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Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio

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Speaker 1: for count one aggravated murder, a capital felony, and violation

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Speaker 1: of Utah Code annotated seventy six Dash five Dash two

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Speaker 1: two in that on September tenth, twenty twenty five, in

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Speaker 1: Utah County, the defendant, Tyler James Robinson, intentionally or knownly

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Speaker 1: caused the death of Charlie Kirk.

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Speaker 2: Twenty two year old Tyler Robinson appeared in court for

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Speaker 2: the first time on Tuesday to face aggravated murder chargers

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Speaker 2: for the fatal shooting of conservative activist Charlie Kirk. Utah

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Speaker 2: County Attorney Jeff Gray said they'll seek the death penalty,

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Speaker 2: explaining the aggravating factors.

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Speaker 3: The state is further alleging aggravating factors oncounts one and

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Speaker 3: two because the defendant is believed to have targeted Charlie

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Speaker 3: Kirk based on Charlie k Kirk's political expression and did

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Speaker 3: so knowing that children were present and would witness the homicide.

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Speaker 2: During the ten minute hearing, Robinson, who was wearing a

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Speaker 2: grain vest designed to prevent self harm, showed no emotion

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Speaker 2: and didn't speak except to state his.

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Speaker 1: Name, State of Utah versus Tyler James Robinson. Could you

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Speaker 1: state your name, Tyler James Robinson.

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Speaker 2: Robinson faces six other charges in addition to the aggravated

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Speaker 2: murder count, including obstruction of justice, witness tampering, gun charges,

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Speaker 2: and committing a violent offense in the presence of a child.

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Speaker 2: Joining me is Bloomberg Legal reporter Madlein Mecklberg Madline tell

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Speaker 2: us about this first court appearance for Tyler Robinson.

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Speaker 4: Tyler Robinson came before a judge for the first time

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Speaker 4: this week, and it was a virtual appearance in a courtroom,

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Speaker 4: which is pretty standard apparently for criminal cases in Utah

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Speaker 4: County where he was charged. And he appeared via zoom

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Speaker 4: from the jail and the judge who will be presiding

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Speaker 4: over the criminal case moving forward, read the charges allowed

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Speaker 4: to him, informed him that there was a possible sentence

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Speaker 4: of the death penalty associated with those charges, and he

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Speaker 4: asked him if he had an attorney yet, and he

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Speaker 4: does not have a lawyer. The judge said, based on

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Speaker 4: his financial status, one will be appointed for him, and

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Speaker 4: that's something that we can expect to happen in the

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Speaker 4: next few weeks here, and.

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Speaker 2: That lawyer is going to have to be one that's

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Speaker 2: certified in the state to represent capital defendants, so that

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Speaker 2: will limit the choices somewhat.

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Speaker 4: Did Robinson enter a plea, No, we're not going to

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Speaker 4: see him enter a plea for at least a few weeks,

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Speaker 4: the way that things work in Utah. The next hearing

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Speaker 4: is also going to be virtual, and they'll be discussing

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Speaker 4: whether or not he wants to waive his right to

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Speaker 4: a preliminary hearing. This is a hearing where they would

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Speaker 4: talk about whether there's enough validity to the charges to

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Speaker 4: move forward to an arraignment, which would yet another hearing

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Speaker 4: where he would actually enter a plea to the charges

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Speaker 4: before him. So along road to go before we get there.

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Speaker 2: And from what authorities have said, he has not made

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Speaker 2: a confession and he's not talking to investigators.

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Speaker 4: So Yutah County Attorney Jeff Gray has been the public

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Speaker 4: face of the prosecution so far, and he's really declined

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Speaker 4: to weigh in on exactly how much Robinson may or

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Speaker 4: may not be cooperating with investigators. But we heard previously

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Speaker 4: from law enforcement authorities that he has not been cooperative

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Speaker 4: with them. There is no evidence so far that he's

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Speaker 4: given them any kind of confession or admitted to anything,

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Speaker 4: although I'm sure you saw. Prosecutors released a ton of

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Speaker 4: evidence that they say they have against him, which include

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Speaker 4: text messages where he's talking about the shooting, but they

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Speaker 4: decline to say whether they can strue those as being

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Speaker 4: a confession. And at this point we have no reason

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Speaker 4: to believe that he's confessed to authorities or that he's

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Speaker 4: even cooperated with them.

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Speaker 2: Let's talk a little bit about those text messages to

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Speaker 2: his roommate and why prosecutors are highlighting them.

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Speaker 4: So while he may not be cooperating with them, it's

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Speaker 4: very clear that his family and people close to him are,

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Speaker 4: or at least have been providing law enforcement with information

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Speaker 4: regarding their communications with him leading up to the shooting

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Speaker 4: and following the shooting. Now, prosecutors say that he was

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Speaker 4: in a romantic relationship with his roommate and that when

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Speaker 4: he was on campus allegedly committing this act, he sent

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Speaker 4: a message to his roommate telling them to look under

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Speaker 4: his keyboard on his computer, and when the roommate checked

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Speaker 4: under the keyboard, there was a note there that said, quote,

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Speaker 4: I had the opportunity to take out Charlie Kirk and

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Speaker 4: I'm going to take it. And what followed is a

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Speaker 4: series of messages that are allegedly between the roommate and Robinson.

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Speaker 4: You know, the roommate is expressing confusion shock, saying you're joking, right,

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Speaker 4: and Robinson apparently said to them, I'm not joking. The

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Speaker 4: roommate says, you weren't the one who did this, right,

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Speaker 4: Robinson says, I am, I'm sorry. They go back and

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Speaker 4: forth in this exchange, and Robinson apparently is talking about

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Speaker 4: how he attempted to hide his rifle, how police arrested

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Speaker 4: somebody at the shooting who was not him. I'm sure

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Speaker 4: you remember those hours afterwards when police kept saying they

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Speaker 4: had someone in custody, but they were not the suspect

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Speaker 4: in this case. So I think the messages are significant

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Speaker 4: because it clearly shows that Robinson was talking about doing

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Speaker 4: this and explaining some of his thought process behind it,

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Speaker 4: which is that he said, quote, I had enough of

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Speaker 4: his hatred talking about Kirk.

