7 ms·

Just a couple notes here from a person of tribal descent (I am Wasq'u, a tribe in the PNW), for those trying to make sense of it. This ruling, as I understand

by antics 6y ago

Just a couple notes here from a person of tribal descent (I am Wasq'u, a tribe in the PNW), for those trying to make sense of it. This ruling, as I understand it, resolves a narrow technicality—but that technicality has potentially enormous implications. The Court has only decided that the federal [EDIT: state! sorry!] government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK—this is what the press means when it calls this territory "Indian reservations." They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on. Further narrowing the ruling, my understanding is that this only applies when all persons involved in the crime (e.g., the victim) are also tribal citizens. But, this ruling does open the door to a lot of those types of questions. It is possible we see several cases related to the sovereignty of these nations over the next few years, possibly greatly expanding the scope of the jurisdiction of the tribal governments.

chiefalchemist 6y ago
Does the nature of the crime in this case have any implications on the ongoing precedent? It's bizarre that the headline could have read: Rape-related SC Decision Returns Land to Native American Tribe.
- tony_cannistra 6y ago
  Unfortunately there's really no "return" of land. These headlines are siezing on the above technicality mentioned, which simply formalizes Tribal jurisdiction. The big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.
- mason55 6y ago
  I don't think so. The rape case really just acts as a vessel to provide standing to litigate the larger question of the reservation. Without the rape case they wouldn't have had a reason to challenge the questions about the res but now that the Supreme Court has resolved the larger question it's applicable across the board. It could have just as easily been a case about shoplifting or murder or anything else. In fact, last term there was a case similar to this that was about a murder, where the defendant was sentenced to death by the state and they argued that the state didn't have jurisdiction. Gorsuch heard the appeal in the circuit court so recused himself from the SCOTUS case and the belief it was deadlocked 4-4, so they took this case and made the ruling with a full nine Justices.
- astrange 6y ago
  There's a difference in that now major crimes between tribe members have to be tried in federal rather than state court. Minor ones would be tried by tribal courts, which already exist.
EE84M3i 6y ago
"The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK" The issue at hand was state government prosecutorial jurisdication, not federal. From the article: Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
- modmans2nd 6y ago
  Yes, that was the question at hand but that doesn’t mean it doesn’t have implications for lots of other things that the courts will have to clarify now.
  - eqvinox 6y ago
    There actually is very little for the court to clarify; reservations exist in lots of other places and the procedures and handling are well established. The unclear part that has been resolved is whether this century-old agreement for those swaths of Oklahoma is still in force, and apparently it is, so it's a reservation. From there on it's procedural copypasta. The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.
mason55 6y ago
> The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens Did I misunderstand what the case was about? I thought the case was that the state government has no jurisdiction and only the federal government has jurisdiction. Or maybe I'm confused because that's what the previous (4-4 deadlock) case was about and this one is actually bigger.
wonderwonder 6y ago
Ruling found that state government does not have prosecutorial jurisdiction, the federal government does and could still choose to prosecute the individual at the root of this case in federal court.
ddingus 6y ago
Thanks. You helped me understand better.
- MiroF 6y ago
  They're wrong - it's state, not federal.
Vysero 6y ago
Yeah I was wondering what exactly was meant by "reservation".. in my experience you can't, as an outsider (non-native), just go, and live on the reservation. So unless it's unlike any reservations in my state then there must have been something I was missing.
- pnw_hazor 6y ago
  Back in the day, enrolled members of some tribes could sell land to non-members. I think most tribes prevent that now. Land sold to non-members became Fee property that can be owned by non-members or sold to non-members. Depending on the reservation, you will find plenty of non-members that own property within the reservation.
  - Wohlf 6y ago
    Does this depend on the reservation? I've heard of reservations where you basically couldn't build a permanent structure or get a building loan due to how the tribal land rules work. It's kind of fascinating having these micro-nations that aren't quite nations within our borders, I should read more in to this subject.
    - pnw_hazor 6y ago
      Reservations are governed by their tribal government, often with side-agreements/compacts with local or State governments. Real property within reservation borders is either deeded land or trust land. Deeded land can be sold without restriction. Trust land cannot be sold without approval of the US Bureau of Indian Affairs and/or the tribe. Natural resources in reservations are usually managed by the tribe. Including hunting and fishing. Some let non-Indians or non-members hunt/fish some don't. Except for a few exceptions, living on Indian reservations is no different than living anywhere else. Tribe made laws/rules do not apply to non-members -- unless the State or Feds says so. These are usually hunting rules. For example, the Colville Reservation in the State of Washington restricts non-members from hunting large game (deer, black bear, etc.) even if the game is on deeded landed. They can do this because there is a state law that says the same thing. Also, generally tribes or tribal owned businesses cannot be sued in state or federal courts unless they agree to be sued (same/similar as States and the Federal government). Thus, persons have few rights when it comes to contract disputes, personal or workplace injuries, labor issues, and so on, that involve tribes or tribal owned businesses. Something to think about if one is considering employment or otherwise doing business with a tribe or tribal owned business. "Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies." https://www.bia.gov/frequently-asked-questions https://www.bia.gov/frequently-asked-questions
curiousgal 6y ago
> This ruling, as I understand it, resolves a narrow technicality That is literally all of the SCOTUS rulings. It's petty listening to bright minds discuss minute details. The fact that technicalities have far reaching effects is a sign that the system is broken.
- snoshy 6y ago
  I don't see that this some sign of systemic dysfunction. Given the significant amount of time and effort that is expended before a legal dispute is considered by SCOTUS, it stands to reason that the arguments would be sufficiently nuanced at that stage. If the highest court of the land doesn't sweat the details, why would lower courts or any other aspect of our legal system be reasonably expected to do so? In any reasonably complex system (legal or otherwise), it should make sense that the technicalities do matter, and that the supreme decision making body in that system should consider those carefully due to the outsized influence it holds.
- elbigbad 6y ago
  Putting aside the question of what makes a "tecnicality," the fact that technicalities are able to be put forth and argued until a decisionmaker makes a ruling, rather than having a party decide unilaterally how to resolve the technicality, presumably at the peril of their opponent, means the system is working well.
- shmageggy 6y ago
  I think this a result of survivorship bias by design, not that anything is broken. If a case had little effect, it wouldn't be worth the court's time. If a case were easy to resolve, a lower court would have done so. So that only leaves important yet difficult and complex cases.
- ianai 6y ago
  I almost think they “like” to word things in this way so they can side step the larger ramifications of their decisions to certain people. It feels frustrating to those outside the law. But that’s always been true of the law, as far as I’ve read. Also remember that our legal system is a direct inheritance of the English legal system we separated from in the 1700s. There’s actually more history to our laws than to our country. So to some extent the years of buildup contributing to confusion stem back pretty far into the past. We would have a lot of work ahead of us to reinvent the quirkiness out of the system.
deleted 6y ago
[deleted]
NicolasGorden 6y ago
Do you know if this means that the land on which buildings are built could be taxed by the tribes? I live in the desert in CA and here most buildings built on Indian reservations pay a yearly leasing fee. It would be such a huge power shift for the tribal nations. It's one of those things that could ripple through the system or hit some stone wall I'm unaware of. Really interested to know what will happen.
- antics 6y ago
  They do not. I address this in my answer: > They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
  - NicolasGorden 6y ago
    You're 100% right, sorry, I read through your answer too quickly. It was the land for trust thing that really covered my question and I wasn't thinking of fee land in that way. I'm very ignorant about this topic, thanks for setting it straight. :)
deleted 6y ago
[deleted]

