September 20, 2025 • 37 mins
Bloomberg legal reporter Madlin Mekelburg discusses the case against Tyler Robinson for the shooting of conservative activist Charlie Kirk. Retired appellate judges Andre Davis and Paul Michel discuss the increasing threats against judges. Heather Whiteman Runs Him, director of the Tribal Justice Clinic at the University of Arizona, discusses Western Apache’s fight to save sacred tribal lands from mining. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio
for count one aggravated murder, a capital felony, and violation
of Utah Code annotated seventy six Dash five Dash two
two in that on September tenth, twenty twenty five, in
Utah County, the defendant, Tyler James Robinson, intentionally or knownly
(00:26):
caused the death of Charlie Kirk.
Speaker 2 (00:28):
Twenty two year old Tyler Robinson appeared in court for
the first time on Tuesday to face aggravated murder chargers
for the fatal shooting of conservative activist Charlie Kirk. Utah
County Attorney Jeff Gray said they'll seek the death penalty,
explaining the aggravating factors.
Speaker 3 (00:48):
The state is further alleging aggravating factors oncounts one and
two because the defendant is believed to have targeted Charlie
Kirk based on Charlie k Kirk's political expression and did
so knowing that children were present and would witness the homicide.
Speaker 2 (01:07):
During the ten minute hearing, Robinson, who was wearing a
grain vest designed to prevent self harm, showed no emotion
and didn't speak except to state his.
Speaker 1 (01:17):
Name, State of Utah versus Tyler James Robinson. Could you
state your name, Tyler James Robinson.
Speaker 2 (01:25):
Robinson faces six other charges in addition to the aggravated
murder count, including obstruction of justice, witness tampering, gun charges,
and committing a violent offense in the presence of a child.
Joining me is Bloomberg Legal reporter Madlein Mecklberg Madline tell
us about this first court appearance for Tyler Robinson.
Speaker 4 (01:47):
Tyler Robinson came before a judge for the first time
this week, and it was a virtual appearance in a courtroom,
which is pretty standard apparently for criminal cases in Utah
County where he was charged. And he appeared via zoom
from the jail and the judge who will be presiding
over the criminal case moving forward, read the charges allowed
(02:07):
to him, informed him that there was a possible sentence
of the death penalty associated with those charges, and he
asked him if he had an attorney yet, and he
does not have a lawyer. The judge said, based on
his financial status, one will be appointed for him, and
that's something that we can expect to happen in the
next few weeks here, and.
Speaker 2 (02:25):
That lawyer is going to have to be one that's
certified in the state to represent capital defendants, so that
will limit the choices somewhat.
Speaker 4 (02:34):
Did Robinson enter a plea, No, we're not going to
see him enter a plea for at least a few weeks,
the way that things work in Utah. The next hearing
is also going to be virtual, and they'll be discussing
whether or not he wants to waive his right to
a preliminary hearing. This is a hearing where they would
talk about whether there's enough validity to the charges to
(02:57):
move forward to an arraignment, which would yet another hearing
where he would actually enter a plea to the charges
before him. So along road to go before we get there.
Speaker 2 (03:07):
And from what authorities have said, he has not made
a confession and he's not talking to investigators.
Speaker 4 (03:15):
So Yutah County Attorney Jeff Gray has been the public
face of the prosecution so far, and he's really declined
to weigh in on exactly how much Robinson may or
may not be cooperating with investigators. But we heard previously
from law enforcement authorities that he has not been cooperative
with them. There is no evidence so far that he's
(03:37):
given them any kind of confession or admitted to anything,
although I'm sure you saw. Prosecutors released a ton of
evidence that they say they have against him, which include
text messages where he's talking about the shooting, but they
decline to say whether they can strue those as being
a confession. And at this point we have no reason
to believe that he's confessed to authorities or that he's
(03:59):
even cooperated with them.
Speaker 2 (04:00):
Let's talk a little bit about those text messages to
his roommate and why prosecutors are highlighting them.
Speaker 4 (04:09):
So while he may not be cooperating with them, it's
very clear that his family and people close to him are,
or at least have been providing law enforcement with information
regarding their communications with him leading up to the shooting
and following the shooting. Now, prosecutors say that he was
in a romantic relationship with his roommate and that when
(04:30):
he was on campus allegedly committing this act, he sent
a message to his roommate telling them to look under
his keyboard on his computer, and when the roommate checked
under the keyboard, there was a note there that said, quote,
I had the opportunity to take out Charlie Kirk and
I'm going to take it. And what followed is a
series of messages that are allegedly between the roommate and Robinson.
(04:54):
You know, the roommate is expressing confusion shock, saying you're joking, right,
and Robinson apparently said to them, I'm not joking. The
roommate says, you weren't the one who did this, right,
Robinson says, I am, I'm sorry. They go back and
forth in this exchange, and Robinson apparently is talking about
how he attempted to hide his rifle, how police arrested
(05:15):
somebody at the shooting who was not him. I'm sure
you remember those hours afterwards when police kept saying they
had someone in custody, but they were not the suspect
in this case. So I think the messages are significant
because it clearly shows that Robinson was talking about doing
this and explaining some of his thought process behind it,
which is that he said, quote, I had enough of
(05:37):
his hatred talking about Kirk.
Speaker 2 (05:39):
And prosecutors say they also have some physical evidence DNA evidence.
Speaker 4 (05:44):
Right, So, prosecutors say that they have DNA from the
trigger of the rifle that they believe was used in
the shooting, and the towel that the rifle was found
wrapped in when they recovered it from the scene, They
say the DNA they collected their matches Robinson.
Speaker 2 (06:00):
And what about his conversations on Discord? The FBI director
said that they're investigating the people who are involved in
those conversations.
Speaker 4 (06:10):
Apparently Robinson was having conversations on Discord, which is a
popular chat application that's used for people who play in
stream video games, is my understanding of it. But apparently
he was having a conversation with a group of friends
and making jokes about the shooting and connecting himself to
it without admitting anything. And those conversations have been discussed by,
(06:34):
as you say, the FBI director and some officials publicly,
but they're not actually mentioned in the charging documents that
we saw filed from prosecutors. So we have to assume
that'll be part of the evidence that they present against
him at some point, but it hasn't been part of
this initial charging.
Speaker 2 (06:50):
Prosecutors didn't out and out state a motive, did they,
Although in the documents there was a reference to Robinson
becoming more pro gae and trans rights oriented.
Speaker 4 (07:04):
No, so they talked about the political elements of the
situation here, but they have said that they're not talking
about a motive at this point. They're only talking about
the evidence that they have, which seems to include statements
from Robinson's mother, who's the one who told investigators that
in recent years her son have become more politically engaged
with some of these left leaning causes and more pro
(07:26):
gae and transwrights focus. That's something that was in the
charging documents, and that seems to be significant because his
family said that they identify as being more conservative voters.
Speaker 2 (07:37):
The county prosecutor describe political motivation as an aggravating factor
for the capital murder charges, So where does that fit
in their case?
Speaker 4 (07:48):
Prosecutors noted in the charging documents that Robinson intentionally selected
Kirk because of his perception regarding Kirk's political expression. So
that's the mention that we seen from prosecutors in the
formal court documents, that he was motivated by the political expression,
But they haven't declared that as the official motive, but
(08:09):
they've noted that that was part of why Robinson allegedly
decided to shoot Kirk.
Speaker 2 (08:14):
Do authorities consider him a sole actor here or are
they looking for accomplices?