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Speaker 2: And prosecutors say they also have some physical evidence DNA evidence.

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Speaker 4: Right, So, prosecutors say that they have DNA from the

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Speaker 4: trigger of the rifle that they believe was used in

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Speaker 4: the shooting, and the towel that the rifle was found

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Speaker 4: wrapped in when they recovered it from the scene, They

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Speaker 4: say the DNA they collected their matches Robinson.

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Speaker 2: And what about his conversations on Discord? The FBI director

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Speaker 2: said that they're investigating the people who are involved in

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Speaker 2: those conversations.

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Speaker 4: Apparently Robinson was having conversations on Discord, which is a

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Speaker 4: popular chat application that's used for people who play in

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Speaker 4: stream video games, is my understanding of it. But apparently

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Speaker 4: he was having a conversation with a group of friends

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Speaker 4: and making jokes about the shooting and connecting himself to

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Speaker 4: it without admitting anything. And those conversations have been discussed by,

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Speaker 4: as you say, the FBI director and some officials publicly,

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Speaker 4: but they're not actually mentioned in the charging documents that

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Speaker 4: we saw filed from prosecutors. So we have to assume

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Speaker 4: that'll be part of the evidence that they present against

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Speaker 4: him at some point, but it hasn't been part of

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Speaker 4: this initial charging.

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Speaker 2: Prosecutors didn't out and out state a motive, did they,

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Speaker 2: Although in the documents there was a reference to Robinson

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Speaker 2: becoming more pro gae and trans rights oriented.

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Speaker 4: No, so they talked about the political elements of the

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Speaker 4: situation here, but they have said that they're not talking

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Speaker 4: about a motive at this point. They're only talking about

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Speaker 4: the evidence that they have, which seems to include statements

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Speaker 4: from Robinson's mother, who's the one who told investigators that

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Speaker 4: in recent years her son have become more politically engaged

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Speaker 4: with some of these left leaning causes and more pro

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Speaker 4: gae and transwrights focus. That's something that was in the

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Speaker 4: charging documents, and that seems to be significant because his

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Speaker 4: family said that they identify as being more conservative voters.

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Speaker 2: The county prosecutor describe political motivation as an aggravating factor

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Speaker 2: for the capital murder charges, So where does that fit

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Speaker 2: in their case?

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Speaker 4: Prosecutors noted in the charging documents that Robinson intentionally selected

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Speaker 4: Kirk because of his perception regarding Kirk's political expression. So

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Speaker 4: that's the mention that we seen from prosecutors in the

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Speaker 4: formal court documents, that he was motivated by the political expression,

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Speaker 4: But they haven't declared that as the official motive, but

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Speaker 4: they've noted that that was part of why Robinson allegedly

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Speaker 4: decided to shoot Kirk.

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Speaker 2: Do authorities consider him a sole actor here or are

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Speaker 2: they looking for accomplices?

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Speaker 4: So At this point, prosecutors and law enforcements say that

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Speaker 4: they are continuing investigating, they're leaving no stone unturned, but

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Speaker 4: they've declined to answer questions of whether they believe he

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Speaker 4: acted alone or this was a coordinated attempt. And so

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Speaker 4: at this point, nobody else has been named as a

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Speaker 4: suspect or even as somebody who has contributed to this

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Speaker 4: in a different way, and so the investigation continues. It's

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Speaker 4: possible that we see future charges against another individual, but

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Speaker 4: at this point there's no evidence to suggest that they

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Speaker 4: have somebody else in mind.

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Speaker 2: Are the Feds also considering bringing charges against Robinson?

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Speaker 4: I think that's certainly a possibility. Heard people in the

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Speaker 4: Trump administration say that that's something that they're looking at.

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Speaker 4: Prosecutors in Utah County declined to answer questions about that

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Speaker 4: as well. They said that's a decision that's totally up

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Speaker 4: to the federal government if they have charges that they

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Speaker 4: want to pursue at a federal level. Nothing's been filed yet,

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Speaker 4: but you know, that's always possible.

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Speaker 2: Before Robinson was even arrested, Utah's governor said they would

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Speaker 2: pursue the death penalty, and yet on Tuesday, the county

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Speaker 2: prosecutors said he came to the decision to seek the

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Speaker 2: death penalty independently.

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Speaker 4: So there's been a lot of talk about this. The

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Speaker 4: Utah governor came out and said that he was planning

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Speaker 4: to pursue it. President Trump has said you need to

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Speaker 4: pursue the death penalty, and when we heard from the

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Speaker 4: county attorney this week, he said he made this decision

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Speaker 4: independent of any outside influence and that while he spoke

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Speaker 4: with both the governor and the President at least representatives

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Speaker 4: for their respective administrations, he said he didn't receive pressure

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Speaker 4: from them to make that decision and they didn't raise

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Speaker 4: it with him. To be clear that this is something

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Speaker 4: he's pursuing based on the evidence that he has, and

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Speaker 4: part of that is this idea that when the shooting occurred,

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Speaker 4: there were children present and there was also a risk

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Speaker 4: of injury to other people that were there, So it

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Speaker 4: wasn't a straightforward murders where it was just between two individuals.

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Speaker 4: He was firing a shot across a crowd of people,

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Speaker 4: and there was a risk of injury to others who

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Speaker 4: were there.

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Speaker 2: Utah was the first state to carry out an execution

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Speaker 2: after the Supreme Court put the death penalty back on

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Speaker 2: the book, so to speak, how many executions has the

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Speaker 2: state carried out since then?

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Speaker 4: So, Utah is one of twenty three states in the

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Speaker 4: US that currently allows for the death penalty to be

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Speaker 4: imposed on an individual. Compared to other states, they have

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Speaker 4: had less executions. Typically, when you're talking about the modern

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Speaker 4: era of the death penalty, we look at executions since

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Speaker 4: nineteen seventy six, which was when the Supreme Court said

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Speaker 4: that it is legal as a form of sentencing. And

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Speaker 4: so since then, Utah has executed eight people.

