"The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other
times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. 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.
The judgment of the Court of Criminal Appeals of Oklahoma is Reversed."
I do applaud that thinking; I hope it sets a precedent that can be used more widely. I hope they apply it more widely to things they don't necessarily ideologically agree with. Civil society needs more honesty and dedication to keeping your word, even when that is painful. That might lead to people thinking more carefully about where they stand and what they say as well.
Amen. This isn't a nonsequitor, I swear: why can't freedom of religion be used to legalize drugs? And, why can't Indian reservations, especially, sell what they please?
And, again I think, reservations are exempt from state laws/taxes and to certain extent able to make/enforce their own laws/taxes but they still need to follow federal laws.
The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason. In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix - euthanasia will become something of a nuclear option that they'll want available as a last resort. An amendment that guarantees the right to consume any plant/drug/chemical/etc. will have a chance if it's bundled with a 'right to die with dignity', allowing elderly individuals a euthanasia option.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That would keep the pesky federal government out of our personal affairs.
The interstate commerce clause made for a fine end run around the spirit of that bit in the end.
If we do ever manage to address the interstate commerce clause, we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).
> we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).
The simplest way to deal with that would be to have those bodies continue to exist and publish "suggested" rules, which all the states could then adopt wholesale if they don't want to be bothered to do anything different.
Or a state could do something different, if they wanted to, which is kind of the point.
That doesn't solve interagency problems. What do you do when someone is drugrunning on two sides of a border? Just run two completely independent investigations and hope that California agents aren't worried about Oklahoma agents getting the credit?
This is how the state health and labor departments work right now.
When the CDC recommends action for workplace safety in light of a strain E. Coli found in a crop grown in one state and sold in many, state health departments and state labor departments have full autonomy on how to handle the issue in their respective states.
I don’t really think that a lot of day to day functioning depends on FDA. FDA definitely has a lot to say about a lot of things, and, arguably, without it, some undesirable things would happen more often, but all in all, we would be mostly fine.
I don't have the time or energy to synthesize an exhaustive list of concerning examples on the spot. If the prospect of an under regulated food supply doesn't concern you I would strongly suggest reading "The Jungle" by Upton Sinclair. (Or for a lighthearted example, see: https://www.cbsnews.com/news/chemical-infused-watermelons-ex...)
Yeah, imagine having to negotiate the EULA of every single grocery item to check for “fitness for consumption” clauses, what a Libertarian dream would that be! Of course the Market will eventually average out the bad players, thanks to the compound effect of billions of Rational Choices... eventually we’ll also be dead as that John Maynard guy once said. Perhaps sooner rather than later in this scenario ;)
There are few rational choices given the lack of current transparency and future information that hasn't happened yet. There is no Market without immediate consequences. Dole Foods often has salad recalls due to ppl getting sick with e coli... Are they really a bad actor? Or just a poor one that can do better? Do you have time to make your own rating of which company, manufacturing plant, farm it was supplied from? What's a credible dinner alternative given your context and available time and guests? A bad actor can last a long time.
Funny how daring americans were flying planes for almost 20 years, no EULA needed, and planes didn't drop out of the skies at all.
If anything, the problem is that when there are no rules, some people (pilots) themselves were reckless and can endanger others. That is something to be solved by criminal courts, though.
Sure, but then federal support of state projects gets tied to whatever the federal government wants the state to do. The state isn’t bound, but it’s political suicide to turn down money.
This is a powerful weapon that can be used for both good and bad.
This is why direct taxation (16th Amendment) was a mistake. It allows the federal government to take away the citizens' money first, and then give it back to the states, with conditions.
If the federal government had to collect from the states, then there would be more oversight and power for states to say "wait a minute, why are we giving you money and then begging to get it back".
In theory, the result could be the same. Congress could still pass spending bills and give the money over with conditions. But in practice I think states would be in a more powerful negotiating position.
Though I'm not necessarily disagreeing, eliminating direct taxation is more complex than just giving oversight to states. If a state can say, "no, not giving you money unless we get it back", it becomes a lot harder for the country to function. Money from Connecticut helps pay for numerous programs in other states. At a high-level, we like to say that states would make the right decisions, but would they? Or would Connecticut say they'd rather have the money to sustain their state better? Of course, is the federal government making the right decisions?
Think about it this way: collecting taxes from states was a two-party relationship. The states were compelled to pay in this transaction, but it's still two parties on opposite sides of the table, and their are other topics to negotiate later. If the federal government were to play an obvious game of taking money and then giving it back with conditions, then states would have exerted their power in other transactions. For instance, with senators who were chosen by the state legislature (the same body paying the taxes). Additionally, the state is a stronger entity to fight back against this kind of abuse than an individual citizen.
Now, let's change the picture to directly-elected senators and direct taxation. Now, the money is collected directly from the citizens first, and then the government's relationship with the state is entirely different. Now, the state and the federal government are cooperating, and the sucker is the one not in the room: the citizen whose money is being passed around. The state just becomes a node in a hierarchy, rather than a formidable agent with its own powers and responsibilities.
It's actually very similar to negotiations with a public employees' union. The government and the union are "negotiating", but they are really on the same side of the table. The sucker is the citizen who's paying for it all, but isn't even in the room.
I don't think the alternative is voluntary donations by states to the federal government vs direct taxation of individuals, but compulsory contributions from the states to the federal government.
The reason it would have a different outcome is because in a debate between 51 people, the chair doesn't have that much more power than the individuals. The federal government might be agree to set contributions according to fixed dollar values that the states can watch inflate down to a more palatable value, or they might agree to ignore certain sources of wealth in their calculations.
Discussions and disagreements will take on a very different flavor compared to the discussions and disagreements between a third of a billion players.
It is not apparent to me why this should result in an end to regulation of drugs as this subthread seems to imply it should. States can be just as interested in preventing drug use as the federal government - even more interested.
The drug regulation question isn't theoretical. There's currently a difference of opinion between more than half of the states, compared to the Federal government, on whether or not to consider cannabis a illicit substance with no legitimate use.
I don't know that an end to regulation of all drugs is in order, but if a majority of states (which make up the Federal government) believe cannabis has legitimate use, why then, is it still Federally illegal?
> At a high-level, we like to say that states would make the right decisions, but would they?
What magic method does the Federal government have to only make the right decision? The Federal government is just as likely to make the wrong decision as a given State. Probably more so, if a big government makes a mistake it is harder to correct than when a small government makes the mistake. And the effects are more far-reaching.
The Federal Government just makes decisions slower, that is by design. Sort of a brake effect. Look at Prohibition for example, some states enacted laws. Eventually the movement gained national ground and the amendment was passed. It took 13 years for it to be repealed.
I would posit that America has less of a pot culture then it did a drinking culture. The history reads similar. First states took up the banner of morality.
>In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]
Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21] -Wikipedia https://en.wikipedia.org/wiki/Legal_history_of_marijuana_in_...
Now states are removing their laws and with an eventual push the Federal government will change their laws as well.
The real mistake was to make Senators elected rather than appointed by the states as they originally were. Representation of the general population is the purpose of the House, the Senate was meant to represent the states in the federal government.
The biggest flaw when reasoning about government is overestimating how well democracy works as a method of solving problems.
If everyone agrees about the major stuff, and you just need to finally make a decision on what color to paint the bike shed, democracy is great. A decision gets made, enough people are happy, and you move on.
But when you have real differences, you need a way to protect minorities against large coalitions of voters. Even if you aren't in a minority today, shifting politics (and divide-and-conquer politicians) will ensure that you are in a minority soon enough.
And it's even worse when society is polarized, because the coalitions form too quickly and too strongly.
But limiting the power of the majority is hard. The Constituion is genius because they recognized that and divded the power so many different ways. The protection of political minorities is much more important than the small amount of additional abstract fairness you get with direct elections.
Have y'all forgotten the entire reason the 16th amendment was passed? It wasn't because of fairness, it was because the state legislatures couldn't agree on people to elect. And when they could there were concerns about corruption and seats being sold.
So let the seats be empty. That will make the constituents mad and they'll vote out the incumbents and replace them with somebody who will appoint Senators. Or they won't. People get the government they deserve.
And if there are "concerns about corruption" then investigate the corruption and put the perpetrators (if any) in prison.
It's strange to say this when you are proposing to take away their direct vote on the matter. If anything, the current system is what gives people the government they deserve, by having voted on it.
And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation? (Both of those actually happened, hence the immense popular support by the states for adopting the 17th amendment)
Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
> And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation?
But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.
The voters can vote for representatives who are willing to compromise and appoint a moderate, or they can vote for representatives who are willing to engage in brinkmanship and then get nothing, and either way they got what they voted for.
> Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
...who then went to prison. Play stupid games, win stupid prizes.
> But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.
We see federal representatives rewarded for brinkmanship. What makes you think state level electorates would act differently? (And in fact I expect there's lots of examples of brinkmanship in state electorates as well, I just don't follow them closely).
A representation system that fails to represent is dysfunctional and should be changed. When the same system consistently fails to represent its constituency, for the same reason, across various constituencies at various times, you can no longer fault the people. The constituents should not be punished for being born into a dysfunctional system.
Don't place the founders on a pedestal. They made tons of mistakes. The 3/5ths compromise was terrible, but it was encoded into the constitution. We learned from it and improved. State managed senators, while less overtly awful, were still quite problematic. Celebrate that the constitution can be changed.
> So what if they do? It's what their constituents voted for. Who's to say brinkmanship is never an optimal strategy?
If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.
> So change it by voting for different state legislators.
They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
> Just because something can be done doesn't make it a good idea.
This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
> If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.
It's two different questions -- does the system do what the constituents want (possibly yes), and what do we as the present day constituents want? The answer to which is not, from what I can gather, the status quo.
> They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
Technically they didn't. It was the then-appointed Senate who approved the amendment (and by and large without having been replaced with different people), and they only did so out of fear of rising populist sentiment and what would happen if there was a constitutional convention in that climate. So they were basically doing their job and moderating populist sentiment, but apparently the anti-populist safeguards weren't strong enough to constrain populist sentiment from weakening them even further in that way.
> This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
Your argument was "celebrate that the constitution can be changed" as if any change is inherently good. But change can make things worse too. Before there was slavery there was not slavery.
Your main criticism also seems to be that the seats were going vacant, so the solution I would offer would be to hold a popular election but only if there has been no appointment within six months. Then the seat can't go vacant long but you're not, in the common case, taking away the seat of the states in the federal government.
Or just have the legislatures vote. The two candidates with the higher number of votes get to represent that state. With some luck, every state will be represented by one Republican and one Democratic senator. That should help to remove some of the party politics out of the senate.
TL;DR: Just use range voting and put in the candidate with the highest rating. (Note that Senators' terms are staggered so there aren't two up from the same state at the same time, but if there were you could easily send the two with the highest ratings instead of the one.)
I'm not American, but if the Senate is meant to represent the states, then it makes sense to have them appointed by the states, or elected by the state legislatures (this is for example how the Dutch senate (Eerste Kamer) is elected, though it's still proportional to the population of the provinces, unlike the two per state no matter how big or small).
But if you want your country to be democratic and representing the people, then the people's representation (the House) should hold most of the power, and the representation of the states (the Senate) should only really be involved in states-related issues. For example, not being able to create laws, but only deciding whether an issue is a federal issue or a states issue.
Merely making senators appointed by states isn't going to fix all of the problems with the senate.
You missed the nuance of GP. If senators represent states, they should not be given the power to create laws about people, but instead only about the interactions between states, leaving laws about people up to the House.
This would make the Senate more akin to the Supreme Court, though empowered to craft legislation instead of just rule on existing issues.
Wow, this is the first time I have ever seen anyone other than me express this opinion.
I understand some of the reasons changes were made, look forward to reading the this thread!
My quick thoughts on the matter is that since the changes, people have stopped paying as much attention to local(State politics) and focus more on Federal politics.
Edit to add information to support my thoughts: Look at the disapproval rating for congress, around 64%. But a large majority are incumbents. The feeling I get when talking to people is that the Senator from state X is the worst but my Senator from state Y is perfect/has flaws but brings value to my state.
I am completely incapable of understanding this argument.
The only interests states have are the interests of their constituents. States don't need representation, their people do - because states don't have interests, people who live in them have interests.
It should be noted that the original ideal, at the time the national framework was drafted, was for the Senate to represent the interests of oligarchs, couched in the language of it serving as a representative of the interests of the states. In that respect, it's still doing a rather swell job.
> The only interests states have are the interests of their constituents.
So then it shouldn't matter, right? The constituents elect the state legislatures who represent their interests, one of those interests is having US Senators who represent their interests, so their elected representatives appoint those US Senators. If your theory is correct then this should have the exact same result as directly elected Senators, because the states don't have interests separate from those of their constituents.
But it isn't, because elected officials do have their own interests. So then the question is, which process produces Senators that represent their constituents better?
US Senators have a personal conflict of interest in expanding the scope of the federal government in excess of what's in the interest of their constituents, because the federal government is subject to their control, and they personally want to control more stuff. State legislatures have the opposite conflict -- they want more state control, for the same reasons.
If you have directly elected Senators, there is no check on that conflict of interest and federal scope expands without bound. If you have Senators appointed by the state legislatures, these conflicts more or less cancel out. The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest, and the result is closer to the true interest of the constituents.
Meanwhile the House is still directly elected, which is a countervailing check on the power of "oligarchs" or what have you, because a federal law has to pass both.
Thank you for explaining this point. I disagree with it, but I see your motivation for it.
> The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest
State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want, much like how the States Rights party only cares about states rights when those rights concern themselves with what their base wants.
