1 00:00:03,120 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio. 2 00:00:09,520 --> 00:00:12,920 Speaker 1: For decades, the Navajo Nation has been fighting in court 3 00:00:13,080 --> 00:00:16,880 Speaker 1: for water. Thirty percent of people on the largest Indian 4 00:00:16,920 --> 00:00:21,160 Speaker 1: reservation in the country live without running water. The Navajo 5 00:00:21,280 --> 00:00:24,279 Speaker 1: claims the US government is on the hook to help 6 00:00:24,280 --> 00:00:28,080 Speaker 1: it access water under a treaty dating back to eighteen 7 00:00:28,200 --> 00:00:32,280 Speaker 1: forty nine, which returned the tribe to its ancestral lands 8 00:00:32,600 --> 00:00:35,920 Speaker 1: and promised to provide them with a quote permanent home. 9 00:00:36,440 --> 00:00:38,960 Speaker 1: And this week the nation took its case to the 10 00:00:39,000 --> 00:00:43,880 Speaker 1: Supreme Court, where three liberal juices and conservative Justice Neil 11 00:00:43,960 --> 00:00:49,040 Speaker 1: Gorsich seems sympathetic to its claims. Here are Jounstices Gorsch 12 00:00:49,120 --> 00:00:51,879 Speaker 1: and Elena Kagan. Could I bring a good breach of 13 00:00:51,920 --> 00:00:55,680 Speaker 1: state contract claim for someone who promised me a permanent home, 14 00:00:55,800 --> 00:00:58,880 Speaker 1: the right to conduct agriculture and raise animals if it 15 00:00:58,920 --> 00:01:02,440 Speaker 1: turns out it's the Sahara Desert. I don't think you 16 00:01:02,520 --> 00:01:04,680 Speaker 1: would be able to bring a breach of contract claim. 17 00:01:05,120 --> 00:01:08,120 Speaker 1: I think you don't think that's a breach of good 18 00:01:08,160 --> 00:01:12,959 Speaker 1: faith and fair dealing. And I guess I don't understand 19 00:01:13,080 --> 00:01:16,640 Speaker 1: if the treaty promises water where you get the idea 20 00:01:16,720 --> 00:01:20,640 Speaker 1: that that is unenforceable. Four of the other conservative justice 21 00:01:20,760 --> 00:01:23,920 Speaker 1: is including the Chief Justice, appeared to side with the 22 00:01:24,000 --> 00:01:29,560 Speaker 1: Biden administration. Why wasn't the water mentioned? As your argument 23 00:01:29,560 --> 00:01:33,160 Speaker 1: now is it's necessarily implicit, but the other things were 24 00:01:33,200 --> 00:01:35,360 Speaker 1: spelled out. Wouldn't you have spelled out the water at 25 00:01:35,360 --> 00:01:39,160 Speaker 1: the time? Leaving Justice Amy Coney Barrett as the possible 26 00:01:39,440 --> 00:01:43,240 Speaker 1: decisive vote in the case. Joining me is Ezra Rosser, 27 00:01:43,480 --> 00:01:47,400 Speaker 1: Professor of Law at the American University Washington College of Law. 28 00:01:48,160 --> 00:01:51,600 Speaker 1: It appears that the water situation for the Navajo nation 29 00:01:51,840 --> 00:01:55,760 Speaker 1: is really bleak. Almost a third of houses don't have 30 00:01:55,880 --> 00:02:00,200 Speaker 1: running water. So how bad is it? It's been bad, 31 00:02:00,280 --> 00:02:02,760 Speaker 1: and it is bad. I think one of the positives 32 00:02:02,760 --> 00:02:04,840 Speaker 1: of this case is that it brings some attention to 33 00:02:05,120 --> 00:02:07,480 Speaker 1: something that doesn't usually get much attention at all. But 34 00:02:07,960 --> 00:02:10,720 Speaker 1: my view on it, outside of the law, this would 35 00:02:10,760 --> 00:02:13,639 Speaker 1: not be tolerated for any other group in America. It's 36 00:02:13,680 --> 00:02:16,519 Speaker 1: just because their Navajo that we are okay with people 37 00:02:16,560 --> 00:02:21,200 Speaker 1: living with such lack of basic conservices. Does this lawsuit 38 00:02:21,880 --> 00:02:26,680 Speaker 1: depend on treaty in eighteen sixty eight, so it depends 39 00:02:26,680 --> 00:02:29,799 Speaker 1: how you interpret it. I think one answer would be 40 00:02:30,440 --> 00:02:35,240 Speaker 1: the treaty set stop land and under Winters, which is 41 00:02:35,240 --> 00:02:38,680 Speaker 1: this case that recognized the rights of tribes to water 42 00:02:38,840 --> 00:02:42,200 Speaker 1: to fulfill the purposes of the reservation. That should be enough. 43 00:02:42,560 --> 00:02:46,520 Speaker 1: And so there's certainly a claim that the treaty, combined 44 00:02:46,560 --> 00:02:50,880 Speaker 1: with the Winters doctrine, should provide the tribe a lot 45 00:02:50,919 --> 00:02:54,240 Speaker 1: more rights than they've been given so far. So what's 46 00:02:54,280 --> 00:02:58,080 Speaker 1: the argument of the federal government and the others involved, 47 00:02:58,160 --> 00:03:01,560 Speaker 1: Why shouldn't they have access to this water? Well, technically 48 00:03:01,639 --> 00:03:04,760 Speaker 1: it's not about access, and even the tribes position is 49 00:03:04,800 --> 00:03:07,400 Speaker 1: not about access at this point. We long term, of course, 50 00:03:07,400 --> 00:03:10,320 Speaker 1: it's about actual water. But at this point the case 51 00:03:10,440 --> 00:03:13,840 Speaker 1: is about is the United States even doing the bare 52 00:03:13,919 --> 00:03:17,040 Speaker 1: minimum to figure out how much water the tribe should have? 53 00:03:17,280 --> 00:03:19,800 Speaker 1: And the tribes position, of course is no, they haven't 54 00:03:19,800 --> 00:03:24,120 Speaker 1: done anything. The US's position is, and I think, even 55 00:03:24,280 --> 00:03:27,080 Speaker 1: reading it fairly to them, it is that we don't 56 00:03:27,120 --> 00:03:29,280 Speaker 1: have to It's not a yes, we've done enough. It's 57 00:03:29,320 --> 00:03:31,959 Speaker 1: that we don't have to do enough, meaning that there's 58 00:03:32,040 --> 00:03:35,760 Speaker 1: no enforcement that the tribe has to force the United 59 00:03:35,800 --> 00:03:39,920 Speaker 1: States to deal with and protect the tribe's winter's rights. 