United States Supreme Court takes up Oklahoma Question (Again)

[Deleted member]

Argument preview: Justices to hear second set of arguments on reservation status of eastern Oklahoma - SCOTUSblog

McGirt v. Oklahoma will bring the justices a pronounced sense of déjà vu, as they hear argument for the second time in two years about whether the eastern half of Oklahoma is an Indian reservation. Given the obscure historical problems that dominate Indian law, the doctrinal terrain of the issue

www.scotusblog.com

 

[Doomsought]

Since Reservations are matters of international treaty, the supreme court has no authority to do anything about it. Reservations preliminarily a matter of the executive, checked by the legislative branch.

 

[Abhorsen]

Since Reservations are matters of international treaty, the supreme court has no authority to do anything about it. Reservations preliminarily a matter of the executive, checked by the legislative branch.

Who do you think decides what the treaties mean? That's the court's job.

 

[Doomsought]

Who do you think decides what the treaties mean? That's the court's job.

Nope, that is the president's job. If the president says that a treaty is void, then it is.

 

[Flintsteel]

Since Reservations are matters of international treaty, the supreme court has no authority to do anything about it. Reservations preliminarily a matter of the executive, checked by the legislative branch.

You should read the linked article - because this is a far more complicated matter than you seem to be assuming.

 

[Abhorsen]

Nope, that is the president's job. If the president says that a treaty is void, then it is.

No. That's also not true. Treaties are treated as being added to US law, and can even be declared unconstitutional, see Reid v. Covert, in which the Court held (on a rehearing!) that trial by jury cannot be suspended by a treaty.

 

[Emperor Tippy]

No, it's going to SCOTUS because under current SCOTUS precedent it absolutely is still a reservation and yet that is an utterly unacceptable outcome.

The result is going to be that it is not a reservation, the issue is figuring out how to draft an opinion that says that because it blatantly flies in the face of settled law.

Alito, Roberts, Breyer, and Ginsburg are all almost certainly on the "not a reservation side, and damn whatever prior precedent we have to overrule to get that outcome". Kagan is on the "I really don't want to have to rule it isn't a reservation, so one of you other four join with them and make it at least five votes for Not A Reservation". Thomas is on the "Chaos, glorious chaos!" side. Sotomayor is on the "Woke Points for Me! MUHAHAHA!" side. Gorsuch is on the "Dammit, I was happy to be recused, why couldn't you idiots find five votes last time".

It probably ends up being 5/4 for the "It's not a reservation" side with Alito, Roberts, Breyer, Ginsburg, and Kavanaugh making up the five (and with a tortured opinion to justify that outcome". With the dissent getting to stand by principals now that it doesn't matter.

But what SCOTUS absolutely is not going to do is say that half of Oklahoma is part of an indian reservation. If Congress was functional they might do it, banking on Congress changing that literally minutes after the opinion came in; but them betting on that is unlikely.

 

[Flintsteel]

But what SCOTUS absolutely is not going to do is say that half of Oklahoma is part of an indian reservation. If Congress was functional they might do it, banking on Congress changing that literally minutes after the opinion came in; but them betting on that is unlikely.

Even if Congress was properly functioning and could roll out the proper paperwork the same day the Supreme Court handed down a decision, there still would be the issue of it having been a Reservation for over a century. That wouldn't be opening a can of worms, it would be the legal equivalent of opening a can of shai-hulud.

 

[Emperor Tippy]

Even if Congress was properly functioning and could roll out the proper paperwork the same day the Supreme Court handed down a decision, there still would be the issue of it having been a Reservation for over a century. That wouldn't be opening a can of worms, it would be the legal equivalent of opening a can of shai-hulud.

Write the law right and you could probably avoid most of it.

The easiest solution would have been for Congress to pass a law "clarifying" that they did indeed abrogate the reservation when Oklahoma was established. Or more precisely, to pass a law "clarifying" the boundaries of all extant Indian Reservations to what they are today, saying that for purposes of any legal action (civil or criminal, federal or state) those are the boundaries of the reservations to be used, and stripping the courts of jurisdiction over the question of reservation boundaries.

