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Tags Native American issues , Oklahoma issues , supreme court decisions

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Old 9th July 2020, 12:23 PM   #1
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Supreme Court Rules Large Area of Eastern Oklahoma Is Native American Land

The Supreme Court has ruled today that a large section in eastern Oklahoma (could not find an actual specified size) is Native American land and as such Native Americans living therein are only under federal rather than state jurisdiction.

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

Supreme Court Rules Large Swath of Oklahoma Is Indian Reservation [NYT]
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Old 9th July 2020, 01:11 PM   #2
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Quote:
ustice Ruth Bader Ginsburg expressed this concern during oral arguments, telling McGirt's lawyer, "What makes this case hard is that there have been hundreds, hundreds of prosecutions, some very heinous offenses of the state law. On your view, they would all become undone."
To which the answer is, good! The state had no right to do those prosecutions in the first place.

One of the most important functions of the courts is to protect the rights of the citizens and to prevent the government from overstepping it's authority. It doesn't matter how long it's been doing it, they never had the right in the first place.
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Old 9th July 2020, 01:17 PM   #3
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Originally Posted by pgwenthold View Post
To which the answer is, good! The state had no right to do those prosecutions in the first place.

One of the most important functions of the courts is to protect the rights of the citizens and to prevent the government from overstepping it's authority. It doesn't matter how long it's been doing it, they never had the right in the first place.
C'mon, there is more to it than that. There very well may be some very guilty people of some very heinous crimes who will escape justice and may be free to prey on others. That doesn't mean that this isn't the correct decision.

It should be noted that Ginsberg voted with the majority.
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Old 9th July 2020, 01:29 PM   #4
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Originally Posted by acbytesla View Post
C'mon, there is more to it than that. There very well may be some very guilty people of some very heinous crimes who will escape justice and may be free to prey on others.
Sure, but that doesn't give the state of Oklahoma the right to prosecute them, no more than they could prosecute those who commit crimes in Texas.

The government of Oklahoma had no authority to prosecute those people. They should have let the federal government do it instead. Yes, there will be guilty who go free, but that is the government's fault. They can't just move into the reservation and assert that they are in charge.
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Old 9th July 2020, 01:39 PM   #5
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Originally Posted by pgwenthold View Post
Sure, but that doesn't give the state of Oklahoma the right to prosecute them, no more than they could prosecute those who commit crimes in Texas.

The government of Oklahoma had no authority to prosecute those people. They should have let the federal government do it instead. Yes, there will be guilty who go free, but that is the government's fault. They can't just move into the reservation and assert that they are in charge.
I don't disagree. I also don't think it is wrong to at least acknowledge some of the consequences.
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Old 9th July 2020, 02:23 PM   #6
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Originally Posted by acbytesla View Post
I don't disagree. I also don't think it is wrong to at least acknowledge some of the consequences.
Acknowledged, but I don't have any problem with them at all. The government ****** up. I see this as no worse than letting a criminal go free because of an illegal search. Yeah, some guilty go free. Doesn't matter, you follow the rules. You get a search warrant, and you don't arrest people when you don't have jurisdiction. Talk about textbook case of government tyranny, I think it is when they arrest someone without having the authority to do it.

I acknowledged the consequence, but my response, as in my first comment, was good. Yes, a bunch of people are going to go free. Damn it, they should.
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Old 9th July 2020, 02:29 PM   #7
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Did the tribe file an amicus brief or were they blindsided by this?
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Old 9th July 2020, 04:46 PM   #8
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There is a glaring problem about the (main) ruling, and that is that the grounds for this decision didn't actually come from trying to honor the treaty but rather Congress failing to override it.
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Old 9th July 2020, 06:03 PM   #9
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Apparently this ruling only applies to criminal cases involving Native American defendants. The Supreme Court has not given them Tulsa (which is part of the area affected).

