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Weekend Law: Judges Threatened, Sacred Tribal Site & Death Penalty · Bloomberg Law

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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
14:21
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
14:28
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
15:03
Speaker 6: the public and to speak out in support of our
15:06
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
15:27
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.
15:38
Speaker 7: Courts have to be independent of political pressures, whether from
15:42
Speaker 7: the White House or the Justice Department or elsewhere, and
15:45
Speaker 7: that is what's under attack now. And we think that
15:49
Speaker 7: we have unusual credibility because we're so nonpartisan, non political,
15:55
Speaker 7: or you could almost say bipartisan, because we have about
15:58
Speaker 7: half our judges are points by Republican administrations and half
16:02
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
16:15
Speaker 7: of brave danger for our country, our democracy, and the
16:18
Speaker 7: rule of law. When you come right down to it,
16:21
Speaker 7: at the end of the day, either the written law
16:24
Speaker 7: is going to control or what the executive wants is
16:28
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
16:38
Speaker 7: be discouraged by the media and the citizenry objecting loudly
16:44
Speaker 7: to that kind of language, whether it's from Congress persons
16:47
Speaker 7: calling for impeachment of a judge simply for doing his
16:50
Speaker 7: or her job and ruling on a case, or coming
16:53
Speaker 7: from the White House or the Justice Department. And this
16:56
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
17:08
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
17:20
Speaker 7: the agenda of any president or any political party. The
17:24
Speaker 7: job of a judge is strictly to apply the written law,
17:28
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
17:34
Speaker 2: lower courts rule against them, and the Supreme Court has
17:37
Speaker 2: sided with the Trump administration in the vast majority of
17:41
Speaker 2: emergency cases decided since January, and more than a dozen
17:46
Speaker 2: times the Court has lifted an injunction issued by a
17:50
Speaker 2: trial judge who said the administration was probably acting illegally.
17:55
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
18:03
Speaker 2: average person a distorative view of what the lower courts
18:07
Speaker 2: are doing in limiting the administration and what the Supreme
18:10
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,
18:19
Speaker 6: very frankly disheartening about the current legal landscape. The point
18:24
Speaker 6: is that every federal district judge, without exception, who has
18:29
Speaker 6: ruled against some policy of this administration, was acting in
18:35
Speaker 6: absolute good faith in his and her attempt to interpret
18:40
Speaker 6: not just statutory law, not just constitutional law, but the
18:46
Speaker 6: Supreme Court's own precedence. That's what the federal district judges
18:51
Speaker 6: around the country have been doing for the last seven
18:56
Speaker 6: or eight months. And in those instances, I would even
18:59
Speaker 6: say most of those instances where the administration has appealed
19:04
Speaker 6: those adverse decisions by federal district judges, in most instances,
19:10
Speaker 6: the federal appellate courts have largely left in place the
19:15
Speaker 6: orders of the district judges. So what we see in
19:20
Speaker 6: the so called shadow docket is that the Supreme Court
19:25
Speaker 6: is reversing the decisions in large part without explaining how
19:33
Speaker 6: or why those decisions are being reversed, And so that leaves,
19:38
Speaker 6: you know, in the mind of many lay people this
19:41
Speaker 6: very distorted view. Somehow, that the lower federal courts, the
19:46
Speaker 6: district judges, who hear from the parties, hear from the lawyers,
19:50
Speaker 6: consider the evidence, make a ruling which is then left
19:55
Speaker 6: in place by the intermediate appellate Court and the matter
19:59
Speaker 6: gets up to the Supreme Court, and the Supreme Court
20:01
Speaker 6: in one or two sentences as you say, reverse that decision. Well,
20:05
Speaker 6: a lot of people you know on the street, not
20:08
Speaker 6: versed in the law, somehow are persuaded that the lower
20:12
Speaker 6: court judges are somehow against the administration, and as all
20:16
Speaker 6: the judges are doing is trying their best to apply
20:19
Speaker 6: the law. And so it this serves justice, in all honesty,
20:24
Speaker 6: to leave in the minds of people that somehow the
20:28
Speaker 6: Supreme Court is protecting this administration from lower court judges,
20:36
Speaker 6: and that just feeds into this misinformation, this distorted view
20:42
Speaker 6: that so many in high office continue to create, that
20:46
Speaker 6: the judiciary is full of lunatics and activists, and nothing
20:51
Speaker 6: could be further from the truth. So hopefully, in the
20:55
Speaker 6: fullness of time, hopefully not too far in the future,
20:59
Speaker 6: this landscape that's been created through the procedural processes that
21:04
Speaker 6: have been employed will see the light of day. And
21:08
Speaker 6: one of the things that the Article to re Coalition
21:10
Speaker 6: is trying so desperately to do to continue to educate
21:14
Speaker 6: people about the role of judges and how reason judgment
21:19
Speaker 6: is the coin of the realm when it comes to
21:22
Speaker 6: the judiciary.
