840 --> 0:15:53.000 you mentioned, this was a decision that happened just last year. 0:15:53.360 --> 0:15:55.800 All of the justices are the same except for that 0:15:56.200 --> 0:15:59.080 Ginsburg to Barrett switch, and so at the very least 0:15:59.080 --> 0:16:02.000 he would need the new justice to think differently, And 0:16:02.040 --> 0:16:05.440 he would also still need all of the justices who 0:16:05.560 --> 0:16:08.960 dissented to vote the same way this time around. And 0:16:09.000 --> 0:16:12.200 I'm not so sure that, for example, Chief Justice Roberts 0:16:12.400 --> 0:16:14.760 would want to go back on that decision, even though 0:16:14.800 --> 0:16:17.440 he wrote the dissent and was very much against how 0:16:17.680 --> 0:16:22.440 the majority came out. So what are Oklahoma's petitions before 0:16:22.480 --> 0:16:25.400 the Supreme Court? How many are there and what do 0:16:25.480 --> 0:16:29.640 they say? So there are over thirty petitions that they've 0:16:30.200 --> 0:16:32.480 lodge in front of the court and we're waiting for 0:16:32.520 --> 0:16:36.280 the justices to consider them in the coming weeks and months. 0:16:36.320 --> 0:16:39.600 And there is one additional claim that they're pressing, which 0:16:39.600 --> 0:16:41.720 is sort of a follow on issue to McGirt in 0:16:41.840 --> 0:16:44.960 terms of how the decision applies to non Indians, and 0:16:45.000 --> 0:16:47.480 that's potentially an issue that the Court could take up. 0:16:47.760 --> 0:16:51.000 But at the same time, they're either additionally or separately, 0:16:51.120 --> 0:16:54.680 just straight up pressing this claim to overturn McGirt. They 0:16:54.720 --> 0:16:59.000 point out that the Court doesn't always follow its prior decisions. 0:16:59.000 --> 0:17:02.560 We've seen in recent years the court overturning precedence. Of course, 0:17:02.560 --> 0:17:05.560 whenever you talk about precedent. Now we have to note 0:17:05.600 --> 0:17:09.160 I think that the Court is considering overruling the longstanding 0:17:09.200 --> 0:17:12.760 abortion precedence, and the state is saying that this was 0:17:12.840 --> 0:17:16.159 an erroneous decision and they just want the Court to 0:17:16.680 --> 0:17:21.479 change its mind. It is remarkable that state officials are 0:17:21.520 --> 0:17:25.640 reminding the justices that they don't always follow their prior rulings. 0:17:25.760 --> 0:17:30.439 I mean, they cited a case that led Justice Stephen 0:17:30.480 --> 0:17:34.080 Bryer to wonder which cases the Court will overrule next, 0:17:34.160 --> 0:17:37.240 something which some of the liberal justices have noted in 0:17:37.240 --> 0:17:41.280 the past. Right, So it is remarkable in the sense 0:17:41.320 --> 0:17:44.480 of seeing it so quickly after a recent decision. I 0:17:44.480 --> 0:17:47.440 think that would be forging new ground if the Court 0:17:47.480 --> 0:17:51.080 were to actually take up this attempts to overturn the 0:17:51.119 --> 0:17:54.280 decision and then side with Oklahoma and change in course. 0:17:54.320 --> 0:17:57.760 So it is certainly remarkable in one sense and another sense, 0:17:58.240 --> 0:18:01.199 perhaps the state thinks that as a shot at doing it, 0:18:01.240 --> 0:18:04.960 looking at how the court has acted recently and given 0:18:05.000 --> 0:18:08.120 the change in composition, I still don't think that that's 0:18:08.160 --> 0:18:11.600 going to be successful. But perhaps the state is looking 0:18:11.600 --> 0:18:14.280 around and seeing that it thinks it might have a shot. 0:18:15.359 --> 0:18:19.920 Have the Indian tribes made real changes because of McGirt, 0:18:20.040 --> 0:18:24.400 So if the court took this an overrule McGirt, would 0:18:24.440 --> 0:18:29.200 there be a lot of reversals necessary? Yes, certainly. So 0:18:29.240 --> 0:18:31.480 since the mcgert decision, there's been a lot of work 0:18:31.560 --> 0:18:35.880 that's gone into implementing it. Everyone agrees that McGirt has 0:18:36.080 --> 0:18:39.080 brought a huge change. There's