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Alito's "dissent" in the congressional subpoena case doesn't really read like he disagrees with the majority. It almost feels like Alito didn't want the decision to be 9-0 or 8-1, so he refused to join the majority while not substantively dissenting. If Alito's opinion controlled in the congressional case, I don't think much would have changed going forward.
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Jul 9, 2020 17:25
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Rigel posted:Alito's "dissent" in the congressional subpoena case doesn't really read like he disagrees with the majority. It almost feels like Alito didn't want the decision to be 9-0 or 8-1, so he refused to join the majority while not substantively dissenting. If Alito's opinion controlled in the congressional case, I don't think much would have changed going forward. Alito wants congress to essentially have a draft of legislation ready that the subpoena relates to. He wants a significantly more restrictive version of congressional subpoena.
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Jul 9, 2020 17:28
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Mr. Nice! posted:Alito wants congress to essentially have a draft of legislation ready that the subpoena relates to. He wants a significantly more restrictive version of congressional subpoena. The majority also instructed the court to get more detail from congress on what kind of legislation they are contemplating. Alito wanted the majority to spell out a bit more detail, but this is not much of a burden. It would not be difficult for the chairman to describe a law that would need Trump's tax returns to inform how to craft it, even if everyone in the world knows such a law won't ever pass the Senate.
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Jul 9, 2020 17:35
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Shimrra Jamaane posted:Rofl
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Jul 9, 2020 17:43
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What will be the practical effects of the Oklahoma ruling? Will it impact other states as well? Seems like a big deal but all I know about the Supreme Court and Native rights is the Nullification Crisis.
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Jul 9, 2020 17:46
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Chamale posted:What will be the practical effects of the Oklahoma ruling? Will it impact other states as well? Seems like a big deal but all I know about the Supreme Court and Native rights is the Nullification Crisis. As far as I know this particular procedural quirk was unique to those specific parts of Oklahoma.
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Jul 9, 2020 17:51
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Chamale posted:What will be the practical effects of the Oklahoma ruling? Will it impact other states as well? Seems like a big deal but all I know about the Supreme Court and Native rights is the Nullification Crisis. It will not likely impact other states. Congress crossed their t's and dotted their i's when they "legally" broke their promises to the tribes everywhere else. They just flat-out forgot to take back the land for Oklahoma reservations. Practical effects, not immediately but after some cases that now seem to be clear wins: Tribe members in reservations may not have to pay state income tax to Oklahoma, and tribal businesses don't have to pay any income taxes or sales taxes. However, they'll have to work something out if they want state services and maintain infrastructure. Tribes also likely will have a lot more freedom to run their business without state oversight (mostly impacting alcohol sales and casinos) And of course, tribe members can't be tried by the state for crimes on tribal land. Rigel fucked around with this message at 17:58 on Jul 9, 2020 |
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Jul 9, 2020 17:55
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That Oklahoma case is wild. So like, Oklahoma is now a legal no mans land, go ahead and rape/murder cause it’s up to the tribe to prosecute you? That’s a Thomas level crazy ruling right there, how did this get through? Does everyone currently imprisoned get to appeal their conviction on the new lack of jurisdiction? Is this the rare instance where something will get through Congress to immediately abrogate that treaty or does it stay a no mans land? Paul MaudDib fucked around with this message at 18:08 on Jul 9, 2020 |
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Jul 9, 2020 18:05
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Paul MaudDib posted:That Oklahoma case is wild. So like, Oklahoma is now a legal no mans land, go ahead and rape/murder cause it’s up to the tribe to prosecute you? Oklahoma can still prosecute people who are not members of a tribe. Members of tribes can be prosecuted by the Feds, and in other existing reservations where this is already a thing, the tribes have set up their own legal system to prosecute crimes under tribal law. The only thing making this different, is that this is an unexpected new (old) reservation with a lot of people in it. Lawyers with experience in tribal law elsewhere are about to see a lot of career opportunities in Oklahoma. I assume that the tribes and the Feds will want to keep murderers and rapists in jail, but a tribe member serving time for a lower-level crime may get off now if the tribe and feds don't have time to deal with his burglary or whatever.
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Jul 9, 2020 18:08
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wow. did anyone predict Gorsuch being so insanely textualist that it would wrap around and end up hurting the conservative "faction" of the court?