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Speaker 2: And Judge Michelle. Justice Neil Gorsuch recently admonished federal judges
21:29
Speaker 2: not to defy the Supreme Court, saying they weren't following
21:34
Speaker 2: precedent from the emergency docket, and Boston federal judge Allison
21:38
Speaker 2: Burrows reacted to that and said that it was unhelpful
21:43
Speaker 2: and unnecessary to criticize district courts that are working to
21:48
Speaker 2: make sense of Supreme Court orders that are not quote,
21:51
Speaker 2: models of clarity, and another federal judge, William Young, said
21:55
Speaker 2: he didn't understand that orders on the emergency docket were precedent.
22:00
Speaker 2: He said, I stand corrected. I mean, what do you
22:03
Speaker 2: think the impact is of a Supreme Court justice calling
22:08
Speaker 2: out federal judges.
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Speaker 7: Well, One complexity that the public doesn't understand, but it's
22:14
Speaker 7: rather important, is that nearly all of the injunctions that
22:17
Speaker 7: have been issued by the district judges around the country,
22:20
Speaker 7: and these hundreds of suits challenging Trump administration actions are
22:26
Speaker 7: very preliminary. And that's because there hasn't yet been a trial,
22:30
Speaker 7: there hasn't yet been a final resolution of disputed facts.
22:35
Speaker 7: The district judge is making a prediction, a judgment that
22:39
Speaker 7: likely the challenger will win over the administration's defense, but
22:44
Speaker 7: it's a speculative judgment. I'm not defensive of the Supreme
22:49
Speaker 7: Court and the extent to which they've intervened, but it
22:52
Speaker 7: is important to recognize that they aren't saying the administration
22:57
Speaker 7: was right and the district judge was wrong. What they're
22:59
Speaker 7: really He's saying is we don't know for sure yet,
23:03
Speaker 7: so we're going to delay a remedy until there's been
23:07
Speaker 7: actual fact findings and what lawyers call a final judgment.
23:11
Speaker 7: But beyond that, it is certainly true that some of
23:14
Speaker 7: these orders have no reasoning coming down from the Supreme Court.
23:18
Speaker 7: Others are very terse and sometimes unclear. I don't think
23:22
Speaker 7: it's helpful for Judge Burrows and the Supreme Court justices
23:26
Speaker 7: to get in a public shouting match, but she has
23:30
Speaker 7: a point. The district judges are striving to apply the
23:34
Speaker 7: law faithfully and impartially, and I think usually they get
23:39
Speaker 7: it right, and particularly where they're upheld, as has been
23:42
Speaker 7: true in a number of these cases by the Court
23:44
Speaker 7: of Appeals above them, the Supreme Court ought to be
23:47
Speaker 7: very hesitant to jump in and overrule both of the
23:52
Speaker 7: so called lower courts. But in terms of the admonition
23:55
Speaker 7: from judge courts, I don't know what he's talking about.