60 00:03:39,960 --> 00:03:42,840 Speaker 1: In this day and age, that does seem astonishing that 61 00:03:42,920 --> 00:03:45,840 Speaker 1: the federal government would say that. I mean in defense 62 00:03:45,880 --> 00:03:48,240 Speaker 1: of the federal government position, which, of course, as you know, 63 00:03:48,280 --> 00:03:50,440 Speaker 1: I wrote a brief on the other side saying that 64 00:03:50,480 --> 00:03:52,880 Speaker 1: it should be enforceable. But there have been a number 65 00:03:52,920 --> 00:03:56,520 Speaker 1: of Supreme Court cases that have come out against Indian 66 00:03:56,600 --> 00:04:00,200 Speaker 1: tribes saying that the United States does not have an 67 00:04:00,320 --> 00:04:05,120 Speaker 1: enforceable obligation or trust responsibility, and so if you read 68 00:04:05,200 --> 00:04:09,600 Speaker 1: those in a very broadway, then they might limit the 69 00:04:09,600 --> 00:04:13,080 Speaker 1: ability of tribes to enforce their rights against the United States. 70 00:04:13,160 --> 00:04:17,040 Speaker 1: Could tell us briefly what the issue is before the justices. 71 00:04:17,600 --> 00:04:22,960 Speaker 1: So the issue is the enforceability of the Winter's right. 72 00:04:23,279 --> 00:04:25,880 Speaker 1: I think there is a broadway to describe it. So 73 00:04:26,360 --> 00:04:30,040 Speaker 1: the United States government, because of the conquest of tribes, 74 00:04:30,240 --> 00:04:33,560 Speaker 1: has long recognized that it has a trust responsibility, and 75 00:04:33,600 --> 00:04:36,560 Speaker 1: sometimes it's praised in terms of a guardian ward relationship. 76 00:04:36,760 --> 00:04:39,880 Speaker 1: But the United States government, for example, on land, the 77 00:04:40,040 --> 00:04:43,080 Speaker 1: land is held in trust for the tribes, and both 78 00:04:43,120 --> 00:04:46,080 Speaker 1: the United States and tribes are the owner of the lane. 79 00:04:46,720 --> 00:04:49,200 Speaker 1: And if you hold something in trust, then you're supposed 80 00:04:49,240 --> 00:04:51,599 Speaker 1: to have obligations to make sure you live up to 81 00:04:51,640 --> 00:04:55,279 Speaker 1: the rights of the beneficiary or the party you're supposedly supporting. 82 00:04:55,760 --> 00:04:59,400 Speaker 1: And so it's the tribes position that the United States 83 00:04:59,400 --> 00:05:02,159 Speaker 1: has not been doing that, and that at the very 84 00:05:02,160 --> 00:05:05,280 Speaker 1: bare minimum, the US has to figure out what the 85 00:05:05,400 --> 00:05:08,600 Speaker 1: level of water Navajo should have is and then after 86 00:05:08,640 --> 00:05:14,080 Speaker 1: that presumably takes steps to ensure that Navajo does get 87 00:05:14,120 --> 00:05:17,400 Speaker 1: the water they're entitled to. But so far, and we 88 00:05:17,440 --> 00:05:20,480 Speaker 1: know this just from things like the Central Arizona Project, 89 00:05:21,120 --> 00:05:24,359 Speaker 1: the basic position of the federal government has been to 90 00:05:24,440 --> 00:05:28,560 Speaker 1: give away water to non Indian and offer reservation communities 91 00:05:28,600 --> 00:05:32,080 Speaker 1: and do very little to protect tribal water rights. Looking 92 00:05:32,120 --> 00:05:36,840 Speaker 1: at the oral arguments, it seems as if there were 93 00:05:37,360 --> 00:05:42,000 Speaker 1: two camps, the Conservatives leaning against the Navajo Nation, the 94 00:05:42,080 --> 00:05:46,799 Speaker 1: liberals plus Justice Gore Such leaning for the Navajo Nation, 95 00:05:46,839 --> 00:05:50,640 Speaker 1: and then Justice Amy Coney Barrett perhaps the deciding vote. 96 00:05:51,000 --> 00:05:53,800 Speaker 1: I mean, I think the challenge on making any of 97 00:05:53,800 --> 00:05:57,239 Speaker 1: these predictions is that in the recent path the Court 98 00:05:57,279 --> 00:06:01,640 Speaker 1: has done two very dramatic decisions. So they did McGirt, 99 00:06:01,680 --> 00:06:06,000 Speaker 1: which came out variant favor of the tribal side on 100 00:06:06,160 --> 00:06:09,320 Speaker 1: jurisdiction in Oklahoma, and then they came out with another case, 101 00:06:09,440 --> 00:06:12,920 Speaker 1: Castro Horrita, which did the opposite variant favor of the 102 00:06:12,920 --> 00:06:16,880 Speaker 1: state over tribes. One pessimistic reed from an Indian side 103 00:06:16,960 --> 00:06:19,600 Speaker 1: is that there had been a change in the composition 104 00:06:19,600 --> 00:06:22,840 Speaker 1: of the court and so the balance swung against Indians. 