SCOTUS Tribal Part II

[Sytes]

A case is set for SCOTUS and the potential changes will be pretty significant!
Specific to hunting and public lands? If ruled in Tribal favor - We may be in for a real twist...

Supreme Court to decide Native American land dispute in Oklahoma

The 10th Circuit had ruled the state lacked jurisdiction to prosecute the gruesome murder because it happened within 3 million acres belonging to the Muscogee (Creek) Nation. In all, that threatened more than 19 million acres in eastern Oklahoma once inhabited by five Indian tribes.

Oklahoma told the court "that cannot be right," since it "would plunge eastern Oklahoma into civil, criminal and regulatory turmoil and overturn 111 years of Oklahoma history."

Ten states, from Maine to Texas to Montana, warned that the boundaries of tribal lands have jurisdictional consequences there as well. They said a decision in the tribe's favor "would be confusing and costly at best, and disastrous at worst," affecting health and energy policy, environmental regulation, economic development and taxes.

 

[rmauch20]

This could be epic on a whole nother level imagine every state murder, rape, child abuse, etc overturned due to the state not having jurisdiction to try those cases.
It’s honestly scary that last year‘s case was a split decision and ended up deadlocked.

Oh well...treaty rights. What can you do. You know we have to honor those treaty’s. Some thought the poachers case was going mess things up. Well cutting loose murders and rapist is really going to raise the bar.

 

[idahohuntr]

Gorsuch has often ruled in favor of Tribes on Treaty issues - if it was 4-4 without Gorsuch, this well could be another 5-4 in favor of the Tribe...but I have no real facts or details associated with the case to base that on...just the observation Gorsuch has sided with the more liberal wing of the court on at least a few Tribal related cases.

 

[AggieOutlaw]

At this rate, I will need a passport and several visas just to get to my hunting and fishing locations.

 

[rmauch20]

I think you mean your old hunting and fishing spots. Unless you a tribe member ,you shall not pass.

 

[Sytes]

I don't quite understand one factor...
If Gorsuch recused himself last time this case was brought, is he not obligated the same this round?

Supreme Court Schedules Tribal Lands Case for Reargument Next Term

On June 27, 2019, the U.S. Supreme Court restored Carpenter v. Murphy to the calendar to be reargued in the fall, declining to issue a decision in the case before the close of the October 2018 term. The death penalty appeal raises an unusual question regarding Oklahoma’s jurisdiction to...

www.americanbar.org

The implications are significant considering the city of Tulsa and close to the Eastern half of Oklahoma could potentially become tribal land... and that speaks for just Oklahoma.

The extension of this has been voiced by several states including Texas, Wyoming, Montana, etc...

BRIEF FOR THE STATES OF NEBRASKA,
KANSAS, LOUISIANA, MICHIGAN, MONTANA,
SOUTH DAKOTA, TEXAS, UTAH, WYOMING, AND
PAUL R. LEPAGE, GOVERNOR OF MAINE, AS
AMICI CURIAE IN SUPPORT OF PETITIONER

I tried to attach the .PDF for the Brief filed by the various States, however it does not seem to work.

Copy the above quoted brief, paste into your Google and it should present the .PDF if you're interested in the States shared interest in the Oklahoma situation.

 

[VikingsGuy]

I don't quite understand one factor...
If Gorsuch recused himself last time this case was brought, is he not obligated the same this round?

By convention new justices often skip on cases that were before their prior court at the time they were there. The case in front of the court last year was before the 10th circuit when he was there. This new case came after his departure.

 

[VikingsGuy]

I haven't dug too deep into this one, but my gut tells me they will work real hard to find a reason to uphold the rape conviction. The consequences are too big for them to do otherwise.

 

[Sytes]

I haven't dug too deep into this one, but my gut tells me they will work real hard to find a reason to uphold the rape conviction. The consequences are too big for them to do otherwise.

I agree with you however the 4-4 split is a head scratcher.

 

[VikingsGuy]

It wasn’t really a 4-4 split in outcome as there was no outcome - they put off a decision in order to schedule a second hearing which never was. It could be they couldn’t agree on the “how” not necessarily the “what”, or that the lower court arguments in this new case better framed the issue. At the Supreme Court there is often considerable thought to which cases will frame the longer term outcome they are looking for and sometimes cases come up with a messy or undesirable lower court history.