been a huge increase in 0:18:39.520 --> 0:18:44.760 tribal responsibility in terms of increasing their jurisdiction, in terms 0:18:44.760 --> 0:18:47.640 of their caseload in terms of federal caseloads. So there's 0:18:47.680 --> 0:18:50.840 been a ton of work that's happened, even just since 0:18:50.880 --> 0:18:53.879 the mcgert decision came down in twenty twenties. So to 0:18:53.960 --> 0:18:56.919 say the least reverse and course would throw a wrench 0:18:57.119 --> 0:19:00.000 into that. The state is saying that the McGirt said 0:19:00.040 --> 0:19:04.040 and itself up ended years of a longstanding arrangement of 0:19:04.080 --> 0:19:07.080 how criminal justice was conducted. But there's no question that 0:19:07.400 --> 0:19:10.439 reversing course now, even just a year or so after, 0:19:11.000 --> 0:19:14.520 would be a huge interruption in how tribes are working 0:19:14.520 --> 0:19:19.439 to implement the decision. So to put Oklahoma's request for 0:19:19.480 --> 0:19:22.520 the Supreme Court to hear this in context, the court 0:19:22.600 --> 0:19:27.640 is facing historically low public approval ratings and progressives are 0:19:27.680 --> 0:19:31.280 calling for court packing. And you know, as you mentioned, 0:19:31.280 --> 0:19:36.080 the Court will be considering overturning the abortion precedent of 0:19:36.200 --> 0:19:40.160 Roe v. Wade, So is it likely to take another 0:19:40.200 --> 0:19:42.639 hot button issue? So I think for a lot of 0:19:42.720 --> 0:19:46.760 reasons that the Court is not even going to take 0:19:46.920 --> 0:19:49.760 up the question of whether to overturn the macgurt case. 0:19:49.800 --> 0:19:53.119 Of course, the Court has discretion over its docket in 0:19:53.160 --> 0:19:56.480 almost every situation, so it's not just that I think 0:19:56.520 --> 0:19:59.200 the Court is not going to reverse course. I think 0:19:59.240 --> 0:20:02.400 it would be very surprising if the Court even granted 0:20:02.520 --> 0:20:05.680 cert and agreed to take up the question of whether 0:20:05.760 --> 0:20:09.080 to reverse course. I think there are other questions post mcgert, 0:20:09.160 --> 0:20:12.080 like the question of how it applies to non Indians, 0:20:12.160 --> 0:20:16.240 whether the ruling is retroactive, other aspects besides just the 0:20:16.280 --> 0:20:18.919 straight up question of whether to overturn it. So for 0:20:18.920 --> 0:20:21.479 a lot of reasons, I don't think the court is 0:20:22.000 --> 0:20:24.040 going to be interested in taking up the claim. If 0:20:24.040 --> 0:20:26.800 it does even agree to hear the case, I would 0:20:26.840 --> 0:20:32.119 be very surprised. Lawyers for tribes say that the governor's 0:20:32.160 --> 0:20:36.920 fixation with overturning McGirt is hampering progress. What do they 0:20:36.920 --> 0:20:41.840 mean by that? Well, from the tribes view, they don't 0:20:41.880 --> 0:20:47.520 see this criminal dystopia that the governor has portrayed. They 0:20:47.560 --> 0:20:50.840 see themselves as being busy with actually implementing the ruling, 0:20:50.880 --> 0:20:54.720 which is a significant expenditure in both time and money, 0:20:54.760 --> 0:20:58.440 and they see the mere fact of this litigation as 0:20:58.480 --> 0:21:01.840 being a distraction and something that's hampering progress. So from 0:21:01.840 --> 0:21:04.760 the tribe's perspective, it's almost that the biggest problem that 0:21:04.880 --> 0:21:08.200 they see is the mere fact of the governor now 0:21:08.240 --> 0:21:12.240 trying to overturn the decision that they're working to implements. 