by antics 6y ago

chiefalchemist 6y ago

Does the nature of the crime in this case have any implications on the ongoing precedent? It's bizarre that the headline could have read: Rape-related SC Decision Returns Land to Native American Tribe.

tony_cannistra 6y ago
Unfortunately there's really no "return" of land. These headlines are siezing on the above technicality mentioned, which simply formalizes Tribal jurisdiction. The big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.
mason55 6y ago
I don't think so. The rape case really just acts as a vessel to provide standing to litigate the larger question of the reservation. Without the rape case they wouldn't have had a reason to challenge the questions about the res but now that the Supreme Court has resolved the larger question it's applicable across the board. It could have just as easily been a case about shoplifting or murder or anything else. In fact, last term there was a case similar to this that was about a murder, where the defendant was sentenced to death by the state and they argued that the state didn't have jurisdiction. Gorsuch heard the appeal in the circuit court so recused himself from the SCOTUS case and the belief it was deadlocked 4-4, so they took this case and made the ruling with a full nine Justices.
astrange 6y ago
There's a difference in that now major crimes between tribe members have to be tried in federal rather than state court. Minor ones would be tried by tribal courts, which already exist.

EE84M3i 6y ago

"The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK" The issue at hand was state government prosecutorial jurisdication, not federal. From the article: Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.

modmans2nd 6y ago
Yes, that was the question at hand but that doesn’t mean it doesn’t have implications for lots of other things that the courts will have to clarify now.
- eqvinox 6y ago
  There actually is very little for the court to clarify; reservations exist in lots of other places and the procedures and handling are well established. The unclear part that has been resolved is whether this century-old agreement for those swaths of Oklahoma is still in force, and apparently it is, so it's a reservation. From there on it's procedural copypasta. The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.

mason55 6y ago

> The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens Did I misunderstand what the case was about? I thought the case was that the state government has no jurisdiction and only the federal government has jurisdiction. Or maybe I'm confused because that's what the previous (4-4 deadlock) case was about and this one is actually bigger.

wonderwonder 6y ago

Ruling found that state government does not have prosecutorial jurisdiction, the federal government does and could still choose to prosecute the individual at the root of this case in federal court.

ddingus 6y ago

Thanks. You helped me understand better.