ETA: This little detail might be of interest:

Quote:
Forever, it turns out, did not last very long, because the Civil War disrupted both relationships and borders. The Five Tribes, whose members collectively held at least 8,000 slaves, signed treaties of alliance with the Confederacy and contributed forces to fight alongside Rebel troops.
They were traitors and the American equivalent of the Nazis? Fascinating!
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Old 9th July 2020, 06:23 PM   #10
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Originally Posted by acbytesla View Post
C'mon, there is more to it than that. There very well may be some very guilty people of some very heinous crimes who will escape justice and may be free to prey on others. That doesn't mean that this isn't the correct decision.

It should be noted that Ginsberg voted with the majority.
The case at hand involved a man convicted of raping his wife's 4-year-old granddaughter.
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Old 9th July 2020, 06:31 PM   #11
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I haven't read the ruling, and in this case I doubt I ever will. They're kind of hard to read, and you have to be kind of determined.

What I have found is that the media accounts of Supreme Court rulings are often wrong. Sometimes they are oversimplified. I have occasionally seen cases where the reports were the exact opposite of what the court says. Typical media accounts are: Who won? And then go on to explain why that is good or bad. In reality, who won is often far less important at that level than why they won.

At any rate, the court didn't rule that half of Oklahoma belonged to the Indians. Because I haven't read the opinion, I'm not sure exactly what it says. As best I can tell, the ruling said that once upon a time, Congress passed a law about who could prosecute Indians for what, and that law has never been repealed, so it's still in force.

The takeaway from this week's rulings really ought to be that Gorsuch and Kavanaugh are not Trump's stooges.
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Old 9th July 2020, 06:36 PM   #12
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Originally Posted by Brainster View Post
The case at hand involved a man convicted of raping his wife's 4-year-old granddaughter.
I don't know the details of the case. I also tend to be very skeptical of those kind of cases. Not to say he did or didn't commit the crime.
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Old 9th July 2020, 06:36 PM   #13
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Originally Posted by Brainster View Post
Apparently this ruling only applies to criminal cases involving Native American defendants. The Supreme Court has not given them Tulsa (which is part of the area affected).

ETA: This little detail might be of interest:



They were traitors and the American equivalent of the Nazis? Fascinating!
IIRC, it was more that they flip-flopped depending on which side had a stronger presence at the moment. This also leaves out the bit where the fact that they owned slaves was because they were "being taught how to be civilized" by Southerners (the idea being that red men were superior to black men but not white men). Slavery within the Five Civilized Tribes tended towards more of an indentured servanthood rather than chattel, to the ire of the whites doing the teaching. In fact, some of the tribes (the particular tribes escape me) allowed for slaves to not only purchase freedom but also membership into the tribe and then intermarry. When military presence on the region was low due to troops being needed elsewhere, there were one or two instances of breaks for the Mexican border.
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Old 9th July 2020, 07:08 PM   #14
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Originally Posted by StillSleepy View Post
There is a glaring problem about the (main) ruling, and that is that the grounds for this decision didn't actually come from trying to honor the treaty but rather Congress failing to override it.
This isn't a glaring problem, or even a problem at all. It's not the court's job to try to honor the treaty. The court's job is to rule on the legalities. What would be a glaring problem is if the court ignored the separation of powers and arrogated to itself the proper authority of the legislature.
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Old 9th July 2020, 07:50 PM   #15
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Originally Posted by pgwenthold View Post
Sure, but that doesn't give the state of Oklahoma the right to prosecute them, no more than they could prosecute those who commit crimes in Texas.

The government of Oklahoma had no authority to prosecute those people. They should have let the federal government do it instead. Yes, there will be guilty who go free, but that is the government's fault. They can't just move into the reservation and assert that they are in charge.
As you are probably noting, TX isn't a sovereign state like a reservation is.