So, I don't think you're going to get that kind of check and balance. What you're probably going to get is similar to my original thesis - that it shouldn't matter...
Except that it does.
If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused. The office would become:
1. A perfect reward for connected party insiders, who, compared to the status quo, don't even have to win an election.
2. That would not be accountable to the public.
3. And where the people the public can hold accountable (The people making the appointments) are two steps removed from their behaviour.
Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, what kind of blowback would the senators who made the appointment be subjected to?
They wouldn't be any. Just like how there's currently no blowback against Senate Republicans for the crazy train ride that Mitch McConnell takes them on. Everyone can shrug their shoulders, shirk responsibility, and blame the rest of the collective (preferably the guys holding safe seats) for the disastrous appointment.
Consider, also, all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power than executive bureaucrats currently do - where they couldn't even be overruled by the legislature - because they are the legislature.
> State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want.
Which is to say that they are interested in it at all other times, which is more than there is otherwise.
Meanwhile, what is it that you expect them to want from them? The federal government taxes their citizens (which they can do themselves) and then sends the money back with strings attached. What value to the state of the strings?
> If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused.
The vote should be public so there would be blowback against everyone voting in favor of it.
> Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, how will the careers of the senators that approved the appointment would be impacted by such an appointment?
This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
> You've surely heard all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power, and you won't even have anyone to task for their behaviour.
They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem), and if they're really so bad then most state legislatures are elected every two years rather than every four for the POTUS so the backlash comes quicker, and the problems you're describing don't even sound that serious or different from ordinary politics:
> 1. A perfect reward for connected party inspiders.
Sounds a lot like getting to be the party's candidate in a safe district, and doesn't inherently imply anything good or bad about what kind of Senator they'll be.
> 2. That would not be accountable to the public
This is a feature. It gives a veto to a body that isn't directly subject to populist fervor.
> 3. And where the people the public can hold accountable are a step removed from that behaviour.
In other words they are still ultimately accountable to the public.
> Which is to say that they are interested in it at all other times, which is more than there is otherwise.
Politicians have agendas. Those agendas consist of things they want done. Nobody's agenda, (as we've seen from how the States Rights party actually behaves, when push comes to shove) actually consists of 'reduce federal power'. That's because 'reduce federal power' doesn't accomplish anything in particular. Nobody gets re-elected because they reduced federal power. People get re-elected for getting stuff done. 'Reduced federal power' does not actually tie into getting anything in particular done.
As such, it's occasionally a tool that you can use, for some particular goal, but is not an end in itself. (It may be an end in itself for you, but your viewpoint is not one that politicians do anything but pay lip service to, to get your vote.)
> The vote should be public so there would be blowback against everyone voting in favor of it.
Name one embarrassing senatorial appointment that resulted in serious blowback to the people voting for the appointment.
Just one.
You won't be able to - because political parties aren't ran by fools. They've made laundering unpopular blowback for group failures onto safe-district candidates into an art form.
> This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
In practice, it has happened to cabinet appointments. And again, in practice, nobody who votes for an appointment actually gets blamed for a disastrous one, for three reasons.
1. The appointee is their own person - the people voted for him can't predict the future, and aren't actually micromanaging his behaviour. When he does something awful, it's not directly their fault.
2. The appointee is everyone's responsibility, which is to say, he's no-one's responsibility.
3. Blowback laundering, see above. Safe-district candidates actively take credit for controversial, or unpopular decisions, to shield the rest of their party.
> They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem),
The House has just as much way to control the bureaucrats, if it chose to. By doing their job - legislating. If they are shirking this responsibility, considering that, perhaps, it may actually be happy with the job the bureaucrats are doing?
It is mind-boggling that you recognize that the power of appointed, unelected individuals is a problem, but think that the solution is to increase the number of, and power of appointees, and also giving them legislative power.
Note that the best contemporary example of a functioning federal democracy with state-appointed federal legislators is Germany. There, the state premiers and some members of cabinet are members of the Bundesrat, the upper house of federal parliament.
As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.
Consequently, the very clear direction of power shift in Germany has been - much more so than in the English speaking federations - an increase in federal power. (Also, a more recent prohibition on state deficits even accelerated that trend. State governments became enthusiastic about trading a little power for some extra money.)
When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing. I think it would be better to redraw the map and then for the states to have powers that make sense. But I think that is about as likely as a Democrat and a Republican to agree on the color of the sky on a clear day.
> As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.
You already explained the reason this happens in Germany:
> the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house.
Solution: Don't put the same person in both houses.
> When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing.
State lines that run through the middle of metropolitan areas are the best kind, because they give people the greatest choice. If you don't like your state government and voting hasn't gone your way you don't even have to move across the country to change jurisdictions, only across the street.
Moving things to the federal level does the opposite. Things haven't gone your way? Too bad, there's nowhere to run.
The Premier of a German state is also the head of majority-party in the state legistlature. Also, they are sitting members of the state legistlature.
That being the case, state prime ministers have a huge amount of power and influence, directly through mandates and indirectly through party politics. And usually, they want to to retain the maximum amount independence for their states.
And as far as federal legislation is concerned, one state prime minister is not enough to pass, or trigger, anything by himself. For state legislation, they don't have to pass through the federal goernment anyway, holding the parliamentary majority anyway (minority governments are extremely rare in Germany).
"Democracy" and "the will of the people" are abstractions, and pretty crude ones, at that.
I'm not saying that we shouldn't have democracy, but we should acknowledge that it is far from perfect. As Churchill said, "Democracy is the worst form of government, except for all the others."
Democracy is also not a scale-free process. Very different dynamics play out in a democracy the size of a city versus a state versus the size of a nation.
It's hard to explain briefly, but basically all of these separations of powers are designed to avoid some of the worst aspects of democracy. They happen to look less "fair" in an abstract sense, but it's more important to have some practical safeguards than abstract fairness.
A lot of our most heated political battles are playing out at the federal level (and have been for a long time), and I think that's a consequence of the 16th and 17th Amendments. If some of these battles were playing out in the states, I think our society would be a lot less polarized.
I think that was the inevitable consequence of terms for Senators. It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later. State-appointed senators with fixed terms have little natural legitimacy; it is not a sustainable model.
If you want the senate to represent the states, you need the German system - there, the Bundesrat (Federal Council) has as its members the premier of the state (and, depending on the state's size, some number of ministers). Its members and balance can change whenever there is a state election (which are not tied, US style, to federal elections).
Now, while they will represent the interests of the state governments quite well, be aware of this - the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house. They can use their federal role to create an obligation for themselves as state ministers, and then tell state parliament "Oh, we have no choice; the federal government has said so. Please fall in line with this policy that I want and you do not want."
The paliamentary system is repugnant to the American sense of the separation of powers. But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant. This would multiply the problems above.
Perhaps having a recallable delegate who is effectively a member of the state cabinet without portfolio would be palatable; but still, such a delegate would be entirely at the mercy of the state governor (or it would work), and we then would still see the benefits to the state governor of creating legislative obligations that state congress still has to fulfil.
To me, it seems that the Australian senate does a good job of representing the people of each State. Since the interests of States can be said to be the interests of the people of each State (rather than the interests of the State governments) it therefore discharges its responsibilities adequately. The key here is in having many five or members per state elected at once using a proportional method like STV optimised for small electorate magnitudes. Since the majority of any state will be made up of a roughly equal number of blues and reds it encourages them to work together at the expense of the small number of extremists or against each other with centrists and sometimes fringe members. Constantly changing coalitions (per bill) mean negotiation skills become important. But how adaptable it is to a federation of 50 states - I don't know.
> It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later.
The purpose of the Senate isn't to represent the existing representatives in a state, it's to represent the interests of the state in the abstract. Having a red US Senator in a state with a blue Governor is no more a problem than having a red state legislature in a state with a blue Governor.
> But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant.
This is largely only true at the federal level and for a very specific reason. The federal government was not structured for the level of responsibility it has taken on as a result of the direct election of Senators removing the state veto on increasing federal scope.
In state governments you have an elected governor and legislature, but also elected school boards, treasurers, sheriffs etc. There are no elected positions in the Federal Department of Education, nor the Federal Reserve, nor the FBI. The constitution didn't contemplate that the federal government would grow to cover so many things, so they all fall under executive control. But the source of the problem isn't pushing too many things to the executive, it's pushing too many things to the federal government to begin with.
The only case where elections aren't accurate for this is if the state government is non democratic. The state is just a bunch of people -- representation of the state is covered by how many representatives are sent per state. To my knowledge, the general population of the colonies and so on don't get representation in the Senate, only people that live in states
If you didn't have a fairly strong federal government, the US would become like the EU, basically unable to enact change in any even slightly controversial topic.
Federal drug laws were upheld on the grounds that they are regulating interstate commerce ("regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;").
The idea that growing plants on your own land for your own consumption would some how fall under this legislative power is ridiculous. It's not "flexibility", it's fraud.
Within reason right? I'm hoping that 'the right to consume anything they want for any reason' wouldn't include those things that cause sudden violent behavior and inability to feel fear and pain.
I forget which particular drug does this, but a search brought me to meth and I found this article which says people feel 'invincible' and 'paranoid' and can't be stopped with non-lethal means.
You need to have federal drug laws because the one thing the federal government is supposed to do is manage the borders and relationships with other countries. If you don't have federal drug laws then bringing drugs across the border stops being a crime and we could end up with the fiasco of drug lords that Mexico has where journalists get beheaded for even reporting on it.
Mexico only has drug lords because US drug laws fuel their black market.
If you are skeptical of this, there are academic papers on the topic. You could also examine the history books regarding the rise of organized crime there. (For that matter, the rise of organized crime in the US was largely fueled by the prohibition of alcohol as far as I understand it.)
I am confused about what you mean. First, the federal government clearly has authority over international commerce. Second, the price of drugs in legal markets would be much lower, which would likely reduce revenue for criminal gangs in foreign lands. Third, the U.S.-Mexico border is long and it's hard to enforce smuggling laws, anyway. And fourth, Americans are quite capable of producing drugs on their own, and even more so if they were legal.
Cigarette smuggling is a thing because regulated cigarettes are more expensive than unregulated cigarettes. Why would that be any different for other drugs?
Fortunately there is no drug that has any such innate effect. Care has to be taken when extrapolating meaning from crime statistics, especially when it comes to police. They lie and rely on bad science, like the idea of excited delirium: https://en.m.wikipedia.org/wiki/Excited_delirium
It's been the standard military "go pill" for several decades. Maybe now superseded by modafinil. Modafinil is by no means as dramatic, but it's still great fun, and far easier on your teeth ;)
Edit: Actually, the progression in the US military was amphetamine to dextroamphetamine, and now also modafinil.
As someone who has had a modafinil prescription since 2002, you're greatly overselling it. Hardly that fun. It's positively mild in comparison to meth or pretty much all other recreational drugs. Modafinil and recreational drugs aren't even in the same boat.
It's doesn't get more fun with higher dosages. You're just going to end up more on edge. Modafinil works by blocking the neurotransmitter that promotes sleepiness. Most stimulants work by causing your brain to dump tons of the neurotransmitters that promote alertfulness. Different mechanisms.
Higher doses do further reduce the need for sleep, however. And while they don't put me on edge, they do increase the risk of saying and doing risky things. But maybe that's because I'm bipolar.
Are you sure? Modafinil isn't much fun. I mean, it's fun the same way antidepressants are if you're depressed, but it's the opposite of habit-forming and if you mix with alcohol or caffeine you only get the bad parts.
Huh? I always mix with caffeine, and have no problems. Also, it is "habit-forming". If I increase the dose to stay alert longer, and then taper down too abruptly, I get dazed. However, I suspect that you're right about alcohol. But that doesn't matter to me, because I've never been much into it. And THC is just fine with modafinil :)
Meth is used to tread ADHD under the trade name Desoxyn. Alternatives include other amphetamines which exhibit substantially similar effects.
A significant portion of the population consumes amphetamines on a daily basis and manages not to go on crime sprees. Perhaps it isn't the drugs which are the problem?
And yet that significant portion of the population somehow manages not to descend into a life of lawlessness even though meth is incredibly easy to come by almost anywhere in the country.
I'm pointing out that it's absurd to attribute problematic behaviors to the mere consumption of drugs. We severely restrict freedoms in the name of a battle against symptoms rather than address underlying causes. Worse is that our waging of the battle itself is a vicious cycle, serving only to worsen the very same symptoms that it supposedly seeks to address.
Agreed regarding route - I didn't mean to imply that all patterns of use were equivalent. I was trying to illustrate that it isn't some bogeyman that will swallow you whole. The drug alone simply cannot explain the issues that are often attributed to it.
My point here is that many drugs have been demonized to a wholly unscientific degree and I often witness otherwise well educated and thoughtful people zealously perpetuating such myths without stopping to really think them through. IMO blaming bad behavior and even addiction on drugs is an easy out which avoids addressing the much more complicated underlying issues. Overdoses, abuse, addiction, and crime seem to me to be largely to blame on other systemic societal problems. As always, correlation does not imply causality.
Yes, I entirely agree about drugs being demonized. And I believe that people get to choose what drugs to use, and how to use them. But that also means that they're responsible for consequences.
Indeed, some drugs are so demonized that many who use them do get swallowed whole. Because it's what they expect, and part of the motivation.
PCP, dippers(cigarettes dipped in PCP liquid solution), loveboat (powdered PCP sprinkled on a weed blunt) is still a huge issue in urban US city's.