105 00:06:22,880 --> 00:06:25,919 Speaker 1: But the more positive from the tribal side is you 106 00:06:25,960 --> 00:06:30,720 Speaker 1: do see that these are hard cases where conservatives that 107 00:06:30,880 --> 00:06:34,280 Speaker 1: is particularly Gorset, of course, but conservatives can see the 108 00:06:34,400 --> 00:06:37,960 Speaker 1: validity of the tribal arguments. You mentioned Justice Gorset, who 109 00:06:38,000 --> 00:06:41,680 Speaker 1: frequently votes in favor of Native Americans. He focused on 110 00:06:41,720 --> 00:06:44,440 Speaker 1: the language and the treaty that guaranteed the tribe a 111 00:06:44,560 --> 00:06:47,920 Speaker 1: permanent homeland. Is it possible to have a permanent home 112 00:06:47,960 --> 00:06:51,800 Speaker 1: and raise animals without water? That is the most basic 113 00:06:52,400 --> 00:06:55,160 Speaker 1: And this is a little bit maybe not as objective 114 00:06:55,160 --> 00:06:58,480 Speaker 1: as perhaps we're wanting, but this should be an easy case. 115 00:06:58,680 --> 00:07:03,240 Speaker 1: Navajos lived without nearly the water non Indian communities have, 116 00:07:03,800 --> 00:07:06,920 Speaker 1: and we have said that they are supposed to have 117 00:07:07,040 --> 00:07:10,119 Speaker 1: this reservation land and supposed to be used, among other things, 118 00:07:10,120 --> 00:07:13,600 Speaker 1: for agricultural purposes, as spelled out in the treaties, and 119 00:07:13,680 --> 00:07:16,320 Speaker 1: we have not guaranteed or protected their rights to water. 120 00:07:16,440 --> 00:07:19,679 Speaker 1: So I think Gorstache is right to think it really 121 00:07:19,720 --> 00:07:22,560 Speaker 1: should come down to a pretty simple do we believe 122 00:07:22,600 --> 00:07:25,840 Speaker 1: in Winters and his Winters still good law? But there 123 00:07:25,880 --> 00:07:27,920 Speaker 1: are arguments on the other side that are likely to 124 00:07:27,920 --> 00:07:30,880 Speaker 1: complicate it. And that is, even if you believe in Winters, 125 00:07:31,000 --> 00:07:34,120 Speaker 1: can you give a right to enforce win pan on 126 00:07:34,320 --> 00:07:37,760 Speaker 1: that some of the recent cases Hikoria and Namahonation one 127 00:07:37,800 --> 00:07:41,040 Speaker 1: and two, both of those have even in the face 128 00:07:41,080 --> 00:07:43,920 Speaker 1: and Navonation of really bad facts on the federal government, 129 00:07:43,960 --> 00:07:46,800 Speaker 1: the Supreme Court has come back and said no remedy 130 00:07:46,880 --> 00:07:51,120 Speaker 1: for the tribe. In Navajonation one, the Secretary of the 131 00:07:51,160 --> 00:07:55,440 Speaker 1: Interior had killed a report that was going to release 132 00:07:55,920 --> 00:08:00,240 Speaker 1: information that the nomination could use to renegotiate a mining 133 00:08:00,320 --> 00:08:03,680 Speaker 1: leaf and they killed the report because Peabody Cole hired 134 00:08:03,720 --> 00:08:06,200 Speaker 1: the best friend of the secretary to lobby um and 135 00:08:06,440 --> 00:08:09,400 Speaker 1: that wasn't enough for the nalahnation to have a remedy, 136 00:08:09,480 --> 00:08:12,400 Speaker 1: even though that is a clear breach of the trust responsibility. 137 00:08:12,480 --> 00:08:15,920 Speaker 1: So the challenge is is that Winters is now confronting 138 00:08:16,480 --> 00:08:19,760 Speaker 1: these sort of anti Indian cases. Mahanation want to pike Korea, 139 00:08:20,160 --> 00:08:22,720 Speaker 1: and the Corps has to figure out, you know, do 140 00:08:22,840 --> 00:08:25,120 Speaker 1: we mean it when we said tribes should live on 141 00:08:25,160 --> 00:08:28,520 Speaker 1: these reservations, which, of course it's or do we want 142 00:08:28,560 --> 00:08:32,280 Speaker 1: to excuse the federal government from obligations? Yeah, I'm so. 143 00:08:32,480 --> 00:08:36,319 Speaker 1: Chief Justice John Roberts asked why wasn't the water mentioned 144 00:08:36,520 --> 00:08:41,080 Speaker 1: in the treaty? And Justice Samuel Alito he sort of 145 00:08:41,160 --> 00:08:44,720 Speaker 1: questioned the real world impacts of the tribe's claim that 146 00:08:44,800 --> 00:08:47,720 Speaker 1: it would have negative impacts on the water to allocate 147 00:08:47,720 --> 00:08:49,880 Speaker 1: you to the surrounding states, should that be part of 148 00:08:49,920 --> 00:08:52,600 Speaker 1: the equation, what happens to the surrounding states? Or should 149 00:08:52,600 --> 00:08:54,560 Speaker 1: it be you know what's in the treaty and what 150 00:08:54,600 --> 00:08:57,440 Speaker 1: the federal government is supposed to do. Two thoughts, So, 151 00:08:57,600 --> 00:09:00,800 Speaker 1: first to take a step back, or did focus a 152 00:09:00,800 --> 00:09:02,920 Speaker 1: lot on the eighteen sixty eight treaty, and that's a 153 00:09:03,040 --> 00:09:06,640 Speaker 1: fair nomination. Has a day that celebrates the treaty. There's 154 00:09:06,640 --> 00:09:08,920 Speaker 1: a treaty Day, right. It's a very important treaty, but 155 00:09:09,160 --> 00:09:11,960 Speaker 1: it's not limited to that. The reservation is much larger 156 00:09:12,000 --> 00:09:15,199 Speaker 1: than the original reservation, and it expanded through executive orders 157 00:09:15,280 --> 00:09:18,400 Speaker 1: and other legislation that pushed the boundaries out to the 158 00:09:18,440 --> 00:09:23,280 Speaker 1: Colorado River. And those also were only viable if they 159 00:09:23,320 --> 00:09:26,520 Speaker 1: had access to water. So I think one dangerous thing 160 00:09:26,640 --> 00:09:29,160 Speaker 1: is to focus too much just on the treaty land, 161 00:09:29,320 --> 00:09:32,160 Speaker 1: because it's also the whole