My Great Great Grandmother was born in the OK Indian Territories. My bother recently went looking for ancestors and he emailed me a copy of the birth certificate. I don't think she was from any Indian tribes. There was always a rumor she was Blackfeet. But we can't see the Blackfeet were ever sent or ever migrated to The Indian Territories. Lots of other tribes ended up there.

I find this ruling especially interesting.
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Old 9th July 2020, 08:00 PM   #16
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So I wonder if convicts are lining up to have their convictions overturned?
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Privatize the profits and socialize the losses. It's the American way. That's how Mnuchin got rich. Worse, he did it on the backs of elderly people who had been conned into reverse mortgages. Mnuchin paid zero, took on the debt then taxpayers bailed him out.
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Old 9th July 2020, 08:38 PM   #17
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I'm trying to come up with some sort of joke along the lines of "Oh, sure. They give Tulsa back to the Indians right after Trump infects it with coronavirus."
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Old 9th July 2020, 09:31 PM   #18
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Originally Posted by Meadmaker View Post
I'm trying to come up with some sort of joke along the lines of "Oh, sure. They give Tulsa back to the Indians right after Trump infects it with coronavirus."
Trump Rallies - the New Pox Blanket!
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Old 10th July 2020, 05:44 AM   #19
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Originally Posted by pgwenthold View Post
To which the answer is, good! The state had no right to do those prosecutions in the first place.
The federal government most likely would have declined. In the absence of a decision like this one there would be no reason for the federal government to accept that responsibility.

I could be convinced otherwise but with the information at hand don’t like this decision. AFAICT it does nothing to redress the fact that the land was stolen in the first place and in practice doesn’t look like it would function as anything other than a loophole to allow convicted felons to go free. It could also create situations where the Oklahoma has responsibility but no legal authority to enforce anything. It probably just ends up forcing congress to legislate away any remaining rights or outstanding claims the tribes may have to bring back some semblance of order.
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Old 10th July 2020, 05:48 AM   #20
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Originally Posted by lomiller View Post
The federal government most likely would have declined. In the absence of a decision like this one there would be no reason for the federal government to accept that responsibility.

I could be convinced otherwise but with the information at hand don’t like this decision. AFAICT it does nothing to redress the fact that the land was stolen in the first place and in practice doesn’t look like it would function as anything other than a loophole to allow convicted felons to go free. It could also create situations where the Oklahoma has responsibility but no legal authority to enforce anything. It probably just ends up forcing congress to legislate away any remaining rights or outstanding claims the tribes may have to bring back some semblance of order.
The five justices who voted for it probably don't like the decision.
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Old 10th July 2020, 06:57 AM   #21
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Originally Posted by lomiller View Post
The federal government most likely would have declined.
OK, fine. But that doesn't give the state the right to come in and start arresting people. They don't have authority over federal lands.

If the feds don't want to prosecute crime in the area, then that's their problem. Alternatively, the NA residents who actually control the area could create their own police force. Heck, even the Tulsa police force can serve the city.

As I said, the government ****** up. The feds failed to do their job, and the state overstepped their authority. That's not the citizens' problem.
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Old 10th July 2020, 07:13 AM   #22
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Originally Posted by StillSleepy View Post
IIRC, it was more that they flip-flopped depending on which side had a stronger presence at the moment. This also leaves out the bit where the fact that they owned slaves was because they were "being taught how to be civilized" by Southerners (the idea being that red men were superior to black men but not white men). Slavery within the Five Civilized Tribes tended towards more of an indentured servanthood rather than chattel, to the ire of the whites doing the teaching. In fact, some of the tribes (the particular tribes escape me) allowed for slaves to not only purchase freedom but also membership into the tribe and then intermarry. When military presence on the region was low due to troops being needed elsewhere, there were one or two instances of breaks for the Mexican border.
So they weren't slave slaves?
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Old 10th July 2020, 07:36 AM   #23
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Some were, some weren't depending on which tribe you were working with (though you could find some of either in each tribe). My understanding was that the Cherokee were more open to the idea of owning chattel but the others were more inclined otherwise. The whole idea of the exercise was for the tribes as a whole to adopt chattel slavery. Now, there is a caveat in that pre-relocation, most if not all of the tribes involved had some form of indentured servitude or slaves as spoils of war (some with no chance at all of joining the tribe). At this point you may need to defer to scholarly sources, since it's been at least six years since I have researched it.
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Old 10th July 2020, 08:06 AM   #24
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Originally Posted by Skeptic Ginger View Post
As you are probably noting, TX isn't a sovereign state like a reservation is.

