By: Andrew Cliburn | Vermont Law School, JD Candidate 2021
November 20, 2020
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When the Supreme Court issued McGirt v. Oklahoma1 last summer holding that Congress never disestablished the Muscogee (Creek) reservation—a reservation that encompassed most of modern-day Tulsa, Oklahoma—the reaction was profound.2 Indigenous leaders, lawyers, journalists, and others celebrated the Court’s full-throated affirmance of Muscogee (Creek) sovereignty.3 The majority opinion, authored by Justice Gorsuch, was the latest in an emerging line of Supreme Court cases upholding treaties the North American tribes made with the United States.4
In contrast, the reaction among some of Oklahoma’s non-Indigenous population was decidedly not as positive.5 Some groups in Oklahoma called on Oklahoma’s congressional delegation to introduce legislation to “fix” McGirt.6 Given the widespread reaction and controversy surrounding the case, it is important to understand the question the Court sought to answer in McGirt, and how, precisely, it did so.
The question in McGirt was straightforward enough: did the wrong sovereign convict Jimcy McGirt?7In 1997, Oklahoma convicted McGirt—an enrolled member of the Seminole Nation—of heinous crimes involving the sexual exploitation of a minor, sentencing him to a draconian 1000 years.8 However, McGirt maintained that his crimes occurred not in Oklahoma, but on the Muscogee (Creek) reservation, and this fact—if true—meant that Oklahoma had no right to try him for these particular crimes. This is so because in 1885, Congress passed the Major Crimes Act (“MCA”), arrogating to itself the sole authority to try certain crimes committed by “Indians”9 in “Indian Country.”10 In 1948, Congress amended the MCA to define Indian Country as, in part, reservations.11 Thus, if McGirt’s crimes really did take place on the Muscogee (Creek) reservation, the wrong sovereign convicted him.
The Muscogee (Creek) Nation and the United States signed a treaty in 1832 guaranteeing the tribe that its reservation “would be secure forever.”12 Soon after, the United States government forcibly marched the Muscogee (and others) in a series of removals from the southeast to what would become the State of Oklahoma 80 years hence.13These removals are now collectively known as the Trail of Tears.14 In the decades following the tribe’s removal from their homelands, the United States continued to impose new treaty terms on the Muscogee. For example, a new treaty term diminished the reservation boundaries in 1866.15 However, the Court held, at no point was the reservation disestablished by treaty or by an act of Congress.16 In 1871, Congress summarily stopped treaty-making with Native Americans.17
When interpreting treaties with tribes, Courts must apply special canons of construction.18 This is because the relationship between the tribes and the United States is unique.19 For example, grants of land are grants from tribes to the United States, not vice versa.20 Moreover, the United States owes tribes heightened responsibilities generally known as the “trust responsibilities” because—as the Supreme Court long ago held—the tribes are “domestic dependent nations.”21 Moreover, the United States drafted the treaties in English. Consequently, since 1832, the Supreme Court has recognized that it should ordinarily resolve any ambiguities in treaties in the tribes’ favor as a result of a prudential understanding that the tribes were in a subordinate negotiating position.22 Flowing from the contours of this relationship then are a series of interpretive canons the Supreme Court has developed to answer questions arising in Indian Country.
The majority’s answer to the question of whether Congress ever disestablished the reservation was a resounding “no,” and it arrived at this answer using the canon requiring Congress to clearly express itself if it intends to disestablish a reservation.23 Indeed, the Court seemed to go further by discarding factors of the previous disestablishment test developed in Solem v. Bartlett, 465 U.S. 463 (1984).24
This brief summary cannot be the place where one develops the full implications of McGirt. As the reader might intuit by this point, the decision is hard to fully understand without much context. Suffice it to say, federal Indian law is a fascinating, important, and very much alive area of the law.
2 Julian Brave NoiseCat, The McGirt Case is a Historic Win for Tribes, Atlantic (July 12, 2020), https://www.theatlantic.com/ideas/archive/2020/07/mcgirt-case-historic-win-tribes/614071/.