The effects vary per individual but the higher the dosage the more psychoactive effects are felt. I've seen a naked guy take on 8 DC cops....yes 8 police officers, and after being tased 3 times the guy finally went down.(first two attempts didn't take) But he was tossing grown 200-300lbs adult men like they were paper weights. The amount of force it took those officers to over come this one person on PCP was insane. Definitely not something you want to run into.
I don't understand how we don't already have this, in the form of Roe v Wade. That decision revolves around the idea that a medical treatment is a private matter between a woman and her doctor. And if that's the case, I don't understand how the government can interfere with a doctor advising a patient to use, say, marijuana, or any given drug.
It's never made sense to my how the War on Drugs isn't unconstitutional. And your point about Roe v Wade is a good one. Indeed, Roe v Wade is fundamentally about the right to choose what to do with ones body.
My body, my choice. It's not about whether or not the substances are mind altering, or whether or not I am suicidal for a legitimate reason (unbearable pain, lack of quality of existence).
What needs to be done is to de criminalize these things. One of the primary causes of the expansion of police power has been the "War on Drugs".
"War on Nouns" is a stupid way to run a society. Using law enforcement as your first line intervention for mental health, substance use and other such problems is a stupid way to use your resources to provide for the common welfare.
Would you rather be on life support, incoherent, for years, because of the lack of a right to choose... Or be able to choose what quality of life below which you prefer to pass on and not endure constant indignity?
That seems to be a different problem from legalizing personal use of all drugs. Assisted suicide is a thing in countries with much stricter drug policies than "anything goes".
The parent wasn’t advocating for the use of drugs, they were saying we shouldn’t lock people up for doing drugs. Do you think we should lock up drug addicts?
> The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason.
I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs, the hard drugs (e.g. heroin) are dangerous and destroy people and should not be freely accessible to anyone, anywhere.
What some countries do instead is provide heroin (or methadone) to people but only in specific locations, where they're provided with a safe and clean environment and equipment to do their thing, and where they can get help with their addiction if they want.
What I'm saying is that a lot of drugs are genuinely dangerous and should not become generally available.
> I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs,
What harmless drugs? No drugs, not even the ones that are currently legal (well, especially not some of them, really) are harmless. Prohibition isn't a bad idea because the prohibited substances are harmless, but because prohibition isn't an efficient mechanism of mitigating the harms (in fact, it aggravates them.)
If the federal government merely abided by the constitution and ended all of its activity in relation to the use and trade of drugs, that would go a long way in reducing the intensity of the War on Drugs and giving states space to legalize it.
Each state can decide its own approach, which I think is the appropriate principle for governance.
That will also require removing seat belt and motorcycle helmet laws and probably many others meant to protect ourselves. The problem is few decisions ever affect only the one making the decision when families and society are involved.
> the right to consume anything they want for any reason
How about human flesh? Nuclear waste? Bombs? Bags of dangerous quantities of hard drugs [a la drug mule]? Endangered species?
Just like with free speech, "do anything you want for any reason" has the potential for abuse (both by a person to themselves and by other persons to other entities), and the majority of society is not comfortable with that. Sometimes we can be indoctrinated into tacitly accepting it after intense special interest lobbying, such as with handguns and cars. But there's probably no "greater good" aspect of being able to eat literally anything.
Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding. Endangered species may not harm others, but we've agreed as a people that we care about the lives of other species at least enough to stop killing them before we've made them extinct.
In terms of being a drug mule, if drugs were decriminalized, drug mules wouldn't exist, and most drug cartel activity wouldn't either.
People are advocating to decriminalize and allow people to harm themselves if they want, because it's their body and their choice. It's sad that people want to harm themselves, but ultimately, we do a poor job of stopping people, and by attempting to stop them, we've done considerable harm to our society (war on drugs, propping up cartels, etc.)
> Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding
Which would also eliminate euthanasia as an option. If the law currently forbids euthanasia, then an "eat anything you want" law would still be invalidated when it's used for euthanasia, just like it would be invalidated for the other examples.
> if drugs were decriminalized, drug mules wouldn't exist
Cigarettes are not inherently criminalized, yet illegally selling cigarettes in bulk across state lines continues to be a problem. Illegal gun running also exists here, even for guns that aren't outlawed in any state. If there are cigarette mules and gun mules, there will probably be drug mules.
How is universal healthcare for older people somehow relevant to whether or not they are entitled to consume substances or decide that they have reached a point where they no longer wish to live?
> In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix
Indian Reservations still have to abide by Federal Law (which the ruling today affirmed) and selling of 'drugs' is illegal at the Federal level. They can use them in a religious service, but they can't sell them.
There are churches that "sell" marajuana and sometime other drugs this way. It really depends on the location how much it is tolerated. In California before recreational it was mostly tolerated. In states without even medical I think it is usually busted quickly, but you know, results in a court case, maybe they are busted a few times, things are kinda ambiguous, and they sometimes hang around for a while. They often have a connection to Native Americans, often just like, a few people who are Native American involved in the organization spreading what may or may not actually be traditional beliefs.
> why can't freedom of religion be used to legalize drugs
This is exactly the sort of thing that the Satanic Temple (not to be confused with the Church of Satan, etc.) investigates and does activism about. Well worth donating to IMO!
They do seem to apply it selectively. Scalia was like "It maybe a good idea but it's against the consitution. If the people want it, elect congress to make an amendment/pass a new law".
Now it's like "Well, it's not strictly in the constitution, but we like the idea, so if we squint a bit we can probably make a tenous case for it."
>I hope they apply it more widely to things they don't necessarily ideologically agree with.
You mean like Roe v Wade? Under this ruling, if precedent doesn't matter, only correcting past injustices, Roe v Wade should be overturned immediately.
> Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law
And yet "adverse possession" allows my neighbor to keep a slice of my yard, because he build the fence shortly before I bought the house (while it was unoccupied!) and I assumed it was proper after I moved in, and now that I've had a survey done and realized his fence is 5' off target, it's too late because he officially owns it!
I understand the difference, but I feel like it would be more proper to say "Unlawful acts performed long ago, are hardly ever enough to amend the law."
What you're referencing is probably a "prescriptive easement" and is legal (depending on your jurisdiction).
If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)
None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.
> If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it.
My jurisdiction does, of course, which is why I mentioned it.
> None of this has anything, either legally or in spirit, with the sentence you cited
I disagree, strongly.
I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".
Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.
Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
>I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".
Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.
>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.
> If you can't see the analogy, I recommend you just shrug and move on.
I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.
> That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.
“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.
I agree with you on the legal aspects, but the mind-bending bit is that the neighbor's actions -- at the time -- were not legal (because no, it is not legal to build structures on someone else's property without their permission), but because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status. Which, honestly, sounds completely bonkers to me.
Otherwise you could wake up and discover that a structure you built 30 years ago on land you thought was yours now isn't. The adverse possession law exists to prevent surprises like that.
Reasonable, but shouldn't the real owner of the property be entitled to some sort of compensation regardless? That becomes problematic if you don't have the means to retroactively buy the land from your neighbor, but it doesn't seem fair to just acquire it, free of charge.
I can understand this perspective, but that also means someone else's rights have been trampled over, even if long ago. What's needed is something that prevents this from even happening in the first place.
As I understand it, there is a similar situation legally with regard to copyrights, trademarks, etc. If you don't enforce them, eventually, they are no longer considered valid. Note that IANAL and I haven't investigated this in depth.
I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.
But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.
True for trademarks since by definition it’s a claim on some unique usage of a word or mark. Not the case (anymore, as of 1976) for copyright, at least in the US.
> because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status
Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.
Property boundaries affect home value, though. The parent who brought this up bought a house with the understanding that he would have X square feet of land, but it turns out, due to this weird situation, he only has some Y (< X) square feet. Presumably he might have wanted to pay less for that.
The realtor will blame the title insurance firm and will be out of the picture. The title insurance firm will claim they did nothing wrong, and that it is the landowner's actions (or inactions) that have caused the landowner's losses.
Which in this case, it is; the owner sounds particularly upset, but as he tells it the fence was put up shortly before he bought the property. He has sat there for decades without ever having measured it up. Adverse possession takes a long time to come good. All advice about the purchase of property is always to get it surveyed.
And the owner had a few remedies. The easiest is to quickly grant a revocable right to put a fence there. This makes the possession not adverse (there is no trespass). That makes it temporary.
I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.
Sure, I'm not saying that it's reasonable to prosecute the neighbor for the prior act of building on someone else's land (though I'm not sure that's a crime; at worst I expect it'd be a form of trespassing, but would otherwise be a civil matter). I'm just noting the weirdness that the legal status of the property was changed through an initially illegal act.
But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.
But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.
However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.
That's again not accurate at all. If you buy stolen property & the original owner makes a claim to it within the statute of limitations, that property is returned to the original owner.
Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.
I think it's interesting that a debate about the impact of adverse possession upon the original land owner has resulted from a SCOTUS decision about a Treaty between the United States and an Indian nation.
On what basis was the rest of Oklahoma not "adversely possessed"?
Reservations aren't property of the tribe or nation, they are areas of federal jurisdiction under a Constitutional reserved power within which the tribe and federal government has certain jurisdictional rights concerning members of the tribe, and where the state is excluded from certain jurisdictional rights it would otherwise have over territory within the state.
If the statute of limitations for conversion has expired, you will no longer be able to recover either the chattel or its value from the converter. The analogy to adverse possession or easement by prescription in real property should be fairly obvious.
> What you're referencing is probably a "prescriptive easement" and is legal
No, what he is describing is adverse possession, which is
different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)
> and is legal (depending on your jurisdiction).
No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.
> In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal.
After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.
Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.
I don't think that principle would apply in GP's case.
Several lawyers picked up on that on Twitter. It's definitely not a correct statement about every kind of "law." But it's right about statutes, sometimes called "positive law."
English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."
Adverse possession generally doesn’t apply to land owned by a sovereign. You cannot claim adverse possession against the United States, or against the state of Oklahoma, not even after squatting for many years. The Creek nations could be considered sovereign in this case, since they were party to a treaty with the United States.
Here's a case where it took 15 years of court action to get someone off of a parcel of land in Tempe, AZ that was part AZ State land and part City of Tempe. The man claimed his family had been occupying the land since at least 1877 and claimed ownership via adverse possession. If you hit a paywall just search on "tempe squatter".
The article says that the court found in favor of the state and the man had to vacate the land. That sounds like adverse possession wasn't enough to fight off the state when they wanted the land back.
That's odd. My neighbor built his house on the side of his property and inadvertently built it 5 feet over onto the neighbor's property. The way they worked it out was that my neighbor had to buy that portion of his neighbor's property. The alternative was to move (ie, destroy) the building.
Are there conditions on the effort made to revert back to normal? Example moving a fence is not the same as tearing down a 30 year old building crossing a property line.
On what basis does he "officially own" it? Presumably there is a plat on file with your deed of title to your house and its lot that gives the boundaries of your lot, and another plat on file with your neighbor's deed of title to his house and its lot that shows the boundaries of his lot. Presumably both of those plats say the fence is on your property.
Adverse possession is a specific thing in some jurisdictions where if you visibly and openly occupy a piece of land for long enough without a challenge from the original owner, it becomes your property and the original owner loses it.
https://en.m.wikipedia.org/wiki/Adverse_possession
I know what adverse possession is. But there are specific conditions attached to it, which will depend on the particular statute in effect in the particular jurisdiction. For example, if the poster I responded to were to tell in court the exact story he told here--"I didn't realize the fence was on my property until I had a survey done, now I realize it and I'm bringing a challenge"--would the statute in effect in his jurisdiction bar him from seeking any relief?
I think the court would be very favorable to the poster. If only because adverse possession is not the sort of law that doesn't scan well with modern times. I know that's not how all law works but if that didnt work I'd go slip in his driveway during winter and bury him in frivolous lawsuits until the end of time.
It’s unclear, but it sounds like you’re saying that Texas law expressly allows this. Isn’t this the opposite of what happened in Oklahoma, i.e. there never was a law that reduced the government’s treaty obligations, so the law as written still stands?
In other words, in both cases the laws, as written, were followed.
The dissent says that the 'reservation' was disestablished over time with the effect of many laws. So those 'unlawful' acts were, in fact not unlawful.
Maybe it's different with a "nation". If a Frech national comes and builds some fences in Maine that stay for 10 years, can he claim they've moved the border of France?
A little absurd, yes, but I'm not sure adverse possession applies so cleanly to state boundaries as people seem to be implying in a few HN threads...
That one is a puzzler, and I encountered it with a neighborhood issue recently. Why are there some rights that are required to be periodically exercised in order not to be withdrawn? Didn't make sense to me.
Perhaps because they're not "rights"; they're legally-granted privileges.
I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society.
[0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide between those who did and did not own land at the time, and considered landowners to be more deserving of participation in government.
The source of the possession being law is understandable.
I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused.
Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law?
I'm guessing it comes from some old British reason.
> I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded
AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.
More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.
[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.
Well, it is definitely true that active in-person sitting on a property could be beneficial to those who have more time than lawyers.
Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known.
I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs.
In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.
Adverse possession was never really about squatters' rights. It effectively acts as a statute of limitation that cuts off the period in which someone can make a claim to property based on defects in the possessor's title. It's not about protecting the ability of a poor farmer or poor shop owner to take over some abandoned land. That's the exception, not the rule, and it usually would have happened umpteenth transfers in the past if it happened at all. Usually such people buy the property in relatively informal deals--at least, informal by the standards of the Civil Law, but often sufficiently formal to meet Common Law requirements. But because the risk of title defects is much more ominous in Civil Law countries, banks and other formal sectors of the economy heavily discount the value of that property as collateral, if they even value it at all. So it makes it more difficult for the poor to build wealth. Even in the U.S., many small business owners will get their start by mortgaging their homes. The ability to use property as security is a critical mechanism for the poor and working classes to bootstrap themselves into the capitalist economy.