Speaker 4 (08:20):
So At this point, prosecutors and law enforcements say that
they are continuing investigating, they're leaving no stone unturned, but
they've declined to answer questions of whether they believe he
acted alone or this was a coordinated attempt. And so
at this point, nobody else has been named as a
suspect or even as somebody who has contributed to this
(08:41):
in a different way, and so the investigation continues. It's
possible that we see future charges against another individual, but
at this point there's no evidence to suggest that they
have somebody else in mind.
Speaker 2 (08:53):
Are the Feds also considering bringing charges against Robinson?
Speaker 4 (08:57):
I think that's certainly a possibility. Heard people in the
Trump administration say that that's something that they're looking at.
Prosecutors in Utah County declined to answer questions about that
as well. They said that's a decision that's totally up
to the federal government if they have charges that they
want to pursue at a federal level. Nothing's been filed yet,
but you know, that's always possible.
Speaker 2 (09:18):
Before Robinson was even arrested, Utah's governor said they would
pursue the death penalty, and yet on Tuesday, the county
prosecutors said he came to the decision to seek the
death penalty independently.
Speaker 4 (09:33):
So there's been a lot of talk about this. The
Utah governor came out and said that he was planning
to pursue it. President Trump has said you need to
pursue the death penalty, and when we heard from the
county attorney this week, he said he made this decision
independent of any outside influence and that while he spoke
with both the governor and the President at least representatives
for their respective administrations, he said he didn't receive pressure
(09:56):
from them to make that decision and they didn't raise
it with him. To be clear that this is something
he's pursuing based on the evidence that he has, and
part of that is this idea that when the shooting occurred,
there were children present and there was also a risk
of injury to other people that were there, So it
wasn't a straightforward murders where it was just between two individuals.
(10:19):
He was firing a shot across a crowd of people,
and there was a risk of injury to others who
were there.
Speaker 2 (10:25):
Utah was the first state to carry out an execution
after the Supreme Court put the death penalty back on
the book, so to speak, how many executions has the
state carried out since then?
Speaker 4 (10:37):
So, Utah is one of twenty three states in the
US that currently allows for the death penalty to be
imposed on an individual. Compared to other states, they have
had less executions. Typically, when you're talking about the modern
era of the death penalty, we look at executions since
nineteen seventy six, which was when the Supreme Court said
(10:57):
that it is legal as a form of sentencing. And
so since then, Utah has executed eight people.
Speaker 2 (11:05):
And Utah is one of a handful of states that
allow executions by firing squad.
Speaker 4 (11:11):
Every state that allows for the death penalty, their primary
means of administering it is through legal injection. But Utah
is unique in that it's one of just five states
that allows for a firing squad to be used in execution.
But that's only in the situation where the state can't
acquire the drugs that are required for lethal injection.
Speaker 2 (11:32):
The last time the firing squad was used was in
twenty ten, not so long ago. The next hearing for
Robinson is on September twenty ninth, so we should learn
more then. Thanks, So, much, Madlin. That's Bloomberg Legal reporter
Madlein Meckelberg coming up next. An unprecedented number of threats
against federal judges. I'm June Grosso, and you're listening to Bloomberg.
Speaker 5 (11:57):
I went beyond just me. You know, the court staff
had to listen to this, and our court received over
four hundred vile, threatening, horrible voicemails. I've been on the
bench almost fifteen years, and i must say it's the
one time that actually shook my faith in the judicial
(12:21):
system and the rule of law, in the work with
the d Constitution and whatnot.
Speaker 2 (12:26):
Threats against federal judges have increased dramatically. The US Marshal
Service has investigated more than five hundred threats against three
hundred and sixty four judges in the last nine months alone.
One of those judges is John McConnell, the chief judge
for the District of Rhode Island. He got hundreds of
death threats after he issued a ruling that blocked President
(12:49):
Trump's freeze on federal aid.
Speaker 5 (12:51):
And I experienced a period of a few months and
my family did, of incredible personal harassment, attack and threats
that go to the very core of those constitutional principles
that we all up poll. I mean I told you
about the four or five hundred vile phone calls. There
were six credible death threats against my life. Someone was
(13:15):
on the dark web searching for my home address because
this is a quote. He wanted Smith and Wesson to
pay me a visit at my home.
Speaker 2 (13:25):
In response, on Wednesday, Constitution Day, a group of nearly
fifty former federal judges published an open letter warning against
attempts to intimidate and pressure judges and threaten judicial independence,
saying the Constitution is under attack. Joining me are two
of those judges from the Keep Our Republic's Article three coalition,
(13:48):
Judge Andre Davis, formerly of the US Court of Appeals
for the Fourth Circuit and the District Court of Maryland,
and Judge Paul Michelle, formerly of the US Court of
Appeals for the Federal Thank you both for being here.
Judge Davis, tell us why your group of retired judges
decided to publish this letter.
Speaker 6 (14:08):
We're seeing the same thing, namely, an unprecedented and very
dangerous attack on the judiciary, on the third branch of
government in the United States, and putting at risk not
just the rule of law, and our democracy as we
know it, but the actual lives of judges and their
(14:28):
family members. And so that's what prompted us to take
what I think is an unprecedented step ourselves by coming
together as a group of retired judges appointed by presidents
from both parties to speak with one voice and call
attention to the danger that is not just implicit but
(14:52):
unavoidable in the kinds of rhetoric being used and the
direct attacks on the judiciary and the rule of law.
And so we're speaking with one voice to one educate
the public and to speak out in support of our
colleagues who work day in and day out to do
the people's work in dispensing justice.
Speaker 2 (15:12):
Judge Michelle, there's a lot of rhetoric against judges coming
from the top of the executive branch. As retired judges,
what can you do to stop it?
Speaker 7 (15:22):
Well, my hope is that if the citizenry can be
better educated about the proper function and duties of judges,
they will see that the threat to judges is really
a threat against their own rights being protected by courts.
Courts have to be independent of political pressures, whether from
the White House or the Justice Department or elsewhere, and
(15:45):
that is what's under attack now. And we think that
we have unusual credibility because we're so nonpartisan, non political,
or you could almost say bipartisan, because we have about
half our judges are points by Republican administrations and half
by democratic administrations, and we're enormously diverse personally, but as
(16:07):
Judge Davis rightly says, we're completely united and being horrified
at the status quo, feeling like this is a moment
of brave danger for our country, our democracy, and the
rule of law. When you come right down to it,
at the end of the day, either the written law
is going to control or what the executive wants is
(16:28):
going to control. Is it the rule of law or
the rule of a king. That's what really is at
stake here. And we think that the shrill attacks can
be discouraged by the media and the citizenry objecting loudly
to that kind of language, whether it's from Congress persons
calling for impeachment of a judge simply for doing his
(16:50):
or her job and ruling on a case, or coming
from the White House or the Justice Department. And this
is a moment of enormous danger for our country. One
of the problems is the citizens have been very much misled.
Too many of them are not well versed in understandings
of basic constitutional government procedures and structures in our country. So,
(17:13):
for example, the most important thing citizens need to realize
is the job of a judge is not to promote
the agenda of any president or any political party. The
job of a judge is strictly to apply the written law,
the precedents, and the statutes to the case.
Speaker 2 (17:30):
The administration has been running to the Supreme Court when
lower courts rule against them, and the Supreme Court has
sided with the Trump administration in the vast majority of
emergency cases decided since January, and more than a dozen
times the Court has lifted an injunction issued by a
trial judge who said the administration was probably acting illegally.