MiroF 6y ago
They're wrong - it's state, not federal.

Vysero 6y ago

Yeah I was wondering what exactly was meant by "reservation".. in my experience you can't, as an outsider (non-native), just go, and live on the reservation. So unless it's unlike any reservations in my state then there must have been something I was missing.

pnw_hazor 6y ago
Back in the day, enrolled members of some tribes could sell land to non-members. I think most tribes prevent that now. Land sold to non-members became Fee property that can be owned by non-members or sold to non-members. Depending on the reservation, you will find plenty of non-members that own property within the reservation.
- Wohlf 6y ago
  Does this depend on the reservation? I've heard of reservations where you basically couldn't build a permanent structure or get a building loan due to how the tribal land rules work. It's kind of fascinating having these micro-nations that aren't quite nations within our borders, I should read more in to this subject.
  - pnw_hazor 6y ago
    Reservations are governed by their tribal government, often with side-agreements/compacts with local or State governments. Real property within reservation borders is either deeded land or trust land. Deeded land can be sold without restriction. Trust land cannot be sold without approval of the US Bureau of Indian Affairs and/or the tribe. Natural resources in reservations are usually managed by the tribe. Including hunting and fishing. Some let non-Indians or non-members hunt/fish some don't. Except for a few exceptions, living on Indian reservations is no different than living anywhere else. Tribe made laws/rules do not apply to non-members -- unless the State or Feds says so. These are usually hunting rules. For example, the Colville Reservation in the State of Washington restricts non-members from hunting large game (deer, black bear, etc.) even if the game is on deeded landed. They can do this because there is a state law that says the same thing. Also, generally tribes or tribal owned businesses cannot be sued in state or federal courts unless they agree to be sued (same/similar as States and the Federal government). Thus, persons have few rights when it comes to contract disputes, personal or workplace injuries, labor issues, and so on, that involve tribes or tribal owned businesses. Something to think about if one is considering employment or otherwise doing business with a tribe or tribal owned business. "Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies." https://www.bia.gov/frequently-asked-questions https://www.bia.gov/frequently-asked-questions

curiousgal 6y ago

> This ruling, as I understand it, resolves a narrow technicality That is literally all of the SCOTUS rulings. It's petty listening to bright minds discuss minute details. The fact that technicalities have far reaching effects is a sign that the system is broken.

snoshy 6y ago
I don't see that this some sign of systemic dysfunction. Given the significant amount of time and effort that is expended before a legal dispute is considered by SCOTUS, it stands to reason that the arguments would be sufficiently nuanced at that stage. If the highest court of the land doesn't sweat the details, why would lower courts or any other aspect of our legal system be reasonably expected to do so? In any reasonably complex system (legal or otherwise), it should make sense that the technicalities do matter, and that the supreme decision making body in that system should consider those carefully due to the outsized influence it holds.
elbigbad 6y ago
Putting aside the question of what makes a "tecnicality," the fact that technicalities are able to be put forth and argued until a decisionmaker makes a ruling, rather than having a party decide unilaterally how to resolve the technicality, presumably at the peril of their opponent, means the system is working well.
shmageggy 6y ago
I think this a result of survivorship bias by design, not that anything is broken. If a case had little effect, it wouldn't be worth the court's time. If a case were easy to resolve, a lower court would have done so. So that only leaves important yet difficult and complex cases.
ianai 6y ago
I almost think they “like” to word things in this way so they can side step the larger ramifications of their decisions to certain people. It feels frustrating to those outside the law. But that’s always been true of the law, as far as I’ve read. Also remember that our legal system is a direct inheritance of the English legal system we separated from in the 1700s. There’s actually more history to our laws than to our country. So to some extent the years of buildup contributing to confusion stem back pretty far into the past. We would have a lot of work ahead of us to reinvent the quirkiness out of the system.

deleted 6y ago

[deleted]

NicolasGorden 6y ago

Do you know if this means that the land on which buildings are built could be taxed by the tribes? I live in the desert in CA and here most buildings built on Indian reservations pay a yearly leasing fee. It would be such a huge power shift for the tribal nations. It's one of those things that could ripple through the system or hit some stone wall I'm unaware of. Really interested to know what will happen.

antics 6y ago
They do not. I address this in my answer: > They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
- NicolasGorden 6y ago
  You're 100% right, sorry, I read through your answer too quickly. It was the land for trust thing that really covered my question and I wasn't thinking of fee land in that way. I'm very ignorant about this topic, thanks for setting it straight. :)

deleted 6y ago

[deleted]