My Great Great Grandmother was born in the OK Indian Territories. My bother recently went looking for ancestors and he emailed me a copy of the birth certificate. I don't think she was from any Indian tribes. There was always a rumor she was Blackfeet. But we can't see the Blackfeet were ever sent or ever migrated to The Indian Territories. Lots of other tribes ended up there.

I find this ruling especially interesting.
The Blackfeet were primarily in Montana, IIRC, and AFIK, were never sent to Oklahoma. That doesn't mean your ancestor couldn't have gotten there on her own, but it does seem rather unlikely.
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Old 10th July 2020, 09:45 AM   #25
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I have now read the decision and it's pretty obvious that Gorsuch expects Congress to step in and formally disband the reservation*, which should eliminate any jurisdictional issues in the future. This will no doubt cause howls of protest, but it's the only solution that makes any sense. It will be interesting to see what happens to the existing prisoners; I cannot imagine the US Justice Department is looking forward to re-trying thousands of cases.

Yes, there was once supposed to be a reservation and treaties were signed. But in the 1890s apparently there was a movement to try to force the NA to assimilate more and so the reservation was parceled out to the individual tribe members (each member got X acres of land). They were restricted from selling the land for several years, but eventually that time period passed and tribe members began selling off their land. This is why much of the current city of Tulsa lies within the boundaries of the "reservation"--because the land was sold off many years ago.

Oklahoma claimed that it was an oversight that the law allowing the reservation to be parceled out did not include language stating that once that had been accomplished the reservation would be disbanded. Gorsuch pointed out that the language had been included in similar laws involving different tribes.

It is difficult to see where any real benefit accrues to the tribe from this decision (other than, of course, that they may have gained some leverage in other dealings they may have with the State of Oklahoma). I suppose federal prisons are a bit nicer than state prisons, so I can see the potential benefit to Native Americans who commit crimes. On the other hand, it is not hard to see that this is not "equal treatment under the law."

* ETA: Gorsuch may be an optimist here.
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Old 10th July 2020, 10:08 AM   #26
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Originally Posted by acbytesla View Post
C'mon, there is more to it than that. There very well may be some very guilty people of some very heinous crimes who will escape justice and may be free to prey on others. That doesn't mean that this isn't the correct decision.
The number of cases that will be effected is tiny: reasonable estimates put it at low double figures.

Originally Posted by acbytesla View Post
It should be noted that Ginsberg voted with the majority.
As did Gorsuch...

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Old 10th July 2020, 10:10 AM   #27
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Originally Posted by Brainster View Post
They were traitors and the American equivalent of the Nazis? Fascinating!
Some of them were, just like the rest of the Confederates.

Now isn't it time the statues, memorials and monuments glorifying such traitors and Nazis are torn down?
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Old 10th July 2020, 10:26 AM   #28
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Originally Posted by catsmate View Post
Some of them were, just like the rest of the Confederates.

Now isn't it time the statues, memorials and monuments glorifying such traitors and Nazis are torn down?
Sure. You won't catch me mourning the Confederacy. I do tend to get amused when the mob tears down a statue of Grant, or the Wisconsin abolitionist, but nobody ever accused mobs of being sensible.
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Old 10th July 2020, 10:36 AM   #29
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Originally Posted by pgwenthold View Post
OK, fine. But that doesn't give the state the right to come in and start arresting people. They don't have authority over federal lands.
Actually I have questions about this.