 

[Sytes]

By convention new justices often skip on cases that were before their prior court at the time they were there. The case in front of the court last year was before the 10th circuit when he was there. This new case came after his departure.

Always appreciate your perspective and your delivery of content.
I'm confused. Is this a second half of the case discussed in the CRS (attached) or is this a completely different case? SCOTUS has decided to take two of the same type of cases? Same jurisdiction question whether Oklahoma prosecuted a tribal member on tribal land or not, one child rape and one murder?

Gorsuch heard the case while in 10th Circuit. He agreed Oklahoma lacked authority. It is still tribal land thus sided with Creek Nation's, Murphy.
When Gorsuch entered SCOTUS, he recused himself from the case because of his involvement in the prior. Now that it is entering the decision phase, it's believed he will continue his non involvement. Which, IMO, is good considering his position/comments while in 10th Circuit.

A good quick review was conducted by Congressional Research / CRS.gov, attached.

Regarding 4-4... Good ole NY Times...

Supreme Court to Rule on Whether Much of Oklahoma Is an Indian Reservation (Published 2019)

The court was poised to decide the question in its last term but appeared to have deadlocked.

www.nytimes.com

This guy seems to be mixing the two into one or? Note: The NY Times author also writes for CRS government papers...

 

[rmauch20]

I haven't dug too deep into this one, but my gut tells me they will work real hard to find a reason to uphold the rape conviction. The consequences are too big for them to do otherwise.

Well I certainly hope not. There where many here on the herrera case that said we have to honor treaties. Why not now? What happened to treaties are the law of the land?

 

[VikingsGuy]

Well I certainly hope not. There where many here on the herrera case that said we have to honor treaties. Why not now? What happened to treaties are the law of the land?

The devil is always in the details. Treaties are law of the land, but with regard to Indian treaties they are subject to unilateral federal action. In the WY case the fed has not bothered to intervene and the court determined that the wilderness area was not "occupied" for purposes of the treaty. They also ruled that the treaty was not cancelled as part of statehood in that instance. Despite a few thousand angry hunters this was not a big deal in the SCOTUS big picture. Now they are addressing a different treaty and a different statehood act so they are free to come to a different outcome and still remain "consistent". And therein lies the rub - they aren't talking about a few F&G rules in this case, they are talking about the legal viability of an entire state (and possibly others), this will likely cause them to sharpen their pencils and find a distinction between the two cases. But I could be wrong - and then they will have a mess of unheard of proportions.

 

[rmauch20]

Thanks for breaking that down.

 

[VikingsGuy]

Always appreciate your perspective and your delivery of content.
I'm confused. Is this a second half of the case discussed in the CRS (attached) or is this a completely different case? SCOTUS has decided to take two of the same type of cases? Same jurisdiction question whether Oklahoma prosecuted a tribal member on tribal land or not, one child rape and one murder?

Gorsuch heard the case while in 10th Circuit. He agreed Oklahoma lacked authority. It is still tribal land thus sided with Creek Nation's, Murphy.
When Gorsuch entered SCOTUS, he recused himself from the case because of his involvement in the prior. Now that it is entering the decision phase, it's believed he will continue his non involvement. Which, IMO, is good considering his position/comments while in 10th Circuit.

A good quick review was conducted by Congressional Research / CRS.gov, attached.

Regarding 4-4... Good ole NY Times...

Supreme Court to Rule on Whether Much of Oklahoma Is an Indian Reservation (Published 2019)

The court was poised to decide the question in its last term but appeared to have deadlocked.

www.nytimes.com

This guy seems to be mixing the two into one or? Note: The NY Times author also writes for CRS government papers...

The 10th circuit has 12 active judges (and probably a few "senior status" ones). Any given appeal goes to a randomly selected sub group of three (there is an en banc process which is not relevant for this discussion), but Gorsuch was NOT one of the judges on that particular 3 judge panel. But he is considered "part of the court" as he was one of the 12+. So we have no idea how he would have ruled in that instance, but he has been generally tribe friendly - but in cases with much lower stakes.