of the reservation needs water, 162 00:09:32,559 --> 00:09:34,959 Speaker 1: and presumably when they set up the rest of the 163 00:09:35,000 --> 00:09:37,880 Speaker 1: reservation they also, just like in winters, imagine that there 164 00:09:37,880 --> 00:09:39,959 Speaker 1: would be waters to support life on that part of 165 00:09:39,960 --> 00:09:42,480 Speaker 1: the reservation. So I know the oral argument focused a 166 00:09:42,480 --> 00:09:44,240 Speaker 1: lot on that, but I think it is bigger than 167 00:09:44,280 --> 00:09:48,319 Speaker 1: that on the question of the impacts formally, of course, 168 00:09:48,600 --> 00:09:51,559 Speaker 1: and the lawyer for the tribe at this point, formally 169 00:09:51,880 --> 00:09:55,240 Speaker 1: the United States has just been asked to account for 170 00:09:55,280 --> 00:09:58,640 Speaker 1: how much water Navajo has a right to, which formally 171 00:09:58,760 --> 00:10:01,880 Speaker 1: does not take away rights from any other non Indian 172 00:10:01,960 --> 00:10:06,120 Speaker 1: users of course, though the second thing is is once 173 00:10:06,200 --> 00:10:10,240 Speaker 1: that right becomes quantified, and that right is probably very significant, 174 00:10:10,280 --> 00:10:12,600 Speaker 1: as we heard from the oral argument, that Nava hosts 175 00:10:12,679 --> 00:10:16,160 Speaker 1: use so much less water offer reservation users, then there'd 176 00:10:16,200 --> 00:10:17,560 Speaker 1: have to be a question of where does that water 177 00:10:17,600 --> 00:10:20,800 Speaker 1: come from? And the choice to always prioritize non Indian 178 00:10:20,800 --> 00:10:24,360 Speaker 1: water users is one that I hope would be challenged. 179 00:10:24,880 --> 00:10:28,720 Speaker 1: What does the federal government expect the Navajo Nation to do? 180 00:10:29,240 --> 00:10:32,600 Speaker 1: I think it's hard right now. Again, the position though 181 00:10:32,640 --> 00:10:34,360 Speaker 1: they just are saying we need to know what we 182 00:10:34,440 --> 00:10:37,800 Speaker 1: have before we do things right, so they're not asked 183 00:10:37,840 --> 00:10:40,800 Speaker 1: the big allocations things. Of course, once they have a 184 00:10:40,920 --> 00:10:43,199 Speaker 1: right to things, then they can push for more right 185 00:10:43,360 --> 00:10:47,480 Speaker 1: tied to those recognition of their allocation. I think one answer, 186 00:10:47,520 --> 00:10:49,880 Speaker 1: you know, when you think about from the Nava hosts 187 00:10:49,880 --> 00:10:53,040 Speaker 1: the endpoint. The example that I use is the Central 188 00:10:53,080 --> 00:10:56,200 Speaker 1: Arizona Project is not something that the rest of the 189 00:10:56,240 --> 00:10:58,439 Speaker 1: state of Arizona had a right to, but the government 190 00:10:58,480 --> 00:11:01,480 Speaker 1: decided to support right as they recognize the needs of 191 00:11:01,520 --> 00:11:03,559 Speaker 1: the lower part of the state. Well, if the needs 192 00:11:03,559 --> 00:11:07,839 Speaker 1: of a Navajo reservation are recognized, then hopefully the US 193 00:11:07,920 --> 00:11:10,120 Speaker 1: government would come in and say, you know, it matters 194 00:11:10,160 --> 00:11:12,360 Speaker 1: that if many people don't have access to water and 195 00:11:12,400 --> 00:11:14,440 Speaker 1: we need to do something about it. So that is 196 00:11:14,520 --> 00:11:17,480 Speaker 1: different from the legal question. This case will not resolve 197 00:11:17,480 --> 00:11:20,160 Speaker 1: all those questions. But I would be hopeful that if 198 00:11:20,200 --> 00:11:23,520 Speaker 1: we recognize the depth of the need and the idea, 199 00:11:23,559 --> 00:11:25,160 Speaker 1: and this is the part of the case that the 200 00:11:25,280 --> 00:11:28,040 Speaker 1: United States will be held accountable for where it doesn't 201 00:11:28,400 --> 00:11:33,160 Speaker 1: act as a good trustee, then some of the water 202 00:11:33,200 --> 00:11:37,000 Speaker 1: would eventually flow to the Navaho households. There was a 203 00:11:37,080 --> 00:11:41,000 Speaker 1: tension paid early on in the Biden administration to having 204 00:11:41,080 --> 00:11:44,880 Speaker 1: a Native American as part of Biden's staff. So it 205 00:11:44,960 --> 00:11:48,079 Speaker 1: seems odd to me that the federal government is taking 206 00:11:48,120 --> 00:11:54,000 Speaker 1: this hardline position. I too think that this is sad 207 00:11:54,280 --> 00:11:58,200 Speaker 1: that the Biden administration is coming out this way. I 208 00:11:58,200 --> 00:12:01,320 Speaker 1: would have hoped that the Biden administration would have decided 209 00:12:01,400 --> 00:12:03,760 Speaker 1: this is something that we don't want to argue the 210 00:12:03,800 --> 00:12:07,840 Speaker 1: strongest version of our possible arguments. Right. So their argument 211 00:12:07,960 --> 00:12:10,600 Speaker 1: right now to me is like you know, a child 212 00:12:10,720 --> 00:12:14,040 Speaker 1: that gets caught and says you can't punish, and that 213 00:12:14,120 --> 00:12:16,719 Speaker 1: can't be right. Right If you actually mean that this 214 00:12:16,800 --> 00:12:20,480 Speaker 1: is an obligation, it should have some enforcement attached to 215 00:12:20,480 --> 00:12:23,240 Speaker 1: the person you owe something too. And the argument