23:58
Speaker 7: I don't see any judge, including Judge William Young in Boston,
24:02
Speaker 7: as being defiant, as refusing to follow some clear direction
24:06
Speaker 7: from the Supreme Court. So I'm not quite sure what
24:09
Speaker 7: he's referring to. But it's not very helpful, and it's
24:13
Speaker 7: a further demoralization of the district judges, who do ninety
24:17
Speaker 7: percent of the work in the judicial system and who
24:20
Speaker 7: should be respected and supported by the public and by
24:24
Speaker 7: the rest of the judicial establishment and not pilloried as
24:28
Speaker 7: if they're rebellious children or something because they're not.
24:32
Speaker 2: Thank you both so much for joining me today. That's
24:34
Speaker 2: Judge Paul Michelle and Judge Andre Davis coming up next
24:38
Speaker 2: on the Bloomberg Law Show. Do lawsuits over tribal sacred
24:43
Speaker 2: sites show unequal protection for religious rights? I'm June Grosso.
24:48
Speaker 2: When you're listening to Bloomberg.
24:50
Speaker 8: On him on Itaiva.
24:55
Speaker 5: God.
24:58
Speaker 2: For centuries, Western Napat have worshiped at Oak Flat, a
25:02
Speaker 2: seven square mile sacred tribal site in Arizona where tribal
25:06
Speaker 2: members hold religious ceremonies. They say can't take place anywhere else.
25:12
Speaker 8: That is what keeps us who we are. That is
25:16
Speaker 8: the thing. The spiritual connection to Nakaosan, to our mother Earth,
25:20
Speaker 8: to Yosin the Creator, to chicha Il, to Sisland, Chassison,
25:24
Speaker 8: into all sacred sites as indigenous people is what keeps
25:27
Speaker 8: us here today.
25:29
Speaker 2: For example, there's the Sunrise Ceremony, a three day coming
25:33
Speaker 2: of aid ceremony for Apache girls that requires gathering certain
25:37
Speaker 2: plans at Oak Flat and being painted with white clay
25:41
Speaker 2: from its ground. For years, Apache Stronghold, a nonprofit coalition
25:45
Speaker 2: of tribal members, has been trying to stop the federal
25:49
Speaker 2: government from transferring the land to a foreign copper mining
25:52
Speaker 2: company whose excavation would destroy the site. The Ninth Circuit
25:57
Speaker 2: has rejected the tribal group's attempts to protect flat on
26:01
Speaker 2: religious grounds, and the Supreme Court has refused to take
26:05
Speaker 2: the case. A group of Apache women has filed a
26:08
Speaker 2: new suit based on a June decision by the Supreme
26:11
Speaker 2: Court that expanded the religious rights of public school parents.
26:16
Speaker 2: It all brings up the question of whether tribal religious
26:19
Speaker 2: freedom claims are getting equal treatment. A dissent by Justice
26:24
Speaker 2: Neil Gorsuch seems to suggest they're not. My guest is
26:29
Speaker 2: Heather white Man runs him director of the Tribal Justice
26:32
Speaker 2: Clinic at the University of Arizona. Heather, can you give
26:35
Speaker 2: us the background of this legal fight?
26:38
Speaker 9: In twenty fourteen, Congress passed the Southern Arizona Land Exchange
26:42
Speaker 9: and Conservation app as part of a much larger Defense
26:47
Speaker 9: authorization bill that you know, was really so voluminous that
26:51
Speaker 9: it didn't have a whole lot of review and people
26:53
Speaker 9: weren't paying super close attention to some of the smaller
26:57
Speaker 9: parts of that much larger piece of legislation. And because
27:01
Speaker 9: of that, this particular build was able to make its
27:05
Speaker 9: way through congressional ratification and was signed into law by
27:09
Speaker 9: President Obama. This particular initiative had been a standalone buil
27:15
Speaker 9: numerous times before and had never moved forward, never been
27:18
Speaker 9: able to get through Congress. What the bill does is
27:21
Speaker 9: it mandates the transfer of FOREGT Service lands to a
27:24
Speaker 9: private company Resolution Copper, for the purpose of mining a
27:29
Speaker 9: substantial deposit of copper that underlies the surface of that land.