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Jul 9, 2020 18:15
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Rigel posted:Oklahoma can still prosecute people who are not members of a tribe. Members of tribes can be prosecuted by the Feds, and in other existing reservations where this is already a thing, the tribes have set up their own legal system to prosecute crimes under tribal law. I thought there was pretty established case law that states don’t have jurisdiction over what happens on reservations even for non tribal members? where that usually comes up is people coming onto the reservations to rape/etc and tribes not really having the money to investigate/prosecute/jail, it is A Problem. Regardless of the federal side it seems like this ruling basically should vacate all state level convictions in those areas immediately. After all regardless of what congress decides long term, at the time of the crime the state did not have jurisdiction. SCOTUS may not have wanted to open that can of worms... but they did anyway. This is a child rape case in Tulsa after all. If he gets off, why doesn’t everyone else? Seems like a slam dunk equal protection claim. Paul MaudDib fucked around with this message at 18:29 on Jul 9, 2020 |
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Jul 9, 2020 18:16
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This does impact Kansas, as it was part of the treaty of 1866. The ruling is going to have a big impact on mineral rights and such as a lot of fracking is happening on tribal land. State criminal convictions are going to be overturned in masse. Congress will probably set up a trust like they did with the natives and the black hills region of south dakota to compensate the tribes for all of the unlawfully ceded land. Oklahoma may have to pitch in as well.
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Jul 9, 2020 18:21
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Excelzior posted:wow. did anyone predict Gorsuch being so insanely textualist that it would wrap around and end up hurting the conservative "faction" of the court? a lot of people did
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Jul 9, 2020 18:31
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Much like how the inmates have taken over the asylum in the Republican Party, textualism started out as a thin veneer over "do whatever conservatives want" but now they raised an actual generation of jurists who take it seriously even when it disagrees with their personal ideology.
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Jul 9, 2020 18:35
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Paul MaudDib posted:I thought there was pretty established case law that states don’t have jurisdiction over what happens on reservations even for non tribal members? where that usually comes up is people coming onto the reservations to rape/etc and tribes not really having the money to investigate/prosecute/jail, it is A Problem. This problem occurs when a tribe member is the assailant. The Feds can still step in if the case is clear and easy, but things get tricky if its a hard case and the tribes don't want to touch it. Congress passed a law a while ago allowing states to prosecute non-tribal members on tribal land, and Gorsuch noted this while explaining that his decision isn't as catastrophic as Oklahoma was describing.
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Jul 9, 2020 18:38
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Paul MaudDib posted:I thought there was pretty established case law that states don’t have jurisdiction over what happens on reservations even for non tribal members? where that usually comes up is people coming onto the reservations to rape/etc and tribes not really having the money to investigate/prosecute/jail, it is A Problem. - State has jurisdiction over crimes on tribal land where neither accused or victim is a tribal member. - Tribes have jurisdiction over small crimes where both are tribal members. (I think I remember the limits at <2 year in jail, $10000 max fine). There is a program where they can opt-in to higher limits if the tribe applies bill of rights protections (they do not have to otherwise, right-to-council is the most common dropped one). - Tribes can opt-in to jurisdiction over small crimes with split tribal/non-tribal accused if they apply bill of rights. - Only the federal government may prosecute large crimes e: For bonus supreme court, there was a decision awhile back about whether an uncounciled tribal court conviction for domestic violence could be used as a predicate for a sentencing enhancement during a federal conviction Yes Foxfire_ fucked around with this message at 18:52 on Jul 9, 2020 |
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Jul 9, 2020 18:46
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Excelzior posted:wow. did anyone predict Gorsuch being so insanely textualist that it would wrap around and end up hurting the conservative "faction" of the court? It's not super insanely textualist in this case, especially when the court goes 5-4 on it with liberals in agreement. As Gorsuch likes to say, you need merely read the law in this case.
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Jul 9, 2020 18:47
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I'm surprised Kav signed on to Mazars and Vance. Wasn't the whole reason he got picked for SCOTUS because he'd previously stated he felt a siting president was functionally immune from the law?
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Jul 9, 2020 18:48
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Sydin posted:I'm surprised Kav signed on to Mazars and Vance. Wasn't the whole reason he got picked for SCOTUS because he'd previously stated he felt a siting president was functionally immune from the law?
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Jul 9, 2020 18:58
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Sydin posted:I'm surprised Kav signed on to Mazars and Vance. Wasn't the whole reason he got picked for SCOTUS because he'd previously stated he felt a siting president was functionally immune from the law? the whole reason souter was picked for the court was he was definitely a conservative but with a thin record that could slide past a democratic senate i believe that is generally referred to as an "oopsie"
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Jul 9, 2020 18:59
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Mr. Nice! posted:This does impact Kansas, as it was part of the treaty of 1866. The ruling is going to have a big impact on mineral rights and such as a lot of fracking is happening on tribal land. If I'm remembering history on it right, there isn't any ownership dispute for land. There's appropriate paper trail for it being sold (individuals can own land under tribal jurisdiction). Congress just didn't edit the jurisdiction properly. It's more akin to 'whoops this land was actually in Kansas instead of Oklahoma'. The case was about whether when Congress did all those ownership transfers, they implicitly also repealed tribal jurisdiction even though past precedent says you have to do that explicitly. It will be a justice mess, a tax mess, and a regulatory mess, but all the land sales are still probably valid (but maybe not since they were all recorded improperly) Foxfire_ fucked around with this message at 19:10 on Jul 9, 2020 |
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Jul 9, 2020 19:02
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Excelzior posted:wow. did anyone predict Gorsuch being so insanely textualist that it would wrap around and end up hurting the conservative "faction" of the court? Gorsuch is the only member of the court from a "Western" district and he has ruled on several court cases involving tribes, and has usually ruled in the tribes' favor. That's the one consolation for having that seat stolen by Mitch McConnell.