At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market.
De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent.
In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers.
On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.
Wow, how complex and fascinating. I am further confused (although not surprised) that the states are all over the map (hah) in terms of duration of adverse possession taking effect: https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf
I went to law school mid career and really enjoyed property law, but returned to being a code monkey after graduation.
Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.)
* Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing".
* Itzchak Tzachi Raz, Use It or Lose It:
Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)
That's a really good question, and I wonder as well.
I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good.
Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot.
So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers?
But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want.
The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter.
(And thus we have the philosophical basis for housing crises.)
I think the other important angle is that land is often the foundation of other property (structures, improvements, etc.) You own land, but care so little about that land that someone else builds some other property on it. Then 20 years later you notice, and try to claim it back, what do you do about the structure and improvements? The adverse possession laws give an incentive to actual owners to exercise their ownership now, rather than incentivizing them to stay silent, so as to later claim the land and all improvements for free.
Perhaps a right-of-way issue. Two parcels adjoin but access to one is via a road across the other. Courts would probably uphold the right-of-way access by the back parcel but if not used for some period of time the front lot owner could argue the right-of-way was abandoned and fence the road off.
> In a joint statement, the state, the Creek Nation and the other four of what is known as the “Five Tribes” of Oklahoma said they were making “substantial progress” toward an agreement on shared jurisdiction that they would present to the federal government. The other tribes are the Cherokee, Chickasaw, Choctaw and Seminole.
So I wonder whether more of Oklahoma could be affected.
And what about other states? I vaguely recall that the Mohawk have claimed a large chunk of New York.
> the Mohawk have claimed a large chunk of New York
Anyone can claim anything they want.
What is relevant here, and why this case was decided the way it was, is that the federal government and the tribe entered into a legally binding, clear contract.
Lands east of the Mississippi in exchange for a large piece of what is now Oklahoma, in perpetuity.
And Congress never explicitly reneged on that contract. Ergo, it still stands.
Should the Mohawk produce a similarly ironclad agreement regarding New York, they would then have a claim.
> In February 2005, the Mohawk Nation Council of Chiefs (a traditional Haudenosaunee government), the St. Regis Mohawk Tribe , and the Mohawk Council of Akwesasne signed an agreement with Governor George Pataki to resolve their historic claim to lands in Northern New York.
> Represented by the Indian Law Resource Center, the Mohawk Nation Council of Chiefs approved the agreement only after years of vigorous advocacy to ensure that the deal adequately protected the interests of their community and of future generations of Mohawks. “Through a lot of hard work at home and at the negotiating table, the Council of Chiefs has forged an agreement they can be very proud of,” said Indian Law Resource Center attorney Alex Page.
> The settlement agreement resolves legal claims first filed in federal court nearly twenty-five years ago. Those claims site repeated violations of a federal treaty confirming Mohawk land rights. Under the settlement, the Mohawks will receive lands and monetary compensation, as well as the opportunity to further expand their territory through purchases from willing sellers. The agreement does not include casinos or taxation, two issues the Mohawks successfully fought to keep separate from the land claim.
But near the end, I see this:
> Although legislation implementing the settlement passed the New York Assembly in 2005, the State Senate was not able to vote on the measure. We hope to see such legislation passed in the near future.
So maybe it's still in limbo.
Edit: From ciabattabread's comment, I gather that it remains unresolved.[1]
This is what Justice Thomas has been doing for a long time now (to a fault), and Gorsuch has also taken up: Congress, do your job rather than make the judicial branch perform extralegal bench activism.
Sure in theory Thomas is doing that, but it feels a lot like cosplay when such a resolution would go against his general views on power in general (see this case).
People might have their legal doctrines, but it’s rarely as clearcut as you lay out and all the justices can only at most be “problematic faves”
Large parts of Tacoma Washington are tribal land owned by non-tribe members and it functions. I would assume a similar arrangement would work in Tulsa.
I don’t recall the exact percentage, but historians found that something like 1/3 of the US mainland territory was never officially ceded from previous treaties (and something close to that likely ceded due to fraud, but that’s obviously more likely to resonate with moral argument than stand up in a court of law in the current legal system).
My city (Seattle) is undisputedly Duwamish territory. The way that’s been dealt with is to deny the Duwamish nation federal recognition of existing at all, so legally they have no claim as a nonexistent nation.
"Benjamin Franklin stated that the destroyed tea must be paid for, all ninety thousand pounds[citation needed] (which, at two shillings per pound, came to £9,000, or £1.15 million [2014, approx. $1.7 million US]).[76] Robert Murray, a New York merchant, went to Lord North with three other merchants and offered to pay for the losses, but the offer was turned down.[77]"
They are safe on a technicality there as they never try to claim continuity with old laws and new laws. Even if dumping the shipments of foreign merchants is illegal under both sets of laws or indeed copied verbatim it is breaking of the old set of law and not the new law as it wasn't "born" yet.
Wait, so congress can throw away promises at its whims that was supposed to last until perpetuity? And SC will be fine with that as long as promise was thrown away explicitly?
SCOTUS does not rule on your second question. The first is a well-known flaw in American government, which Gorsuch quashed with his opinion. Effectively, it reads: Congress, this is your problem, not ours.
That’s what it means for a legislature to be sovereign — you kind of need the ability for future people to reverse past decisions to have a functioning democracy
We have this principle here in the UK as well. No parliament can ever be constrained in it's actions by any previous parliament.
This came up in the Brexit controversies when the government tried to mandate an exit date as being immutable by future legislation, but the Speaker wouldn't have it. In that case some Brexiteers cried foul that it was overreach by the Speaker, but of course such a weapon could equally be used to make our membership of the EU irrevocable. It's a sound principle.
We never stopped the general concept of contracts being enforced — this is just a case of a majority in power choosing not to enforce them in one specific case.
What Gorsuch's opinion does directly imply is that the "promise" to the Creek can be revoked by Congress at any time, i.e. it's hardly a "promise" at all.
Literally nothing in the legal system is permanent for perpetuity. Even the constitution can be amended in any way. All laws, treaties, etc. can be undone with enough effort.
Not quite. It is, in theory, possible to pass an amendment to the constitution, that would prohibit further amendments to parts of it. Quite a few countries have such "immutable clauses" in their constitutions.
Well, yes, but that's just a fact of legislation. There are no "promises"; there are just laws that are easy or hard to change. If we were to amend the constitution to set aside land for native peoples, then that's probably the closest we can get to a promise, as that's probably the hardest kind of law to change -- but it's still not a promise, because it can be changed.
Sure, Congressional legislation could take away that land. That would be a lousy thing for them to do. Unfortunately since I doubt Native American groups are a big enough voting bloc, the only thing that would stop Congress from doing that would be enough negative public opinion from people who are not Native American. Hopefully there are enough people of that sort.
The Russian Duma could revoke the sale of Alaska to the United States and declare that they still own it. What stops them from doing so? The fact that the US military would stop them from trying to repossess the land.
The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement. The US operates with them as it does with every one else, on the principle of "might makes right."
> The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement.
This is patently false, because the Supreme Court has ruled that the promise is enforceable.
> The US operates with them as it does with every one else, on the principle of "might makes right."
This is also completely false. Does the military answer to the President of the US because "might makes right"? Can Trump overpower any enlisted man in the military with a gun? The military obeys the Constitution because they swore an oath to do so, not because the generals have literal guns to their heads.
Culture and rule of law matter. The statement "might makes right" is a gross oversimplification that doesn't reflect our reality at all.
The court is highlighting that congress needs to be consistent. Make a willing refusal to original promise, otherwise keep said promise. The courts job is not to decide on the promise but to identify the congress as responsible for consistency with promises made.
I mean, the only reason that Congress can revoke a promise to the Creek Indians is that they have a stronger military. It's not about justice, it's just about strength.
If and when the United States Treasury stops honoring bonds that it sells, then you'll have bigger problems than whether or not you get social security income.
It’s a good question — if anything I’d think that a promise is revocable by definition. If there’s no trust involved it’s not so much a promise as...collateral, or something?
>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.
Interesting logic. Now do Roe v Wade. Are they going to overturn that too because it allows the injustice of the murder of millions of unborn Americans? Probably not. Funny how Stare Decisis goes out the window when it's an issue the justices care about, yet conveniently reapply it when present day utility outweighs historical injustice.
You're using the same word -- Justice -- to mean two things.
The court means justice as a violation of the law.
You mean it as a violation of your opinion of what is right and wrong.
Whether your like it or not, Roe v Wade, and Doe v Bolton are the settled court cases, and legal justice is what flows from that. Calling what is legal "unjust" because you disagree with it further reinforces the need for this decision.
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.
"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.
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.
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.
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.
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.
It's how China works as far as I know. It's a pretty good system; it makes housing cheap (one of the worst problems in the US) and it's good for farmers because if you go bust, you can return the land to the village who owns it anyway.
What happens after 99 years? Are they expected/obligated to renew for a reasonable fee? What's preventing them from refusing to renew the leases after 99 years, and keeping the property (and whatever improvements on top) for themselves? It might not be an issue for the first or second generation of owners, but you'd expect the uncertainly to hurt the resale value of the property as the 99 years approaches.
you'd be surprised how common this agreement is. A lot of the skyscrapers in manhattan are/were built with this arrangement, where one party owns the land, and leases it to the developer who owns builds and maintains the building. Very interesting issues came up in some condos where the owners decided to spike the ground rent when the term was up. Also, as I understand it, pretty much all of the land in China is managed like this, as well as Singapore.
If you think about it, there isn't much of a difference between a 99 year lease and a 1-3% property tax.
Yes it can hurt resale prospects, the longer into the lease you get. At the same time it can also lower upfront acquisition costs. Something to know when you get into it.
Reminds me of a certain piece of land that Britain has a 99 year lease on. Hard for them to end well without a contractual option to extend under reasonable conditions.
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.
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."
> 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.
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.
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.
> 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.
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. :)
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.
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.
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.
> 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.
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.
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.
> The fact that technicalities have far reaching effects is a sign that the system is broken.
I find that an utterly hilarious thing to say in a forum with a large number of highly technical people, and another large number of people who understand complex, nontechnical systems.
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.
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.
It helps if you realize that the English legal system developed as an alternative to trial by combat: https://en.wikipedia.org/wiki/Trial_by_combat. The point isn't to empower judges to make decisions that have the best "ramifications" "to certain people." It's to reach a decision that people who violently disagree about those "ramifications" are nonetheless forced to accept the result because it was reached in accordance with agreed-upon rules.
That's why so many decisions come down to careful parsing of words and "technicalities." A case that reaches the Supreme Court will usually have generated intense controversy about what is the more desirable result. Thus, the focus is on reaching a decision that people can't argue with because of scrupulous adherence to rules and doctrines.
We have to recognize how much we screwed over the Native Americans. We took away their prime land on the East coast. We gave them some shitty land in Oklahoma that we didn't think we would ever want. We made them walk there in the "Trail of Tears", and lots of them died along the way. Then we decided to screw them out of the land in Oklahoma after all, but didn't go though the process properly because we didn't think it mattered.
It's insulting to hear people talk about them as not having "initiative" or being somehow responsible for being poor. When they resisted being screwed, we sent in the US Army to kill them, then kept them under control.
Reconciling this after all these years is going to be tough, but acknowledging it is a first step. Giving them back the land is disruptive, but giving them a few billion dollars is pretty easy. It would be interesting to see a VC fund focused on Native Americans building businesses. Or some real educational funding in Oklahoma. It would be a lot better than what the Republicans are doing to the state. All they want to is protect the rich and the oil industry.
As an Okie and a tribal member, the situation is far more complex than what the news/wikipedia can describe. But I think that's mentioned here a lot- the news never does anything justice. The Indians do get billions handed out all the time -ihs.gov.
One of the fundamental issues I see in Oklahoma is the lack of rule of law. I'm not thrilled we're releasing child molesters (that's who filed the suit), but I suppose starting somewhere is good.
As for VC funding, I'd love to see more of that. I do computer vision/nlp for a living, and I've had to leave the state due to lack of work. It's cheap, there are smart people, but they all leave after school.
The suit doesn't claim he shouldn't be tried for his crimes. It claims he should be tried by a federal court, not a state court. Nobody is "releasing" any criminals here.
I find your use of "we" interesting because you clearly identify as part of the group that committed those acts hundreds of years ago. How long should a child be responsible for the crimes of their fathers? As an example, assume your father killed someone and stole $1000 dollars from them. You never knew about this didn't choose for him to do this but now someone is coming after you saying you must pay them $1000. You find out it's all true, your father did murder and steal $1000 and you indirectly and unknowingly benefited from that. Should you legally be forced to pay back that $1000 dollars? But the person is dead, should you have to pay that dead person's son $1000? Should you and any siblings have to divide that sum up and pay back the $1000 collectively? Let's say you have already spent every dime you have on meals out. Should you go to jail because you can't pay back the $1000 your father stole? I think these agreements which weren't honored are equal to theft but how long down the line must you pay for the crime of being born in that situation and pay others that were born into the opposite side of the theft. Even with as close a relation as a father, I find it hard to believe that a child should be responsible for their parents wrong doing. But now assume that not only were you not related to that person who stole $1000, you simply don't have the heritage that the murdered man has. Now assume that hundreds of years have passed and now someone is still asking to collect that $1000 from you. I find it very difficult to find the moral obligation to pay back that money when the people who were the actual victims are long dead, the people who committed the theft are long dead, and there is no connection between your actions and the theft. Voluntary payments I would be all for but using tax money which is essentially taken by force, as if you don't pay taxes you will go to jail, that kind of thing seems very wrong. I would not blame a child for their father's sins.