4E.g., Herrera v. Wyoming, 139 S.Ct. 1686 (2018) (holding that statutes establishing the State of Wyoming and the Bighorn National Forest did not extinguish treaty-secured aboriginal hunting rights).
5 Barbara Hoberock & Randy Krebhiel, Oklahoma Conservative Group Wants Tribal Boundaries Gone, Tulsa World (Oct. 19, 2020), https://tulsaworld.com/news/state-and-regional/govt-and-politics/oklahoma-conservative-group-wants-tribal-reservation-boundaries-gone/article_5ff72b0e-0a5f-11eb-9ee3-afcf85c16b89.html.
9 In this context “Indian” is a legal term of art. A person who is an Indian belongs to a federally-recognized tribe, and as such is entitled to certain benefits flowing from the government-to-government relationship between the tribal nation and the United States federal government. Carol E. Goldberg, et al., American Indian Law: Native Nations and the Federal System 137 (7th ed. 2015) [hereinafter American Indian Law].
10 Congress took this action after the Supreme Court held in Ex Parte Crow Dog, 109 U.S. 556 (1883) that the federal government had no criminal jurisdiction over tribal members. Id. at 85.
11 The MCA also defined Indian Country as “dependent Indian communities” and allotted lands held in trust title outside of reservations. Id. at 150–58.
16Id. at 2474. Though beyond the scope of this summary, Congress possesses—by fiat—the power to unilaterally abrogate signed treaties between the tribes and the United States. This power is known as congressional plenary power. See Hillary M. Hoffmann, Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism, 97 Or. L. Rev. 353, 358 (2019).
19See, e.g., Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000) (describing the unique government-to-government relationship between the two sovereigns).
23McGirtv. Oklahoma, 140 S.Ct. 2452, 2462–63 (recounting the canon that the Supreme Court will not “lightly infer” reservation disestablishment, that Congress must “clearly express its intent” to disestablish, and collecting cases where Congress’s language did disestablish reservations).
24See, e.g., Oneida Nation v. Vill. of Hobart, 968 F.3d 664, 668 (7th Cir. 2020) (“We read McGirt as adjusting the Solem framework to place a greater focus on statutory text.”).
About the Author
Andrew came to VLS in 2018 after becoming interested in public lands issues in his home state of Utah. His primary interests are natural resources law, property law, land use law, environmental law, and federal Indian law. He will be clerking for Justice Karen R. Carroll of the Vermont Supreme Court after graduating in May 2021.
By: Theophilus Agbi | Vermont Law School, JD Candidate 2022 & Université de Cergy-Pontoise, DJCE Candidate 2022
August 28, 2020
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Synopsis:
Kansas v. Glover is a 2020 decision that deals with how much evidence law enforcement needs to support a traffic stop under the Fourth Amendment.[1] In this case, a Kansas Deputy Sheriff ran a license plate check of a passing pickup truck.[2] This check revealed that the registered owner was Charles Glover, and that Mr. Glover’s license was revoked.[3] At the time of the license plate check, the Deputy Sheriff did not know who was driving the vehicle. He assumed that Mr. Glover was driving.[4] Relying solely on the information gleaned from the license check, the Deputy Sherriff pulled the truck over.[5] Upon pulling the vehicle over, the Deputy Sheriff confirmed that the current driver was Mr. Glover and issued him a ticket.[6]
At trial, Mr. Glover challenged the ticket arguing that the Deputy Sherriff did not have sufficient evidence to support the initial traffic stop.[7] Deputy Sherriff admitted that he “assumed” that the registered owner was also the current driver, even though he had no evidence to support that.[8] Mr. Glover argued that this assumption was not enough to support the reasonable suspicion standard,[9] which says that officers need “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”[10] A “mere hunch” does not support reasonable suspicion.[11]
Procedural History:
The Kansas Trial Court, agreed with Mr. Glover and found that an officer cannot simply assume the registered owner is the present driver without having other corroborating evidence.[12] On Appeal, the Trial Court’s ruling was reversed. Later, the Kansas Supreme Court reversed the Court of Appeals holding and affirmed the Trial Court’s decision.[13] The State appealed the Kansas Supreme Court’s ruling at the United States Supreme Court.