27:33
Speaker 9: The reason why that's been opposed for so many years
27:37
Speaker 9: is because the land on the surface is the site
27:40
Speaker 9: of very significant, longstanding religious practices by the Western Apache people,
27:46
Speaker 9: and so the mining of the copper will result in
27:50
Speaker 9: the complete destruction of a substantial area of the surface land.
27:53
Speaker 9: It will subside, it will create a very large crater,
27:57
Speaker 9: it won't be usable any longer. For the purpose is
28:00
Speaker 9: that the Apache people have maintained on that land for
28:03
Speaker 9: hundreds and hundreds of years, if not longer. And so that,
28:08
Speaker 9: according to the Apache people, is a substantial burden on
28:12
Speaker 9: their religious practice. And common sense would I think lead
28:15
Speaker 9: anybody to a similar result that if you destroy the
28:17
Speaker 9: land that is absolutely necessary for the practice of a religion,
28:22
Speaker 9: that's a burden. So that's the conflict in essence.
28:25
Speaker 2: Apache stronghold says that Oak Flat is the only place
28:29
Speaker 2: where certain religious ceremonies can take place. Tell us about
28:33
Speaker 2: the sunrise ceremony, which is often mentioned.
28:37
Speaker 9: Oak Flatt is the site where female members of the
28:40
Speaker 9: San Carlos Apache tribe have their coming of age ceremonies.
28:43
Speaker 9: So it's where a girl becomes a woman, and there's
28:45
Speaker 9: a specific ceremony that takes place when a girl becomes
28:48
Speaker 9: a woman. It's a very intensive, multi date ceremony. It's
28:53
Speaker 9: incredibly onerous physically, there's a lot of prayer, a whole
28:57
Speaker 9: community comes together to help bring a girl in the womanhood.
29:00
Speaker 9: It's the necessity for a woman to go through that
29:03
Speaker 9: ceremony to fully realize her identity as an attachy woman.
29:07
Speaker 9: So it's incredibly significant. It's one of the most important
29:10
Speaker 9: things that happens in any woman's life in that culture.
29:13
Speaker 2: So the nonprofit Tribal Rights Group suit to stop the
29:17
Speaker 2: land transfer on religious grounds under the First Amendment and
29:22
Speaker 2: the Religious Freedom Restoration Act, they lost at the Ninth Circuit.
29:27
Speaker 2: Will you explain why the Ninth Circuit found that the
29:30
Speaker 2: land transfer couldn't be considered a substantial burden on religious exercise.
29:37
Speaker 9: So the Ninth Circuit opinion it's a tough one to
29:40
Speaker 9: parse out, and so there are a couple of different
29:43
Speaker 9: things that happened there. First, the court ruled that there
29:47
Speaker 9: was no substantial burden because there's not coercion. The Ninth
29:51
Speaker 9: Circuit has a very narrow definition of substantial burden and
29:56
Speaker 9: of coercion. So they have ruled that in the absence
30:00
Speaker 9: of withholding of a benefit because of a religious practice
30:04
Speaker 9: or a punative or punishment type of provision in a
30:08
Speaker 9: generally applicable federal law, that is triggered by what would
30:12
Speaker 9: otherwise be, you know, a basic exercise of a religious
30:15
Speaker 9: practice that there's no coercion, that results in no substantial burden.
30:20
Speaker 2: Will you tell us more about how Native American religious
30:23
Speaker 2: practices require relationships with specific locations and how that played
30:29
Speaker 2: into the arguments.