0:21:13.160 --> 0:21:15.840 And though the governor has called the case the most 0:21:15.880 --> 0:21:21.200 pressing issue for Oklahoma, only a small percentage of Oklahoma's 0:21:21.240 --> 0:21:25.280 registered voters agree with that. That's right. According to a 0:21:25.480 --> 0:21:30.639 poll that I saw, only of registered voters agree with that, 0:21:30.720 --> 0:21:34.240 and so that would bolster the tribes claim that it's 0:21:34.240 --> 0:21:38.520 not the criminal dystopia that the state government is claiming 0:21:38.560 --> 0:21:43.720 it to be. How much of Oklahoma's land has reverted 0:21:43.800 --> 0:21:49.399 to Indian jurisdiction percentage wise, So we're talking about, at 0:21:49.480 --> 0:21:53.120 least so far pretty much the eastern half of Oklahoma 0:21:53.160 --> 0:21:56.840 where reservations have been affirmed, as courts saying not just 0:21:57.440 --> 0:22:00.880 really that it's reverted, but technically that it's never gone 0:22:00.880 --> 0:22:03.600 away in the first instance. So we're looking just in 0:22:03.640 --> 0:22:06.320 the eastern half. And as I mentioned, the so called 0:22:06.400 --> 0:22:09.239 Five Tribes, which in addition to the Creek which were 0:22:09.280 --> 0:22:12.720 at the center of the McGirt case, the Cherokee, Chickasaw, Choptaw, 0:22:12.840 --> 0:22:16.240 and Seminole tribes, those are really the main tribes at issue. 0:22:16.680 --> 0:22:20.159 Just recently we saw a sixth tribe that the Oklahoma 0:22:20.359 --> 0:22:24.480 State Court added, the Clappaw Nation. So we've seen the 0:22:24.560 --> 0:22:28.640 ripple effects of McGirt expanding even beyond the Five Tribes. 0:22:28.680 --> 0:22:31.920 But really for now we're talking about essentially the eastern 0:22:31.960 --> 0:22:37.679 half of Oklahoma, which is significant. Turn into another case, Jordan's, 0:22:37.720 --> 0:22:42.200 the Supreme Court agreed to review whether double jeopardy bars 0:22:42.320 --> 0:22:46.520 prosecuting a defendant in federal district court after he's convicted 0:22:46.560 --> 0:22:51.080 in a court of Indian offenses. Tell us about that case. Sure, So, 0:22:51.160 --> 0:22:55.640 the Supreme Court recently agreed to review a double jeopardy case, 0:22:55.640 --> 0:22:59.760 and the question there is whether double jeopardy rules bar 0:23:00.359 --> 0:23:04.240 prosecution of a defendant in federal district court after he's 0:23:04.320 --> 0:23:07.960 convicted in what's called a court of Indian offenses. And 0:23:08.000 --> 0:23:10.560 so the question there is going to be whether this 0:23:10.720 --> 0:23:14.600 Court of Indian Offenses counts as a tribal court or 0:23:14.720 --> 0:23:18.840 a federal court. And that's because under double jeopardy as 0:23:18.840 --> 0:23:22.359 it exists now, there's something called the separate sovereigns or 0:23:22.520 --> 0:23:26.879 dual sovereignty doctrine, which says that the law doesn't barb 0:23:27.000 --> 0:23:30.240 multiple prosecutions for the same offense so long as they're 0:23:30.240 --> 0:23:34.520 being prosecuted by separate sovereigns, meaning the state versus the 0:23:34.560 --> 0:23:38.119 federal or tribal versus federal. So the question here is 0:23:38.119 --> 0:23:41.359 whether we're in fact talking about separate sovereigns when we 0:23:41.400 --> 0:23:44.879 talk about the Federal District Court and the Court of 0:23:45.200 --> 0:23:50.320 Indian Offenses. Just describe what the Court of Indian Offenses is. Sure, So, 0:23:50.440 --> 0:23:53.640 these are courts that are operating in places where tribes 0:23:53.680 --> 0:23:59.240 have jurisdiction over American Indians and states don't, but where 0:23:59.280 --> 0:24:02.760 there haven't been tribal courts that have been established to 0:24:02.920 --> 0:24:07.040 take on that task. So they're essentially filling a gap there. 0:24:07.080 --> 0:24:11.520 And so that sort of quasi tribal quasi federal nature 0:24:11.560 --> 0:24:14.440 of them is what's leading to this question of what 0:24:14.560 --> 0:24:17.960 does the Court of Indian Offenses actually count as? Is 0:24:17.960 --> 0:24:22.840 it federal or tribal for purposes of this double jeopardy analysis, 0:24:23.000 --> 0:24:27.640 why would it be considered federal and not tribal? Well, 0:24:28.040 --> 0:24:31.119 these courts are called CFR courts. They're governed by the 0:24:31.200 --> 0:24:34.760 Code of Federal Regulations. It's in the name itself. When 0:24:34.800 --> 0:24:37.680