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Speaker 2: And Utah is one of a handful of states that

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Speaker 2: allow executions by firing squad.

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Speaker 4: Every state that allows for the death penalty, their primary

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Speaker 4: means of administering it is through legal injection. But Utah

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Speaker 4: is unique in that it's one of just five states

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Speaker 4: that allows for a firing squad to be used in execution.

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Speaker 4: But that's only in the situation where the state can't

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Speaker 4: acquire the drugs that are required for lethal injection.

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Speaker 2: The last time the firing squad was used was in

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Speaker 2: twenty ten, not so long ago. The next hearing for

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Speaker 2: Robinson is on September twenty ninth, so we should learn

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Speaker 2: more then. Thanks, So, much, Madlin. That's Bloomberg Legal reporter

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Speaker 2: Madlein Meckelberg coming up next. An unprecedented number of threats

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Speaker 2: against federal judges. I'm June Grosso, and you're listening to Bloomberg.

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Speaker 5: I went beyond just me. You know, the court staff

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Speaker 5: had to listen to this, and our court received over

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Speaker 5: four hundred vile, threatening, horrible voicemails. I've been on the

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Speaker 5: bench almost fifteen years, and i must say it's the

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Speaker 5: one time that actually shook my faith in the judicial

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Speaker 5: system and the rule of law, in the work with

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Speaker 5: the d Constitution and whatnot.

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Speaker 2: Threats against federal judges have increased dramatically. The US Marshal

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Speaker 2: Service has investigated more than five hundred threats against three

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Speaker 2: hundred and sixty four judges in the last nine months alone.

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Speaker 2: One of those judges is John McConnell, the chief judge

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Speaker 2: for the District of Rhode Island. He got hundreds of

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Speaker 2: death threats after he issued a ruling that blocked President

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Speaker 2: Trump's freeze on federal aid.

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Speaker 5: And I experienced a period of a few months and

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Speaker 5: my family did, of incredible personal harassment, attack and threats

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Speaker 5: that go to the very core of those constitutional principles

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Speaker 5: that we all up poll. I mean I told you

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Speaker 5: about the four or five hundred vile phone calls. There

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Speaker 5: were six credible death threats against my life. Someone was

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Speaker 5: on the dark web searching for my home address because

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Speaker 5: this is a quote. He wanted Smith and Wesson to

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Speaker 5: pay me a visit at my home.

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Speaker 2: In response, on Wednesday, Constitution Day, a group of nearly

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Speaker 2: fifty former federal judges published an open letter warning against

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Speaker 2: attempts to intimidate and pressure judges and threaten judicial independence,

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Speaker 2: saying the Constitution is under attack. Joining me are two

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Speaker 2: of those judges from the Keep Our Republic's Article three coalition,

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Speaker 2: Judge Andre Davis, formerly of the US Court of Appeals

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Speaker 2: for the Fourth Circuit and the District Court of Maryland,

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Speaker 2: and Judge Paul Michelle, formerly of the US Court of

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Speaker 2: Appeals for the Federal Thank you both for being here.

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Speaker 2: Judge Davis, tell us why your group of retired judges

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Speaker 2: decided to publish this letter.

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Speaker 6: We're seeing the same thing, namely, an unprecedented and very

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Speaker 6: dangerous attack on the judiciary, on the third branch of

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Speaker 6: government in the United States, and putting at risk not

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Speaker 6: just the rule of law, and our democracy as we

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Speaker 6: know it, but the actual lives of judges and their

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Speaker 6: family members. And so that's what prompted us to take

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Speaker 6: what I think is an unprecedented step ourselves by coming

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Speaker 6: together as a group of retired judges appointed by presidents

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Speaker 6: from both parties to speak with one voice and call

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Speaker 6: attention to the danger that is not just implicit but

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Speaker 6: unavoidable in the kinds of rhetoric being used and the

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Speaker 6: direct attacks on the judiciary and the rule of law.

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Speaker 6: And so we're speaking with one voice to one educate

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Speaker 6: the public and to speak out in support of our

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Speaker 6: colleagues who work day in and day out to do

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Speaker 6: the people's work in dispensing justice.

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Speaker 2: Judge Michelle, there's a lot of rhetoric against judges coming

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Speaker 2: from the top of the executive branch. As retired judges,

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Speaker 2: what can you do to stop it?

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Speaker 7: Well, my hope is that if the citizenry can be

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Speaker 7: better educated about the proper function and duties of judges,

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Speaker 7: they will see that the threat to judges is really

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Speaker 7: a threat against their own rights being protected by courts.

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Speaker 7: Courts have to be independent of political pressures, whether from

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Speaker 7: the White House or the Justice Department or elsewhere, and

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Speaker 7: that is what's under attack now. And we think that

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Speaker 7: we have unusual credibility because we're so nonpartisan, non political,

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Speaker 7: or you could almost say bipartisan, because we have about

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Speaker 7: half our judges are points by Republican administrations and half

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Speaker 7: by democratic administrations, and we're enormously diverse personally, but as

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Speaker 7: Judge Davis rightly says, we're completely united and being horrified

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Speaker 7: at the status quo, feeling like this is a moment

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Speaker 7: of brave danger for our country, our democracy, and the

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Speaker 7: rule of law. When you come right down to it,

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Speaker 7: at the end of the day, either the written law

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Speaker 7: is going to control or what the executive wants is

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Speaker 7: going to control. Is it the rule of law or

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Speaker 7: the rule of a king. That's what really is at

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Speaker 7: stake here. And we think that the shrill attacks can

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Speaker 7: be discouraged by the media and the citizenry objecting loudly

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Speaker 7: to that kind of language, whether it's from Congress persons

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Speaker 7: calling for impeachment of a judge simply for doing his

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Speaker 7: or her job and ruling on a case, or coming

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Speaker 7: from the White House or the Justice Department. And this

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Speaker 7: is a moment of enormous danger for our country. One

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Speaker 7: of the problems is the citizens have been very much misled.