they're 216 00:12:23,280 --> 00:12:26,080 Speaker 1: making is no enforcement. On the other hand, you know 217 00:12:26,120 --> 00:12:28,600 Speaker 1: the first part of your question, I've just gently pushed 218 00:12:28,600 --> 00:12:31,440 Speaker 1: back again. I don't think this is getting anywhere near 219 00:12:31,800 --> 00:12:34,880 Speaker 1: or the Biden administration or any the administration in recent 220 00:12:34,920 --> 00:12:37,000 Speaker 1: history has paid much attention to Indians. I mean, there 221 00:12:37,080 --> 00:12:39,920 Speaker 1: was some attention in COVID when Navajo Nation, in part 222 00:12:40,040 --> 00:12:42,000 Speaker 1: tied to their lack of water, had some of the 223 00:12:42,080 --> 00:12:45,880 Speaker 1: highest rates of COVID early on, and people correctly saw it. Well, 224 00:12:45,880 --> 00:12:48,040 Speaker 1: if you can't wash your hands, you know, that could contribute, 225 00:12:48,080 --> 00:12:50,480 Speaker 1: et cetera. And if you had the overcrowding on the reservation, 226 00:12:50,559 --> 00:12:52,839 Speaker 1: that would contribute. But the joke that one of the 227 00:12:52,880 --> 00:12:55,080 Speaker 1: books that I read said is that there was a 228 00:12:55,120 --> 00:12:57,800 Speaker 1: big turning point when Kostner came out with the answers 229 00:12:57,840 --> 00:13:01,760 Speaker 1: with wolves. Suddenly people cared about it. I don't see 230 00:13:01,800 --> 00:13:03,960 Speaker 1: a lot of care. I am a non Indian than 231 00:13:04,040 --> 00:13:07,280 Speaker 1: I get still tons of questions to just show the 232 00:13:07,400 --> 00:13:09,760 Speaker 1: basic ignorance. My kids are in school and we teach 233 00:13:09,800 --> 00:13:14,320 Speaker 1: Indians as if they mattered until eighteen thirty, and they don't. 234 00:13:14,400 --> 00:13:17,080 Speaker 1: And maybe they mattered until the eighteen eighties, but we 235 00:13:17,120 --> 00:13:20,320 Speaker 1: don't think of them as living people much anymore. This 236 00:13:20,360 --> 00:13:23,000 Speaker 1: case was first brought by the Navajo Nation in two 237 00:13:23,080 --> 00:13:26,880 Speaker 1: thousand and three. How is it still not resolved? There's 238 00:13:26,920 --> 00:13:29,120 Speaker 1: a lot of answers to that. I mean, one is 239 00:13:29,200 --> 00:13:32,120 Speaker 1: the positioning of the case, and really what they're asking 240 00:13:32,160 --> 00:13:35,320 Speaker 1: about in this case in part on the treatise was 241 00:13:35,440 --> 00:13:38,440 Speaker 1: disagreements between the nomination and the lower court on whether 242 00:13:38,520 --> 00:13:40,800 Speaker 1: or not the treaties could come in to help rester 243 00:13:41,040 --> 00:13:45,079 Speaker 1: ground the trust responsibility claim, and so part of it 244 00:13:45,120 --> 00:13:47,920 Speaker 1: is just sort of stuff involving legal process. I think 245 00:13:47,920 --> 00:13:49,680 Speaker 1: the other and you see this in all the water 246 00:13:49,760 --> 00:13:54,400 Speaker 1: rights cases, even water rights settlements where tribes, states and 247 00:13:54,440 --> 00:13:57,800 Speaker 1: the federal government want a settlement. It is a wrong, 248 00:13:58,160 --> 00:14:01,240 Speaker 1: dragged out process, and I would say it's probably only 249 00:14:01,240 --> 00:14:04,840 Speaker 1: going to get worse as the new normal the drought 250 00:14:04,960 --> 00:14:09,040 Speaker 1: on that's affecting the Colorado River intensifizing. People recognize that 251 00:14:09,240 --> 00:14:13,760 Speaker 1: it's likely to have significant impacts on life in those states. 252 00:14:14,280 --> 00:14:16,760 Speaker 1: So do you have any feel for how the argument 253 00:14:16,800 --> 00:14:19,280 Speaker 1: went at all? There's some positive and this is sort 254 00:14:19,280 --> 00:14:22,440 Speaker 1: of like the Braccine case, where I'd like the fact 255 00:14:22,640 --> 00:14:25,560 Speaker 1: that all the parties were willing to talk about the treatise. 256 00:14:25,680 --> 00:14:28,520 Speaker 1: I think the winters part of the claim is the strongest, 257 00:14:28,560 --> 00:14:30,600 Speaker 1: and that tying that to the treaties and making sure 258 00:14:30,600 --> 00:14:34,800 Speaker 1: the justices recognized that forceability matters if you're actually going 259 00:14:34,880 --> 00:14:37,520 Speaker 1: to have winters right. So I liked that part. I 260 00:14:37,560 --> 00:14:41,040 Speaker 1: thought that was strong. I thought the liberal justices did 261 00:14:41,080 --> 00:14:44,560 Speaker 1: a great job undermining the state and the federal claim. 