4 ms·

Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and lon

by btilly 6y ago

Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. I disagree with this reasoning. As a counterexample I point you to squatters rights. If I live on your land long and openly enough, my unlawful act will confer ownership of the land to me. This principle is not only recognized in our courts, but the clarity that it provides around ownership is a major foundation of our economic system. The reason is that before ownership was clarified with this principle, our land was covered by a mess of overlapping and contradictory claims to ownership of the land. But with a clear owner, however established, that owner can now use their ownership as collateral. For a book-length treatment of that thesis I point you at https://www.amazon.com/Mystery-Capital-Capitalism-Triumphs-Everywhere/dp/0465016154 https://www.amazon.com/Mystery-Capital-Capitalism-Triumphs-E.... But this decision opens up the legal status of half of Oklahoma for debate, while other tribes around the nation are going to be thinking about which further claims they can now press. If we continue to open up the course of reversing long-done ills, will we start to ask whether West Virginia should not exist not as an interesting academic question, but as a current legal one? See https://lawprofessors.typepad.com/conlaw/2011/01/west-virginia-weekend-is-the-state-itself-unconstitutional.html https://lawprofessors.typepad.com/conlaw/2011/01/west-virgin... for background on that.

guerrilla 6y ago
Squatters rights only apply to abandoned property though. This land wasn't abandoned at any time. People were forced out and it was occupied.
- missedthecue 6y ago
  I don't think he was saying this is an example of squatters rights. He is saying that squatters rights is an example of a principle where an unlawful act done long enough becomes a lawful act.
  - btilly 6y ago
    Almost. Not becomes, can become.
  - sib 6y ago
    But "squatters rights" are in fact the law... So a party "squatting" and thereby becoming the new owner is not a counterexample to the statement that "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law." The squatters are not amending the law, they are acting in accordance with it.
deleted 6y ago
[deleted]
gowld 6y ago
Adverse possession is different. That only applies if the rightful owner gives de facto consent by ignoring the injustice and making 0 express or implied to claim in the property. Petitioning for redress cancels the adverse possession claim (obviously), or else you get legal title to any property simply by taking the property by force.
lucasgonze 6y ago
You're thinking of laches: https://en.wikipedia.org/wiki/Laches_(equity) https://en.wikipedia.org/wiki/Laches_(equity) "Laches refers to a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity" It doesn't apply because nobody is claiming tribal groups failed to protect their interests. They haven't just been blowing off and watching TV all this time.
- btilly 6y ago
  I am not saying that this is a legal argument for how this case should have been resolved. I'm saying that this is a legal argument against the specific reasoning within the decision. That reasoning being, Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. And yet here is a well-established example where an unlawful act, performed long enough and with sufficient vigor, does become enough to amend the law. I picked you to respond to because of the several people pointing out in one way or another that squatters rights (which, incidentally, has its own doctrines separate from latches) does not actually apply as a way to resolve this case.
  - jjeaff 6y ago
    When you take over land by squatting, you aren't "amending the law". You are amending land records using the judicial system. So I don't think the comparison holds up. And considering that these Indian tribes have been fighting for their land since the beginning, it also doesn't really meet the criteria of someone squatting unnoticed on some land. If someone just started building on your land right now, and you filed a complaint and called the police and no one would come to help you remove them legally for a decade, they aren't going to eventually just get title to your land. Filing complaints and calling the police has disputed their claim.