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Speaker 7: Too many of them are not well versed in understandings

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Speaker 7: of basic constitutional government procedures and structures in our country. So,

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Speaker 7: for example, the most important thing citizens need to realize

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Speaker 7: is the job of a judge is not to promote

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Speaker 7: the agenda of any president or any political party. The

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Speaker 7: job of a judge is strictly to apply the written law,

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Speaker 7: the precedents, and the statutes to the case.

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Speaker 2: The administration has been running to the Supreme Court when

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Speaker 2: lower courts rule against them, and the Supreme Court has

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Speaker 2: sided with the Trump administration in the vast majority of

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Speaker 2: emergency cases decided since January, and more than a dozen

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Speaker 2: times the Court has lifted an injunction issued by a

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Speaker 2: trial judge who said the administration was probably acting illegally.

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Speaker 2: And the Court has sometimes written a few sentences in explanation,

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Speaker 2: but sometimes none. And I'm wondering if that gives the

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Speaker 2: average person a distorative view of what the lower courts

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Speaker 2: are doing in limiting the administration and what the Supreme

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Speaker 2: Court is doing in allowing the administration to move forward.

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Speaker 6: Well, you know, you put your finger on something that's very,

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Speaker 6: very frankly disheartening about the current legal landscape. The point

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Speaker 6: is that every federal district judge, without exception, who has

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Speaker 6: ruled against some policy of this administration, was acting in

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Speaker 6: absolute good faith in his and her attempt to interpret

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Speaker 6: not just statutory law, not just constitutional law, but the

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Speaker 6: Supreme Court's own precedence. That's what the federal district judges

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Speaker 6: around the country have been doing for the last seven

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Speaker 6: or eight months. And in those instances, I would even

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Speaker 6: say most of those instances where the administration has appealed

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Speaker 6: those adverse decisions by federal district judges, in most instances,

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Speaker 6: the federal appellate courts have largely left in place the

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Speaker 6: orders of the district judges. So what we see in

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Speaker 6: the so called shadow docket is that the Supreme Court

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Speaker 6: is reversing the decisions in large part without explaining how

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Speaker 6: or why those decisions are being reversed, And so that leaves,

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Speaker 6: you know, in the mind of many lay people this

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Speaker 6: very distorted view. Somehow, that the lower federal courts, the

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Speaker 6: district judges, who hear from the parties, hear from the lawyers,

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Speaker 6: consider the evidence, make a ruling which is then left

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Speaker 6: in place by the intermediate appellate Court and the matter

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Speaker 6: gets up to the Supreme Court, and the Supreme Court

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Speaker 6: in one or two sentences as you say, reverse that decision. Well,

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Speaker 6: a lot of people you know on the street, not

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Speaker 6: versed in the law, somehow are persuaded that the lower

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Speaker 6: court judges are somehow against the administration, and as all

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Speaker 6: the judges are doing is trying their best to apply

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Speaker 6: the law. And so it this serves justice, in all honesty,

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Speaker 6: to leave in the minds of people that somehow the

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Speaker 6: Supreme Court is protecting this administration from lower court judges,

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Speaker 6: and that just feeds into this misinformation, this distorted view

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Speaker 6: that so many in high office continue to create, that

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Speaker 6: the judiciary is full of lunatics and activists, and nothing

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Speaker 6: could be further from the truth. So hopefully, in the

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Speaker 6: fullness of time, hopefully not too far in the future,

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Speaker 6: this landscape that's been created through the procedural processes that

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Speaker 6: have been employed will see the light of day. And

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Speaker 6: one of the things that the Article to re Coalition

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Speaker 6: is trying so desperately to do to continue to educate

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Speaker 6: people about the role of judges and how reason judgment

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Speaker 6: is the coin of the realm when it comes to

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Speaker 6: the judiciary.

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Speaker 2: And Judge Michelle. Justice Neil Gorsuch recently admonished federal judges

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Speaker 2: not to defy the Supreme Court, saying they weren't following

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Speaker 2: precedent from the emergency docket, and Boston federal judge Allison

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Speaker 2: Burrows reacted to that and said that it was unhelpful

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Speaker 2: and unnecessary to criticize district courts that are working to

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Speaker 2: make sense of Supreme Court orders that are not quote,

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Speaker 2: models of clarity, and another federal judge, William Young, said

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Speaker 2: he didn't understand that orders on the emergency docket were precedent.

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Speaker 2: He said, I stand corrected. I mean, what do you

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Speaker 2: think the impact is of a Supreme Court justice calling

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Speaker 2: out federal judges.

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Speaker 7: Well, One complexity that the public doesn't understand, but it's

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Speaker 7: rather important, is that nearly all of the injunctions that

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Speaker 7: have been issued by the district judges around the country,

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Speaker 7: and these hundreds of suits challenging Trump administration actions are

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Speaker 7: very preliminary. And that's because there hasn't yet been a trial,

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Speaker 7: there hasn't yet been a final resolution of disputed facts.

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Speaker 7: The district judge is making a prediction, a judgment that

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Speaker 7: likely the challenger will win over the administration's defense, but

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Speaker 7: it's a speculative judgment. I'm not defensive of the Supreme

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Speaker 7: Court and the extent to which they've intervened, but it

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Speaker 7: is important to recognize that they aren't saying the administration

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Speaker 7: was right and the district judge was wrong. What they're

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Speaker 7: really He's saying is we don't know for sure yet,

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Speaker 7: so we're going to delay a remedy until there's been

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Speaker 7: actual fact findings and what lawyers call a final judgment.

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Speaker 7: But beyond that, it is certainly true that some of

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Speaker 7: these orders have no reasoning coming down from the Supreme Court.