262 00:14:44,680 --> 00:14:47,520 Speaker 1: So I thought the liberal justices were actually very vocal 263 00:14:47,560 --> 00:14:51,640 Speaker 1: and pushing their view, and I like that they were 264 00:14:51,640 --> 00:14:55,040 Speaker 1: a little bit. This will sound small, but they got 265 00:14:55,080 --> 00:14:57,560 Speaker 1: into the details a little bit, not a lot, and 266 00:14:57,600 --> 00:14:59,800 Speaker 1: they still had some trouble about like amount of water 267 00:15:00,000 --> 00:15:03,360 Speaker 1: being used. But the fact that they cared about details 268 00:15:03,720 --> 00:15:06,520 Speaker 1: to me suggests that even if the case comes out 269 00:15:06,600 --> 00:15:11,520 Speaker 1: against nomination, hopefully it won't be against the Winter's right 270 00:15:11,880 --> 00:15:14,520 Speaker 1: period right. So the fact that it was focused on 271 00:15:14,760 --> 00:15:17,640 Speaker 1: details suggests that even a negative turn on the case 272 00:15:17,680 --> 00:15:20,960 Speaker 1: would it be a total reversal of all. President, Thanks 273 00:15:20,960 --> 00:15:23,360 Speaker 1: so much for being on the Bloomberg Laws Show. That's 274 00:15:23,400 --> 00:15:28,560 Speaker 1: Professor Ezra Rosser of the American University Washington College of Law. 275 00:15:30,400 --> 00:15:33,720 Speaker 1: A federal judge has tossed the majority of the claims 276 00:15:33,760 --> 00:15:37,200 Speaker 1: made against JP, Morgan Chase, and Deutsche Bank in a 277 00:15:37,280 --> 00:15:41,120 Speaker 1: lawsuit by A. Jane Doe, who alleges the banks participated 278 00:15:41,160 --> 00:15:45,760 Speaker 1: in Jeffrey Epstein's sex trafficking scheme. Still, Jane Doe's attorneys 279 00:15:45,800 --> 00:15:48,520 Speaker 1: called the judge's decision, which allows the case to go 280 00:15:48,640 --> 00:15:53,080 Speaker 1: forward a victory. Discovery will proceed as the bank's face 281 00:15:53,200 --> 00:15:57,560 Speaker 1: claims that they knowingly benefited from Epstein's sex trafficking venture. 282 00:15:58,000 --> 00:16:01,080 Speaker 1: Joining me is Bloomberg Legal reporter A. Benny Morrison, who 283 00:16:01,120 --> 00:16:04,400 Speaker 1: has been covering all these cases. EVA. Before we get 284 00:16:04,400 --> 00:16:07,520 Speaker 1: to the judge's decision, give us a little background on 285 00:16:07,560 --> 00:16:11,720 Speaker 1: the lawsuit itself. So, a victim of Jeffrey Epstein filed 286 00:16:11,880 --> 00:16:16,240 Speaker 1: a proposed class action against JP Morgan and Deutsche Bank 287 00:16:16,320 --> 00:16:19,800 Speaker 1: late last year. The victim, known only as Jane Doe, 288 00:16:19,960 --> 00:16:24,400 Speaker 1: is alleging that the banks facilitated Jeffrey Epstein sex trafficking 289 00:16:24,440 --> 00:16:28,760 Speaker 1: by providing him with financial services for many years, allowing 290 00:16:28,840 --> 00:16:32,080 Speaker 1: him to move around millions of dollars and payoff victims 291 00:16:32,080 --> 00:16:35,880 Speaker 1: allegedly and use it to finance his private jet to 292 00:16:35,880 --> 00:16:38,120 Speaker 1: fly them around as well. There was a hearing the 293 00:16:38,160 --> 00:16:42,040 Speaker 1: banks asked Judge Jed Rakoff to throw out the suit. 294 00:16:42,680 --> 00:16:45,720 Speaker 1: Tell us what grounds they asked him to throw it 295 00:16:45,760 --> 00:16:49,320 Speaker 1: out under both banks made motions are dismissed to have 296 00:16:49,360 --> 00:16:53,440 Speaker 1: the entire lawsuits thrown out, and the claims were a 297 00:16:53,480 --> 00:16:58,120 Speaker 1: little bit different. Deutsche Bank relied on a settlement agreement 298 00:16:58,240 --> 00:17:00,880 Speaker 1: that Jane Doe had entered it to a few years ago, 299 00:17:01,520 --> 00:17:06,840 Speaker 1: which was meant to protect some entities and people with 300 00:17:07,040 --> 00:17:10,040 Speaker 1: ties to Epstein from being sued in the future, and 301 00:17:10,200 --> 00:17:13,920 Speaker 1: Deutsche Bank said that that extended to them, whereas Jane 302 00:17:13,920 --> 00:17:16,760 Speaker 1: Doe said, Noah didn't and that wasn't the attention of 303 00:17:16,800 --> 00:17:20,479 Speaker 1: the settlement at all. JP Morgan, who had Epstein as 304 00:17:20,480 --> 00:17:25,560 Speaker 1: a client from about nineteen eighty eight thirteen, said that 305 00:17:26,640 --> 00:17:29,200 Speaker 1: it made a number of arguments, essentially in asking for 306 00:17:29,240 --> 00:17:31,960 Speaker 1: the case to be dismissed. The lawyers for the bank 307 00:17:32,040 --> 00:17:35,639 Speaker 1: said that Jane Doe hadn't met the legal threshold to 308 00:17:35,760 --> 00:17:39,640 Speaker 1: show that there was knowledge of sex trafficking that could 309 00:17:39,680 --> 00:17:42,240 Speaker 1: be imputed to the bank, or that there was sex 310 00:17:42,280 --> 00:17:46,080 Speaker 1: trafficking at all. Sexual abuse, yes, but not trafficking. It 311 00:17:46,240 --> 00:17:50,000 Speaker 1: also said that the actions of its former executive, Jess Daily, 312 00:17:50,080 --> 00:17:52,639 Speaker 1: he was very close with Epstein, went to his house 313 00:17:52,760 --> 00:17:55,280 Speaker 1: the one his jet, could not be imputed to the 314 00:17:55,320 --> 00:17:59,280 Speaker 1: bank because they fell outside the scope of his employment. 