DISPOSITION OF U.S. SUPREME COURT: Reversed and remanded.
In an 8-1 decision, the Supreme Court reversed the Kansas Supreme Court. Justice Clarence Thomas, delivered the majority opinion to which Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Kavanaugh joined. Justice Kagan issued a concurring opinion to which Justice Ginsburg joined. Justice Sotomayor delivered the dissenting opinion.
MAJORITY HOLDING & REASONING:
The majority found that the officer had enough evidence to support the traffic stop under the Fourth Amendment.[14] The majority held, that “when [an] officer lacks information negating an inference that the owner is the driver of the vehicle, the [traffic] stop is [constitutional].”[15] In other words, the Court is saying that officers are allowed to infer the registered owner is also the current driver until they find evidence to the contrary. The majority notes that the reasonable suspicion standard “is an ‘abstract’ concept that cannot be reduced to ‘a neat set of legal rules.’”[16] Since reasonable suspicion “depends on the factual and practical considerations of everyday life on which reasonable and prudent men . . . act,”[17] officers can rely on commonsense inferences.[18] In this case, the majority considered the Deputy Sherriff’s inference that the registered owner was the current driver as a commonsense one.[19] Since the Deputy Sherriff did not find any evidence to the contrary, the majority found his actions constitutionally permissible.[20]
Through this ruling, the Supreme Court affirmed that reasonable suspicion can be satisfied by inferences drawn either from professional expertise or common sense.[21]
CONCURRENCE:
While Justices Kagan and Ginsburg join the majority, they do so on slightly different grounds. These two Justices are not prepared to unequivocally adopt the “common sense” inference. For these Justices, the pivotal fact was that Mr. Glover’s license was “revoked” rather than suspended.[22] Under Kansas law, a driver’s license is only revoked after a driver has committed “serious or repeated driving offenses.”[23] In contrast, Kansas will suspend licenses “for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.”[24] Since a revoked license indicates the registered owner has “shown a willingness to flout driving restrictions,” [25] it is more likely than not that such a driver would continue driving even without his/her license.[26] This higher probability supports the officer’s common sense inference that the registered owner is also the present driver.[27]
Justice Kagan states unequivocally, that she would have not sided with the majority, if the license had been suspended.[28] Since suspended licenses can result from unrelated driving infractions, a suspended license does not support a higher probability that the driver would flout driving laws.[29] For Kagan, under this circumstance, the common sense inference “would not much differ from a ‘mere hunch.’”[30] As a mere hunch, the officer’s commence sense inference would not support reasonable suspicion.[31]
DISSENT [Justice Sotomayor]:
Justice Sotomayor’s dissents for a few reasons. First, she argues that this new common sense standard, is no different than a mere hunch, which is precisely what the Court previously held as insufficient to support reasonable suspicion.[32] Reasonable suspicion is supposed to be based on “perspectives and inferences of a reasonable officer viewing ‘the facts through the lens of his police experience and expertise.’”[33] Second, Justice Sotomayor finds that the majority opinion “flips the burden of proof.”[34] Rather than obliging the State to produce evidence that justifies its action, the majority allows the State to act so long as there is an absence of evidence.[35] Finally, Justice Sotomayor dissents because this lack of evidence means that officers do not have to tailor their suspicion to the conduct of the individual.[36] Without this requirement, officers are given “free rein to stop a vehicle involved in no suspicious activity simply because it is registered to an unlicensed person . . . [and officers are absolved] from any responsibility to investigate the identity of a driver where feasible.”[37]
Justice Sotomayor rejects Justice Kagan’s distinction between revoked and suspended licenses on the grounds that the laws in other jurisdictions may vary from those in Kansas.[38] Meaning that in other places non-driving related offences could cause a driver’s license to be suspended, revoked, or both. Without this distinction, Justice Kagan’s argument falls apart and the “common sense inference” becomes nothing more than a mere hunch.[39]
[1] Kansas v. Glover, 140 S.Ct. 1183, 1186 (2020).