Do that and the whole thing becomes a non issue. Of course, that costs you woke points and so the Democrats would never go for it.

But as I said, I am pretty firmly convinced that SCOTUS is going to find someway to rule in Oklahoma's favor, almost regardless of what it has to do to Indian law to get that outcome.

 

[Deleted member]

@Emperor Tippy actually based on precedent from a case involving the Tlingit in Alaska, the ruling will probably say "actually, it should be a reservation, and would be if you brought this suit in 1916, but because of laches, it isn't a reservation anymore because you waited too long to bring the suit." I am fairly confident their solution will be to just hold that laches applies and so the tribes waited too long to bring the matter before the courts.

On the other hand, in Oklahoma there is a lot of land which is owned by the tribes, but is not reservation land. Because this land being under state authority is an active, continuing state of harm, if they do use laches as the justification for refusing to recognise that eastern Oklahoma is tribal reservation land, the tribes could then renew a suit arguing specifically that land they own in Oklahoma which is not currently classified as part of a reservation is part of a reservation, and laches doesn't apply because there is continued harm (having to pay state taxes on it), and they might subsequently win that case.

 

[Abhorsen]

The easiest solution would have been for Congress to pass a law "clarifying" that they did indeed abrogate the reservation when Oklahoma was established. Or more precisely, to pass a law "clarifying" the boundaries of all extant Indian Reservations to what they are today, saying that for purposes of any legal action (civil or criminal, federal or state) those are the boundaries of the reservations to be used, and stripping the courts of jurisdiction over the question of reservation boundaries.

You can't really do that. That would be a post-facto law, which are specifically banned by the constitution.

 

[Emperor Tippy]

@Emperor Tippy actually based on precedent from a case involving the Tlingit in Alaska, the ruling will probably say "actually, it should be a reservation, and would be if you brought this suit in 1916, but because of laches, it isn't a reservation anymore because you waited too long to bring the suit." I am fairly confident their solution will be to just hold that laches applies and so the tribes waited too long to bring the matter before the courts.

On the other hand, in Oklahoma there is a lot of land which is owned by the tribes, but is not reservation land. Because this land being under state authority is an active, continuing state of harm, if they do use laches as the justification for refusing to recognise that eastern Oklahoma is tribal reservation land, the tribes could then renew a suit arguing specifically that land they own in Oklahoma which is not currently classified as part of a reservation is part of a reservation, and laches doesn't apply because there is continued harm (having to pay state taxes on it), and they might subsequently win that case.

I have no real idea the reasoning that SCOTUS will use to say that half of Oklahoma isn't a reservation; just that they will come up with some reason that it isn't.

You can't really do that. That would be a post-facto law, which are specifically banned by the constitution.

Not really. The issue is that SCOTUS ruled that for Congress to abrogate a reservation, they have to have expressly done so. Congress passing a law saying "No, SCOTUS was wrong and we could abrogate a reservation without expressly saying so" wouldn't run into post-facto issues and would solve the problem.

There is also saying something to the effect of the boundaries of a state at its time of creation not being a justiciable issue unless another state brings the case.

As for jurisdiction stripping, Congress can absolutely do that. They actually did it a few years ago to allow a casino on a reservation.

https://fas.org/sgp/crs/misc/LSB10100.pdf

 

[Abhorsen]

Not really. The issue is that SCOTUS ruled that for Congress to abrogate a reservation, they have to have expressly done so. Congress passing a law saying "No, SCOTUS was wrong and we could abrogate a reservation without expressly saying so" wouldn't run into post-facto issues and would solve the problem.

There is also saying something to the effect of the boundaries of a state at its time of creation not being a justiciable issue unless another state brings the case.

As for jurisdiction stripping, Congress can absolutely do that. They actually did it a few years ago to allow a casino on a reservation.

https://fas.org/sgp/crs/misc/LSB10100.pdf

I know they can jurisdiction strip, but the rest is, I think, wrong. Even if congress says it can do so without expressly stating so, that doesn't mean that takes effect retroactively, just that they can do it from now on.