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Jul 9, 2020 19:20
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Foxfire_ posted:If I'm remembering history on it right, there isn't any ownership dispute for land. There's appropriate paper trail for it being sold (individuals can own land under tribal jurisdiction). Congress just didn't edit the jurisdiction properly. It's more akin to 'whoops this land was actually in Kansas instead of Oklahoma'. It will be a justice mess, a tax mess, and a regulatory mess, but all the land sales are still probably valid (but maybe not since they were all recorded improperly) Congress did explicitly pass a series of laws for handling the issue of private land transfers of land previously owned by the reservation, as well as various laws giving Oklahoma jurisdiction over a number of matters previously given to the reservation. It's just that they never actually abolished the reservation completely and so technically it retains jurisdiction over the remaining portions of its affairs that weren't explicitly handed over. So it's not really going to be total anarchy, a lot of issues are already firmly settled in statute and law and the court's opinion doesn't change that; Gorsuch spells this out in his rejection of the state's arguments.
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Jul 9, 2020 19:22
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I don't understand Roberts's reasoning in denying the Congressional subpoenas. Congress being able to get ahold of the president's tax returns ensures a balanced separation of powers. Otherwise the executive is above Congress since Congress's job is oversight.
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Jul 9, 2020 23:08
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Could/would congress tomorrow just do whatever legal stuff they need to do to gently caress the natives out of their newly found rights in eastern Oklahoma?Foxfire_ posted:If I'm remembering history on it right, there isn't any ownership dispute for land. There's appropriate paper trail for it being sold (individuals can own land under tribal jurisdiction). Congress just didn't edit the jurisdiction properly. It's more akin to 'whoops this land was actually in Kansas instead of Oklahoma'. The case was about whether when Congress did all those ownership transfers, they implicitly also repealed tribal jurisdiction even though past precedent says you have to do that explicitly.
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Jul 9, 2020 23:08
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tangy yet delightful posted:Could/would congress tomorrow just do whatever legal stuff they need to do to gently caress the natives out of their newly found rights in eastern Oklahoma? Could? Yes. Would? Not this year. Gorsuch basically said that the court wasn't going to just pretend that the US officially eliminated the reservation when they didn't. If the government wants to screw over the tribes in Oklahoma, they need to at least go on record and officially vote to do it. What will likely happen is that Oklahoma and the tribes will probably meet this year to work things out, and then present a solution to Congress. Both sides have reasons to want to work out a deal. tangy yet delightful posted:Now I'm wondering if title insurance would cover this if it turns out that no you don't actually own the land your house sits on. Hoping to read some good long form articles on all this in the near future. edit: Regarding property ownership, that is not in question. (we think) Property was legally bought and sold over the years. (we think) But just like the state might not own your house but you are subject to that state's laws, since the reservation was never eliminated, people living there might own the land yet be subject to tribal law, and the tribes might be entitled to tax benefits in the reservation land. Rigel fucked around with this message at 23:26 on Jul 9, 2020 |
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Jul 9, 2020 23:15
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Rigel posted:edit: Regarding property ownership, that is not in question. (we think) Property was legally bought and sold over the years. (we think) But just like the state might not own your house but you are subject to that state's laws, since the reservation was never eliminated, people living there might own the land yet be subject to tribal law, and the tribes might be entitled to tax benefits in the reservation land. I think there may be edge case stuff with property allotment and adverse possession issues.
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Jul 9, 2020 23:32
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Rigel posted:Could? Yes. Would? Not this year. Gorsuch basically said that the court wasn't going to just pretend that the US officially eliminated the reservation when they didn't. If the government wants to screw over the tribes in Oklahoma, they need to at least go on record and officially vote to do it. It'd be nice if the ruling said Congress couldn't just break treaties with native tribes whenever it wanted, but I suppose that's beyond the scope here.