(17:55):
And the Court has sometimes written a few sentences in explanation,
but sometimes none. And I'm wondering if that gives the
average person a distorative view of what the lower courts
are doing in limiting the administration and what the Supreme
Court is doing in allowing the administration to move forward.
Speaker 6 (18:16):
Well, you know, you put your finger on something that's very,
very frankly disheartening about the current legal landscape. The point
is that every federal district judge, without exception, who has
ruled against some policy of this administration, was acting in
absolute good faith in his and her attempt to interpret
(18:40):
not just statutory law, not just constitutional law, but the
Supreme Court's own precedence. That's what the federal district judges
around the country have been doing for the last seven
or eight months. And in those instances, I would even
say most of those instances where the administration has appealed
(19:04):
those adverse decisions by federal district judges, in most instances,
the federal appellate courts have largely left in place the
orders of the district judges. So what we see in
the so called shadow docket is that the Supreme Court
(19:25):
is reversing the decisions in large part without explaining how
or why those decisions are being reversed, And so that leaves,
you know, in the mind of many lay people this
very distorted view. Somehow, that the lower federal courts, the
(19:46):
district judges, who hear from the parties, hear from the lawyers,
consider the evidence, make a ruling which is then left
in place by the intermediate appellate Court and the matter
gets up to the Supreme Court, and the Supreme Court
in one or two sentences as you say, reverse that decision. Well,
a lot of people you know on the street, not
(20:08):
versed in the law, somehow are persuaded that the lower
court judges are somehow against the administration, and as all
the judges are doing is trying their best to apply
the law. And so it this serves justice, in all honesty,
to leave in the minds of people that somehow the
Supreme Court is protecting this administration from lower court judges,
(20:36):
and that just feeds into this misinformation, this distorted view
that so many in high office continue to create, that
the judiciary is full of lunatics and activists, and nothing
could be further from the truth. So hopefully, in the
fullness of time, hopefully not too far in the future,
(20:59):
this landscape that's been created through the procedural processes that
have been employed will see the light of day. And
one of the things that the Article to re Coalition
is trying so desperately to do to continue to educate
people about the role of judges and how reason judgment
is the coin of the realm when it comes to
(21:22):
the judiciary.
Speaker 2 (21:23):
And Judge Michelle. Justice Neil Gorsuch recently admonished federal judges
not to defy the Supreme Court, saying they weren't following
precedent from the emergency docket, and Boston federal judge Allison
Burrows reacted to that and said that it was unhelpful
and unnecessary to criticize district courts that are working to
(21:48):
make sense of Supreme Court orders that are not quote,
models of clarity, and another federal judge, William Young, said
he didn't understand that orders on the emergency docket were precedent.
He said, I stand corrected. I mean, what do you
think the impact is of a Supreme Court justice calling
out federal judges.
Speaker 7 (22:10):
Well, One complexity that the public doesn't understand, but it's
rather important, is that nearly all of the injunctions that
have been issued by the district judges around the country,
and these hundreds of suits challenging Trump administration actions are
very preliminary. And that's because there hasn't yet been a trial,
(22:30):
there hasn't yet been a final resolution of disputed facts.
The district judge is making a prediction, a judgment that
likely the challenger will win over the administration's defense, but
it's a speculative judgment. I'm not defensive of the Supreme
Court and the extent to which they've intervened, but it
(22:52):
is important to recognize that they aren't saying the administration
was right and the district judge was wrong. What they're
really He's saying is we don't know for sure yet,
so we're going to delay a remedy until there's been
actual fact findings and what lawyers call a final judgment.
But beyond that, it is certainly true that some of
(23:14):
these orders have no reasoning coming down from the Supreme Court.
Others are very terse and sometimes unclear. I don't think
it's helpful for Judge Burrows and the Supreme Court justices
to get in a public shouting match, but she has
a point. The district judges are striving to apply the
law faithfully and impartially, and I think usually they get
(23:39):
it right, and particularly where they're upheld, as has been
true in a number of these cases by the Court
of Appeals above them, the Supreme Court ought to be
very hesitant to jump in and overrule both of the
so called lower courts. But in terms of the admonition
from judge courts, I don't know what he's talking about.
I don't see any judge, including Judge William Young in Boston,
(24:02):
as being defiant, as refusing to follow some clear direction
from the Supreme Court. So I'm not quite sure what
he's referring to. But it's not very helpful, and it's
a further demoralization of the district judges, who do ninety
percent of the work in the judicial system and who
should be respected and supported by the public and by
(24:24):
the rest of the judicial establishment and not pilloried as
if they're rebellious children or something because they're not.
Speaker 2 (24:32):
Thank you both so much for joining me today. That's
Judge Paul Michelle and Judge Andre Davis coming up next
on the Bloomberg Law Show. Do lawsuits over tribal sacred
sites show unequal protection for religious rights? I'm June Grosso.
When you're listening to Bloomberg.
Speaker 8 (24:50):
On him on Itaiva.
Speaker 5 (24:55):
God.
Speaker 2 (24:58):
For centuries, Western Napat have worshiped at Oak Flat, a
seven square mile sacred tribal site in Arizona where tribal
members hold religious ceremonies. They say can't take place anywhere else.
Speaker 8 (25:12):
That is what keeps us who we are. That is
the thing. The spiritual connection to Nakaosan, to our mother Earth,
to Yosin the Creator, to chicha Il, to Sisland, Chassison,
into all sacred sites as indigenous people is what keeps
us here today.
Speaker 2 (25:29):
For example, there's the Sunrise Ceremony, a three day coming
of aid ceremony for Apache girls that requires gathering certain
plans at Oak Flat and being painted with white clay
from its ground. For years, Apache Stronghold, a nonprofit coalition
of tribal members, has been trying to stop the federal
(25:49):
government from transferring the land to a foreign copper mining
company whose excavation would destroy the site. The Ninth Circuit
has rejected the tribal group's attempts to protect flat on
religious grounds, and the Supreme Court has refused to take
the case. A group of Apache women has filed a
new suit based on a June decision by the Supreme
(26:11):
Court that expanded the religious rights of public school parents.
It all brings up the question of whether tribal religious
freedom claims are getting equal treatment. A dissent by Justice
Neil Gorsuch seems to suggest they're not. My guest is
Heather white Man runs him director of the Tribal Justice
(26:32):
Clinic at the University of Arizona. Heather, can you give
us the background of this legal fight?
Speaker 9 (26:38):
In twenty fourteen, Congress passed the Southern Arizona Land Exchange
and Conservation app as part of a much larger Defense
authorization bill that you know, was really so voluminous that
it didn't have a whole lot of review and people
weren't paying super close attention to some of the smaller
parts of that much larger piece of legislation. And because
(27:01):
of that, this particular build was able to make its
way through congressional ratification and was signed into law by
President Obama. This particular initiative had been a standalone buil
numerous times before and had never moved forward, never been
able to get through Congress. What the bill does is
(27:21):
it mandates the transfer of FOREGT Service lands to a
private company Resolution Copper, for the purpose of mining a
substantial deposit of copper that underlies the surface of that land.
The reason why that's been opposed for so many years
is because the land on the surface is the site
of very significant, longstanding religious practices by the Western Apache people,
(27:46):
and so the mining of the copper will result in
the complete destruction of a substantial area of the surface land.
It will subside, it will create a very large crater,
it won't be usable any longer. For the purpose is
that the Apache people have maintained on that land for
hundreds and hundreds of years, if not longer. And so that,
(28:08):
according to the Apache people, is a substantial burden on
their religious practice. And common sense would I think lead
anybody to a similar result that if you destroy the
land that is absolutely necessary for the practice of a religion,
that's a burden. So that's the conflict in essence.