[7] Kansas v. Glover, 422 P.3d 64, 66 (2018) (“The driver moved to suppress evidence obtained during the stop, arguing the officer did not have reasonable suspicion of illegal activity when he stopped the car.”).
[19]Id. (“[Based on the facts,] Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”).
[20] Glover, 140 S.Ct. at 1191(“Here Deputy Mehrer possessed no exculpatory information––let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck––and thus the stop was justified.”).
[27]See id. (agreeing with the majorities reasoning in her explanation of how things would be different if the driver’s license was suspended rather than revoked).
[28] Justice Kagan writes “I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws . . . . [F]or example, if Kansas had suspended rather than revoked Glover’s license.”Id.
[39] Justice Kagan in her concurrence admits that if the facts of this case were the same but instead the license had been suspended then “[she] suspect[s] that any common sense invoked . . . would not much differ from a ‘mere hunch . . . .’” [39] Glover, 140 S.Ct. at 1193.
About the Author
Theo is earning his American and French law degrees through the dual degree program established between Vermont Law School and University of Cergy Pontoise in Paris. He received a B.A. in American Jurisprudence and French from Amherst College. As a 2L he participated in the Vermont Law School Entrepreneurship and Legal Lab (VLSELL), and worked in the civil litigation department at Dinse Knapp and McAndrew. During the summer of 2020, he worked as summer associate at Morgan Stanley. He also volunteered with VLSELL and the Vermont’s Small Business Development Center (SBDC) to educate small business owners impacted by Covid-19 on the CARES Act.
On August 20, 2020, the U.S. Department of Homeland Security (DHS) issued a temporary final Rule, Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities (the “August 20 TFR”), announcing a further extension of H-2A guest-worker visas.[1]
The DHS first issued Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency (the “April 20 TFR”), which initially allowed temporary H-2A workers to extend their employment in response to COVID-19 disruptions to the U.S. food and agriculture sector during the summer growing season.[2] As the “continued disruptions and uncertainty” of the pandemic bleed into the fall agricultural season, the DHS has exercised its authority—under section 102 of the Homeland Security Act of 2002 (HSA) and section 103(a) of the Immigration and Nationality Act (INA)—to amend the April 20 TFR as a matter of national security.[3]
Here, the August 20 TFR provides that the DHS will continue allowing H-2A workers who have valid temporary labor certifications from the Department of Labor (DOL) to begin working for a new employer after the U.S. Citizen and Immigration Service (USCIS) receives an extension of stay petition on their behalf. [4]
Generally, the H-2A Visa Program allows U.S. employers to hire nonimmigrant foreign nationals seeking agricultural work on a “temporary or seasonal” basis when U.S. workers are not available to fill the jobs.[5] In the absence of a national emergency, H-2A visas are valid for a maximum limit of three years, though most are typically valid for no longer than one.[6] To apply for an H-2A visa, nonimmigrant workers seeking temporary agricultural work must have a job offer from a U.S. employer.[7]
Further, U.S. employers who wish to recruit and hire temporary agricultural workers from other countries must petition for a Temporary Labor Certification (TLC) from the DOL, which requires employers to show that: (1) there are not enough willing, able, and qualified U.S. workers available to fill the jobs when and where employers need them; and (2) employing foreign nationals for temporary agricultural work will not adversely affect the wages or working conditions of U.S. agricultural workers.[8] This requires a series of lengthy procedural steps and paperwork on part of the employers and the recruiters and petitioners they hire to bring nonimmigrant workers into the U.S.[9]