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Jul 9, 2020 23:40
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Groovelord Neato posted:I don't understand Roberts's reasoning in denying the Congressional subpoenas. Congress being able to get ahold of the president's tax returns ensures a balanced separation of powers. Otherwise the executive is above Congress since Congress's job is oversight. The congressional subpoenas were not denied. The court held that congress must show more than they had and directed the district court to look at four factors and ensure that congress had satisfied those. If they have, the subpoenas are valid. They rejected the white house's arguments against them. Thomas would have denied the subpoenas and told them they can only issue this type of subpoena using impeachment power. Alito agrees with Roberts but would require greater specificity than Roberts.
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Jul 9, 2020 23:46
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tangy yet delightful posted:Could/would congress tomorrow just do whatever legal stuff they need to do to gently caress the natives out of their newly found rights in eastern Oklahoma? I think it will probably depend on how many prisoners sue for release and how aggressively the tribes involved try to exercise power. A 20% tax of business revenue across all of Tulsa would probably cause Congress to act sooner rather than later.
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Jul 10, 2020 00:03
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Mr. Nice! posted:The congressional subpoenas were not denied. The court held that congress must show more than they had and directed the district court to look at four factors and ensure that congress had satisfied those. If they have, the subpoenas are valid. They rejected the white house's arguments against them. Oh my bad the article I'd read acted like the court okayed New York's but flat out nixed Congress's.
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Jul 10, 2020 00:19
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Groovelord Neato posted:Oh my bad the article I'd read acted like the court okayed New York's but flat out nixed Congress's. No. NY's was essentially an 8-1 case with Alito as the lone person in support of the idea of untouchable president. Thomas' dissent is only a dissent because he would have punted. This case was a slam dunk for everyone else because its some of the oldest precedent on the books. Mazars was a punt that will probably go to the district court, get upheld as valid after the house submits stuff to satisfy the SCOTUS factors, and the DC Circuit upholds. I doubt the SCOTUS takes the case up again, personally.
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Jul 10, 2020 00:38
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von Metternich posted:It'd be nice if the ruling said Congress couldn't just break treaties with native tribes whenever it wanted, but I suppose that's beyond the scope here.
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Jul 10, 2020 00:45
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SCOTUS says federal executions can go ahead, overruling the district court: https://www.supremecourt.gov/opinions/19pdf/20a8_970e.pdf
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Jul 14, 2020 13:45
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Can always count on that American lust for death.
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Jul 14, 2020 16:33
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lol at '"originalist"" Clarence Thomas just setting aside the parts of the constitution that says treaties are federal laws and that federal laws are supreme because when it comes to natives gently caress the constitution I guess
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Jul 14, 2020 16:43
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VitalSigns posted:lol at '"originalist"" Clarence Thomas just setting aside the parts of the constitution that says treaties are federal laws and that federal laws are supreme because when it comes to natives gently caress the constitution I guess Its what the founding fathers would've wanted.
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Jul 14, 2020 16:45
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hobbesmaster posted:Its what the founding fathers would've wanted. hm good point, it would be funny if his dissent were just a list of all the bad faith, broken treaties, theft, rape, murder, and massacres perpetrated by the founders to support a finding that the framers of the treaty never had any legislative intent to honor it, therefore it's void
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Jul 14, 2020 16:49
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VitalSigns posted:hm good point, it would be funny if his dissent were just a list of all the bad faith, broken treaties, theft, rape, murder, and massacres perpetrated by the founders to support a finding that the framers of the treaty never had any legislative intent to honor it, therefore it's void Wouldn't that equally violate his Originalism? The whole point of Scaliaesque originalism/textualism is that legislative intent has to be ignored. It's not quite full on post-structuralism 'death of the author' but the whole point is that judges shouldn't be trying to read the minds of dead politicians and so should rely just on the words written on the page. The fact that Thomas might argue convincingly that none of the signers and drafters of these treaties intended to actually abide by them shouldn't impact in his legal appraisal. Of course the result would be that Thomas points out that they refer to nations here, which in the 18th century were commonly understood to be something different to Indian confederations (cue citation to 19th century dictionary that actually isn't how the word was used at the time of signing) and so the Treaties obviously didn't apply to these natives, bing bong so simple.
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Jul 14, 2020 17:08
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MrNemo posted:Wouldn't that equally violate his Originalism? The whole point of Scaliaesque originalism/textualism is that legislative intent has to be ignored. Originalism, absolutely not. Read Scalia's Lawrence dissent, it's basically "ok yeah so the constitution does say everyone enjoys equal protection of the law, but actually look how much the framers of the 14th hated gay people, they hated them a lot so obviously they didn't mean to interfere with our proud tradition of Or Heller: "yeah the second talks about a well-regulated militia, but actually they didn't really mean that part so just ignore the text k"
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Jul 14, 2020 17:13
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