Students Confront Federal Indian Law and Sentencing Guidelines in 2023 Harlan Fiske Stone Moot Court Finals

On March 27, Alex Herkert ’23 won the prize for top oralist, and Abigail K. Flanigan ’23 was recognized for best final round brief.

Four Columbia Law School students faced off before a panel of federal judges in the 98th annual Harlan Fiske Stone Moot Court Competition finals on March 27, giving their best answers to questions about whether marijuana-related state convictions are “controlled substance offenses” and how to determine whether a person qualifies as “Indian” under the 1885 Major Crimes Act. The fictional case was written by two former finalists, Parker M. Chusid ’23 and Ninoslav K. Dickersin ’23, who competed against each other in the 2022 finals. (Watch the competition above and read more from the organizers about the case below.) 

“Generally, our experience as Moot Court finalists allowed us to understand what kind of legal questions would prove most engaging for the competitors, and what details needed to be provided in the record to allow for effective and interesting briefing and oral argument on the issues,” said Dickersin.

Chusid and Dickersin said they came up with the idea based in part on Chusid’s experience as a 1L in the National Native American Law Students Association moot court. “That experience gave me the confidence to delve into the Major Crimes Act and to leverage the distinction between federal- and state-recognized tribes,” Chusid said. 

The pair first considered ambiguities in the law and looked for circuit splits. “Eventually, we settled on the two questions at issue in the case,” said Dickersin. “We then determined how to combine them into a single problem, and identified the 6th Circuit as a jurisdiction where that problem might naturally arise and maximize the degree of thoughtful legal analysis required from the competitors.” 

They divided the workload, each focusing on one issue. Ultimately, their case included a number of complicating factors and raised questions concerning tribes’ ability to determine their own membership even where that decision includes a consideration of race, a key issue raised by Brackeen v. Haaland, currently pending before the U.S. Supreme Court.

The competitors delivered their arguments before a panel of distinguished judges: California Supreme Court Justice Goodwin H. Liu and Judges Michael H. Park and Myrna Pérez ’03 of the U.S. Court of Appeals for the 2nd Circuit. 

William Joseph Wood v. United States of America

In the final arguments, Alex Herkert ’23 and Conor J. Regan ’23 represented the appellant, William Joseph Wood, who challenged on appeal the jury instructions leading to his designation as an Indian under the law, which gives the federal government jurisdiction over certain criminal cases if the defendant is Native American. Wood also appealed his 10-year sentence for assault with a dangerous weapon as a “career offender” under the Federal Sentencing Guidelines based on two prior marijuana-related convictions in South Dakota. Abigail K. Flanigan ’23 and Julia Konstantinovsky ’24 represented the United States government. 

On appeal, Wood argued his prior marijuana-related convictions should not count as “controlled substance offenses” under the federal Controlled Substances Act because the state where he was convicted—South Dakota—did not consider marijuana a controlled substance. Wood also argued that he is not an Indian under the Major Crimes Act. The government argued he is, based on the “totality of circumstances”—Wood’s mother was an enrolled member of a Michigan-recognized tribe (the Burt Lake Band of Ottawa and Chippewa Indians); Wood was once an enrolled member through marriage of a federally designated tribe (the Saginaw Chippewa Indian Tribe); and he continued to work for a casino on the latter tribe’s reservation even after he was disenrolled following his divorce.

Man standing at a podium in a classroom with audience members seated
Alex Herkert ’23, winner of top oralist.

In oral arguments, Herkert kicked things off for Wood. He argued that the first part of the two-pronged jury instructions on how to determine whether someone is an Indian under the Major Crimes Act improperly conflated Indian status with race. The second part, Herkert said, was overly broad because it requires affiliation with a federally recognized tribe “at or around” the time of the offense.

The instructions “allowed a person like William Wood, who is not descended from or recognized by or eligible for membership in a federally recognized tribe,” to be convicted under the law, Herkert said. 

When Konstantinovsky took the podium, the judges pressed her on that point, asking what would constitute “affiliation” under the instructions.

“Affiliation is a pretty weak word, encompassing a very broad range of relationships,” Liu said. “How is the jury to know where along that spectrum the requisite affiliation is met? Is his employment [for the Saginaw Chippewa casino] sufficient?”

“The government would not necessarily agree that employment alone is sufficient,” Konstantinovsky answered. 

“Did the jury know this?” Liu asked.

Regan argued for Wood on the question of the sentencing enhancement for career offender status. Pérez suggested his position on the definition of a “controlled substance” was in line with the 2nd Circuit’s holding in a 2018 case called United States v. Townsend

“And that was the 2nd Circuit’s Townsend approach?” she asked. 

“Absolutely,” Regan said, and then added, “And we would encourage this court to follow the 2nd Circuit’s use of the Controlled Substances Act. A lot of wise judges on that bench.” (Pérez sits on the 2nd Circuit.)

But, when it was her turn to argue, Flanigan urged the judges to apply the “ordinary meaning” of the term “controlled substance” to find that Wood’s marijuana-related convictions qualified him for career offender status.