315 00:18:00,160 --> 00:18:04,000 Speaker 1: Judge Rakoff actually dismissed a majority of the claims against 316 00:18:04,000 --> 00:18:06,639 Speaker 1: the bank tell us which ones yes. It was a 317 00:18:06,720 --> 00:18:09,280 Speaker 1: very quick decision, I think in less than a week 318 00:18:09,440 --> 00:18:12,880 Speaker 1: he made a call on what claims would be dismissed 319 00:18:12,880 --> 00:18:17,320 Speaker 1: and what would proceed. So Judge Rakoff dismissed a majority 320 00:18:17,520 --> 00:18:20,320 Speaker 1: of the claims that were in Jaden Doe's suit against 321 00:18:20,400 --> 00:18:25,160 Speaker 1: JP Morgan but he did allow a few key claims 322 00:18:25,320 --> 00:18:28,639 Speaker 1: under the Trafficking Victims Prevention Act to proceed, and I 323 00:18:28,640 --> 00:18:31,520 Speaker 1: spoke to a couple of attorneys who deal with human 324 00:18:31,560 --> 00:18:34,280 Speaker 1: trafficking cases who said that this was a pretty good 325 00:18:34,280 --> 00:18:37,640 Speaker 1: outcome for the plaintiffs. So the ones that survived were 326 00:18:37,880 --> 00:18:43,400 Speaker 1: that JP Morgan knowingly benefited from Jeffrey Epstein sex trafficking 327 00:18:43,480 --> 00:18:48,840 Speaker 1: venture and that it obstructed enforcement of the TVPA so 328 00:18:48,960 --> 00:18:53,760 Speaker 1: it delayed charges being pressed against Epstein because it didn't 329 00:18:54,240 --> 00:18:58,080 Speaker 1: follow proper banking laws and raise red flags about his 330 00:18:58,160 --> 00:19:03,240 Speaker 1: transactions and with Dewitch Bank, those two key claims were 331 00:19:03,280 --> 00:19:06,800 Speaker 1: also allowed to proceed, with a couple of other ones 332 00:19:06,840 --> 00:19:11,479 Speaker 1: as well, about negligent failure to exercise reasonable care as 333 00:19:11,520 --> 00:19:15,439 Speaker 1: a banking institution providing non routine banking. Do the judge 334 00:19:15,480 --> 00:19:19,320 Speaker 1: say why he was dismissing certain charges and allowing others 335 00:19:19,320 --> 00:19:22,960 Speaker 1: to go forward. No, and that's what we're all waiting for. 336 00:19:23,040 --> 00:19:28,000 Speaker 1: So he announced his decision yesterday, but he hasn't filed 337 00:19:28,640 --> 00:19:31,960 Speaker 1: his opinion yet, which will go into I guess why 338 00:19:32,080 --> 00:19:36,160 Speaker 1: he decided to strike some claims and why he decided 339 00:19:36,200 --> 00:19:40,159 Speaker 1: to keep others. I'm surprised you don't often hear a 340 00:19:40,320 --> 00:19:44,439 Speaker 1: plaintiff because the lawyers for Jane Doe also call this 341 00:19:44,520 --> 00:19:47,720 Speaker 1: a victory. You don't usually hear a plaintiff calling something 342 00:19:47,760 --> 00:19:52,720 Speaker 1: a victory when a majority of their claims are being dismissed. No, 343 00:19:53,000 --> 00:19:55,119 Speaker 1: but I think a lot of people expected it was 344 00:19:55,160 --> 00:19:56,920 Speaker 1: going to be a bit of a mixed bag. So 345 00:19:57,000 --> 00:20:00,159 Speaker 1: there were going to be some claims that survived and 346 00:20:00,359 --> 00:20:04,680 Speaker 1: some that didn't. And it is a very difficult thing 347 00:20:04,760 --> 00:20:08,960 Speaker 1: to prove that a business or a company was directly 348 00:20:09,160 --> 00:20:12,520 Speaker 1: involved and participated in either a sex traffing or a 349 00:20:12,600 --> 00:20:15,560 Speaker 1: human trafficking venture. So the fact that they've been able 350 00:20:15,600 --> 00:20:19,280 Speaker 1: to hold on to some of those key trafficking claims 351 00:20:19,720 --> 00:20:22,040 Speaker 1: was seen as a victory, like he said, by the 352 00:20:22,040 --> 00:20:25,080 Speaker 1: plaintiffs lawyers, but also a couple of other legal experts 353 00:20:25,080 --> 00:20:28,640 Speaker 1: I spoke to yesterday who said that this was pretty positive. 354 00:20:29,080 --> 00:20:33,399 Speaker 1: What is the effect of dropping those charges on what 355 00:20:33,480 --> 00:20:39,760 Speaker 1: will happen at trial or on the plaintiff's claims for damages, 356 00:20:40,000 --> 00:20:43,159 Speaker 1: So the damages will still be decided by a jury, 357 00:20:43,480 --> 00:20:47,520 Speaker 1: and there's not much difference there from what I understand. 358 00:20:48,160 --> 00:20:51,360 Speaker 1: Lawyer I spoke to said, it still leaves some room 359 00:20:51,440 --> 00:20:55,200 Speaker 1: for punititive damages to be awarded if it reaches trial. 360 00:20:55,640 --> 00:20:59,040 Speaker 1: In terms of the differences and claims being dismissed, they 361 00:20:59,320 --> 00:21:04,560 Speaker 1: now can't argue that JP Morgan knowingly participated in epstein 362 00:21:04,640 --> 00:21:08,119 Speaker 1: sex trafficking, betch, So it's all about them making money 363 00:21:08,240 --> 00:21:11,520 Speaker 1: from his sex trafficking and his crimes. They will still 364 00:21:11,600 --> 00:21:15,560 Speaker 1: have to zero in on knowledge show that the bank 365 00:21:15,800 --> 00:21:18,359 Speaker 1: knew that what Jeffrey Epstein was up to and using 366 00:21:18,359 --> 00:21:20,639 Speaker 1: his money from, or that they should have known. So 367 00:21:20,720 --> 00:21:25,720 Speaker 1: now discovery goes forward, tell us who's already scheduled for 368 00:21:26,480 --> 00:21:29,520 Speaker 1: depositions and who's in the r thing. So because a 369 00:21:29,600 --> 00:21:32,119 Speaker 1: parallel also going on at the same time that is 370 00:21:32,119 --> 00:21:35,359 Speaker 1: sort of intertwined in these other two cases, it's the 371 00:21:35,440 --> 00:21:39,000 Speaker 1: US Virgin Highlands that has sued JP Morgan for also 372 00:21:39,080 --> 00:21:43,760 Speaker 1: facilitating sex trafficking. So these three cases are all very 373 00:21:43,800 --> 00:21:47,760 Speaker 1: interrelated and they're sharing discovery and depositions, and they've really 374 00:21:48,040 --> 00:21:51,399 Speaker 1: gone for the top of the JP Morgan hierarchy. So 375 00:21:51,560 --> 00:21:55,320 Speaker 1: last week we saw the CEO of JP Morgan's