This analogy falls apart rather quickly when you recognize that the north american indigenous population still suffers greatly under legal systems built on the treaties that weren't even honored while the descendants of those who perpetrated great crimes against them collectively constitute the greatest mass of wealth in the history of the world while also pretending to have done nothing wrong.
Re-do your analogy but now it's that your dad killed someone and stole the deed to his land, found oil on it, and is now one of the richest people in the world and the person he killed's kid is now on the street begging for cash and tell me again how little you owe that kid who's father's land gave you your trust fund and your college education.
That's actually not that hard to do, both from a legal and a moral standpoint. Legally, the "you" in your analogy has never committed an unlawful act and is therefore not personally beholden to any restitution to the victim's side. It is the purveyance of a well-functioning justice system to provide adequate restitution for victims of crimes, but that does not extend to a personal obligation on people that had no part in said crime.
Morally, the story is a bit more convoluted but your premise falls back to the theory of original sin: that people can be personally held responsible for their heritage. In the past two-thousand years it has been proven a very powerful argument because it "feels" right, but at its core it is still a rejection of the individualist premise that all people are born equal. And I'm still on the side that believes all people should be born equal, even though that stance seems less and less prevalent nowadays. Once you start arguing for collective punishment of past crimes, it's very hard to argue your case without at the same time defending the same practice throughout many wars in history, and now explicitly outlawed in the Geneva Conventions.
Original sin is the idea that a dude ate an apple some number of thousands of years ago and an all powerful (and allegedly all knowing) being got grumpy at him for it for some reason and now we all suffer for his intransigence.
In fact, the concept of original sin requires that we exist in a state of punishment for that sin permanently, not that we continue to benefit from it by, again, existing in the wealthiest civilization that has ever existed on this planet.
This is again a poor analogy, framing us as victims of an aggressor who wants something from us that we cannot give.
As for the geneva conventions, please note that colonial relations to indigenous people violated just about every single one of the geneva conventions. Forced resettlement, biological warfare, collective punishment, the destruction of non-military targets -- it is not "collective punishment" to expect there to be at least a moderate reparation for crimes committed. What is even the point of the concept of "war crimes" if you can get away with them just because "oh it's been too long".
If you unintentionally buy stolen property, should you be obligated to return it to the original owner (with adequate proof of such) when requested? If you are forced to return it, are you being held responsible for your heritage?
I think it is a false dilemma to assume that either person would become rich by means of owning the land at that time. The second the land was stolen it's future was changed forever but that does not change the original value of the stolen land. I assume the land was bought and sold between many parties before the person who finally found oil and became rich owned it, and assuming a tribe recognized ownership at the time the person who had the oil rich land stolen may not even have been of that tribe under an alternate timeline. I do understand the point though that the greater the size of the theft, the more reason to give back but I wouldn't go as far as to say there is an obligation by society in general towards that murdered man's grandchildren. I think the analogy still stands, in that the victim is long dead, the thief is long dead, and there was no crime knowingly committed by the living. I also think if we referred to the country of Spain as the "Spanish Tribe" and the country of England the "English Tribe" and the Colonists the "Colonist Tribe" and said they were warring with each other, then we probably would not even have this conversation.
This is a false analogy because unlike money (representation of value), land is not consumed and disappear.
A better analogy would be: your grandparent barged in to a persons house at gun point, demanded him to hand over his house. The owner obviously resist, and your grandpa tells the original owner that he will be given his house back in a couple of years(legally signed) to ease the resistance. This paper was also signed "with the current owner of the house", in mind(in case grandpa dies).
Now the original owner lives on the street, his grandchilden the same. Each generation have always asked "when would you live up to your promise?" to the descendant of your grandpa (current owner of the house) each year.
Now you can of course discuss if you should give additional compensation for their suffering, but the original contract still stands, and you've always been obliged to follow it. It's not about blame.
disclaimer: I'm in general in agreement with you that I don't think a child should be blamed for their ancestors sins.
I am quite surprised to see this default-to-no-action comment here on HN. Sometimes, a problem isn't your fault, but you are still compelled to fix it. If people have this attitude, then "we" (as a species) are absolutely screwed vis-a-vis climate change. In a generation, nobody is going to be around who did all the polluting, and hopefully everyone doesn't just sit around saying "Well I didn't do it!"
>How long should a child be responsible for the crimes of their fathers?
This is a fundamentally flawed analogy. Our government - the same government that has existed since these treaties were signed - is still around.
> I find it very difficult to find the moral obligation to pay back that money when the people who were the actual victims are long dead
The question of a "moral obligation" is entirely irrelevant and unrelated to our government's legal obligation to uphold the treaty that our government signed.
By “we” he means the United States Government. Unlike the father in your example, the USG is still around and still responsible for its actions. As such, I see no moral issue with requiring it to make restitution. If we don’t want to raise additional taxes to do so we can always make some small cuts to military spending or some other bloated program to pay for it.
> I would not blame a child for their father's sins.
I think you are making this too much about personal blame, and sin, and ego. Your analogy falls apart right out of the gate because the premise is off. It's not about placing blame or making you feel bad.
>I find your use of "we" interesting because you clearly identify as part of the group that committed those acts hundreds of years ago. How long should a child be responsible for the crimes of their fathers?
As long as restitution has not happened and you are still profiting from the act of wrongdoing and the victim (or their descendants) are still suffering from it. It's pretty simple, isn't it.
It's not just about the literal land and dollars stolen. That theft has contributed to the way that American society sets Native Americans up for failure and repression. That is a systemic inequality that is never too late to correct
You're taking a crime that was done to multiple nations and millions of people and trying to turn it into an analogy in a family's personal history, which isn't right; it's nowhere near in the same scale.
The facts are that the colonists / invaders genocided and displaced the original inhabitants of a continent and moved the survivors into reservations, probably to avoid it going down history as racially motivated genocide entirely.
Sure, you didn't do it, your ancestors probably didn't have anything to with it (or the slave trade for that matter), but that doesn't mean you shouldn't fight for other people's rights. They still suffer under what happened a hundred-and-then-some years ago, they are a people whose country was taken from them, whose culture was (attempted to be) erased, and who today what little they got as a consolation has also been attempted to be taken from them because said consolation actually did have some value.
Your analogy is wrong, oversimplified and trivializing the issue.
I have no personal guilt over my ancestors. I have sympathy for the problems they created, and I have some culpability in benefiting from them. But it's not about guilt. The problem hasn't been fixed yet, and we are responsible for fixing it.
Since HN is the world of programming analogies:
I inherit a broken, bug-filled codebase when signing on for a new job. A year into continued development, a team mentions to me that the codebase is utterly broken for one of the tasks it was designed to do.
I respond, "why are you trying to make me feel guilty about code I didn't even write? The problem with programming 'outrage culture' is we have all these people talking about the flaws of jQuery and coupled interfaces and inadequate testing. It's not my fault the codebase suffers from those problems. I'm a good programmer."
The argument stops sounding reasonable in that context, because we recognize that fixing the code isn't about anybody's ego. Similarly, it is impossible to have a productive conversation about reparations when someone is spending all of their time trying to defend that they're a good person.
In reality, nobody cares about your guilt and nobody cares about whether or not you pass some kind of magic threshold where you can be considered 'good' or 'bad'. The entire question is worthless. They just want the problems fixed, and "we" collectively as a nation are responsible for refactoring and addressing problems that exist in the current systemically biased laws/treaties that we inherited.
I don't think this is a particularly good analogy either. you don't have some moral obligation to fix up the old code for the other team. you do it because that's what you're getting paid for. if you really don't feel like fixing it, there's nothing wrong with quitting the job.
Point taken, but I'm not sure what quitting a democracy looks like. I guess legislators in Oklahoma are free not to run for government positions? And citizens are free to either stop voting, or possibly move to a different state?
But my instinct is that if someone says to me, "I don't want to deal with fixing inherited broken systems", at the very least my response to that is going to be something along the lines of, "that's fine, but then don't get in the way of other people who are fixing them."
Whether or not you are a terrible person has nothing to do with legal obligations. If your ancestors took out a loan and signed a lien against a property, that doesn't just go away if they die. Its a legal contract. The whole "white guilt" argument about some sort of collective burden that people are supposed to bear is entirely unrelated to a codified, legal treaty signed by our government.
> If your ancestors took out a loan and signed a lien against a property, that doesn't just go away if they die. Its a legal contract.
This is true, but only because liens are special, not because it's a contract. You're not a party to your ancestors' debts or contracts if they die. At most, their estate is.
We both know the reasons as we both studied it in 9th grade Oklahoma History.
Though I’m not sure that Brad Henry (D) really did much more for those people then anyone more recently (R). To be fair, I’ve not lived there for over a decade. There is quite a bit of grift in that state.
It is certainly not the land they were native to, and that is the important point.
I didn't study 9th grade Oklahoma history, so maybe you could enlightened me. I did a bit of googling and it seems that Oklahoma wasn't suitable for large scale agriculture till the 2oth century when innovative farming techniques were developed.
I’m not sure as I’m not an agricultural scientist or engineer. That’s also not a lot of what OK History was about, either. Though that would’ve been pretty interesting!
A few highlights are: the Trail of Tears and the land grants and those who rushed to claim plots of land before the land rush started (illegally marking their territory - hence Sooners, the mascot of the University of Oklahoma). This was likely for sustenance farming and ranching (iirc) and incentivizing local development. (Oklahoma State is the agricultural school, and their mascot is the Cowboys, probably related to the massive cattle flows that ranged from Fort Worth to the Kansas City railroads).
The next highlight is the dust bowl where a drought made the land largely untenable for farming. This was the setting for the play “Oklahoma!” as well as the book “The Grapes of Wrath”.
Throughout the whole history, natural resource mining (specifically gas and oil) have been the primary economic driver of the state. Unfortunately for the state, through the 80s and 90s much of that moved to Texas. And indeed, Oklahoma is the heart of fracking today. (Or at least was, but my mom who’s an environmental chemist has retired, so I no longer hear the current stories).
My oddest memories (coming of age into teenage years) was during the Brad Henry (D) days. I was probably more inclined to that party, but saw some weird shenanigans during that period too. Like the “right to work” anti-unionization situation play out as well as the introduction of the Oklahoma lottery (to support education! / actually a grift machine for general government budgeting).
Tulsa has become increasingly swamped by seedy casinos (something I knew nothing of until my late high school days when I feel like they really began to take off).
If I were there today, I’d advocate for exactly what Tulsa has done: try and stop the brain drain by putting together programs to attract talent (like $10k grants to tech folks who move there), a renewal of investment in parks, and pitches to the likes of Tesla to attract national attention for innovation. The latter two were successful programs proven our by a city I lived in (and love) after college, Austin (just 7 hours south).
Anyway, that’s my grab bag of history, without going into too many of the unique stories that make up the history of the state. I hope I got most of it right!
My thoughts on the place have softened with my time away, and while I don’t intend to move back any time soon, I recognize the struggles the people who live there face. In some respects it’s the opposite of the Bay Area (where I live now) and in other respects it’s exactly the same.
That is only correct according to what agricultural products you wish to produce. In a purely English traditional style of growing grain in small plowed earth plots you are likely correct, which is a largely ethnocentric view of agriculture.
Well, if it is correct from the perspective of the Americans who were conceding the land, then it's as correct as it needs to be for the purposes of this discussion.
This map shows why Houston is such a shit hole (I live here). I often explain there were no dominant indigenous tribes in the Houston area when white men settled because it was a malaria infested swamp. That's what the summers feel like. No one in their right mind would live here without air conditioning.
Actually I had a problem with that map too if you are referring to the one posted today showing ancestral tribal lands. There is no mention of the Karankawa tribe who lived along the Gulf Coast. Interestingly enough they are one of at least two Texas tribes known to have practiced ritual cannibalism, the other being the Tonkawas.
I lived in Houston for nearly 10 years and totally agree with the poster you replied to, that area is a shithole that is really unpleasant if you don't have air conditioning. The local tribes were mostly naked and covered themselves in mud to avoid the mosquitoes so they had workable options they employed.
Yes, anywhere the fishing is good you can find evidence of a tribe. However, further inland (50+ mi) in the flooding swampy flats or “coastal plains” specifically around Houston there is little evidence of previous inhabitants.
It's certainly something to think about when so much today revolves around giving the government even more power and control, all the way down to what we can say.
The Cherokees made up a large portion of the "Trail of Tears". The saddest part is they were largely fully "assimilated" into the "American" culture at the time. Most were fully "Christianized", spoke English, they translated many church hymns into their native language, built towns, and lived in houses. All like the "white man". Then they were asked to give up their guns and property and start marching.
And some of them that had intermarried with whites and slaves and had mixed blood passed themselves off as Black Irish or Black Dutch to avoid being labelled Indian and sent west. This allowed them to keep the homes and businesses their families had founded and maintain their places in white society. They just needed to look believably white.
Who is this 'we' you reference? Many people came to the US long after the Trail of Tears. Are they responsible for crimes committed on Native Americans before they or their ancestors/families arrived in a recognized (at the time of arrival) Sovereign Country.
Would be interested in your justification for holding citizens of today's US responsible for an event that happened more than 100 years ago, before they lived or breathed.
> Many people came to the US long after the Trail of Tears. Are they responsible [...]