In the age of the coronavirus pandemic—and always—agricultural workers are essential to U.S. food security and the American economy. Here, the DHS’s effort to facilitate nonimmigrant entry into the U.S. for temporary agricultural employment despite the current administration’s ban on immigration highlights the critical role of farmworkers in maintaining the nation’s food supply. Thus, creating a stronger avenue for legal migration to the U.S. serves to benefit our nation during COVID-19 and beyond.[10]
According to the most recent National Agricultural Workers Survey (NAWS) Research Report, 69% of farmworkers that the DOL interviewed and hired in FY 2015–2016 were born in Mexico, and 83% of all farmworkers were Hispanic.[11] The NAWS does not include H-2A workers in its survey sample.[12] Notably, the U.S. Department of State (DOS) issued over 200,000 H-2A visas in FY 2019.[13] On average, each temporary agricultural worker in the H-2A visa program maintained employment in the United States for six months.[14] Although the gradual expansion of the H-2A program likely played an important role in lessening illegal immigration to the United States from Mexico, H-2A visas still fill only 10% of farm labor.[15]
Moreover, Congress should amend the H-2A visa program to mitigate the bureaucratic complexity that is packed into the program’s 200+ rules.[16] As it exists, the H-2A visa program ensures that employers will provide workers with the required wage rate in their state, housing, transportation, and workers compensation.[17] Also, the employer must guarantee the worker a total number of work hours equal to at least three-fourths of the workdays in each 12-week period.[18] Nevertheless, the power imbalance between employers and H-2A employees has led to intolerable violations of workers’ legal rights that commonly go unchecked.[19]
In addition, many migrant and seasonal agricultural are subject to challenges such as: “hazardous work environments; poverty and insufficient support systems; inadequate or unsafe housing; limited availability of clean water and septic systems; inadequate healthcare access; continuity of care issues; lack of insurance; cultural and language barriers; fear of using healthcare due to immigration status; and lack of transportation.”[20] Notably, less than half of farm workers have healthcare.[21] This unacceptable fact is especially problematic during a pandemic, and even more so as coronavirus infections among farmworkers increase.[22] Further, demanding better working conditions puts H-2A workers at risk of deportation.[23] Because temporary agricultural workers may only acquire H-2A visas at the request of a U.S. employer, they often remain focused on getting the job done regardless of living and working conditions.[24]
Simply put, the H-2A should require U.S. employers to provide migrant workers with fair living and working conditions—at minimum.
In sum, Extending H-2A visas in response to the COVID-19 national emergency creates additional opportunities for nonimmigrant workers in the U.S. and supports the nation’s food supply. However, the H-2A program itself is in need of drastic reform.
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[1] Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 85 Fed. Reg. 51304 (Aug. 20, 2020) (to be codified at 8. C.F.R. pts. 214, 274) [hereinafter August 20 TFR].
[9]See 20 C.F.R. §§ 655.121, 655.130, 655.135(d), 655.135(g), 655.143, 655.144(a), 655.150, 655.153, 655.154, 655.161(a) (providing the procedural requirements for U.S. employers to obtain a Temporary Labor Certification and bring foreign nationals into the U.S. on a temporary or seasonal basis to perform agricultural work).
Jessica is a 2021 JD candidate at Vermont Law School (VLS). She has a B.S. in Marketing and a Master of Business Administration Degree (M.B.A.) from the University of Massachusetts, Dartmouth. The Agriculture and Food Systems specialization drew her to VLS and over the last 2 years, she has worked as a student clinician for the Center for Agriculture and Food Systems and spent summer 2020 working as a legal intern for the Center for Science in the Public Interest.