30:31
Speaker 9: And that's the second heart of the Ninth Circuit on
30:34
Speaker 9: Bonk holding. So the first is applying this really narrow standard,
30:39
Speaker 9: really restrictive standard for finding a substantial burden. And second,
30:43
Speaker 9: a different majority of the Ninth Circuit then held that
30:46
Speaker 9: where there's a federal property management initiative, that cannot burden
30:51
Speaker 9: religious freedom rights. You know, under the Ninth Circuit ruling
30:55
Speaker 9: were limited from ever bringing any kind of claim, then
30:59
Speaker 9: saying that affect er land management decision substantially burdens our
31:02
Speaker 9: free exercise right because it's federal property. The federal government
31:06
Speaker 9: has a right to do what it wants with its
31:08
Speaker 9: own land. And that just doesn't seem right to me
31:10
Speaker 9: that we can't limit the federal government from violating the
31:14
Speaker 9: First Amendment because the federal government is the landowner. So
31:17
Speaker 9: the analysis under the Ninth Circuit approach is really that
31:21
Speaker 9: the relief thought to limit our ability to ever find
31:25
Speaker 9: an injury to people's First Amendment right. So we can't
31:29
Speaker 9: find a burden because the relief that we're seeking to
31:31
Speaker 9: limit what the federal government is a landowner can do
31:33
Speaker 9: with its own property. You know, it certainly presents a
31:36
Speaker 9: real challenge to any Native American person whose religious beliefs
31:40
Speaker 9: depend on a relationship with a specific land base, and
31:43
Speaker 9: many of ours do. Many of us have religions and
31:46
Speaker 9: religious practices and beliefs that requires specific things to happen
31:51
Speaker 9: in specific places, often at specific time, and that is
31:55
Speaker 9: our sincerely held religious belief and how we practice it.
31:58
Speaker 9: So it renders Native American religion belief virtually unprotectable in
32:02
Speaker 9: many instances under the way that the case law has developed.
32:05
Speaker 9: And I just think that can't be right. And I
32:07
Speaker 9: hope most Americans would consider that situation and feel similarly
32:11
Speaker 9: that that simply cannot be correct, and that cannot be
32:14
Speaker 9: consistent with our constitution or what our founders intended.
32:17
Speaker 2: Apache Stronghold took the case up to the Supreme Court,
32:21
Speaker 2: but the Court refused to take the case. However, Justice
32:25
Speaker 2: Neil Gorsitch wrote a powerful dissent joined by Justice Clarence Thomas.
32:30
Speaker 2: He said it was a grave mistake for the Court
32:33
Speaker 2: not to take the case. Quote, just imagine if the
32:36
Speaker 2: government sought to demolish a historic cathedral on so questionable
32:40
Speaker 2: a chain of legal reasoning. I have no doubt that
32:43
Speaker 2: we would find that case worth our time. Face with
32:46
Speaker 2: the government's plan to destroy an ancient side of tribal worship.
32:50
Speaker 2: We owe the Apaches no less. And this is a
32:53
Speaker 2: Supreme Court that has expanded religious rights. Do you see
32:58
Speaker 2: a difference with the way tribal will religion has been treated.
33:02
Speaker 9: I see a difference. A lot of people see a difference.
33:04
Speaker 9: You know, Justice Court. Such is Dissent is a really
33:06
Speaker 9: great read. I'd encourage anybody interested in these issues to
33:10
Speaker 9: read it, and I think it recognizes that, like I
33:13
Speaker 9: was saying earlier, the way that these cases are evaluated
33:16
Speaker 9: and the outcomes that we keep seeing should be a
33:19
Speaker 9: concern to every American. Every American citizen should worry about
33:23
Speaker 9: the viability of their free exercise right. If the Court
33:26
Speaker 9: can condone the complete annihilation of a place of worship
33:31
Speaker 9: that is absolutely central to the perpetuation of that religion,
33:35
Speaker 9: they can limit anybody's religious exercise right. So this is
33:38
Speaker 9: a threat to every American religious liberty, and it is
33:41
Speaker 9: something that I think we should all be concerned about that.
33:44
Speaker 9: You know, we need to work through these issues and
33:46
Speaker 9: we need to find solutions that will bring us different results.
33:49
Speaker 2: Ultimately, the Supreme Court in June expanded the religious rights
33:54
Speaker 2: of public school parents, ruling that public school parents have
33:58
Speaker 2: the right to opt their children out of classroom lessons
34:02
Speaker 2: that intrude on their religious beliefs. In that case, the
34:06
Speaker 2: Mackmood case, it was the reading of LGBTQ friendly books
34:10
Speaker 2: in the classroom that parents objected to. How does that
34:14
Speaker 2: case affect Apache Strongholds case.