Asset 376 00:21:55,359 --> 00:22:00,240 Speaker 1: and Wealth Management division, Mariotto's deposed. This week, just stay 377 00:22:00,240 --> 00:22:03,160 Speaker 1: who's the former executive who's very close to Jeffrey Epstein 378 00:22:03,560 --> 00:22:06,240 Speaker 1: is facing a two day deposition over his ties to 379 00:22:06,320 --> 00:22:09,240 Speaker 1: Jeffrey Epstein, and there's a number of other former and 380 00:22:09,320 --> 00:22:14,280 Speaker 1: current executives, senior managers across compliance and the private bank 381 00:22:14,320 --> 00:22:16,639 Speaker 1: who have to hand over documents as part of the 382 00:22:16,680 --> 00:22:22,040 Speaker 1: discovery process. Let's talk a little about Jeff Daley, about 383 00:22:22,080 --> 00:22:25,840 Speaker 1: the bank suit against him, and about those more than 384 00:22:25,880 --> 00:22:30,479 Speaker 1: twelve hundred emails. So, Jeff Daley was at JP Morgan 385 00:22:30,720 --> 00:22:35,880 Speaker 1: for decades, and towards the latter part of his tenure there, 386 00:22:35,920 --> 00:22:39,520 Speaker 1: he looked after Jeffrey Epstein's accounts and became very very 387 00:22:39,560 --> 00:22:43,240 Speaker 1: close to him, was visiting his house and traveling with him. 388 00:22:43,480 --> 00:22:47,280 Speaker 1: But the depth of that relationship haven't really been revealed 389 00:22:47,440 --> 00:22:50,040 Speaker 1: until these lawsuits. There's been a lot of sort of 390 00:22:50,040 --> 00:22:54,000 Speaker 1: scuttle butt and rumors about how close they were. In 391 00:22:54,040 --> 00:22:57,680 Speaker 1: these lawsuits, we've read a few of the more than 392 00:22:57,720 --> 00:23:01,840 Speaker 1: twelve hundred emails that were exchanged between Epstein and Staley 393 00:23:01,920 --> 00:23:05,320 Speaker 1: when he was at the bank. These emails included photographs 394 00:23:05,359 --> 00:23:09,880 Speaker 1: of young women, references to Disney princesses, which the plaintiffs 395 00:23:09,880 --> 00:23:14,520 Speaker 1: alleged was code for young women, and talks about the 396 00:23:14,640 --> 00:23:18,240 Speaker 1: meeting after Jeffrey Epstein was released from prison for still 397 00:23:18,280 --> 00:23:20,800 Speaker 1: sitting a minor for prostitution in Florida in two thousand 398 00:23:20,800 --> 00:23:25,040 Speaker 1: and eight. Initially, JP Morgan had sort of sought to 399 00:23:25,359 --> 00:23:29,320 Speaker 1: distance itself from Staley's actions, but said that the allegations 400 00:23:29,640 --> 00:23:33,560 Speaker 1: weren't made out or supported by backs essentially, and earlier 401 00:23:33,600 --> 00:23:37,320 Speaker 1: this month, JP Morgan filed its own lawsuit against Staley, 402 00:23:37,680 --> 00:23:43,760 Speaker 1: saying what he did was disloyal and if damages are 403 00:23:43,800 --> 00:23:47,480 Speaker 1: awarded in the allegations by Jane Doe and the USBI 404 00:23:47,760 --> 00:23:49,880 Speaker 1: made out that he should be liable for the damages. 405 00:23:50,320 --> 00:23:52,840 Speaker 1: It's also going to step further in trying to callback 406 00:23:53,080 --> 00:23:55,520 Speaker 1: and tens of millions of dollars it paid to Staley 407 00:23:55,600 --> 00:23:58,240 Speaker 1: when he was an executive at the bank for his 408 00:23:58,800 --> 00:24:03,160 Speaker 1: period of disloyal and his faithless service. Staley has denied 409 00:24:03,400 --> 00:24:07,920 Speaker 1: involvement in Epstein sex trafficking. My question is why wasn't 410 00:24:07,960 --> 00:24:12,159 Speaker 1: he named as a defendant in these lawsuits. That's a 411 00:24:12,240 --> 00:24:16,199 Speaker 1: question that I've asked a number of legal experts, and 412 00:24:16,320 --> 00:24:21,280 Speaker 1: the answers very one answer provided was that he didn't 413 00:24:21,280 --> 00:24:24,760 Speaker 1: have as deeper pockets as JP Morgan. One of the 414 00:24:24,760 --> 00:24:28,560 Speaker 1: biggest banks financial institutions in the country. Another answer was 415 00:24:28,600 --> 00:24:32,840 Speaker 1: that maybe the plaintiffs just didn't have the evidence or 416 00:24:32,840 --> 00:24:37,199 Speaker 1: the factual basis to sue him directly for participating and 417 00:24:37,320 --> 00:24:41,680 Speaker 1: facilitating Jeffrey Epstein's sex trafficking. They might end up with 418 00:24:41,880 --> 00:24:46,600 Speaker 1: a little bit more mature and documentation throughout the discovery process. 419 00:24:46,600 --> 00:24:48,520 Speaker 1: Thanks so much, Ava, I know you're keeping track of 420 00:24:48,600 --> 00:24:52,639 Speaker 1: everything happening in these cases. That's Bloomberg Legal reporter Ava 421 00:24:52,640 --> 00:24:55,240 Speaker 1: Benny Morrison, and that's it for this edition of The 422 00:24:55,240 --> 00:24:58,200 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 423 00:24:58,280 --> 00:25:01,560 Speaker 1: legal news. Honor Bloomberg Law podcasts. You can find them 424 00:25:01,560 --> 00:25:06,639 Speaker 1: on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, 425 00:25:06,640 --> 00:25:10,000 Speaker 1: slash podcast slash Law, and remember to tune into The 426 00:25:10,000 --> 00:25:14,000 Speaker 1: Bloomberg Law Show every weeknight at ten pm Wall Street Time. 427 00:25:14,560 --> 00:25:17,240 Speaker 1: I'm June Grosso and you're listening to Bloomberg