If a fugitive flees onto federal land within the state's borders, do the state police have the authority to pursue and arrest the fugitive there?

I'm pretty sure it's common for municipal, county, and state police forces to have standing arrangements about pursuing fugitives across their jurisdictional boundaries. With or without handing off pursuit to the local authorities.

I wouldn't be surprised if state and federal authorities had similar kinds of arrangements, but I haven't looked into it yet.

But what happens when neither the state nor the federal authorities are even aware that it's federal land? Oklahoma State Troopers can't hand off the pursuit to the feds, because the feds don't recognize their own jurisdiction. By the same token, there's no basis to even consider extradition requests. You're not going to extradite someone from what you and the feds both believe is already your own jurisdiction.

I wonder if some of these arrests could be legally upheld on the grounds that -
- everyone agreed that it was Oklahoma's jurisdiction; and therefore -
- it wasn't logically possible for Oklahoma to even think of deferring to the feds; and also therefore -
- it wasn't logically possible for the feds to assert jurisdiction anyway.

Obviously the starting premise that it was Oklahoma's jurisdiction was a faulty premise. But if everyone involved did the right law-enforcement thing based on that premise, is the arrest actually invalid?

I could see someone arguing court arguing that since the feds failed to properly establish and enforce their jurisdiction, but rather allowed the misunderstanding to persist, that the territory was de facto Oklahoma's jurisdiction and the arrests by Oklahoma police were legitimate. And I could see a court accepting that argument as valid.

If the feds effectively abdicate their authority, to the degree that nobody even knows they have the authority, then isn't it incumbent on the state government to fill that gap? Oklahoma can't really afford to have a lawless region within its borders, just because everybody forgot that the feds were supposed to be in charge there.

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Old 10th July 2020, 11:19 AM   #30
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Originally Posted by theprestige View Post
Actually I have questions about this.

If a fugitive flees onto federal land within the state's borders, do the state police have the authority to pursue and arrest the fugitive there?

I'm pretty sure it's common for municipal, county, and state police forces to have standing arrangements about pursuing fugitives across their jurisdictional boundaries. With or without handing off pursuit to the local authorities.

I wouldn't be surprised if state and federal authorities had similar kinds of arrangements, but I haven't looked into it yet.

But what happens when neither the state nor the federal authorities are even aware that it's federal land?
Why not?

Ignorance is no excuse for violating the law, right?
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Old 10th July 2020, 01:15 PM   #31
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Originally Posted by CORed View Post
The Blackfeet were primarily in Montana, IIRC, and AFIK, were never sent to Oklahoma. That doesn't mean your ancestor couldn't have gotten there on her own, but it does seem rather unlikely.
She was born in the Indian Territories, so it would have had to have been a great great great grandparent. That's getting pretty far back there in the 1800s. Born in 1904.

I'm also confused about how many greats, that would be my grandmother. She died long before I was born so I never met her.
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Old 10th July 2020, 01:40 PM   #32
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Originally Posted by pgwenthold View Post
Why not?

Ignorance is no excuse for violating the law, right?
Wrong. Ignorance is, in fact, sometimes an excuse for violating the law.

Anyway, I'm not too interested in simplistic proverbs. I think there's a more complex discussion to be had, about whether or not some of these arrests may in fact be legitimate. For example, does society benefit more from invalidating arrests that were otherwise legitimate (and therefore a priori beneficial to society), and were made in good faith based on a reasonable assumption of jurisdiction?

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Old 10th July 2020, 02:30 PM   #33
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Originally Posted by theprestige View Post
Wrong. Ignorance is, in fact, sometimes an excuse for violating the law.