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Speaker 7: Others are very terse and sometimes unclear. I don't think

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Speaker 7: it's helpful for Judge Burrows and the Supreme Court justices

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Speaker 7: to get in a public shouting match, but she has

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Speaker 7: a point. The district judges are striving to apply the

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Speaker 7: law faithfully and impartially, and I think usually they get

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Speaker 7: it right, and particularly where they're upheld, as has been

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Speaker 7: true in a number of these cases by the Court

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Speaker 7: of Appeals above them, the Supreme Court ought to be

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Speaker 7: very hesitant to jump in and overrule both of the

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Speaker 7: so called lower courts. But in terms of the admonition

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Speaker 7: from judge courts, I don't know what he's talking about.

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Speaker 7: I don't see any judge, including Judge William Young in Boston,

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Speaker 7: as being defiant, as refusing to follow some clear direction

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Speaker 7: from the Supreme Court. So I'm not quite sure what

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Speaker 7: he's referring to. But it's not very helpful, and it's

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Speaker 7: a further demoralization of the district judges, who do ninety

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Speaker 7: percent of the work in the judicial system and who

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Speaker 7: should be respected and supported by the public and by

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Speaker 7: the rest of the judicial establishment and not pilloried as

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Speaker 7: if they're rebellious children or something because they're not.

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Speaker 2: Thank you both so much for joining me today. That's

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Speaker 2: Judge Paul Michelle and Judge Andre Davis coming up next

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Speaker 2: on the Bloomberg Law Show. Do lawsuits over tribal sacred

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Speaker 2: sites show unequal protection for religious rights? I'm June Grosso.

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Speaker 2: When you're listening to Bloomberg.

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Speaker 8: On him on Itaiva.

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Speaker 5: God.

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Speaker 2: For centuries, Western Napat have worshiped at Oak Flat, a

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Speaker 2: seven square mile sacred tribal site in Arizona where tribal

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Speaker 2: members hold religious ceremonies. They say can't take place anywhere else.

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Speaker 8: That is what keeps us who we are. That is

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Speaker 8: the thing. The spiritual connection to Nakaosan, to our mother Earth,

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Speaker 8: to Yosin the Creator, to chicha Il, to Sisland, Chassison,

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Speaker 8: into all sacred sites as indigenous people is what keeps

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Speaker 8: us here today.

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Speaker 2: For example, there's the Sunrise Ceremony, a three day coming

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Speaker 2: of aid ceremony for Apache girls that requires gathering certain

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Speaker 2: plans at Oak Flat and being painted with white clay

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Speaker 2: from its ground. For years, Apache Stronghold, a nonprofit coalition

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Speaker 2: of tribal members, has been trying to stop the federal

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Speaker 2: government from transferring the land to a foreign copper mining

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Speaker 2: company whose excavation would destroy the site. The Ninth Circuit

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Speaker 2: has rejected the tribal group's attempts to protect flat on

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Speaker 2: religious grounds, and the Supreme Court has refused to take

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Speaker 2: the case. A group of Apache women has filed a

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Speaker 2: new suit based on a June decision by the Supreme

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Speaker 2: Court that expanded the religious rights of public school parents.

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Speaker 2: It all brings up the question of whether tribal religious

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Speaker 2: freedom claims are getting equal treatment. A dissent by Justice

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Speaker 2: Neil Gorsuch seems to suggest they're not. My guest is

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Speaker 2: Heather white Man runs him director of the Tribal Justice

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Speaker 2: Clinic at the University of Arizona. Heather, can you give

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Speaker 2: us the background of this legal fight?

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Speaker 9: In twenty fourteen, Congress passed the Southern Arizona Land Exchange

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Speaker 9: and Conservation app as part of a much larger Defense

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Speaker 9: authorization bill that you know, was really so voluminous that

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Speaker 9: it didn't have a whole lot of review and people

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Speaker 9: weren't paying super close attention to some of the smaller

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Speaker 9: parts of that much larger piece of legislation. And because

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Speaker 9: of that, this particular build was able to make its

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Speaker 9: way through congressional ratification and was signed into law by

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Speaker 9: President Obama. This particular initiative had been a standalone buil

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Speaker 9: numerous times before and had never moved forward, never been

440
00:27:18,040 --> 00:27:21,359
Speaker 9: able to get through Congress. What the bill does is

441
00:27:21,440 --> 00:27:24,800
Speaker 9: it mandates the transfer of FOREGT Service lands to a

442
00:27:24,840 --> 00:27:29,240
Speaker 9: private company Resolution Copper, for the purpose of mining a

443
00:27:29,400 --> 00:27:33,200
Speaker 9: substantial deposit of copper that underlies the surface of that land.

444
00:27:33,600 --> 00:27:37,040
Speaker 9: The reason why that's been opposed for so many years

445
00:27:37,480 --> 00:27:40,760
Speaker 9: is because the land on the surface is the site

446
00:27:40,920 --> 00:27:46,399
Speaker 9: of very significant, longstanding religious practices by the Western Apache people,

447
00:27:46,760 --> 00:27:50,480
Speaker 9: and so the mining of the copper will result in

448
00:27:50,560 --> 00:27:53,920
Speaker 9: the complete destruction of a substantial area of the surface land.

449
00:27:53,960 --> 00:27:57,200
Speaker 9: It will subside, it will create a very large crater,

450
00:27:57,640 --> 00:28:00,240
Speaker 9: it won't be usable any longer. For the purpose is

451
00:28:00,280 --> 00:28:03,440
Speaker 9: that the Apache people have maintained on that land for

452
00:28:03,640 --> 00:28:07,520
Speaker 9: hundreds and hundreds of years, if not longer. And so that,

453
00:28:08,040 --> 00:28:12,320
Speaker 9: according to the Apache people, is a substantial burden on

454
00:28:12,359 --> 00:28:15,360
Speaker 9: their religious practice. And common sense would I think lead

455
00:28:15,400 --> 00:28:17,879
Speaker 9: anybody to a similar result that if you destroy the

456
00:28:17,960 --> 00:28:21,880
Speaker 9: land that is absolutely necessary for the practice of a religion,

457
00:28:22,320 --> 00:28:24,840
Speaker 9: that's a burden. So that's the conflict in essence.