Also, whatever happens, Gorsuch is definitely voting for the reservation. He's both very pro native american rights, and won't bullshit up a reason. He is my favorite current justice for a reason.

 

[Emperor Tippy]

I know they can jurisdiction strip, but the rest is, I think, wrong. Even if congress says it can do so without expressly stating so, that doesn't mean that takes effect retroactively, just that they can do it from now on.

Also, whatever happens, Gorsuch is definitely voting for the reservation. He's both very pro native american rights, and won't bullshit up a reason. He is my favorite current justice for a reason.

The courts can't write law. The reason that SCOTUS could say that Congress needs to specifically strip reservations is because Congress was silent on that topic. Congress saying "No, you were wrong and we could strip reservations without specifically saying so (at least in XYZ circumstances, such as establishing a state)." doesn't run into any post-facto legal issues because it isn't changing the law.

Then jurisdiction stripping the courts so that they can't rule on this type of issue fills in most of the loopholes.

 

[Cherico]

Just looks up the math native americans make up 6% of the population, whites 65% blacks 10%, Asians 2%, multi racial people 5%, and Latinos around 11% of the population.

If the courts find in favor of the rez I don't think your going to have mass expulsions smart move is for Oaklahoma and the fed to offer a whole bunch of money and for the tribes to get it that's the ideal situation. Less smart move is the tribes stick their feet in the sand and congress tells them that they can go screw themselves. Which is very possible and with in their powers.

I honestly think the reservations will probally walk away with something but not as much as they wanted. Tyanna's point is probally correct and will be used for the natives to get some gains but everything they wanted.

 

[Emperor Tippy]

Just looks up the math native americans make up 6% of the population, whites 65% blacks 10%, Asians 2%, multi racial people 5%, and Latinos around 11% of the population.

If the courts find in favor of the rez I don't think your going to have mass expulsions smart move is for Oaklahoma and the fed to offer a whole bunch of money and for the tribes to get it that's the ideal situation. Less smart move is the tribes stick their feet in the sand and congress tells them that they can go screw themselves. Which is very possible and with in their powers.

I honestly think the reservations will probally walk away with something but not as much as they wanted. Tyanna's point is probally correct and will be used for the natives to get some gains but everything they wanted.

If the court found for the natives then you are instantly going to have a class action lawsuit against the state by every resident of the "reservation".

If its a reservation then state permitting requirements don't apply, state taxes don't apply, state traffic laws don't apply, all local governments are voided along with any laws/regulations that they may have passed at any point, etc.

Even if literally minutes after it was declared part of the reservation, Congress said it was explicitly not and was now part of the state, all of those issues would still be live because that actually would be an ex post facto law imposing those burdens on people for past actions.

Any criminal charge under state law to anyone on the reservation gets voided as well. Which means those in prison get released and you get a class action lawsuit for compensation for false imprisonment.

Declaring it part of the reservation isn't going to happen because it would be the biggest shit show in US judicial history.

I mean just one such example; a state can't impose a property tax on out of state property/property that is part of a reservation. So everyone who owns property affected is going to be suing the state over the property taxes.

But then you have the even bigger issue; property ownership. If it is declared to be part of the reservation then basically all property ownership over half of Oklahoma is at least called into question (and most probably voided). It's not a taking because the property was never legally owned by those people in the first place. If federal law recognizes adverse possession then that's a potential out, but state law adverse possession wouldn't be in play as the reservation isn't subject to state law.

SHIT SHOW is pretty much the best summanation of what happens if the court rules that it is a reservation; at least short of Congress pretty much immediately "clarifying" that SCOTUS is wrong and that Congress could abrogate treaty granted reservations by implication and didn't need to be explicit about it.

That would be a different legal shit show, but one of much more limited scale and the courts would probably find it kosher simply to avoid the SHIT SHOW of half a state suddenly being recognized as always being a reservation.

 

[Lanmandragon]

Will they try and remove folks if it's ruled a reservation?

 

[Doomsought]

Will they try and remove folks if it's ruled a reservation?

The sane thing to do would be to just let the Indians collect taxes on them.