ddingus 6y ago
Good. The natives deserve a fair shake and the land is roomy enough for people to get along and work together. Forcing that is a damn good thing. The USA has a lot to account for, and it is very sick. Rough roads ahead. Maybe they lead to better places. I do not feel good about the last 4 or so decades of travel. As a people, maybe world, we may well be better for going down this road.
- btilly 6y ago
  For the record I have a brother living on a native reservation. I am well aware of exactly how horrible our past and continuing treatment of the natives have been. And strongly support fixing our ongoing treatment of them. However I also strongly believe that our future prosperity is based more on current actions than past circumstances. And therefore believe that attempts to redress long past ills are actively harmful to us as a society. And furthermore believe that a focus on long past harms on the part of groups who were victimized is actively harmful to the people who are focused on the past. And therefore I believe that there should be some sort of statute of limitations on which past harms we are willing to try to redress. I don't support trying to redress ills from over a century ago whether we are talking about restoring native reservations, or paying reparations for slavery. If you go back far enough, we all were done wrong to by someone else. And usually you don't have to go back too far to find it. For example it was less than 100 years ago that my Irish grandparents were targeted by the KKK in a part of Oregon where my cousins still live. I know because my now deceased aunt and uncles told me about it. Many descendants of the KKK members still live in the same place. On a side note, it is a little shocking to me that so many support a decision in favor of a man who was convicted of sodomizing a 4 year old child.
  - jjeaff 6y ago
    Like many supreme court decisions, the individual case at hand is not really the point. It sets a precedent for other law. This specific offender has spent decades in prison already and can now be tried in federal court if need be. I'm sure no one here is supporting this offender, but whether someone is guilty or not, they are entitled to a just trial that properly follows the legal system. The supreme court has ruled that he was not afforded that.
pnw_hazor 6y ago
You cannot adversely possess a US government's land. Tribes have similar sovereign rights.
s1artibartfast 6y ago
squatters rights don't amend the law, they amend ownership. Squatters rights are explicitly codified in the low
toss1 6y ago
Seems that you are trying to bootstrap off of Adverse Possession, where Alan uses Bob's land for a certain period (often 20 years) and ends up owning it. But it does not work that way Adverse Possession requires that the use be "open and notorious" and uncontested. [1] The potential possessor must be using it in a way that is obvious (i.e., not sneaky), and not objected to by the owner. Sure, the uses of the native lands have been open and notorious, but they have been continuously and vigorously contested. This time, the owners finally won their contesting of the use of their land. [1] https://www.nolo.com/legal-encyclopedia/what-open-notorious-use-property-means-adverse-possession-claim.html https://www.nolo.com/legal-encyclopedia/what-open-notorious-...
markstos 6y ago
Squatter's rights seems related, but different. With squatters rights, there is a law that says if they squat long enough, they can gain legal rights to the property. Squatters are amending the law through action, the law that gives them eventual rights is already there. There is no law that says if the federal government fails to live up to their promise long enough, it's no longer a legally binding promise. The Court is saying that if Congress really wants to break the promise, Congress needs to express that with updated legislation.
handol 6y ago
A popular opinion among the beneficiaries of historic injustices.