Audience members look at a woman standing at a podium.
Abigail K. Flanigan ’23, winner of best final round brief.

“This provision is intended to punish people who have broken the law, and if a state chooses to make that a crime . . . it’s appropriate that the federal sentencing guidelines would reflect that,” she said. 

The Results

After more than an hour of arguments, the judges left the room to deliberate. When they returned, they delivered the results: Herkert was awarded the Lawrence S. Greenbaum Prize for best oral presentation, and Flanigan won best final round brief. 

The judges praised the finalists for their work and effort.

“I was so proud of every one of you,” Liu said. “I thought, ‘If this is what the profession is going to look like, we are going to be in very good shape.’”

Pérez told the students to remember that being a lawyer is called “the practice of law.”

“You’re supposed to practice,” she said. “The idea that you’re up here talking and engaging, I hope, was really meaningful. . . . If you’re not constantly growing as a lawyer, you’re going to get bored; you’re going to be missing out on a lot of opportunities.”

The judges also marveled at the case.

“Every time I thought I had a grasp on one issue, there was another issue around the corner,” Park said.

Dickersin, who also served as bailiff in this year’s competition, said he and Chusid benefited from their own experience as finalists in the 2022 Harlan Fiske Stone Moot Court Competition.

“That allowed us to understand what kind of legal questions would prove most engaging for the competitors,” he said. 

Seven people standing in front of a background that says Columbia Law School
Left to right: Julia Konstantinovsky ’24, Abigail K. Flanigan ’23, Judge Michael H. Park, Justice Goodwin H. Liu, Judge Myrna Pérez ’03, Alex Herkert ’23, and Conor J. Regan ’23

The three-round Harlan Fiske Stone Moot Court Competition began in the fall, with 16 students advancing to the semifinals. After the competition, Philip M. Genty, Everett B. Birch Innovative Teaching Clinical Professor in Professional Responsibility and vice dean for experiential education, thanked the judges, the students, and everyone who helped put the program together, including Director of Legal Writing and Moot Court Programs Sophia Bernhardt and the moot court board. In addition to Chusid and Dickersin, this year’s board included Executive Director Angel (Shuman) Li ’23, First-Year Program Director Callie Maslowsky ’23, and Specialized Moot Court Programs Director Saisha Mediratta ’23.

Flanigan said she was “excited and honored” to win the best brief, which is awarded by the student board in consultation with the judges.

“After three rounds of rewriting, I’ve sharpened it to a point that I feel proud of, so it was gratifying to know that the judges felt that it was well done,” she said. 

Herkert said it was “an incredible experience to argue in front of such impressive judges.”

“I am very honored that the judges thought highly of my argument,” he said. “It was a great capstone to my moot court journey.” 

Learn more about the finalists:
Abigail Flanigan speaking

Abigail K. Flanigan ’23

“It’s been fun to be part of a team. Law school doesn’t involve a lot of group work, so it’s nice to have the opportunity to collaborate with someone else on a brief and strategize together for oral arguments.” Read more

Alexander Herkert speaking at HFS Moot Court semi-finals

Alex Herkert ’23


“With help from my competitors and the judges’ feedback through the rounds, I have learned how to better strike a balance between forcefulness and a conversational style. I have also learned how to logically organize a complicated legal argument, in both written and oral form.” Read more

Julia Konstantinovsky speaking at HFS Moot Court semi-finals

Julia Konstantinovsky ’24

“The best way to prepare is to closely read my adversary’s brief to pick up on their most compelling arguments and formulate strong rebuttals. I also try to get a sense of my weaker arguments and prepare answers to questions I anticipate on those. Then, it’s just a matter of practice!” Read more

Conor Regan speaking at HFS Moot Court semi-finals

Conor J. Regan ’23

“A critical component of appellate advocacy is the skill of pivoting: When a judge asks a question, an advocate has to be able to answer the judge clearly and directly and then coherently transition back to the key point they are trying to get across.” Read more

About the Case

In the program that accompanied this year’s competition, the organizers shared a message about the sensitive issues raised by this case:

This year’s Harlan Fiske Stone Moot Court problem raises a number of sensitive issues, both in its legal questions and in its use of language. First, this problem frequently uses the term “Indian.” In fact, use of that term is central to one of the problem’s issues, which calls for interpreting the term “Indian” in a federal criminal statute. The two tribes mentioned in this problem—both of which are real tribes—use the term in their own names: the Saginaw Chippewa Indian Tribe of Michigan and the Burt Lake Band of Ottawa and Chippewa Indians. By necessity, this problem accepts a convention adopted by federal statutes and used by many tribes across the United States for referring, through a generality, to the diversity of Native American peoples and tribes across the country. Second, this problem grapples with two complex and challenging concerns: blood quantum as a measure of tribal membership and the federal courts’ authoritatively deciding the politico-racial status of individual parties. These concerns are not relics of the past, but remain live issues for Native peoples in the courts and for tribes internally, which must set membership criteria, and which often choose blood quantum as a useful indicator. This problem incorporates those real-world concerns.

Read more about the questions, the case, and the competition.