Speaker 2 (28:25):
Apache stronghold says that Oak Flat is the only place
where certain religious ceremonies can take place. Tell us about
the sunrise ceremony, which is often mentioned.
Speaker 9 (28:37):
Oak Flatt is the site where female members of the
San Carlos Apache tribe have their coming of age ceremonies.
So it's where a girl becomes a woman, and there's
a specific ceremony that takes place when a girl becomes
a woman. It's a very intensive, multi date ceremony. It's
incredibly onerous physically, there's a lot of prayer, a whole
(28:57):
community comes together to help bring a girl in the womanhood.
It's the necessity for a woman to go through that
ceremony to fully realize her identity as an attachy woman.
So it's incredibly significant. It's one of the most important
things that happens in any woman's life in that culture.
Speaker 2 (29:13):
So the nonprofit Tribal Rights Group suit to stop the
land transfer on religious grounds under the First Amendment and
the Religious Freedom Restoration Act, they lost at the Ninth Circuit.
Will you explain why the Ninth Circuit found that the
land transfer couldn't be considered a substantial burden on religious exercise.
Speaker 9 (29:37):
So the Ninth Circuit opinion it's a tough one to
parse out, and so there are a couple of different
things that happened there. First, the court ruled that there
was no substantial burden because there's not coercion. The Ninth
Circuit has a very narrow definition of substantial burden and
of coercion. So they have ruled that in the absence
(30:00):
of withholding of a benefit because of a religious practice
or a punative or punishment type of provision in a
generally applicable federal law, that is triggered by what would
otherwise be, you know, a basic exercise of a religious
practice that there's no coercion, that results in no substantial burden.
Speaker 2 (30:20):
Will you tell us more about how Native American religious
practices require relationships with specific locations and how that played
into the arguments.
Speaker 9 (30:31):
And that's the second heart of the Ninth Circuit on
Bonk holding. So the first is applying this really narrow standard,
really restrictive standard for finding a substantial burden. And second,
a different majority of the Ninth Circuit then held that
where there's a federal property management initiative, that cannot burden
(30:51):
religious freedom rights. You know, under the Ninth Circuit ruling
were limited from ever bringing any kind of claim, then
saying that affect er land management decision substantially burdens our
free exercise right because it's federal property. The federal government
has a right to do what it wants with its
own land. And that just doesn't seem right to me
that we can't limit the federal government from violating the
(31:14):
First Amendment because the federal government is the landowner. So
the analysis under the Ninth Circuit approach is really that
the relief thought to limit our ability to ever find
an injury to people's First Amendment right. So we can't
find a burden because the relief that we're seeking to
limit what the federal government is a landowner can do
with its own property. You know, it certainly presents a
(31:36):
real challenge to any Native American person whose religious beliefs
depend on a relationship with a specific land base, and
many of ours do. Many of us have religions and
religious practices and beliefs that requires specific things to happen
in specific places, often at specific time, and that is
our sincerely held religious belief and how we practice it.
(31:58):
So it renders Native American religion belief virtually unprotectable in
many instances under the way that the case law has developed.
And I just think that can't be right. And I
hope most Americans would consider that situation and feel similarly
that that simply cannot be correct, and that cannot be
consistent with our constitution or what our founders intended.
Speaker 2 (32:17):
Apache Stronghold took the case up to the Supreme Court,
but the Court refused to take the case. However, Justice
Neil Gorsitch wrote a powerful dissent joined by Justice Clarence Thomas.
He said it was a grave mistake for the Court
not to take the case. Quote, just imagine if the
government sought to demolish a historic cathedral on so questionable
(32:40):
a chain of legal reasoning. I have no doubt that
we would find that case worth our time. Face with
the government's plan to destroy an ancient side of tribal worship.
We owe the Apaches no less. And this is a
Supreme Court that has expanded religious rights. Do you see
a difference with the way tribal will religion has been treated.
Speaker 9 (33:02):
I see a difference. A lot of people see a difference.
You know, Justice Court. Such is Dissent is a really
great read. I'd encourage anybody interested in these issues to
read it, and I think it recognizes that, like I
was saying earlier, the way that these cases are evaluated
and the outcomes that we keep seeing should be a
concern to every American. Every American citizen should worry about
(33:23):
the viability of their free exercise right. If the Court
can condone the complete annihilation of a place of worship
that is absolutely central to the perpetuation of that religion,
they can limit anybody's religious exercise right. So this is
a threat to every American religious liberty, and it is
something that I think we should all be concerned about that.
(33:44):
You know, we need to work through these issues and
we need to find solutions that will bring us different results.
Speaker 2 (33:49):
Ultimately, the Supreme Court in June expanded the religious rights
of public school parents, ruling that public school parents have
the right to opt their children out of classroom lessons
that intrude on their religious beliefs. In that case, the
Mackmood case, it was the reading of LGBTQ friendly books
(34:10):
in the classroom that parents objected to. How does that
case affect Apache Strongholds case.
Speaker 9 (34:17):
Soon after the denial of CIRT, Apache Stronghold attorneys filed
a petition for basically a reconsideration of the thirt petition
asking the Supreme Court to grant Scherai remand the case
back to the Ninth Circuit and provide clear direction to
the Ninth Circuit on how to review the legal arguments
(34:38):
going forward in a new a new Ninth Circuit review.
Part of the reason for that is because intervening precedent
was decided after the denial of Surcherai. The Apache Strongholds
petition for reconsideration relies heavily on the intervening decision in
Macmood because there are similar impacts of the government policy
(35:01):
that's challenged there. In my Mood, we had the Supreme
Court recognize very very vehemently that when we limit parents'
abilities to bring up their children, to raise their children
in ways that are consistent with their religious beliefs, we
are violating their First Amendment rights. That is a substantial burden,
and it has to go through the relevant analysis for
(35:23):
when and how such burdens are limited and when they're
allowed to go forward. That type of test has not
been applied yet to the challenged law, to the Land
Exchange Act. In Apache Stronghold, what we've been through so
far is the preliminary injunction analysis, so we haven't had
the full review of an application of the relevant legal
standards for what's permissible, when.
Speaker 2 (35:44):
And how, And tell us about the new case that's
been filed by Apache Women.
Speaker 9 (35:50):
The new case that has been filed by a group
of Apache women, mothers and daughters that really found it
claims in similar issues and similar analysis to what the
Supreme Court decided in Mahmoud. The Land Exchange app will
burden through free exercise rights of especially Aptchy women, because
(36:12):
it's limiting APACHE women from having the ability to become
women in ways that are consistent with their religious beliefs.
It's limiting APACHE mothers from bringing their daughters into womanhood
as required by their religious beliefs. And so there's, you know,
a real consistency with the impact and the burden on
(36:32):
a religious freedom interest. There as what we saw the
Supreme Court limit in Mahmood, and.
Speaker 2 (36:37):
The land transfer was stopped for the time being.
Speaker 9 (36:41):
The Ninth Circuit Court of Appeal issued an emergency injunction
basically preventing the land transfer. The land transfer was about
to take place, put the cases on an expedited briefing schedule,
and so we're now in the middle of that briefing
to the Ninth Circuit or a argument will probably take
place early this fall and will see how the Ninth
Circuit resolves this issue. So yeah, there's still a lot
(37:03):
of activity surrounding various parties claims in relation to the
final disposition of Oak Flat.
Speaker 2 (37:10):
We'll certainly follow the oral arguments when they take place.