by btilly 6y ago

guerrilla 6y ago

Squatters rights only apply to abandoned property though. This land wasn't abandoned at any time. People were forced out and it was occupied.

missedthecue 6y ago
I don't think he was saying this is an example of squatters rights. He is saying that squatters rights is an example of a principle where an unlawful act done long enough becomes a lawful act.
- btilly 6y ago
  Almost. Not becomes, can become.
- sib 6y ago
  But "squatters rights" are in fact the law... So a party "squatting" and thereby becoming the new owner is not a counterexample to the statement that "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law." The squatters are not amending the law, they are acting in accordance with it.

deleted 6y ago

[deleted]

gowld 6y ago

Adverse possession is different. That only applies if the rightful owner gives de facto consent by ignoring the injustice and making 0 express or implied to claim in the property. Petitioning for redress cancels the adverse possession claim (obviously), or else you get legal title to any property simply by taking the property by force.

lucasgonze 6y ago

You're thinking of laches: https://en.wikipedia.org/wiki/Laches_(equity) https://en.wikipedia.org/wiki/Laches_(equity) "Laches refers to a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity" It doesn't apply because nobody is claiming tribal groups failed to protect their interests. They haven't just been blowing off and watching TV all this time.

btilly 6y ago
I am not saying that this is a legal argument for how this case should have been resolved. I'm saying that this is a legal argument against the specific reasoning within the decision. That reasoning being, Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. And yet here is a well-established example where an unlawful act, performed long enough and with sufficient vigor, does become enough to amend the law. I picked you to respond to because of the several people pointing out in one way or another that squatters rights (which, incidentally, has its own doctrines separate from latches) does not actually apply as a way to resolve this case.
- jjeaff 6y ago
  When you take over land by squatting, you aren't "amending the law". You are amending land records using the judicial system. So I don't think the comparison holds up. And considering that these Indian tribes have been fighting for their land since the beginning, it also doesn't really meet the criteria of someone squatting unnoticed on some land. If someone just started building on your land right now, and you filed a complaint and called the police and no one would come to help you remove them legally for a decade, they aren't going to eventually just get title to your land. Filing complaints and calling the police has disputed their claim.

ddingus 6y ago

Good. The natives deserve a fair shake and the land is roomy enough for people to get along and work together. Forcing that is a damn good thing. The USA has a lot to account for, and it is very sick. Rough roads ahead. Maybe they lead to better places. I do not feel good about the last 4 or so decades of travel. As a people, maybe world, we may well be better for going down this road.

btilly 6y ago
For the record I have a brother living on a native reservation. I am well aware of exactly how horrible our past and continuing treatment of the natives have been. And strongly support fixing our ongoing treatment of them. However I also strongly believe that our future prosperity is based more on current actions than past circumstances. And therefore believe that attempts to redress long past ills are actively harmful to us as a society. And furthermore believe that a focus on long past harms on the part of groups who were victimized is actively harmful to the people who are focused on the past. And therefore I believe that there should be some sort of statute of limitations on which past harms we are willing to try to redress. I don't support trying to redress ills from over a century ago whether we are talking about restoring native reservations, or paying reparations for slavery. If you go back far enough, we all were done wrong to by someone else. And usually you don't have to go back too far to find it. For example it was less than 100 years ago that my Irish grandparents were targeted by the KKK in a part of Oregon where my cousins still live. I know because my now deceased aunt and uncles told me about it. Many descendants of the KKK members still live in the same place. On a side note, it is a little shocking to me that so many support a decision in favor of a man who was convicted of sodomizing a 4 year old child.
- jjeaff 6y ago
  Like many supreme court decisions, the individual case at hand is not really the point. It sets a precedent for other law. This specific offender has spent decades in prison already and can now be tried in federal court if need be. I'm sure no one here is supporting this offender, but whether someone is guilty or not, they are entitled to a just trial that properly follows the legal system. The supreme court has ruled that he was not afforded that.

pnw_hazor 6y ago

You cannot adversely possess a US government's land. Tribes have similar sovereign rights.

s1artibartfast 6y ago

squatters rights don't amend the law, they amend ownership. Squatters rights are explicitly codified in the low

toss1 6y ago

Seems that you are trying to bootstrap off of Adverse Possession, where Alan uses Bob's land for a certain period (often 20 years) and ends up owning it. But it does not work that way Adverse Possession requires that the use be "open and notorious" and uncontested. [1] The potential possessor must be using it in a way that is obvious (i.e., not sneaky), and not objected to by the owner. Sure, the uses of the native lands have been open and notorious, but they have been continuously and vigorously contested. This time, the owners finally won their contesting of the use of their land. [1] https://www.nolo.com/legal-encyclopedia/what-open-notorious-use-property-means-adverse-possession-claim.html https://www.nolo.com/legal-encyclopedia/what-open-notorious-...

markstos 6y ago

Squatter's rights seems related, but different. With squatters rights, there is a law that says if they squat long enough, they can gain legal rights to the property. Squatters are amending the law through action, the law that gives them eventual rights is already there. There is no law that says if the federal government fails to live up to their promise long enough, it's no longer a legally binding promise. The Court is saying that if Congress really wants to break the promise, Congress needs to express that with updated legislation.

handol 6y ago

A popular opinion among the beneficiaries of historic injustices.