Spotlight February 17, 2023

Black and white photo of a man seated wearing justice's robes

“The law itself is on trial in every case as well as the cause before it.”


Cast in Stone

Born on a farm in Chesterfield, New Hampshire, on October 11, Stone grows up in Amherst, Massachusetts. (Stone’s family on his father’s side originally arrived from England to the Massachusetts Bay Colony in 1635.) 


Stepping Stone

Graduates from Amherst College, where he plays on the football team and becomes acquainted with fellow student and future President Calvin Coolidge, who will later nominate Stone to the Supreme Court. His classmates predict Stone will “proceed to be the most famous man in [the class of] ’94.”


A Stone’s Throw Away

Graduates from Columbia Law School, joins the New York City firm of Wilmer and Canfield (later Satterlee, Canfield, & Stone), and, in 1899, begins teaching at Columbia Law as a lecturer in law. In 1905, he resigns from the faculty to devote himself full-time to private practice.


The New Stone Age

Returns to Columbia Law School as dean and resumes teaching. An inspiring educator who champions the increasingly popular “case” method, he teaches courses in trusts, contracts, mortgages, criminal law, and property. Students regard him as a friend and honor him by calling themselves “Stone-agers.” After repeatedly clashing with Columbia University President Nicholas Murray Butler, Stone resigns in 1923 and joins the Wall Street firm Sullivan & Cromwell.



Pushes back against Barnard College Dean Virginia Gildersleeve, who lobbies for women to be admitted to the Law School. In a letter to Gildersleeve, he tells her the faculty believes it is “inadvisable” for any law school to be coeducational. “What I would like to see is a serious undertaking to establish an independent school for women. This, I believe, is the proper solution of the problem,” he wrote her. (The Columbia Law faculty votes to admit women on the same terms as men in 1928.)


Set in Stone

Appointed by President Calvin Coolidge as U.S. attorney general. His most enduring legacy as attorney general is selecting 29-year-old J. Edgar Hoover as acting director of the Justice Department’s Bureau of Investigation. Hoover, who becomes its director by the end of the year, leads the agency (renamed the Federal Bureau of Investigation in 1935) until his death in 1972.


Rolling Stone

Nominated to the Supreme Court, where former President William Howard Taft is chief justice, Stone is the first nominee to have a confirmation hearing before the Senate Judiciary Committee. On the high court, he soon aligns himself with the titanic left-of-center justices Louis Brandeis and Oliver Wendell Holmes. 


Killing Two Birds With One Stone

Delivers an eloquent and important dissent in United States v. Butler outlining two principles for declaring statutes unconstitutional.One is that courts are concerned only with the power to enact statutes, not their wisdom,” he writes. “The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check up our own exercise of power is our own sense of self-restraint.”


Leaving No Stone Unturned

In Stone’s opinion in United States v. Carolene Products Co., his footnote No. 4 becomes what is universally recognized as “the most important footnote in constitutional law.” He writes that legislation should be “subjected to more exacting judicial scrutiny” when it is “directed at particular religious, or national, or racial minorities” who are victims of “prejudice,” which spawns the principle of judicial review known as strict scrutiny. 


Hits a Stone Wall

Stone is the lone dissenter in Minersville School District v. Gobitis, maintaining that a group of Jehovah’s Witness children have the right to not salute the flag—in defiance of a Pennsylvania flag salute statute—because they believe the action to be against their religious beliefs. (They consider the flag a graven image.) Stone maintains that the Pennsylvania statute violates the students’ rights to freedom of speech and religion, and he reads his entire dissent from the bench.


Etched in Stone

President Franklin Delano Roosevelt (who attended the Law School from 1905 to 1907) appoints Stone to succeed Chief Justice Charles Evans Hughes Sr. 1884. The poet Archibald MacLeish writes that Stone’s elevation, on July 3, to chief justice is “so clearly and certainly and surely right, it resounded in the world like the perfect word spoken at the perfect moment.” Prior to his appointment, Stone writes the majority opinion in United States v. Darby Lumber Co., holding the Fair Labor Standards Act of 1938 to be a valid exercise of federal power under the commerce clause. The Darby opinion made Stone “the intellectual leader of the Court’s center,” according to Stone biographer Alpheus T. Mason.


Squeezing Blood From a Stone

The Supreme Court hears another flag salute case from the Jehovah’s Witnesses, West Virginia Board of Education v. Barnette. By a 6–3 vote, the justices side with Stone and overturn Gobitis. Justice Robert Jackson’s majority opinion echoes Stone’s lone dissent in Gobitis three years earlier.


Engraved in Stone

Stone passes away on April 22 at 73, a few hours after having a cerebral hemorrhage while presiding over a session of the Supreme Court. Some 2,000 people attend his funeral at the Washington Cathedral, and he is buried at Rock Creek Cemetery. One of his eulogists is Alben Barkley, a senator from Kentucky and future vice president, who says, “No associate justice or chief justice . . . held a more abiding place in the affections of the American people and in the affections of all who knew him intimately and personally.” The Columbia Law Review memorializes him in September with the article “Harlan Fiske Stone: Teacher, Scholar and Dean.” 


Long-standing Stone