Yes, the whole point of being citizens is taking responsibility collectively as a populace for the actions of the state.
We collectively owe interest on the national debt. We still must abide by international treaties signed and ratified by long-dead representatives. We follow a constitution written long ago, and if we want to change it we follow its prescribed process. We pay taxes. We serve on juries. Those of us eligible agree we can be drafted into military service if necessary. And so on.
Maybe 2 discussions are here, one of legal/fiscal and another of social culpability.
Absolutely, we have the process to modify laws or treaties we find no longer to suit the modern country. We try to move forward with better laws or fairer treaties, everyday. We as living citizens have the responsibility to improve today's laws. (As I hope we do regarding police conduct, to be topical.)
If I take your statement "...Citizens is taking responsibility collectively as a populace for the actions of the state." I would have to accept that my ancestors escaping persecution in another country and coming to this one, that I am morally bound to take on the social dogmas of the United States for crimes I did not commit or do not endorse today. I don't believe this to be correct or fair, but this is my opinion.
It seems like the historical weight of this country (or maybe any country) will crush it under past social deeds that are irremediable.
Unfortunately, we can not correct the past, but we should heed it, to not make similar mistakes. If there is no way to not be guilty for the crimes of the state then perhaps we should abandon the state.
You don't need to be "assigned moral guilt" to recognize atrocities from the past, their influence on the present state, and reparations that should be made.
It's kind of an interesting moral question though. Should immigrants have to pay reparations for the crimes of a state that neither they nor their ancestors were a part of?
If we accept that the entity of the United States is responsible for these crimes and owes reparations...is it fair to use fungible tax dollars paid partially by immigrants to pay those reparations?
I don't know. Interesting puzzle to think about though.
Yes, immigrants are part of that "entity of the United States". The reparations are owed by that entity for not complying with a legally binding treaty.
The rule of law means that the entity states that it will comply with everything that is legally binding. As such it is responsible for paying those reparations. The way that entity raises funds is by taxation or borrowing, using itself as the collateral for the debt.
Morals are reasoned, which is not objective but logical, fair enough. Logically, the morality question is answered by deriving the concept of personal responsibility. As an immigrant, you agree to the responsibility inherent to a new citizenship.
Likewise, the Native Americans who controlled the land before the US likely didn't have it gifted to them freely. Tribes were constantly at various stages of war with each other, and some wiped out completely.
Do they owe reparations to each other, too? And what about the ones that are completely gone?
All of the discussion of reparations and making good on centuries-past injustices always leaves out how it all gets swept under the rug if there are no decendents around to make claims.
The ones that are completely gone have no way to make a claim. But if one tribe wants to make a claim to reparations from another they’re free to do so. It’s between them to sort that out and none of my business.
On the other hand I am a citizen of the USG and believe it should be held to its promises.
Promises are a different case, imo. If the deal was made for the land, then past injustices and reparations are irrelevant.
> The ones that are completely gone have no way to make a claim.
I could have been more clear, but I was trying to imply that we should remember that it's the lesser injustices that have claimants. The greater injustices would have none.
In fact, it raises an interesting question. Suppose that early American settlers genuinely just conquered the whole land, provided no reservations, made no special deals, and expected / enforced all remaining Native Americans to submit to the laws of the land. You know, like virtually every other conquering of a territory throughout history.
Would we look on those actions less favorably than the actions that were actually taken? Or would we just write it off morally as "every place was ultimately taken by force by someone at some point" and it be a non-issue, despite it being a much greater injustice?
what about guilt for the quantitative benefits you derive from no other reason but the position of your birth, often at the expense or detriment of others who suffer from the position of theirs?
I understand the point, because one was born with more, one owes it to those born with less. Correct? I think that is an economical system argument than a moral argument. I don't find being born into ANY situation a reason to feel guilt or apologize.
No, not correct. It's less of a debt and more of a duty, and less of an apology than an acknowledgement, and not a guilt but a recognition.
I didn't own slaves, I didn't commit genocide, and neither did my ancestors. But I benefit from slavery that did exist, and my ancestors benefited from a genocide. Do I owe anything to the victim? No, because the victims have been dead for decades if not a century. But a failure to recognize ones obligation or duty to the rest of their community to bring an equity about such that their children or grandchildren don't even consider such questions - that's not nearly at the scale of destruction as our history has wrought but it does continue the cycle. If you want future generations to break from it, it starts by reconciling that your status is derived from the status of those who came before you, and that's not necessarily a good thing.
> But I benefit from slavery that did exist, and my ancestors benefited from a genocide.
I don't think this is the best way to say it, because "I benefit from slavery" sounds kind of abstract at this point. In fact, white people benefited from all kinds of 100% real and explicit racism right up to and beyond Civil Rights.
You don't have to uncover anything hidden because you can just go look up e.g. zoning laws in Berkeley and they will just say in the meeting minutes that they'd invented them to keep out the blacks and Chinese. The reason highways go through US cities instead of around them is because they wanted to knock down the black neighborhoods. They really put a lot of effort into it.
One reason to fix it is that it'll improve life for you too - undoing zoning will make your commute shorter and housing cheaper. But of course, people tend to not care about their absolute quality of life as long as it's better than someone else's.
I have to disagree. No one chose to be citizens of the collective populace and state, they were born/forced into it since they were young. Try not to participate in the system by say not paying taxes or ignoring any law and you get locked up. Try to physically leave the system and at best you are at the mercy of another system. There was no choice where you are born. It is a collective agreement only by force.
"We", as in, "the country". It's part of the history and foundation of the country you agreed to become a citizen of. The nation of today is not isolated from it's past. Much benefit was gained from injustices of the past. What is the just thing to do? Sweep it under the rug and act like it didn't matter? What kind of values are those?
>What is the just thing to do? Sweep it under the rug and act like it didn't matter?
That has stuck with me and I've been thinking. But I think I got an idea.
Maybe we should educate our young about the past, where we came from (fled state sponsored religious persecution to a land that was free). We could also teach about the mistakes that were made, you know, like how we purchased conquered and displaced refugees from muslim warlords and then tried to treat these people as some kind of property. Maybe even go over the past processes and laws that were used to free these people and become an even better society. Maybe even go further, like make/erect some statues of some of the past heroes that actually purchased some of these conquered people but then saw the light and worked towards freedom for all using the Bible as proof that God made only one kind of "mankind" and no one set is superior to another. Maybe even erect some statues of some of these conquered people to show that we are not ashamed of seeing them as people and not property.
Basically just kind of educate people so they don't grow up questioning the most basic tenets of their own nation and history?
It doesn't, but I was referring to your more broader statement of "The nation of today is not isolated from it's past." Given the current climate of the last two months, it just reeks of dogma.
Seems like you saw the word "Bible" and immediately typed your response...
Nonetheless, the bible has been used to promote many ideas through the ages. Regardless of what Obama said years ago ("we are not a Christian nation, but a nation of citizens"), America was/is a Christian nation. The Bible and Christian faith were used in many areas to form the constitution, laws, and even our republic (based on the original notion of "judges" set before Israel in the old testament). Of course none of this is taught in schools anymore (at least I had never heard of it until researching in my adulthood), which is the problem I make a point of.
The accuracy of the Bible and its influence on the US is its own can of worms. It was heavily referenced both for and against slavery, and was certainly not convincing enough proof "that God made only one kind of "mankind" and no one set is superior to another.", to prevent genocide and the subjugation of people of color for centuries.
Edit: I see you don't consider the Native American genocide to be actual genocide, so I am going to conclude you're just ignorant of Native American history. It seems you have a very coddled view of American history.
US government displaced and murdered native Americans for a long stretch of history. For multiple tribes this included extermination based on ethnic group. US soldiers acting in official capacity killed defenseless Native American civilians including young children based on their ethnicity. The genocide of Native Americans is well documented.
As a European (Scot) who lived in Canada with my partner (Ojibwe) it became obvious how ignorant I was of the past wrt all Native American tribes and the indoctrination they were subjected to.
I'd mentioned to her that during this BLM movement that the African-American story is seemingly world-known but the Native American story less so. I believe their time will come when there is a greater understanding. Not an expert but my time living on the reserve but it seemed apparent that their society was still experiencing culture shock.
A large part of the stress came from residential schools. Children were taken from their parents to be "raised right" by the government.
There is a big debate here in Canada about Canada's founding father John A MacDonald because he approved residential schools. It would be like a debate over George Washington in the US should he be on money, statues erected and so on.
Another topic is missing women in indigenous communities. Often murdered by a partner or stranger or simply gone missing without any known reason.
It's interesting to see how little talk there is in the US over rights of First Nations (or "Native American") people. It's a daily discussion here in Canada going on for years.
Sometimes referred to as “transgenerational trauma.” It’s something Jews and Native Americans/First Nations people have in common, probably along with most populations who suffered genocide. https://en.wikipedia.org/wiki/Transgenerational_trauma
Yes. My partner worked in a women's shelter and told me about the 'learned behaviour' that was perhaps the root cause in so many situations. Her grandmother had managed to hide and avoid being taken to one of the Catholic schools when they came into their family home to take her, her grandfather didn't manage it.
Easy to see how that kind of trauma in a family could affect the next generations, particularly so if their was abuse - which apparently was rife in the schools they were sent to.
> Would be interested in your justification for holding citizens of today's US responsible for an event that happened more than 100 years ago, before they lived or breathed.
Of course they are responsible, who else should be if not the one who are getting the historical benefits?
Do you use "we" in your country only to refer to the good parts of your history, or up to the day you set foot on it?
Do you think countries' debt should be cancelled every 50 year or so?
> Of course they are responsible, who else should be if not the one who are getting the historical benefits?
This idea of generational responsibility, taken to its full extent, might have some unintended consequences. For example, aren't there historical records that indicate that the at least some Native American tribes themselves fought over territory? How should those claims be adjudicated?
How does this logic work for Dreamers(DACA beneficiaries)? Should a child who benefits from their parent's illegal activities be punished years later? Should the grand-children be punished? great-grandchildren? The Supreme Court even ruled recently that DACA was illegally established. BTW, this is another good example where Congress should have passed legislation rather then letting the situation live in legal limbo.
The argument for reparations is not about punishment for past crimes. It is about remediating inequity that still exists today as a result of those crimes.
But presumably the reparations have to be paid from one group to another group. And perhaps there is a third group that pays nothing and gets nothing (recent immigrants?). So if you are in the group that has to pay out the reparations aren't you being punished for the actions of your ancestors?
As complicated as these considerations are, I still wonder about the unintended side effects if there were indeed some sort of substantial transfer of wealth from some subset of Americans to descendants of slaves. Wouldn't that create a terribly animosity between those groups and what if that transfer of wealth didn't actually resolve the disparities? What if 10 years later the metrics used to measure those disparities indicated that they still existed? More reparations? It isn't clear to me that wealth transfer can actually remedy many of the disparities that are observed. I think it is quite a bit more complex than that.
We the American people who are bound by the legal treaties our American government entered into. The same American government that existed for the past 200+ years and currently represents myself and all other Americans.
I thought about saying something similar. There are plenty of "people groups" that no longer exist due to war, forced take over, famine, etc. Nobody stands up for them though. People now are only pushing what immediately benefits them.
> We have to recognize how much we screwed over the Native Americans. We took away their prime land on the East coast. We gave them some shitty land in Oklahoma that we didn't think we would ever want. We made them walk there in the "Trail of Tears", and lots of them died along the way. Then we decided to screw them out of the land in Oklahoma after all, but didn't go though the process properly because we didn't think it mattered.
Tangential: to me (an European) it seems quite insulting to put all the (or just the five "civilized" ones?) native northern american tribes/nations in the same basket by capitalizing "Native Americans".
From the actual opinion: "Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time. But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there."
I spend a lot of time in the summers reading SCOTUS opinions, and I have to flatly disagree with this. Gorsuch peppers in these comments and they distinctly detract from the legal reasoning in the Opinion. It’s cute, but superfluous and further turns justices into “rockstars” to be cheered, which is bad.
No, this is nothing like commenting code. These comments are not meant for other "programmers" (i.e. Justices). They're meant for the public, which doesn't compile anything with regard to the Supreme Court.
No, they're meant for other Justices, too, as well as for judges and lawyers beyond the Supreme Court. They're annotations describing the rationale for a decision - the "why" of the verdict - in as much detail as possible, which I reckon to be invaluable to anyone else needing to go back and evaluate that decision and determine its implications.
Sorry, still disagree. Contrast an opinion from Thomas or Breyer (or even Kennedy for that matter) with this one from Gorsuch. The quips and trite verbiage are absent. And for good reason: it's not serious, and it's something people latch on to instead of the legal text of the opinion, especially today in the world of twitter and memes. People like the idea of Ginsberg as a feminist icon because of her terse dissents and demeanor but that's actually really kind of terrible. This isn't her fault - her opinions are absent of this kind of flowery language. They're to the point and well written. So I guess my point is Gorsuch is just asking for it - to be a pop culture thing. We should not want this of the High Court.
>the "why" of the verdict
SCOTUS doesn't have "verdict[s]".
I'm not a lawyer but I've read probably 200+ opinions for fun over the last decade, listened to maybe 100+ oral arguments. I really love following the Court, and I probably have an allergic reaction to these people growing beyond their britches (they are unelected, after all).
If it makes more people interested in reading legal rulings - and in this case, realize that all of eastern Oklahoma belongs to the tribes - it's a good thing. Awareness is important in rulings like this. This ruling was necessary because a lot of people "forgot" that eastern Oklahoma was given to the tribes.
Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how the writers felt given the time” as foolishness.
Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?
In both cases, the Justice decides based on personal preferences or ideological agenda, but in one case the rationalization is based on cherrypicking snippets from contemporaneous sources to speculate about what authors or supporters (of a statue, treaty, constitution, ...) originally meant long ago, and in the other case the rationalization is based on nitpicking the vocabulary and grammar of the document.
Both conveniently allow the Justice to pretend that their opinion is completely neutral/technical with no personal choice involved, even in cases where the justification is tendentious to an absurd extreme, and to attack those who disagree as radical unprincipled activists with no respect for the rule of law. They absolve the Justice from taking responsibility for the consequences of the decision.
Both originalism and textualism are easily shed by their adherents when insufficient originalist/textualist justification can be found for the desired decision, and following the obvious original intent and plain textual meaning of the statute would lead to an outcome the Justice dislikes.
(I have no real expertise on this; I'm just relaying my understanding.)
Textualism involves interpreting words with the same meaning that they would have had at the time whey were written.
Originalism involves interpreting words in the same way they would have been intended at the time when they were written.
To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment".
Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment?
Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790?
Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning.
For fun:
Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against?
Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual?
Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance.
Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 may be useful.)
History is relevant to both originalism and textualism in different ways. Originalists look to what the writers intended the words to mean. (This is how we interpret contracts in Anglo legal systems.) Textualists disregard what the writers intended, but do care about what the words meant at the time they were written.
This often leads to the same result, but can sometimes produce divergent results. The drafters of the equal protection clause of the 14th amendment, for example, probably didn't intend to create a framework for striking down laws that treat women differently than men. Ginsberg's brilliance as an attorney was to make essentially textualist arguments that convinced courts that--regardless of what the drafters meant to say, the words they actually used plainly apply to discrimination between the genders is it did to discrimination between races.
Gorsuch is definitely my favorite Justice. His opinions are always fun to read. You know when the words "Trail of Tears" appear in the first sentence of a decision that things aren't going to turn out well for the government...
Haha, yeah I love how he thinks that the government shouldn't have access to our data without a warrant, period, full stop and that the 3rd party doctrine and "reasonable belief" doctines should be repealed.
> Congress will have no choice but to make a law breaking the promise and repatriating the land out of Native American hands.
Oklahoma seems to have only five US Representatives (and two senators of course). It would be ridiculous if seven Congress members can hold a nation hostage.
I don't understand the full implications of this ruling but I don't see how I can support breaking more promises because of political gamesmanship over five representatives out of four hundred and thirty five.
From what I read in this thread, all crimes will still be prosecuted, but by a federal court of law. I don't see a problem.
He's the Senate majority leader. The above comment is not correct, one senator is not holding the nation hostage. The majority of the Senate is. The Senate majority leader just happens to be one of the more senior members of the majority party in the senate. Mitch McConnell, as far as legislating goes, is no different from any other Senator.
Well, one senator can hold up the nation easily enough with the filibuster or denying unanimous consent. Senators are very powerful and the Senate is explicitly designed to stop anything from happening. Most other countries have less powerful upper houses.
Yes, the compromise was to say all states are equal which is a ridiculous idea. I just don’t see a better way though. How does the European Union handle things? Does Latvia have the same vote as Germany? Or does nationality not matter because things are run by technocrats? I’d imagine at some point the elected representatives hold the decision makers accountable?
As far as I know, he's described himself as the "Grim Reaper" for progressive policies [0]. Now, I'm no expert but as the majority leader, he
> schedules the daily legislative program and fashions the unanimous consent agreements that govern the time for debate [1]
and
> has the right to be called upon first if several senators are seeking recognition by the presiding officer, which enables him to offer motions or amendments before any other senator [1]
He's an obstructionist. The plan is to block everything, no compromise. He's even taken contradicting stances when the other side raises an issue he previously supported.
Sometimes I wish the SCOTUS would reinterpret things that were obviously wrong... but I'd much rather have the SCOTUS interpret the law as it was intended, and have Congress fix the actual problems with the law.
“As intended “ isn’t “as it is written “. See the recent ruling that came down saying that LGBTQ people are protected under the civil rights act of 1967 because the words are very plainly written. Just because the people in congress probably didn’t intend to protect the LGBTQ community given the culture at the time the WORDS of the law are very clear.
"As intended" versus "as written" really depends on the law being discussed and the justice interpreting the law. For example, constitutional scholarship seems to lean heavily on interpreting the law by its intent rather than purely by the words
There's quite a variety of ways that the Five Tribes and the State of Oklahoma / the federal government can resolve this, two of the extremes being "Congress formalizes its reneging on its treaties with the Five Tribes, thus fucking over Native Americans yet again, but in writing this time" and "Tulsa experiences karmic retribution in the form of Trail of Tears 2: Electric Boogaloo".
Hopefully neither happens, and instead we get something that at least tries to work to the interests of both parties, e.g. "non-tribal residents are allowed to stay but are subject to tribal law (and pay "state" taxes to applicable tribal authorities instead of Oklahoma)" or "Oklahoma and/or Congress pays the Five Tribes a fair price for lands already occupied by population centers (e.g. Tulsa) and releases the rest to respective tribal authorities" or somesuch. Or perhaps something even crazier, like "the Five Tribes make another attempt at founding the State of Sequoyah" (with Tulsa being a decent-enough candidate for becoming a state capital).
Realistically, though, knowing this country's tendencies toward addressing hard-to-solve issues, the most likely outcome is "nothing changes and Schrödinger's Indian Reservations continue to simultaneously exist and not exist".
The ruling is about whether or not the state can enforce state law on Native Americans on this land. It doesn't change whether or how Oklahoma law applies non-native Americans.
What are the consequences to people in Tulsa who aren't tribe members? Landowners who aren't tribe members? Can the tribe expel them and confiscate the land?
> The ruling means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city.
Don't know if you'd qualify it as a "major" city, but over 10% of Palm Springs CA is on an Indian reservation. For interesting historical reasons, though, the reservation is basically shaped like a checkerboard, where every other 640-acre square is reservation land. This obviously has huge implications on real estate - none of the reservation land is sold, just leased, and there were some recent cases where the tribe made the tenants leave after their (like 50 year or so) lease was up.
Google "palm springs indian reservation map" and it will show you the checkerboard.
That seems like an insane way to divvy up land. My first instinct was that it was done that way to make the land effectively unusable as tribal land, just because that's how the government tends to roll in these cases
Correct. It was a policy to encourage Native Americans to move to the agricultural model used by European Americans, as well as incorporate socially. It was relatively easy for a white American farmer to set up a farm in the state administered squares, but it was relatively difficult for Native Americans to roam nomadically- it essentially reduced the density of available foodstuffs in the checkerboard by half. The presumption was that Native Americans would/should start farming and adopt American social and economic norms.
Another somewhat common practice was splitting up reservations into homestead sized blocks and assigning each block to an individual Native American adult male in traditional common law property ownership ways, which didn't map to any Native American social/economic norm.
There was a lot of effort put forth by the US government after the Reconstruction to coerce Native Americans to act like white Americans. Which was bizarre considering citizenship wasn't fixed until 1924. You would have thought they would have led with that.
> You would have thought they would have led with that.
It's actually very rational, cynically speaking: you don't want to extend the franchise until you're sure that the new guys will "vote the right way", so to speak.
Same is true of Green Bay, WI. About 15% of the city intersects with the Oneida Nation reservation. While also not a "major" city, it is over twice the size of Palm Springs.
For non-natives not really. For natives, it depends on the agreements. This isn't really a traditional reservation situation, since the tribes really are not going to have the traditional governance over the land. For example, the cops are not going to get replaced by BIA or Tribal police.
Tribal governments only have criminal jurisdiction over crimes committed by Native Americans (an enrolled member of the tribe, or an enrolled member of some other federally recognised tribe). If the perpetrator is not Native American, the tribal government and courts cannot deal with the case, only local/state/federal courts and authorities can. (There is an exception to this rule, created by Congress, that domestic violence crimes committed by a non-native against their Native American spouse or partner can be dealt with through the tribal legal system.)
Civil legal jurisdiction over non-native individuals is somewhat broader, but still subject to various complex legal limits.
There are other places that are technically on tribal land, and that hasn't allowed the tribe to government them. The city and state is not going to cede governance on non-members to the tribe. Its going to end up being an agreement between the state and the tribe.
Ok, thanks. All the northern plains groups do the quantum. I suppose the Cherokee have a pretty scary history so that makes sense. The difference between the two tribes in their statement isn't because of blood, its distance to a major city.
So could a tribe welcome every single person who asks to become a tribesman? Does the government just accept whatever the tribe says? Would the government then be required to apply all the same rules and exclusions of law for such new members of the tribe?
Can you give an example of a country recognizing some but not all citizenship decisions of another country?
Like I think the US would respect a Taiwanese citizen presenting a PRC passport for instance. The PRC considers all RoC citizens to be PRC citizens and will fill out the relevant documentation for them.
So the answer is yes? This seems like a potential business opportunity for any tribe that was so inclined. They could bestow favourable tax status on anyone who wanted to go down that path.
There are limits. Allergan tried some shenanigans with a drug patent[1].
Re: taxes, the US government will make you pay all your taxes. If you pay taxes to a foreign govt then you can get a waiver for what you paid but if the tribe gives you a good deal the US govt will still demand the rest.
The Allergan example is interesting, super ballsy and got struck down.
It had to do with patent challenges through inter partie reviews (IPR) Basically Allergan transferred the patents to the tribe and said “they are sovereign and thus can’t be challenged through IPR”.
> Re: taxes, the US government will make you pay all your taxes. If you pay taxes to a foreign govt then you can get a waiver for what you paid but if the tribe gives you a good deal the US govt will still demand the rest.
That's the rule for US citizens. You would no longer be a US citizen. Presumably the rules would be exactly the same as they are for current tribe members.
Assuming you are planning to work in the US your income will still be taxed. And based on the rules from the Eduardo Saverin case you won't be able to escape taxes on what you earned before you left.
Yeah, you're right. In Canada, "status indians" get a tax exempt card to avoid sales tax at least. I didn't realize that in the US all American Natives are actually considered US citizens and are taxed federally just like everyone else. Only the tribe itself is tax exempt.
Reservations vary from quite well off (I personally knew a guy who basically had a few hundred thousand in trust from his band when he turned 18 - money from resource extraction on tribal territory) to reservations that resemble shanty towns in developing countries.
Just like it does for any other foreign citizenship.
Getting your tribe you just started recognized without any of the treaties in place is about the same level of effort as getting your new country recognized. I don't see TSA accepting Sealand passports.
No bs: I've had TSA refuse to accept my US passport card for domestic travel. He claimed there is no such thing. Twenty years down the line and we need some basic training...
Large parts of the City of Tacoma and surrounding cities fall inside the Pyuallup Indian Reservation in Washington state. In fact, out of >40,000 people on the reservation, only 2500 are members of the tribe.
Being part Sami I think it's fascinating to read about the system of reservations in the USA. I'm not sure about minority rule, but I'm clearly in favour of saving the unique cultures and ethnicities from dying out.
After many years of persecution in Northeren Europe—including forced assimilation often called "Norwegianization" or "Swedification," and near extinction in Russia—we've finally gotten some recognition as a nation of our own, at least in the Nordics. We have our own parliament (Sámediggi) and flag, for instance, and enjoy semi-autonomous leadership in "our" historical regions (called Sápmi) in close cooperation with the governments of Finland, Norway and Sweden. As such it acts more like a subset of the respective governments of the Nordics.
Now, both the finnic and germanic populations are also indigenous to the Nordics together with the finno-ugric Samis, so in that sense it's a bit different from the native population of the USA, where the other nations are almost all of immigrant descent. On the other hand, just like the Native Americans, Samis are in the clear minority in Northeren Europe, with only about 100.000 members, some of whom can't even speak their own language due to the assimilation policies (like me, although I do know a few words). Thus our culture and unique way of life is indeed in danger of extinction. For that reason alone I think it's important to at least recognize the ethnicity, and perhaps save it from the "tooth of time" as it were. Perhaps especially since most Samis today enjoy a modern lifestyle, and only very few live the traditional nomadic lifestyle of reindeer herding. If I'm not mistaken, the same is true for the Native Americans. In any case I'm happy we can finally enjoy peace and democracy with one another.
Note that most of these tribes were moved form somewhere out east in the 1800s (or north, tribes came from all over there was not a common culture) . Most of their culture could not be kept because the climate is different (desert, or just enough rain to technically not be desert). Much of old the way of life is not possible. Nobody alive lived in their in their own home to remember it. They are making the best they can.
I was fascinated with the history of the Sami when I visited Karasjok in the dead of winter, and spoke to a few who still tried to keep a somewhat traditional lifestyle. It did feel like it was a fight against time to keep those nomadic herding ways alive, and a really interesting philosophical debate about what really defines the Sami other than blood and (partly forgotten or purged) shared history if most are living lives indistinguishable from Norwegians and Swedes in their community.
I'm sorry if it seemed like I made that assumption. I certainly didn't mean to. There were attempts at similar things in the Nordics, and certainly Russia displaced many local tribes in its hunt to stamp out any ethnical uniqueness through-out Russia, under Communism, for the gain of assimilation. We see similar tendencies today in China, although there seems to be a sort of uneasy acceptance of the minorities there. Well, if you disregard the not-so secret re-education camps... Anyway, a great movie about the difficult adaptation to Scandinavian modernity among Samis, and the prejudice towards them, is the Swedish movie Sami Blood. Highly recommended!