458
00:28:25,240 --> 00:28:29,439
Speaker 2: Apache stronghold says that Oak Flat is the only place

459
00:28:29,480 --> 00:28:33,920
Speaker 2: where certain religious ceremonies can take place. Tell us about

460
00:28:33,920 --> 00:28:36,760
Speaker 2: the sunrise ceremony, which is often mentioned.

461
00:28:37,119 --> 00:28:40,440
Speaker 9: Oak Flatt is the site where female members of the

462
00:28:40,480 --> 00:28:43,800
Speaker 9: San Carlos Apache tribe have their coming of age ceremonies.

463
00:28:43,800 --> 00:28:45,680
Speaker 9: So it's where a girl becomes a woman, and there's

464
00:28:45,720 --> 00:28:48,880
Speaker 9: a specific ceremony that takes place when a girl becomes

465
00:28:48,920 --> 00:28:53,400
Speaker 9: a woman. It's a very intensive, multi date ceremony. It's

466
00:28:53,400 --> 00:28:57,360
Speaker 9: incredibly onerous physically, there's a lot of prayer, a whole

467
00:28:57,360 --> 00:29:00,680
Speaker 9: community comes together to help bring a girl in the womanhood.

468
00:29:00,920 --> 00:29:03,120
Speaker 9: It's the necessity for a woman to go through that

469
00:29:03,200 --> 00:29:06,960
Speaker 9: ceremony to fully realize her identity as an attachy woman.

470
00:29:07,400 --> 00:29:10,440
Speaker 9: So it's incredibly significant. It's one of the most important

471
00:29:10,440 --> 00:29:12,960
Speaker 9: things that happens in any woman's life in that culture.

472
00:29:13,480 --> 00:29:17,720
Speaker 2: So the nonprofit Tribal Rights Group suit to stop the

473
00:29:17,920 --> 00:29:22,560
Speaker 2: land transfer on religious grounds under the First Amendment and

474
00:29:22,680 --> 00:29:27,000
Speaker 2: the Religious Freedom Restoration Act, they lost at the Ninth Circuit.

475
00:29:27,680 --> 00:29:30,720
Speaker 2: Will you explain why the Ninth Circuit found that the

476
00:29:30,840 --> 00:29:37,280
Speaker 2: land transfer couldn't be considered a substantial burden on religious exercise.

477
00:29:37,760 --> 00:29:40,760
Speaker 9: So the Ninth Circuit opinion it's a tough one to

478
00:29:40,920 --> 00:29:43,200
Speaker 9: parse out, and so there are a couple of different

479
00:29:43,200 --> 00:29:47,200
Speaker 9: things that happened there. First, the court ruled that there

480
00:29:47,280 --> 00:29:51,280
Speaker 9: was no substantial burden because there's not coercion. The Ninth

481
00:29:51,280 --> 00:29:56,000
Speaker 9: Circuit has a very narrow definition of substantial burden and

482
00:29:56,120 --> 00:30:00,640
Speaker 9: of coercion. So they have ruled that in the absence

483
00:30:00,680 --> 00:30:04,160
Speaker 9: of withholding of a benefit because of a religious practice

484
00:30:04,480 --> 00:30:08,480
Speaker 9: or a punative or punishment type of provision in a

485
00:30:08,560 --> 00:30:12,520
Speaker 9: generally applicable federal law, that is triggered by what would

486
00:30:12,520 --> 00:30:15,920
Speaker 9: otherwise be, you know, a basic exercise of a religious

487
00:30:15,920 --> 00:30:19,880
Speaker 9: practice that there's no coercion, that results in no substantial burden.

488
00:30:20,520 --> 00:30:23,800
Speaker 2: Will you tell us more about how Native American religious

489
00:30:23,840 --> 00:30:29,840
Speaker 2: practices require relationships with specific locations and how that played

490
00:30:29,960 --> 00:30:32,040
Speaker 2: into the arguments.

491
00:30:31,440 --> 00:30:34,280
Speaker 9: And that's the second heart of the Ninth Circuit on

492
00:30:34,400 --> 00:30:38,600
Speaker 9: Bonk holding. So the first is applying this really narrow standard,

493
00:30:39,080 --> 00:30:43,160
Speaker 9: really restrictive standard for finding a substantial burden. And second,

494
00:30:43,360 --> 00:30:46,040
Speaker 9: a different majority of the Ninth Circuit then held that

495
00:30:46,520 --> 00:30:51,280
Speaker 9: where there's a federal property management initiative, that cannot burden

496
00:30:51,640 --> 00:30:55,400
Speaker 9: religious freedom rights. You know, under the Ninth Circuit ruling

497
00:30:55,880 --> 00:30:59,000
Speaker 9: were limited from ever bringing any kind of claim, then

498
00:30:59,360 --> 00:31:02,840
Speaker 9: saying that affect er land management decision substantially burdens our

499
00:31:02,880 --> 00:31:06,680
Speaker 9: free exercise right because it's federal property. The federal government

500
00:31:06,720 --> 00:31:08,320
Speaker 9: has a right to do what it wants with its

501
00:31:08,320 --> 00:31:10,640
Speaker 9: own land. And that just doesn't seem right to me

502
00:31:10,800 --> 00:31:14,240
Speaker 9: that we can't limit the federal government from violating the

503
00:31:14,240 --> 00:31:17,760
Speaker 9: First Amendment because the federal government is the landowner. So

504
00:31:17,840 --> 00:31:21,400
Speaker 9: the analysis under the Ninth Circuit approach is really that

505
00:31:21,720 --> 00:31:25,640
Speaker 9: the relief thought to limit our ability to ever find

506
00:31:25,680 --> 00:31:29,280
Speaker 9: an injury to people's First Amendment right. So we can't

507
00:31:29,280 --> 00:31:31,640
Speaker 9: find a burden because the relief that we're seeking to

