SCOTUS Tribal Part II

[Jape]

It's going to be really interesting to see where Gorsuch lands and if he will side with the liberal justices as he did last year.

With as far reaching as this case may end up being, I agree with @Sytes that they may punt since they certainly have a history of doing that.

 

[madplume]

States don't have jurisdiction over tribal members on tribal land. Minor crimes commited are handled by tribal court and major crimes are handled by federal court. This is how it's always been in Montana and every state I know. this specific case sounds like it was mishandled, tried in state court instead of federal.

 

[MTGomer]

Supreme Court rules broad swath of Oklahoma is Native American land for purposes of federal criminal law

The Supreme Court said Thursday that a large swath of eastern Oklahoma, including Tulsa, is Native American land for purposes of federal criminal law in a decision that the state argued could call into question thousands of state prosecutions for serious crimes.

www.cnn.com

 

[VikingsGuy]

If this dealt solely with a patch of little used grasslands I would expect a fairly straightforward 5-4 ruling in favor of McGirt based on the facts/law and justices' prior tendencies. But given the much broader implications of this case to half a state and a "large" city (Tulsa) I am guessing the justices will work very hard to find a way for a super narrow 5-4 win for McGirt, or broader 6-3 win for OK based more on pragmatic needs than their actual legal view. I just don't see 5 justices opening pandora's box on this one.

How wrong I was. Gorsuch did not surrender principle for expediency. He is quickly becoming my favorite SCOTUS member. [But I miss Scalia nonetheless]

 

[Handlebar]

Vikings Guy, I realize that this just came down but off the top of your head, what are some of the ramifications of this ruling?

 

[Sytes]

Will be interesting to see the ripple effect of this decision. 86 pages to read the pdf. Pretty interesting.

 

[VikingsGuy]

Vikings Guy, I realize that this just came down but off the top of your head, what are some of the ramifications of this ruling?

4 judges reliably voted "pro-Indian Treaty rights"
4 judges reliably voted "anti-Indian Treaty rights"
Gorsuch, who in his lower court days was a reliable vote in favor of Indian Treaty rights, did not blink under the bright lights of the high court and a much larger ruling (affecting much of OK), and stayed true to his belief that Treaties are binding agreements that can not be simply unwound by the states ignoring them for decades or for convenience of the moment. The states and tribes either work them out constructively or Congress can intervene and fix, but Gorsuch does not accept looking the other way because it serves a state's interest at a particular time.
5-4

In short, it means Indians in much of OK can only be prosecuted under federal laws in federal courts. The retroactive effect will be handled by various rules around timing/grounds for reversal and the strategic choices of various convicts (many would be worse off sitting in jail awaiting a federal trial followed by typically longer federal sentences, so don't assume all will petition for reversal even if eligible). In the long game it again signals that while for decades states could turn a blind eye to Treaty rights and tribal boundaries, there are 5 reliable votes on SCOTUS to frown on those approaches. If that is untenable, then the states need to petition Congress for relief - which is the way a democracy should work.

 

[Sytes]

If that is untenable, then the states need to petition Congress for relief - which is the way a democracy should work.

That pretty much sums up what I'm getting from Gorsuch's opinion. I think this covers the potential for significant ripples. Maybe for the future, an appeal to Congress will help however, for a mass many and from many of our States, our Federal courts are going to be stuffed up!

VG, you interested in AUSA? They're going to need all hands on deck.

Gorsuch;

To be fair, Oklahoma is far from the only State that has overstepped its authority in Indian country. Perhaps often in good faith, perhaps sometimes not, others made similar mistakes in the past. But all that only underscores further the danger of relying on state practices to determine the meaning of the federal MCA.

 

[VikingsGuy]

States don't have jurisdiction over tribal members on tribal land. Minor crimes commited are handled by tribal court and major crimes are handled by federal court. This is how it's always been in Montana and every state I know. this specific case sounds like it was mishandled, tried in state court instead of federal.

It was not that OK handled the MCA (tribal federal criminal jurisdiction statute) wrongly, it was that OK believed the original tribal lands covering half of OK and most of Tulsa had been extinguished so not subject to the tribal rule in the first place. SCOTUS just decided they were wrong and half of OK will now have to address tribal criminal activity the way all the states have (including OK) on the smaller reservations.

 

[VikingsGuy]

VG, you interested in AUSA? They're going to need all hands on deck.

Gorsuch;

According to Gorsuch, they will just hire the now unneeded states' attorneys.

 

[Sytes]

Only on page 26 of the opinion and the dissenting opinions hold some areas of interesting thought though Gorsuch took these reins and sent this SCOTUS Express into a gallop. Just in the first 26, it's already visible the ripples this will send, nationwide! This is monumental!

 

[VikingsGuy]

Only on page 26 of the opinion and the dissenting opinions hold some areas of interesting thought though Gorsuch took these reins and sent this SCOTUS Express into a gallop. Just in the first 26, it's already visible the ripples this will send, nationwide! This is monumental!

Or could be another yawner - every time treaty rights are an issue the states raise the specter of fear and chaos - they have lost many times over the last 30 years yet not typically a big deal. But my guess is it will increase litigation activity in Tulsa.

 

[Irrelevant]

I see this in someways as exactly the opposite of the argument some have made for the need to gov't to adapt but instead will set the clock permanently in 1832.

Thankfully in WA the tribes recently lost a case where they claimed if the crime involved a tribal member or property then it would be handled by tribal authorities, the State supreme court ruled that it only applies to crimes were all parties are tribal.

 

[Handlebar]

You said that states had turned a blind eye to tribal boundaries, could this ruling in effect change who has jurisdiction for example in those lands that were part of the Ft. Laramie treaty?

 

[Sytes]

I see this in someways as exactly the opposite of the argument some have made for the need to gov't to adapt but instead will set the clock permanently in 1832.

Thankfully in WA the tribes recently lost a case where they claimed if the crime involved a tribal member or property then it would be handled by tribal authorities, the State supreme court ruled that it only applies to crimes were all parties are tribal.

It says, no matter how much States would like to place their color of authority over tribal land, it does not exist. Congress, being the lazy slugs let it be... akin to pretending the frozen foot can be ignored and now finding the foot may need to be amputated.
States adapting to the lack of Congressional work is the case here. States are going to find out how this panned out for them...

 

[VikingsGuy]

You said that states had turned a blind eye to tribal boundaries, could this ruling in effect change who has jurisdiction for example in those lands that were part of the Ft. Laramie treaty?

No direct effect, but if the logic of the case applies to a dispute about that treaty I would expect a similar analysis.

 

[bts09]

For my money, Gorsuch beginning to look like a consistent vote for upholding treaty rights is an interesting and welcome development. His opinion really seems, though, to come from this sentiment: "In any event, the magnitude of a legal wrong is no reason to perpetuate it." That's what he latches onto--the dissent's idea that we need to keep doing what's wrong because we've done it for long enough.

 

[Sytes]

No direct effect, but if the logic of the case applies to a dispute about that treaty I would expect a similar analysis.

I believe it opens a legal run of cases that will enter the U.S. Circuit Courts regarding the treaties (allotments, etc) as questioned in Gorsuch's favored ruling. ESPECIALLY 9th Circuit.

"In any event, the magnitude of a legal wrong is no reason to perpetuate it."

It's a real gut check.

 

[Sytes]

for any interested. This is the SCOTUS .PDF

 

[Glockster]

Maybe I’m overthinking this but, so in a good portion of Oklahoma there is a group of people that no longer have to abide by state or local laws. This this correct?

Good luck getting the feds to take any DUIs, battery, theft, burglary, etc.