Anyway, I'm not too interested in simplistic proverbs. I think there's a more complex discussion to be had, about whether or not some of these arrests may in fact be legitimate. For example, does society benefit more from invalidating arrests that were otherwise legitimate (and therefore a priori beneficial to society), and were made in good faith based on a reasonable assumption of jurisdiction?
The issue is not with arrests (although that may come into it at some point). The issue is that (according to the SC) the state does not have the right to try tribal members for crimes committed on the "reservation" that nobody knew existed. It's prospect of having to re-try of all those convicts in federal court that is causing all the agita.
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Old 10th July 2020, 02:45 PM   #34
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Speaking from ignorance, it would seem that this shouldn't actually result in very many releases, but rather retrials under the new jurisdiction considering that his isn't quite like being arrested in the wrong county but rather a matter of which level (referring to federal) or political entity (referring to tribal law) was supposed to be arresting and trying them.

As a side note, I seem to recall, perhaps erroneously, that even in the event of the release of someone who is a registered sex offender their name is not removed from the registry and they must still abide by restrictions thereof, even if they are found not guilty upon appeal.
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Old 10th July 2020, 06:19 PM   #35
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Originally Posted by StillSleepy View Post
Speaking from ignorance, it would seem that this shouldn't actually result in very many releases, but rather retrials under the new jurisdiction considering that his isn't quite like being arrested in the wrong county but rather a matter of which level (referring to federal) or political entity (referring to tribal law) was supposed to be arresting and trying them.
Keep in mind, these are people serving real hard time, so in a lot of cases the trial was years or even decades ago (the case that was before the Supreme Court was from 1996). Witnesses may have died or moved, evidence may have been lost or destroyed.

That said, Gorsuch seems to be hinting that Congress can handle it legislatively.

Quote:
As a side note, I seem to recall, perhaps erroneously, that even in the event of the release of someone who is a registered sex offender their name is not removed from the registry and they must still abide by restrictions thereof, even if they are found not guilty upon appeal.
I can't imagine the latter is possible. Due process and all that.
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Old 10th July 2020, 11:53 PM   #36
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Originally Posted by Brainster View Post
Sure. You won't catch me mourning the Confederacy. I do tend to get amused when the mob tears down a statue of Grant, or the Wisconsin abolitionist, but nobody ever accused mobs of being sensible.
I had to laugh when I heard Trump pronounce his first name as " Ulyss -e-us". He's such a moron.
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Old 11th July 2020, 02:48 AM   #37
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"Whose voice was first sounded on this land? The voice of the red people who had but bows, and arrows...What has been done in my country I did not want, did not ask for it; white people going through my country... When the white man comes in my country he leaves a trail of blood behind him...I have two mountains in that country... The Black Hills and the Big Horn Mountain. I want the great father to make no roads through them. I have told these things three times; now I have come here to tell them the fourth time."

"Look at me - I am poor and naked, but I am the chief of the nation. We do not want riches, but we want to train our children right. Riches will do us no good. We could not take them with us to the other world. We do not want riches. We want peace and love."

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Old 11th July 2020, 03:53 AM   #38
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Originally Posted by Brainster View Post
They were traitors and the American equivalent of the Nazis? Fascinating!
Were they traitors? Genuine question, I don't know how the native Americans were "classified" back then, were they actually considered US citizens?
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Old 11th July 2020, 05:44 AM   #39
theprestige
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Originally Posted by Brainster View Post
The issue is not with arrests (although that may come into it at some point). The issue is that (according to the SC) the state does not have the right to try tribal members for crimes committed on the "reservation" that nobody knew existed. It's prospect of having to re-try of all those convicts in federal court that is causing all the agita.
Thanks, that makes some sense.
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Old 11th July 2020, 05:55 AM   #40
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Originally Posted by Brainster View Post
The issue is not with arrests (although that may come into it at some point). The issue is that (according to the SC) the state does not have the right to try tribal members for crimes committed on the "reservation" that nobody knew existed. It's prospect of having to re-try of all those convicts in federal court that is causing all the agita.
Meh, a few dozen cases at most. Not justification for ignoring the law.
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