508
00:31:31,760 --> 00:31:33,760
Speaker 9: limit what the federal government is a landowner can do

509
00:31:33,800 --> 00:31:36,400
Speaker 9: with its own property. You know, it certainly presents a

510
00:31:36,440 --> 00:31:40,680
Speaker 9: real challenge to any Native American person whose religious beliefs

511
00:31:40,720 --> 00:31:43,520
Speaker 9: depend on a relationship with a specific land base, and

512
00:31:43,640 --> 00:31:46,680
Speaker 9: many of ours do. Many of us have religions and

513
00:31:46,720 --> 00:31:51,280
Speaker 9: religious practices and beliefs that requires specific things to happen

514
00:31:51,320 --> 00:31:54,960
Speaker 9: in specific places, often at specific time, and that is

515
00:31:55,000 --> 00:31:57,840
Speaker 9: our sincerely held religious belief and how we practice it.

516
00:31:58,120 --> 00:32:02,000
Speaker 9: So it renders Native American religion belief virtually unprotectable in

517
00:32:02,080 --> 00:32:05,120
Speaker 9: many instances under the way that the case law has developed.

518
00:32:05,200 --> 00:32:07,200
Speaker 9: And I just think that can't be right. And I

519
00:32:07,200 --> 00:32:11,400
Speaker 9: hope most Americans would consider that situation and feel similarly

520
00:32:11,480 --> 00:32:14,160
Speaker 9: that that simply cannot be correct, and that cannot be

521
00:32:14,240 --> 00:32:17,400
Speaker 9: consistent with our constitution or what our founders intended.

522
00:32:17,680 --> 00:32:21,560
Speaker 2: Apache Stronghold took the case up to the Supreme Court,

523
00:32:21,760 --> 00:32:25,200
Speaker 2: but the Court refused to take the case. However, Justice

524
00:32:25,240 --> 00:32:30,240
Speaker 2: Neil Gorsitch wrote a powerful dissent joined by Justice Clarence Thomas.

525
00:32:30,640 --> 00:32:33,080
Speaker 2: He said it was a grave mistake for the Court

526
00:32:33,200 --> 00:32:36,320
Speaker 2: not to take the case. Quote, just imagine if the

527
00:32:36,360 --> 00:32:40,400
Speaker 2: government sought to demolish a historic cathedral on so questionable

528
00:32:40,440 --> 00:32:43,040
Speaker 2: a chain of legal reasoning. I have no doubt that

529
00:32:43,080 --> 00:32:46,040
Speaker 2: we would find that case worth our time. Face with

530
00:32:46,080 --> 00:32:49,720
Speaker 2: the government's plan to destroy an ancient side of tribal worship.

531
00:32:50,120 --> 00:32:53,400
Speaker 2: We owe the Apaches no less. And this is a

532
00:32:53,400 --> 00:32:58,120
Speaker 2: Supreme Court that has expanded religious rights. Do you see

533
00:32:58,120 --> 00:33:01,680
Speaker 2: a difference with the way tribal will religion has been treated.

534
00:33:02,120 --> 00:33:04,400
Speaker 9: I see a difference. A lot of people see a difference.

535
00:33:04,560 --> 00:33:06,960
Speaker 9: You know, Justice Court. Such is Dissent is a really

536
00:33:06,960 --> 00:33:10,000
Speaker 9: great read. I'd encourage anybody interested in these issues to

537
00:33:10,080 --> 00:33:13,160
Speaker 9: read it, and I think it recognizes that, like I

538
00:33:13,280 --> 00:33:16,880
Speaker 9: was saying earlier, the way that these cases are evaluated

539
00:33:16,920 --> 00:33:19,520
Speaker 9: and the outcomes that we keep seeing should be a

540
00:33:19,520 --> 00:33:23,440
Speaker 9: concern to every American. Every American citizen should worry about

541
00:33:23,760 --> 00:33:26,880
Speaker 9: the viability of their free exercise right. If the Court

542
00:33:26,920 --> 00:33:31,400
Speaker 9: can condone the complete annihilation of a place of worship

543
00:33:31,440 --> 00:33:35,320
Speaker 9: that is absolutely central to the perpetuation of that religion,

544
00:33:35,600 --> 00:33:38,920
Speaker 9: they can limit anybody's religious exercise right. So this is

545
00:33:38,960 --> 00:33:41,920
Speaker 9: a threat to every American religious liberty, and it is

546
00:33:41,960 --> 00:33:44,160
Speaker 9: something that I think we should all be concerned about that.

547
00:33:44,280 --> 00:33:46,480
Speaker 9: You know, we need to work through these issues and

548
00:33:46,520 --> 00:33:49,800
Speaker 9: we need to find solutions that will bring us different results.

549
00:33:49,880 --> 00:33:54,840
Speaker 2: Ultimately, the Supreme Court in June expanded the religious rights

550
00:33:54,880 --> 00:33:58,240
Speaker 2: of public school parents, ruling that public school parents have

551
00:33:58,360 --> 00:34:02,280
Speaker 2: the right to opt their children out of classroom lessons

552
00:34:02,680 --> 00:34:05,959
Speaker 2: that intrude on their religious beliefs. In that case, the

553
00:34:06,000 --> 00:34:10,720
Speaker 2: Mackmood case, it was the reading of LGBTQ friendly books

554
00:34:10,719 --> 00:34:14,560
Speaker 2: in the classroom that parents objected to. How does that

555
00:34:14,680 --> 00:34:17,480
Speaker 2: case affect Apache Strongholds case.

556
00:34:17,840 --> 00:34:22,400
Speaker 9: Soon after the denial of CIRT, Apache Stronghold attorneys filed

557
00:34:22,440 --> 00:34:25,880
Speaker 9: a petition for basically a reconsideration of the thirt petition

558
00:34:26,320 --> 00:34:30,520
Speaker 9: asking the Supreme Court to grant Scherai remand the case

559
00:34:30,600 --> 00:34:34,040
Speaker 9: back to the Ninth Circuit and provide clear direction to

560
00:34:34,080 --> 00:34:37,920
Speaker 9: the Ninth Circuit on how to review the legal arguments

561
00:34:38,000 --> 00:34:40,600
Speaker 9: going forward in a new a new Ninth Circuit review.