Thanks so much, Heather. That's Heather white Man runs him
Director of the Tribal Justice Clinic at the University of Arizona.
And that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com slash podcast Slash Law,
(37:35):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio
for count one aggravated murder, a capital felony, and violation
of Utah Code annotated seventy six Dash five Dash two
two in that on September tenth, twenty twenty five, in
Utah County, the defendant, Tyler James Robinson, intentionally or knownly
(00:26):
caused the death of Charlie Kirk.
Speaker 2 (00:28):
Twenty two year old Tyler Robinson appeared in court for
the first time on Tuesday to face aggravated murder chargers
for the fatal shooting of conservative activist Charlie Kirk. Utah
County Attorney Jeff Gray said they'll seek the death penalty,
explaining the aggravating factors.
Speaker 3 (00:48):
The state is further alleging aggravating factors oncounts one and
two because the defendant is believed to have targeted Charlie
Kirk based on Charlie k Kirk's political expression and did
so knowing that children were present and would witness the homicide.
Speaker 2 (01:07):
During the ten minute hearing, Robinson, who was wearing a
grain vest designed to prevent self harm, showed no emotion
and didn't speak except to state his.
Speaker 1 (01:17):
Name, State of Utah versus Tyler James Robinson. Could you
state your name, Tyler James Robinson.
Speaker 2 (01:25):
Robinson faces six other charges in addition to the aggravated
murder count, including obstruction of justice, witness tampering, gun charges,
and committing a violent offense in the presence of a child.
Joining me is Bloomberg Legal reporter Madlein Mecklberg Madline tell
us about this first court appearance for Tyler Robinson.
Speaker 4 (01:47):
Tyler Robinson came before a judge for the first time
this week, and it was a virtual appearance in a courtroom,
which is pretty standard apparently for criminal cases in Utah
County where he was charged. And he appeared via zoom
from the jail and the judge who will be presiding
over the criminal case moving forward, read the charges allowed
(02:07):
to him, informed him that there was a possible sentence
of the death penalty associated with those charges, and he
asked him if he had an attorney yet, and he
does not have a lawyer. The judge said, based on
his financial status, one will be appointed for him, and
that's something that we can expect to happen in the
next few weeks here, and.
Speaker 2 (02:25):
That lawyer is going to have to be one that's
certified in the state to represent capital defendants, so that
will limit the choices somewhat.
Speaker 4 (02:34):
Did Robinson enter a plea, No, we're not going to
see him enter a plea for at least a few weeks,
the way that things work in Utah. The next hearing
is also going to be virtual, and they'll be discussing
whether or not he wants to waive his right to
a preliminary hearing. This is a hearing where they would
talk about whether there's enough validity to the charges to
(02:57):
move forward to an arraignment, which would yet another hearing
where he would actually enter a plea to the charges
before him. So along road to go before we get there.
Speaker 2 (03:07):
And from what authorities have said, he has not made
a confession and he's not talking to investigators.
Speaker 4 (03:15):
So Yutah County Attorney Jeff Gray has been the public
face of the prosecution so far, and he's really declined
to weigh in on exactly how much Robinson may or
may not be cooperating with investigators. But we heard previously
from law enforcement authorities that he has not been cooperative
with them. There is no evidence so far that he's
(03:37):
given them any kind of confession or admitted to anything,
although I'm sure you saw. Prosecutors released a ton of
evidence that they say they have against him, which include
text messages where he's talking about the shooting, but they
decline to say whether they can strue those as being
a confession. And at this point we have no reason
to believe that he's confessed to authorities or that he's
(03:59):
even cooperated with them.
Speaker 2 (04:00):
Let's talk a little bit about those text messages to
his roommate and why prosecutors are highlighting them.
Speaker 4 (04:09):
So while he may not be cooperating with them, it's
very clear that his family and people close to him are,
or at least have been providing law enforcement with information
regarding their communications with him leading up to the shooting
and following the shooting. Now, prosecutors say that he was
in a romantic relationship with his roommate and that when
(04:30):
he was on campus allegedly committing this act, he sent
a message to his roommate telling them to look under
his keyboard on his computer, and when the roommate checked
under the keyboard, there was a note there that said, quote,
I had the opportunity to take out Charlie Kirk and
I'm going to take it. And what followed is a
series of messages that are allegedly between the roommate and Robinson.
(04:54):
You know, the roommate is expressing confusion shock, saying you're joking, right,
and Robinson apparently said to them, I'm not joking. The
roommate says, you weren't the one who did this, right,
Robinson says, I am, I'm sorry. They go back and
forth in this exchange, and Robinson apparently is talking about
how he attempted to hide his rifle, how police arrested
(05:15):
somebody at the shooting who was not him. I'm sure
you remember those hours afterwards when police kept saying they
had someone in custody, but they were not the suspect
in this case. So I think the messages are significant
because it clearly shows that Robinson was talking about doing
this and explaining some of his thought process behind it,
which is that he said, quote, I had enough of
(05:37):
his hatred talking about Kirk.
Speaker 2 (05:39):
And prosecutors say they also have some physical evidence DNA evidence.
Speaker 4 (05:44):
Right, So, prosecutors say that they have DNA from the
trigger of the rifle that they believe was used in
the shooting, and the towel that the rifle was found
wrapped in when they recovered it from the scene, They
say the DNA they collected their matches Robinson.
Speaker 2 (06:00):
And what about his conversations on Discord? The FBI director
said that they're investigating the people who are involved in
those conversations.
Speaker 4 (06:10):
Apparently Robinson was having conversations on Discord, which is a
popular chat application that's used for people who play in
stream video games, is my understanding of it. But apparently
he was having a conversation with a group of friends
and making jokes about the shooting and connecting himself to
it without admitting anything. And those conversations have been discussed by,
(06:34):
as you say, the FBI director and some officials publicly,
but they're not actually mentioned in the charging documents that
we saw filed from prosecutors. So we have to assume
that'll be part of the evidence that they present against
him at some point, but it hasn't been part of
this initial charging.
Speaker 2 (06:50):
Prosecutors didn't out and out state a motive, did they,
Although in the documents there was a reference to Robinson
becoming more pro gae and trans rights oriented.
Speaker 4 (07:04):
No, so they talked about the political elements of the
situation here, but they have said that they're not talking
about a motive at this point. They're only talking about
the evidence that they have, which seems to include statements
from Robinson's mother, who's the one who told investigators that
in recent years her son have become more politically engaged
with some of these left leaning causes and more pro
(07:26):
gae and transwrights focus. That's something that was in the
charging documents, and that seems to be significant because his
family said that they identify as being more conservative voters.
Speaker 2 (07:37):
The county prosecutor describe political motivation as an aggravating factor
for the capital murder charges, So where does that fit
in their case?
Speaker 4 (07:48):
Prosecutors noted in the charging documents that Robinson intentionally selected
Kirk because of his perception regarding Kirk's political expression. So
that's the mention that we seen from prosecutors in the
formal court documents, that he was motivated by the political expression,
But they haven't declared that as the official motive, but
(08:09):
they've noted that that was part of why Robinson allegedly
decided to shoot Kirk.
Speaker 2 (08:14):
Do authorities consider him a sole actor here or are
they looking for accomplices?
Speaker 4 (08:20):
So At this point, prosecutors and law enforcements say that
they are continuing investigating, they're leaving no stone unturned, but
they've declined to answer questions of whether they believe he
acted alone or this was a coordinated attempt. And so
at this point, nobody else has been named as a
suspect or even as somebody who has contributed to this
(08:41):
in a different way, and so the investigation continues. It's
possible that we see future charges against another individual, but
at this point there's no evidence to suggest that they
have somebody else in mind.