34:17
Speaker 9: Soon after the denial of CIRT, Apache Stronghold attorneys filed
34:22
Speaker 9: a petition for basically a reconsideration of the thirt petition
34:26
Speaker 9: asking the Supreme Court to grant Scherai remand the case
34:30
Speaker 9: back to the Ninth Circuit and provide clear direction to
34:34
Speaker 9: the Ninth Circuit on how to review the legal arguments
34:38
Speaker 9: going forward in a new a new Ninth Circuit review.
34:40
Speaker 9: Part of the reason for that is because intervening precedent
34:44
Speaker 9: was decided after the denial of Surcherai. The Apache Strongholds
34:49
Speaker 9: petition for reconsideration relies heavily on the intervening decision in
34:55
Speaker 9: Macmood because there are similar impacts of the government policy
35:01
Speaker 9: that's challenged there. In my Mood, we had the Supreme
35:04
Speaker 9: Court recognize very very vehemently that when we limit parents'
35:10
Speaker 9: abilities to bring up their children, to raise their children
35:13
Speaker 9: in ways that are consistent with their religious beliefs, we
35:16
Speaker 9: are violating their First Amendment rights. That is a substantial burden,
35:20
Speaker 9: and it has to go through the relevant analysis for
35:23
Speaker 9: when and how such burdens are limited and when they're
35:26
Speaker 9: allowed to go forward. That type of test has not
35:29
Speaker 9: been applied yet to the challenged law, to the Land
35:33
Speaker 9: Exchange Act. In Apache Stronghold, what we've been through so
35:36
Speaker 9: far is the preliminary injunction analysis, so we haven't had
35:39
Speaker 9: the full review of an application of the relevant legal
35:42
Speaker 9: standards for what's permissible, when.
35:44
Speaker 2: And how, And tell us about the new case that's
35:47
Speaker 2: been filed by Apache Women.
35:50
Speaker 9: The new case that has been filed by a group
35:53
Speaker 9: of Apache women, mothers and daughters that really found it
35:58
Speaker 9: claims in similar issues and similar analysis to what the
36:02
Speaker 9: Supreme Court decided in Mahmoud. The Land Exchange app will
36:07
Speaker 9: burden through free exercise rights of especially Aptchy women, because
36:12
Speaker 9: it's limiting APACHE women from having the ability to become
36:16
Speaker 9: women in ways that are consistent with their religious beliefs.
36:19
Speaker 9: It's limiting APACHE mothers from bringing their daughters into womanhood
36:24
Speaker 9: as required by their religious beliefs. And so there's, you know,
36:28
Speaker 9: a real consistency with the impact and the burden on
36:32
Speaker 9: a religious freedom interest. There as what we saw the
36:35
Speaker 9: Supreme Court limit in Mahmood, and.
36:37
Speaker 2: The land transfer was stopped for the time being.
36:41
Speaker 9: The Ninth Circuit Court of Appeal issued an emergency injunction
36:46
Speaker 9: basically preventing the land transfer. The land transfer was about
36:49
Speaker 9: to take place, put the cases on an expedited briefing schedule,
36:52
Speaker 9: and so we're now in the middle of that briefing
36:55
Speaker 9: to the Ninth Circuit or a argument will probably take
36:57
Speaker 9: place early this fall and will see how the Ninth
37:00
Speaker 9: Circuit resolves this issue. So yeah, there's still a lot
37:03
Speaker 9: of activity surrounding various parties claims in relation to the
37:08
Speaker 9: final disposition of Oak Flat.
37:10
Speaker 2: We'll certainly follow the oral arguments when they take place.
37:13
Speaker 2: Thanks so much, Heather. That's Heather white Man runs him
37:16
Speaker 2: Director of the Tribal Justice Clinic at the University of Arizona.
37:20
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
37:22
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37:25
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37:41
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