562
00:34:40,840 --> 00:34:44,200
Speaker 9: Part of the reason for that is because intervening precedent

563
00:34:44,880 --> 00:34:49,480
Speaker 9: was decided after the denial of Surcherai. The Apache Strongholds

564
00:34:49,520 --> 00:34:55,160
Speaker 9: petition for reconsideration relies heavily on the intervening decision in

565
00:34:55,239 --> 00:35:01,280
Speaker 9: Macmood because there are similar impacts of the government policy

566
00:35:01,320 --> 00:35:04,640
Speaker 9: that's challenged there. In my Mood, we had the Supreme

567
00:35:04,680 --> 00:35:10,280
Speaker 9: Court recognize very very vehemently that when we limit parents'

568
00:35:10,280 --> 00:35:13,800
Speaker 9: abilities to bring up their children, to raise their children

569
00:35:13,920 --> 00:35:16,680
Speaker 9: in ways that are consistent with their religious beliefs, we

570
00:35:16,719 --> 00:35:19,960
Speaker 9: are violating their First Amendment rights. That is a substantial burden,

571
00:35:20,560 --> 00:35:23,200
Speaker 9: and it has to go through the relevant analysis for

572
00:35:23,600 --> 00:35:26,600
Speaker 9: when and how such burdens are limited and when they're

573
00:35:26,640 --> 00:35:29,040
Speaker 9: allowed to go forward. That type of test has not

574
00:35:29,120 --> 00:35:33,040
Speaker 9: been applied yet to the challenged law, to the Land

575
00:35:33,080 --> 00:35:36,239
Speaker 9: Exchange Act. In Apache Stronghold, what we've been through so

576
00:35:36,320 --> 00:35:39,319
Speaker 9: far is the preliminary injunction analysis, so we haven't had

577
00:35:39,360 --> 00:35:42,720
Speaker 9: the full review of an application of the relevant legal

578
00:35:42,760 --> 00:35:44,840
Speaker 9: standards for what's permissible, when.

579
00:35:44,680 --> 00:35:47,520
Speaker 2: And how, And tell us about the new case that's

580
00:35:47,520 --> 00:35:49,920
Speaker 2: been filed by Apache Women.

581
00:35:50,320 --> 00:35:53,600
Speaker 9: The new case that has been filed by a group

582
00:35:53,800 --> 00:35:58,160
Speaker 9: of Apache women, mothers and daughters that really found it

583
00:35:58,400 --> 00:36:02,640
Speaker 9: claims in similar issues and similar analysis to what the

584
00:36:02,640 --> 00:36:07,200
Speaker 9: Supreme Court decided in Mahmoud. The Land Exchange app will

585
00:36:07,280 --> 00:36:12,000
Speaker 9: burden through free exercise rights of especially Aptchy women, because

586
00:36:12,320 --> 00:36:16,920
Speaker 9: it's limiting APACHE women from having the ability to become

587
00:36:16,960 --> 00:36:19,920
Speaker 9: women in ways that are consistent with their religious beliefs.

588
00:36:19,920 --> 00:36:23,960
Speaker 9: It's limiting APACHE mothers from bringing their daughters into womanhood

589
00:36:24,360 --> 00:36:28,279
Speaker 9: as required by their religious beliefs. And so there's, you know,

590
00:36:28,320 --> 00:36:32,600
Speaker 9: a real consistency with the impact and the burden on

591
00:36:32,719 --> 00:36:35,480
Speaker 9: a religious freedom interest. There as what we saw the

592
00:36:35,480 --> 00:36:37,960
Speaker 9: Supreme Court limit in Mahmood, and.

593
00:36:37,920 --> 00:36:40,920
Speaker 2: The land transfer was stopped for the time being.

594
00:36:41,200 --> 00:36:45,920
Speaker 9: The Ninth Circuit Court of Appeal issued an emergency injunction

595
00:36:46,040 --> 00:36:49,200
Speaker 9: basically preventing the land transfer. The land transfer was about

596
00:36:49,239 --> 00:36:52,520
Speaker 9: to take place, put the cases on an expedited briefing schedule,

597
00:36:52,840 --> 00:36:55,120
Speaker 9: and so we're now in the middle of that briefing

598
00:36:55,160 --> 00:36:57,759
Speaker 9: to the Ninth Circuit or a argument will probably take

599
00:36:57,800 --> 00:37:00,640
Speaker 9: place early this fall and will see how the Ninth

600
00:37:00,719 --> 00:37:03,560
Speaker 9: Circuit resolves this issue. So yeah, there's still a lot

601
00:37:03,600 --> 00:37:08,080
Speaker 9: of activity surrounding various parties claims in relation to the

602
00:37:08,120 --> 00:37:10,200
Speaker 9: final disposition of Oak Flat.

603
00:37:10,280 --> 00:37:13,080
Speaker 2: We'll certainly follow the oral arguments when they take place.

604
00:37:13,200 --> 00:37:16,080
Speaker 2: Thanks so much, Heather. That's Heather white Man runs him

605
00:37:16,120 --> 00:37:20,040
Speaker 2: Director of the Tribal Justice Clinic at the University of Arizona.

606
00:37:20,280 --> 00:37:22,600
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

607
00:37:22,960 --> 00:37:25,279
Speaker 2: Remember you can always get the latest legal news on

608
00:37:25,320 --> 00:37:29,640
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

609
00:37:29,800 --> 00:37:34,839
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,

610
00:37:35,239 --> 00:37:37,840
Speaker 2: and remember to tune into The Bloomberg Law Show every

611
00:37:37,880 --> 00:37:41,800
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

612
00:37:41,920 --> 00:37:43,520
Speaker 2: and you're listening to Bloomberg