Speaker 2 (08:53):
Are the Feds also considering bringing charges against Robinson?
Speaker 4 (08:57):
I think that's certainly a possibility. Heard people in the
Trump administration say that that's something that they're looking at.
Prosecutors in Utah County declined to answer questions about that
as well. They said that's a decision that's totally up
to the federal government if they have charges that they
want to pursue at a federal level. Nothing's been filed yet,
but you know, that's always possible.
Speaker 2 (09:18):
Before Robinson was even arrested, Utah's governor said they would
pursue the death penalty, and yet on Tuesday, the county
prosecutors said he came to the decision to seek the
death penalty independently.
Speaker 4 (09:33):
So there's been a lot of talk about this. The
Utah governor came out and said that he was planning
to pursue it. President Trump has said you need to
pursue the death penalty, and when we heard from the
county attorney this week, he said he made this decision
independent of any outside influence and that while he spoke
with both the governor and the President at least representatives
for their respective administrations, he said he didn't receive pressure
(09:56):
from them to make that decision and they didn't raise
it with him. To be clear that this is something
he's pursuing based on the evidence that he has, and
part of that is this idea that when the shooting occurred,
there were children present and there was also a risk
of injury to other people that were there, So it
wasn't a straightforward murders where it was just between two individuals.
(10:19):
He was firing a shot across a crowd of people,
and there was a risk of injury to others who
were there.
Speaker 2 (10:25):
Utah was the first state to carry out an execution
after the Supreme Court put the death penalty back on
the book, so to speak, how many executions has the
state carried out since then?
Speaker 4 (10:37):
So, Utah is one of twenty three states in the
US that currently allows for the death penalty to be
imposed on an individual. Compared to other states, they have
had less executions. Typically, when you're talking about the modern
era of the death penalty, we look at executions since
nineteen seventy six, which was when the Supreme Court said
(10:57):
that it is legal as a form of sentencing. And
so since then, Utah has executed eight people.
Speaker 2 (11:05):
And Utah is one of a handful of states that
allow executions by firing squad.
Speaker 4 (11:11):
Every state that allows for the death penalty, their primary
means of administering it is through legal injection. But Utah
is unique in that it's one of just five states
that allows for a firing squad to be used in execution.
But that's only in the situation where the state can't
acquire the drugs that are required for lethal injection.
Speaker 2 (11:32):
The last time the firing squad was used was in
twenty ten, not so long ago. The next hearing for
Robinson is on September twenty ninth, so we should learn
more then. Thanks, So, much, Madlin. That's Bloomberg Legal reporter
Madlein Meckelberg coming up next. An unprecedented number of threats
against federal judges. I'm June Grosso, and you're listening to Bloomberg.
Speaker 5 (11:57):
I went beyond just me. You know, the court staff
had to listen to this, and our court received over
four hundred vile, threatening, horrible voicemails. I've been on the
bench almost fifteen years, and i must say it's the
one time that actually shook my faith in the judicial
(12:21):
system and the rule of law, in the work with
the d Constitution and whatnot.
Speaker 2 (12:26):
Threats against federal judges have increased dramatically. The US Marshal
Service has investigated more than five hundred threats against three
hundred and sixty four judges in the last nine months alone.
One of those judges is John McConnell, the chief judge
for the District of Rhode Island. He got hundreds of
death threats after he issued a ruling that blocked President
(12:49):
Trump's freeze on federal aid.
Speaker 5 (12:51):
And I experienced a period of a few months and
my family did, of incredible personal harassment, attack and threats
that go to the very core of those constitutional principles
that we all up poll. I mean I told you
about the four or five hundred vile phone calls. There
were six credible death threats against my life. Someone was
(13:15):
on the dark web searching for my home address because
this is a quote. He wanted Smith and Wesson to
pay me a visit at my home.
Speaker 2 (13:25):
In response, on Wednesday, Constitution Day, a group of nearly
fifty former federal judges published an open letter warning against
attempts to intimidate and pressure judges and threaten judicial independence,
saying the Constitution is under attack. Joining me are two
of those judges from the Keep Our Republic's Article three coalition,
(13:48):
Judge Andre Davis, formerly of the US Court of Appeals
for the Fourth Circuit and the District Court of Maryland,
and Judge Paul Michelle, formerly of the US Court of
Appeals for the Federal Thank you both for being here.
Judge Davis, tell us why your group of retired judges
decided to publish this letter.
Speaker 6 (14:08):
We're seeing the same thing, namely, an unprecedented and very
dangerous attack on the judiciary, on the third branch of
government in the United States, and putting at risk not
just the rule of law, and our democracy as we
know it, but the actual lives of judges and their
(14:28):
family members. And so that's what prompted us to take
what I think is an unprecedented step ourselves by coming
together as a group of retired judges appointed by presidents
from both parties to speak with one voice and call
attention to the danger that is not just implicit but
(14:52):
unavoidable in the kinds of rhetoric being used and the
direct attacks on the judiciary and the rule of law.
And so we're speaking with one voice to one educate
the public and to speak out in support of our
colleagues who work day in and day out to do
the people's work in dispensing justice.
Speaker 2 (15:12):
Judge Michelle, there's a lot of rhetoric against judges coming
from the top of the executive branch. As retired judges,
what can you do to stop it?
Speaker 7 (15:22):
Well, my hope is that if the citizenry can be
better educated about the proper function and duties of judges,
they will see that the threat to judges is really
a threat against their own rights being protected by courts.
Courts have to be independent of political pressures, whether from
the White House or the Justice Department or elsewhere, and
(15:45):
that is what's under attack now. And we think that
we have unusual credibility because we're so nonpartisan, non political,
or you could almost say bipartisan, because we have about
half our judges are points by Republican administrations and half
by democratic administrations, and we're enormously diverse personally, but as
(16:07):
Judge Davis rightly says, we're completely united and being horrified
at the status quo, feeling like this is a moment
of brave danger for our country, our democracy, and the
rule of law. When you come right down to it,
at the end of the day, either the written law
is going to control or what the executive wants is
(16:28):
going to control. Is it the rule of law or
the rule of a king. That's what really is at
stake here. And we think that the shrill attacks can
be discouraged by the media and the citizenry objecting loudly
to that kind of language, whether it's from Congress persons
calling for impeachment of a judge simply for doing his
(16:50):
or her job and ruling on a case, or coming
from the White House or the Justice Department. And this
is a moment of enormous danger for our country. One
of the problems is the citizens have been very much misled.
Too many of them are not well versed in understandings
of basic constitutional government procedures and structures in our country. So,
(17:13):
for example, the most important thing citizens need to realize
is the job of a judge is not to promote
the agenda of any president or any political party. The
job of a judge is strictly to apply the written law,
the precedents, and the statutes to the case.
Speaker 2 (17:30):
The administration has been running to the Supreme Court when
lower courts rule against them, and the Supreme Court has
sided with the Trump administration in the vast majority of
emergency cases decided since January, and more than a dozen
times the Court has lifted an injunction issued by a
trial judge who said the administration was probably acting illegally.
(17:55):
And the Court has sometimes written a few sentences in explanation,
but sometimes none. And I'm wondering if that gives the
average person a distorative view of what the lower courts
are doing in limiting the administration and what the Supreme
Court is doing in allowing the administration to move forward.