This is a completely new case. The old one is left in limbo until they either join the two cases for hearing/ruling or until resolving this new one on its own renders the old one "moot".

 

[hossblur]

I'm waiting for some "bright" Harvard grad to start bringing suits against the larger tribes that "stole" land from smaller, weaker tribes.

How long until we see the Goshutes here in Utah start suing the Utes?

Or. When can my people, the Vikings start suing the Columbus folks?

When can I sue all the tribes? I've grown tired of their "soveign" nation status supported by my nations tax money.

When does the "soveign" part start?

Just random thoughts banging around my head

 

[Sytes]

Gorsuch's pivotal vote could favor Oklahoma tribe in controversial Native American rape case | Fox News

Supreme Court Justice Neil Gorsuch will likely be the deciding vote in a high-profile rape case that hinges on whether or not a portion of Oklahoma falls under state jurisdiction or that of the Indian reservation that existed before.

www.foxnews.com

The U.S. Supreme Court is seriously considering tribal boundaries as Gorsuch shared the following...

Justices in favor of the state point out that if the land is deemed a reservation, it would create a series of financial issues, exempting tribe members from paying state taxes and allowing previously convicted Native Americans to challenge their convictions on the grounds of jurisdiction.

Gorsuch -- who was confirmed to the Supreme Court under President Trump's administration -- seems to be leaning toward siding with the Native Americans, pointing out that “states have violated Native American rights,” in the past.

“I would have thought that ... we might have seen a tsunami of cases, if there were a real problem here, that we haven’t seen," he added, referring to the potential for many cases to be overturned with a new ruling about the reservation by the Supreme Court.

 

[sapperJ24]

Another recap of proceedings: https://www.scotusblog.com/2020/05/...sider-reservation-status-of-eastern-oklahoma/

"You wouldn’t expect an easy resolution of a problem the justices had to hold over for consideration during a second term. And if the argument here suggests anything, it suggests that the justice have not yet settled on a consensus resolution of this one. "

 

[Sytes]

I *should have went with the SCOTUS BLOG site (as used earlier in this thread). Most often a much more neutral/objective read than the koolAid CNN/MSNBC/FOX. However, FOX article is spot on w/ SCOTUSBLOG on this one.

Good link. Thanks @sapperJ24

Most interesting is the direct, almost dismissal of the ramifications towards not only Oklahoma, though most all States with reservations.
I would hardly put it past Congress /State's to diminish reservations, push them off prior land granted, etc. I'm sure it was a common theme as boundaries were drawn and re-drawn for States / territories of the time. It was a very fluid time.

Montana, as an example... We *could see Blackfeet own Glacier National Park, as a simple example based on the history of GNP creation.

Tribal lands along the N, E, & W of the Bob Marshal Wilderness... Speaking of MT alone, none the less Dakota's, Wyoming, etc. Enter the Salish Kootenai Museum or take a peak @ various tribal websites and one may gain a glimpse into the *potential ramifications. Lawyers might leave their extreme environmental groups of obstruction to assist in a new gold mine of $$$.

And, of course, this *could get punted again... Or *likely find some SCOTUS settled medium refraining from redrawing boundaries and a State enabled prosecution for serious crimes of the tribal issues within a type of greater tribal zone(?).

Also, near the end of the argument of Mithun Mansinghani, the solicitor general of Oklahoma, Gorsuch rattled off a string of questions that could reflect support for McGirt. Among other things, he asked why demographic changes during the 20th century should be relevant to interpreting statutes passed long before those changes occurred, why the ability of states to work cooperatively with tribal entities doesn’t undermine arguments about the “practical impossibility” of recognizing the reservation, and what it might mean that “we haven’t seen” the “tsunami of cases” we would expect “if there were a real problem here.”

 

[VikingsGuy]

If this dealt solely with a patch of little used grasslands I would expect a fairly straightforward 5-4 ruling in favor of McGirt based on the facts/law and justices' prior tendencies. But given the much broader implications of this case to half a state and a "large" city (Tulsa) I am guessing the justices will work very hard to find a way for a super narrow 5-4 win for McGirt, or broader 6-3 win for OK based more on pragmatic needs than their actual legal view. I just don't see 5 justices opening pandora's box on this one.