Most criminal defendants cannot afford their own attorney and instead rely on attorneys provided by the government.[1] Ever since Gideon[2] guaranteed representation to defendants facing possible imprisonment, critics have harshly criticized the quality of that representation, focusing in particular on jurisdictions where public defenders have staggering caseloads that make it effectively impossible to routinely go beyond “meet ‘em, greet ‘em, and plead ‘em,”[3] and where appointed and contract counsel have compensation schemes that demand the rapid resolution of cases.[4] In some jurisdictions, attorneys lack the time—sometimes best measured in minutes per case—to perform even a basic investigation of the facts much less develop a meaningful attorney-client relationship or probe the prosecution’s case for weaknesses.[5] Public defense attorneys with too many cases often also lack support services like investigators or expert witnesses.[6] Although the highly deferential Strickland Test provides a remedy for ineffective counsel in extraordinary cases,[7] it has done little to stop assembly-line justice from flourishing in the years since Gideon, a once-revolutionary decision that is widely considered a broken promise.[8]
“Sustainability momentum—that’s where the magic is going to happen.” – Eddie Perkin[1]
Investors admonish major companies for “hiding” their environmentally related plans to deal with climate change.[2] In fact, worldwide trends indicate that investors have a strong interest in companies’ climate-related plans.[3] And some companies have “bowed to [these] investor demands” already.[4] However, despite this trend, some of the world’s largest and well-known companies still remain silent on how critical climate-related issues affect their business—including Berkshire Hathaway, Facebook, Netflix, PayPal, and even the electric-car maker, Tesla.[5] And, in recent years, fossil-fuel giants—BP, Exxon, and Chevron—have stopped disclosing their climate-related plans.[6] The reason: because disclosures on environmental, social, and governance issues (ESG) are a dollar-and-cents issue, and revealing climate-sensitive information could be bad for certain businesses.[7] In 2016, the Sustainability Accounting Standards Board (SASB) reported that out of 1,500 disclosures by 637 companies across different 72 industries, nearly 30 percent of the disclosures did not include any climate-related information.[8] Most corporations evade climate-related disclosure because companies do not consider the risks of climate change to be material or that the company does not have a duty to report. Further, in the United States, ESG disclosures are an entirely voluntary measure, so companies have no obligation to report it—for now that is. Despite this disclosure dilemma, tackling climate change must ultimately go beyond the corporate dollar-and-cent mentality.[9]
American filmmaker and writer John Waters once said: “I’d be arrested if I still smoked because I’m the one who would be changing the battery in the airplane in the lavatory to take out the smoke detector. I would’ve been those people they warn you against.”[1] Given the current state of federal law, Waters would have not only inconvenienced the passengers and flight crew, but also given many restless nights to his attorney.
The State of Vermont has been working on designing a payment for ecosystem services (PES) system that would hire farmers to improve watershed function as a strategy to moderate and adapt to climate change.[1] This paradigm recognizes that deep topsoil can provide “flood protection, clean water, food security, and climate resilience and mitigation.”[2] The State and other parties would invest in rebuilding the land’s capacity to provide these services, much like it would invest in rehabilitating physical infrastructure.[3]
On October 28, 2012, a full moon was on display over New York harbor.[1] Twenty-four hours later the pull of that same moon, paired with many other events, brought destruction into the greater New York Metropolitan Area.[2] Superstorm Sandy killed 43 New Yorkers, flooded 51 square miles of the city’s landmass, caused over $19 billion of damage, and shut the power off for weeks.[3] The storm was a tragedy, and a sign of things to come.[4]
“Object anyway!” said James Kirkland Batson to his defense attorney when the prosecutor struck the only three black jurors from the venire during jury selection for his trial.[1] When Mr. Batson first inquired about the seemingly discriminatory peremptory challenges to his public defender, his attorney replied, the prosecutor does not need to disclose why he struck the jurors.[2] This did not sit right with Mr. Batson. He encouraged his attorney to object anyway, and his attorney did.[3] This choice was the catalyst that would lead to the monumental Supreme Court decision on peremptory challenges and the Fourteenth Amendment.[4]
This year, Vermont ski area Pico Mountain (Pico) broke ground on a project ramping up its snowmaking.[1] In the past, Pico’s snowmaking has suffered from running out of water when their “snowmaking needs are greatest.” Starting this 2019-2020 winter season, Killington Mountain Resort (Killington), another Vermont skiing destination, will be piping water from Killington’s water sources directly to the privately owned Pico ski area snowmaking pond (Killington-Pico snowmaking interconnect).[2] Vermont’s Department of Environmental Conservation (the Department) approved this 2.1 million dollar snowmaking project on September 17, 2019.[3] With access to Killington’s water supply, Pico will be able to “keep making snow without pause” ending the problem that has limited Pico’s snowmaking in the past: “running out of water when snowmaking needs are greatest.”[4] This investment is only the most recent of Pico’s improvements to take place since Killington acquired the ski area in 1997.[5] Snowmaking is not new to the ski-industry in Vermont, but becoming more quintessential to the survival and longevity of the season.[6]
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