Speaker 6 (18:16):
Well, you know, you put your finger on something that's very,
very frankly disheartening about the current legal landscape. The point
is that every federal district judge, without exception, who has
ruled against some policy of this administration, was acting in
absolute good faith in his and her attempt to interpret
(18:40):
not just statutory law, not just constitutional law, but the
Supreme Court's own precedence. That's what the federal district judges
around the country have been doing for the last seven
or eight months. And in those instances, I would even
say most of those instances where the administration has appealed
(19:04):
those adverse decisions by federal district judges, in most instances,
the federal appellate courts have largely left in place the
orders of the district judges. So what we see in
the so called shadow docket is that the Supreme Court
(19:25):
is reversing the decisions in large part without explaining how
or why those decisions are being reversed, And so that leaves,
you know, in the mind of many lay people this
very distorted view. Somehow, that the lower federal courts, the
(19:46):
district judges, who hear from the parties, hear from the lawyers,
consider the evidence, make a ruling which is then left
in place by the intermediate appellate Court and the matter
gets up to the Supreme Court, and the Supreme Court
in one or two sentences as you say, reverse that decision. Well,
a lot of people you know on the street, not
(20:08):
versed in the law, somehow are persuaded that the lower
court judges are somehow against the administration, and as all
the judges are doing is trying their best to apply
the law. And so it this serves justice, in all honesty,
to leave in the minds of people that somehow the
Supreme Court is protecting this administration from lower court judges,
(20:36):
and that just feeds into this misinformation, this distorted view
that so many in high office continue to create, that
the judiciary is full of lunatics and activists, and nothing
could be further from the truth. So hopefully, in the
fullness of time, hopefully not too far in the future,
(20:59):
this landscape that's been created through the procedural processes that
have been employed will see the light of day. And
one of the things that the Article to re Coalition
is trying so desperately to do to continue to educate
people about the role of judges and how reason judgment
is the coin of the realm when it comes to
(21:22):
the judiciary.
Speaker 2 (21:23):
And Judge Michelle. Justice Neil Gorsuch recently admonished federal judges
not to defy the Supreme Court, saying they weren't following
precedent from the emergency docket, and Boston federal judge Allison
Burrows reacted to that and said that it was unhelpful
and unnecessary to criticize district courts that are working to
(21:48):
make sense of Supreme Court orders that are not quote,
models of clarity, and another federal judge, William Young, said
he didn't understand that orders on the emergency docket were precedent.
He said, I stand corrected. I mean, what do you
think the impact is of a Supreme Court justice calling
out federal judges.
Speaker 7 (22:10):
Well, One complexity that the public doesn't understand, but it's
rather important, is that nearly all of the injunctions that
have been issued by the district judges around the country,
and these hundreds of suits challenging Trump administration actions are
very preliminary. And that's because there hasn't yet been a trial,
(22:30):
there hasn't yet been a final resolution of disputed facts.
The district judge is making a prediction, a judgment that
likely the challenger will win over the administration's defense, but
it's a speculative judgment. I'm not defensive of the Supreme
Court and the extent to which they've intervened, but it
(22:52):
is important to recognize that they aren't saying the administration
was right and the district judge was wrong. What they're
really He's saying is we don't know for sure yet,
so we're going to delay a remedy until there's been
actual fact findings and what lawyers call a final judgment.
But beyond that, it is certainly true that some of
(23:14):
these orders have no reasoning coming down from the Supreme Court.
Others are very terse and sometimes unclear. I don't think
it's helpful for Judge Burrows and the Supreme Court justices
to get in a public shouting match, but she has
a point. The district judges are striving to apply the
law faithfully and impartially, and I think usually they get
(23:39):
it right, and particularly where they're upheld, as has been
true in a number of these cases by the Court
of Appeals above them, the Supreme Court ought to be
very hesitant to jump in and overrule both of the
so called lower courts. But in terms of the admonition
from judge courts, I don't know what he's talking about.
I don't see any judge, including Judge William Young in Boston,
(24:02):
as being defiant, as refusing to follow some clear direction
from the Supreme Court. So I'm not quite sure what
he's referring to. But it's not very helpful, and it's
a further demoralization of the district judges, who do ninety
percent of the work in the judicial system and who
should be respected and supported by the public and by
(24:24):
the rest of the judicial establishment and not pilloried as
if they're rebellious children or something because they're not.
Speaker 2 (24:32):
Thank you both so much for joining me today. That's
Judge Paul Michelle and Judge Andre Davis coming up next
on the Bloomberg Law Show. Do lawsuits over tribal sacred
sites show unequal protection for religious rights? I'm June Grosso.
When you're listening to Bloomberg.
Speaker 8 (24:50):
On him on Itaiva.
Speaker 5 (24:55):
God.
Speaker 2 (24:58):
For centuries, Western Napat have worshiped at Oak Flat, a
seven square mile sacred tribal site in Arizona where tribal
members hold religious ceremonies. They say can't take place anywhere else.
Speaker 8 (25:12):
That is what keeps us who we are. That is
the thing. The spiritual connection to Nakaosan, to our mother Earth,
to Yosin the Creator, to chicha Il, to Sisland, Chassison,
into all sacred sites as indigenous people is what keeps
us here today.
Speaker 2 (25:29):
For example, there's the Sunrise Ceremony, a three day coming
of aid ceremony for Apache girls that requires gathering certain
plans at Oak Flat and being painted with white clay
from its ground. For years, Apache Stronghold, a nonprofit coalition
of tribal members, has been trying to stop the federal
(25:49):
government from transferring the land to a foreign copper mining
company whose excavation would destroy the site. The Ninth Circuit
has rejected the tribal group's attempts to protect flat on
religious grounds, and the Supreme Court has refused to take
the case. A group of Apache women has filed a
new suit based on a June decision by the Supreme
(26:11):
Court that expanded the religious rights of public school parents.
It all brings up the question of whether tribal religious
freedom claims are getting equal treatment. A dissent by Justice
Neil Gorsuch seems to suggest they're not. My guest is
Heather white Man runs him director of the Tribal Justice
(26:32):
Clinic at the University of Arizona. Heather, can you give
us the background of this legal fight?
Speaker 9 (26:38):
In twenty fourteen, Congress passed the Southern Arizona Land Exchange
and Conservation app as part of a much larger Defense
authorization bill that you know, was really so voluminous that
it didn't have a whole lot of review and people
weren't paying super close attention to some of the smaller
parts of that much larger piece of legislation. And because
(27:01):
of that, this particular build was able to make its
way through congressional ratification and was signed into law by
President Obama. This particular initiative had been a standalone buil
numerous times before and had never moved forward, never been
able to get through Congress. What the bill does is
(27:21):
it mandates the transfer of FOREGT Service lands to a
private company Resolution Copper, for the purpose of mining a
substantial deposit of copper that underlies the surface of that land.
The reason why that's been opposed for so many years
is because the land on the surface is the site
of very significant, longstanding religious practices by the Western Apache people,
(27:46):
and so the mining of the copper will result in
the complete destruction of a substantial area of the surface land.
It will subside, it will create a very large crater,
it won't be usable any longer. For the purpose is
that the Apache people have maintained on that land for
hundreds and hundreds of years, if not longer. And so that,
(28:08):
according to the Apache people, is a substantial burden on
their religious practice. And common sense would I think lead
anybody to a similar result that if you destroy the
land that is absolutely necessary for the practice of a religion,
that's a burden. So that's the conflict in essence.
Speaker 2 (28:25):
Apache stronghold says that Oak Flat is the only place
where certain religious ceremonies can take place. Tell us about
the sunrise ceremony, which is often mentioned.
Speaker 9 (28:37):
Oak Flatt is the site where female members of the
San Carlos Apache tribe have their coming of age ceremonies.
So it's where a girl becomes a woman, and there's
a specific ceremony that takes place when a girl becomes
a woman. It's a very intensive, multi date ceremony. It's
incredibly onerous physically, there's a lot of prayer, a whole
(28:57):
community comes together to help bring a girl in the womanhood.
It's the necessity for a woman to go through that
ceremony to fully realize her identity as an attachy woman.
So it's incredibly significant. It's one of the most important
things that happens in any woman's life in that culture.
Speaker 2 (29:13):
So the nonprofit Tribal Rights Group suit to stop the
land transfer on religious grounds under the First Amendment and
the Religious Freedom Restoration Act, they lost at the Ninth Circuit.
Will you explain why the Ninth Circuit found that the
land transfer couldn't be considered a substantial burden on religious exercise.
Speaker 9 (29:37):
So the Ninth Circuit opinion it's a tough one to
parse out, and so there are a couple of different
things that happened there. First, the court ruled that there
was no substantial burden because there's not coercion. The Ninth
Circuit has a very narrow definition of substantial burden and
of coercion. So they have ruled that in the absence
(30:00):
of withholding of a benefit because of a religious practice
or a punative or punishment type of provision in a
generally applicable federal law, that is triggered by what would
otherwise be, you know, a basic exercise of a religious
practice that there's no coercion, that results in no substantial burden.
Speaker 2 (30:20):
Will you tell us more about how Native American religious
practices require relationships with specific locations and how that played
into the arguments.
Speaker 9 (30:31):
And that's the second heart of the Ninth Circuit on
Bonk holding. So the first is applying this really narrow standard,
really restrictive standard for finding a substantial burden. And second,
a different majority of the Ninth Circuit then held that
where there's a federal property management initiative, that cannot burden
(30:51):
religious freedom rights. You know, under the Ninth Circuit ruling
were limited from ever bringing any kind of claim, then
saying that affect er land management decision substantially burdens our
free exercise right because it's federal property. The federal government
has a right to do what it wants with its
own land. And that just doesn't seem right to me
that we can't limit the federal government from violating the
(31:14):
First Amendment because the federal government is the landowner. So
the analysis under the Ninth Circuit approach is really that
the relief thought to limit our ability to ever find
an injury to people's First Amendment right. So we can't
find a burden because the relief that we're seeking to
limit what the federal government is a landowner can do
with its own property. You know, it certainly presents a
(31:36):
real challenge to any Native American person whose religious beliefs
depend on a relationship with a specific land base, and
many of ours do. Many of us have religions and
religious practices and beliefs that requires specific things to happen
in specific places, often at specific time, and that is
our sincerely held religious belief and how we practice it.
(31:58):
So it renders Native American religion belief virtually unprotectable in
many instances under the way that the case law has developed.
And I just think that can't be right. And I
hope most Americans would consider that situation and feel similarly
that that simply cannot be correct, and that cannot be
consistent with our constitution or what our founders intended.
Speaker 2 (32:17):
Apache Stronghold took the case up to the Supreme Court,
but the Court refused to take the case. However, Justice
Neil Gorsitch wrote a powerful dissent joined by Justice Clarence Thomas.
He said it was a grave mistake for the Court
not to take the case. Quote, just imagine if the
government sought to demolish a historic cathedral on so questionable
(32:40):
a chain of legal reasoning. I have no doubt that
we would find that case worth our time. Face with
the government's plan to destroy an ancient side of tribal worship.
We owe the Apaches no less. And this is a
Supreme Court that has expanded religious rights. Do you see
a difference with the way tribal will religion has been treated.
Speaker 9 (33:02):
I see a difference. A lot of people see a difference.
You know, Justice Court. Such is Dissent is a really
great read. I'd encourage anybody interested in these issues to
read it, and I think it recognizes that, like I
was saying earlier, the way that these cases are evaluated
and the outcomes that we keep seeing should be a
concern to every American. Every American citizen should worry about
(33:23):
the viability of their free exercise right. If the Court
can condone the complete annihilation of a place of worship
that is absolutely central to the perpetuation of that religion,
they can limit anybody's religious exercise right. So this is
a threat to every American religious liberty, and it is
something that I think we should all be concerned about that.
(33:44):
You know, we need to work through these issues and
we need to find solutions that will bring us different results.
Speaker 2 (33:49):
Ultimately, the Supreme Court in June expanded the religious rights
of public school parents, ruling that public school parents have
the right to opt their children out of classroom lessons
that intrude on their religious beliefs. In that case, the
Mackmood case, it was the reading of LGBTQ friendly books
(34:10):
in the classroom that parents objected to. How does that
case affect Apache Strongholds case.
Speaker 9 (34:17):
Soon after the denial of CIRT, Apache Stronghold attorneys filed
a petition for basically a reconsideration of the thirt petition
asking the Supreme Court to grant Scherai remand the case
back to the Ninth Circuit and provide clear direction to
the Ninth Circuit on how to review the legal arguments
(34:38):
going forward in a new a new Ninth Circuit review.
Part of the reason for that is because intervening precedent
was decided after the denial of Surcherai. The Apache Strongholds
petition for reconsideration relies heavily on the intervening decision in
Macmood because there are similar impacts of the government policy
(35:01):
that's challenged there. In my Mood, we had the Supreme
Court recognize very very vehemently that when we limit parents'
abilities to bring up their children, to raise their children
in ways that are consistent with their religious beliefs, we
are violating their First Amendment rights. That is a substantial burden,
and it has to go through the relevant analysis for
(35:23):
when and how such burdens are limited and when they're
allowed to go forward. That type of test has not
been applied yet to the challenged law, to the Land
Exchange Act. In Apache Stronghold, what we've been through so
far is the preliminary injunction analysis, so we haven't had
the full review of an application of the relevant legal
standards for what's permissible, when.
Speaker 2 (35:44):
And how, And tell us about the new case that's
been filed by Apache Women.
Speaker 9 (35:50):
The new case that has been filed by a group
of Apache women, mothers and daughters that really found it
claims in similar issues and similar analysis to what the
Supreme Court decided in Mahmoud. The Land Exchange app will
burden through free exercise rights of especially Aptchy women, because
(36:12):
it's limiting APACHE women from having the ability to become
women in ways that are consistent with their religious beliefs.
It's limiting APACHE mothers from bringing their daughters into womanhood
as required by their religious beliefs. And so there's, you know,
a real consistency with the impact and the burden on
(36:32):
a religious freedom interest. There as what we saw the
Supreme Court limit in Mahmood, and.
Speaker 2 (36:37):
The land transfer was stopped for the time being.
Speaker 9 (36:41):
The Ninth Circuit Court of Appeal issued an emergency injunction
basically preventing the land transfer. The land transfer was about
to take place, put the cases on an expedited briefing schedule,
and so we're now in the middle of that briefing
to the Ninth Circuit or a argument will probably take
place early this fall and will see how the Ninth
Circuit resolves this issue. So yeah, there's still a lot
(37:03):
of activity surrounding various parties claims in relation to the
final disposition of Oak Flat.
Speaker 2 (37:10):
We'll certainly follow the oral arguments when they take place.
Thanks so much, Heather. That's Heather white Man runs him
Director of the Tribal Justice Clinic at the University of Arizona.
And that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com slash podcast Slash Law,
(37:35):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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