> The ruling voided McGirt’s sentence of 1,000 years in prison but he could face a new trial in federal court rather than state court.
Not changed by this ruling, but it strikes me as really odd that you can sentence someone to prison for that long, or that you would bother. Why not just say life in prison? If your state is 103 years old, saying anything about the next 1000 years seems ... lacking in credibility.
It is perverse, but there is a method to the madness. Some sentencing mitigations or parole decisions are based upon length of sentence. Someone who is given a 20 year sentence may be eligible for parole when, for example, 1/4 of the sentence has been served. By setting the sentence to a ridiculous length it is effectively denying any possibility for parole without directly stating that the sentence is to served without any chance for parole.
They already do this in LA. Get sentenced to 120 days in jail but due to overcrowding you’d do 5-10 days in jail.
Soon local politicians will require you only to do 1% of jail time so you’ll be sentenced to a 100 years in jail for a misdemeanor. This already exists in the California bail system where you pay 1% of astronomically high bails (eg $60,000 bail for 1st time misdemeanor, like if they change a court date and fail to inform you).
In the Netherlands life imprisonment means exactly that: imprisonment for life. There is no option for parole, other than by royal decree (which seems to have happened 3 times since 1970) [1]
According to Wikipedia[2], there are several countries where this is the case:
> In Europe, there are many countries where the law expressly provides for life sentences without the possibility of parole. These countries are England and Wales (within the United Kingdom), the Netherlands, Moldova, Bulgaria, Italy, Hungary, Austria, Malta, Cyprus, Albania, Ukraine and the Republic of Ireland.
This seems much clearer to me than a 200-year sentence which needs to undergo a calculation to get the actual sentence length.
As I understand it, the way trails are done are also a bit different: rather than "two counts of X", people are judged based on "did X two times". In other words, you don't get a separate conviction for both Xs. So if someone killed three people, they're judged based on killing three people, rather than based on every individual killing. In those cases someone can receive a life sentence, rather than "3x30=90 years" or some such.
So let's say fraud has a standard tarriff of ten years.
And we agree that committing two frauds is twice as bad, so we add them together. Still makes sense.
And someone defrauded a LOT of people. Say sixteen THOUSAND.
That's how you sentence someone for 141,078 years...
(They served eight.)
Thanks for linking that wikipedia page. Some of those examples sound crazy. In particular, I don't understand the motivation in cases where there was a sentence of several thousand years, and later it was reduced by 500. Does that reduction in sentence provide any kind of actual benefit to anyone?
All these legalistic reponses, and yet none really touches the sheer absurdity of sentencing someone to 1,000 years. Doesn't the lifespan of a human being figure in at any point? Talking this way is dehumanizing.
Raping a 4-year-old girl is pretty dehumanizing for the victim. I think of an absurdly long sentence as a way of conveying how abhorrent the justice system finds that behavior.
In the US, it's possible to be let out of jail for a life sentence in only 7 years, when you account for parole.
Judges are elected officials, so sometimes they like to make a nice big show of giving out a 1000 year sentence to appease the masses, when "life in prison without parole" would have done the same job.
Let us say that the punishment for murder in the first degree is always a 50 year jail term. A man who is 75 years of age is charged with two murders and convicted.
1. At 75 years of age, he will not live to be 175
2. The law dictates that the punishment per murder must be 50 years
3. He's been convicted of two murders, and must have both charges applied to him unless we are not to expect punishment for one of the victims.
Ergo, he must have a term much longer than his lifespan.
There are a thousand details I just skipped over (concurrent sentances, multiple crimes commited in the same act, stacking versus non-stacking offenses, etc) but this isn't unusual and is a perfectly rational and sane outcome.
Application of law is mostly derived from first principles. So you start with two things that are believed by most legal experts:
- Sentencing to life without parole is considered inhumane
- Criminal sentences should be proportional to the crime
- Sentences are supermodular
Let's say there is a minimum sentence of two months for some insignificant crimes, start increasing the length for more serious ones. Most serious crimes usually involve several different crimes that are committed while committing the "main" component of the crime. So it starts adding up, and it starts adding up fast due to the supermodularity.
So even though the end result is seemingly absurd, trying to make it non-absurd would violate some of the most agreed-upon principles and here we are.
I had the pleasure of driving through and visiting Oklahoma a decade or so ago. Some people don't like the rural states, but it felt so serene out there. We stopped at a shaved ice place off of some random exit and just sat there on the hood staring out at the plains. There's not much out there but it felt so peaceful. It felt like home.
This has been my experience as well. I live in a city now, but I love the times I have spent traveling through or to rural areas. They have a bad reputation that is based on false notions of urban superiority and stereotypes that feel as baseless and unhinged as claims of other types of superiority (e.g. racial).
The reality is when you visit these rural places, talk to the people there, take part in their culture, take in the land...there is a lot these areas and those lifestyles have to offer. I was also surprised to find the people so charming, warm, and welcoming - and it dispelled my fears of expecting discrimination, which in retrospect I've only experienced in bigger American cities. It does feel comforting, raw, grounded, and yes like home.
> I come from Minneapolis, and before that I lived in Seattle and Boston — three of the bluest, most left-leaning cities in the United States. I was an urban woman and couldn’t imagine living anywhere other than a city. My husband concurred. Then our 28-year-old son died in late 2016.
> Suddenly the traffic and noise and confusion became too much. John and I took off on a year’s driving tour of gentler parts — both of us working from the road, a computer security consultant and a writer. We grew nearly silent in grief.
> We considered Asheville, N.C., and Santa Fe, N.M. But on a chilly, silver January day, we drove into the Ozarks of Northwest Arkansas. Though neither of us could put our finger on exactly why, this felt like our place. People back home were flummoxed: I heard them say a lot about white, rural Christians who reject outsiders and “cling to their guns.”
> But what city folk don’t know is how beautiful it is here, and by that I mean way more than you imagine. We’re surrounded by low mountains, bony shale bluffs, forest, shining lakes and mysterious twisting roads. The wide-open sky brings every bird formation and low-hanging planet into relief.
As a native and resident, Arkansas has a history and a reputation, but it also has amazing strength of character, and people who care about each other and their community. There are folks from all over the world who call my state home, and I’m proud to welcome them all.
Except the KKK. They are the bane of my home state, and it is my wish that I live to see each and every one of every group’s members publicly repudiate their membership and their belief in the groups. /rant
Please, visit! The Buffalo National River is one of the most amazing natural attractions in my neck of the woods. Nearby in Bentonville, Crystal Bridges Museum of American Art is the best world-class museum in the state, if not the region. I think we have some pretty famous art, if you’re into that kind of thing. Also in Bentonville is the corporate HQ of a little store which started in Arkansas, and kept growing, which you may have heard of: Walmart. A short trip from there takes you to Fayetteville, AR which is currently #4 in the nation for best places to live, according to U.S. News & World Report. Doesn’t hurt that the University of Arkansas is also in Fayetteville; my time on campus was longer ago every day, but the campus and its surrounding metro area is as vibrant as ever, and I hear good things about its Walton School of Business.
We have a legacy to bear as well, but I think we honor our mistakes and errors as well as our virtues. On that note, one of the projects I’m most proud of in NWA is our massive bike trails network that connects the Fayetteville-Springdale-Rogers-Bentonville-Bella Vista area. This area was on the route of the Trail of Tears; this section of paths is the Northwest Arkansas Heritage Trail, part of the NWA Razorback Regional Greenway.
I had a different feeling. It wasn't empty in the sense that the desert is, which is very pleasant and beautiful, but scarred with industrialized agriculture, and silos stretching out into the infinite surrounding. The fact that there was absolutely nothing at all as far as the eye can see, no mountain or woods, just field upon industrial field with no farm house or town in sight, felt extremely isolating and uncomfortable. A feeling of having no bearings, no difference in any direction; no idea where to run.
The small towns felt disturbing. Tulsa felt disturbing. The lack of minorities out in public was painfully glaring. It was all so very patriotic and dystopian. The unsettling overbearing flatness on the featureless terrain dominated my perspective of the area. Not for me, and I couldn't leave soon enough.
There's a big difference between Eastern Oklahoma and Western Oklahoma.
GP's description sounds like Eastern Oklahoma which is more similar in landscape and vegetation to places in Arkansas and Missouri like the Ozarks.
Your description sounds like Western Oklahoma. I lived there from age 12 to 20 and yes it's exactly as you describe, getting worse the farther West you go in the state. Dystopian agriculture.
Although Tulsa is east of OKC, I would put the dividing line between the East/West change in landscape around the Tulsa area.
My own experience: having had a good portion of my childhood (after immigration) in a Rocky Mountain West state, I moved to Chicago for school. The first time I came back to visit for Christmas, I was blown away by how white the area was, and that I had never noticed before! Suddenly all of the childhood struggles I had with people quietly judging me fell into place (little things: assuming promiscuity, passing me over for a leadership position for someone less qualified, etc). That Christmas, the only person of color I saw was the guy behind the grocery's store's sushi counter, who was - wait for it, Japanese. It left me deeply disturbed, excited to come back to Chicago and excited to leave that state permanently.
This is an "affirming the consequent" logical fallacy. My sentence says nothing about the virtue or vice of cities.
I'm responding to "Some people don't like the rural states". Almost no one dislikes rural states for their natural beauty. They dislike them for the people.
Whether that dislike is morally wrong, or whether they should also dislike urban areas is irrelevant to my claim. All I was observing is that the people are why some other people don't like rural areas.
I think making a blanket statement might be incorrect. I've heard a lot of people who dislike rural areas for their lack of people. That is to say, lack of amenities, entertainment, cultural events, etc that can only be had in a dense area with surplus people.
I'm not sure which reason is the majority, or if there even is a majority.
Interesting implication that Tulsa is now inside of a reservation. Growing up I thought reservations were located on tiny parcels of land but in some western states that is not the case. In Arizona about 25% of the state is tribal land, with neighboring state New Mexico having about 10% of its land as reservations.
The story is quite stunning. So a child molester convicted in 1997 and in prison for 20 years wants to get out of jail. So he seems to have hired some extra ordinary attorney who simply couldn’t find any way to get him out. And one day he finally hits upon this idea of land supposed to be tribal land 100s of years ago! The brilliant idea, indeed. And now half of the state will suddenly become tribal land because of this one guy trying to get out and this one lawyer who dug this out.
We need to end the reservation system. No good will come of this system in the long term. We can end it either by making the reservations explicitly new nations (either fully independent or with protectorate status, like Micronesia or Palau), or they need to be integrated fully into the United States.
In the long run, separate countries in one system does not really work (and yes, the states and feds are overlapping jurisdictions), but Indians have a much more special status under the law. Race based preferences never end well, even if they seem nice to begin with.
Why? Because it is scary that you can actually have governments make laws that Americans may become subject to when those governments have very few duties under American law to respect American rights. Of course, we do not expect other countries to follow American law, but reservations are not set up as other countries. Moreover, the law is strange in that a tribal member in a part of Oklahoma is now due special criminal treatment due to their ancestry, rather than be subject to the laws of Oklahoma.
That is not okay. Either a border needs to be set up, or the tribal governments need to be cast aside or at least become subject to the same kinds of restrictions the states are. Yes, this will require a constitutional amendment, but frankly, special treatment of Native Americans is a relic of a bygone era, much like slavery.
Who should decide to have a border or the other option that you are proposing?
I guess if you want to be fair, you need to let the Native American nations to decide, and what if they decide to create multiple nations in the middle of the not-any-more-united States?
> I guess if you want to be fair, you need to let the Native American nations to decide, and what if they decide to create multiple nations in the middle of the not-any-more-united States?
The United States should decide... either as a constitutional amendment or as a popular vote. If the tribes have input, that should be taken into account. But it's not like Native Americans have any more right to exist than any other person born in the United States.
In general, states can enforce their borders, but it's safe to say that the Native Americans failed at that considerably, and those wars have concluded and the USA has firmly won. This is not a value judgement, or a statement of what should have happened. It is simply observation.
Ultimately, the tribal system is a compromise to make things work as they are now. But, in the long term, this is never going to work out. Like I said, there is nothing good to come of this. At some point, some generation will have to bite the bullet and allow separation or pressure integration. This system we've created which encourages pseudo separation and shies away from integration really can't work out in the long run. It will lead to factionalism, in-fighting and eventually war or genocide.
A better solution would be to put in place incentives for Indians to leave the reservations and integrate with American society, with the eventual goal to privatize native lands or to make them public like any other land. Again... the system we have now, to hold land into perpetuity will not work.
Ultimately, tribal belonging is currently tied to how 'pure' one's blood is. This is the last vestige of racial preference in this country. These sorts of things invariably lead to bad outcomes in the long run.
Is it sad that cultures die? Yeah, perhaps, but cultures have always died. Thus is the way of the world. As each one dies, more will be formed. Oh well, times change.
> The ruling means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city.
So does this effectively create two different rules of law over the same land...?
It probably will come down to further court cases, but likely, yeah half of Oklahoma will be subject to Oklahoma state law, and half will be subject to tribal law. That's no different than a state being neighbor to a different state with looser/different laws.
Probably they'll work out a compromise like: tribal government pays Oklahoma fees to have them run infrastructure as they have been, and the State forwards tax money to the tribal governments. That seems like the most logical short term solution, essentially status quo.
But the main change will be that tribal lands may now have more power to change local laws (such as ignoring laws against selling alcohol on sundays, etc).
It's actually a lot more complicated than that. Tribal law is mostly for intra tribal criminal cases, and does not have jurisdiction over people who aren't members of the tribe or when a crime is committed outside a reservation. So, going from having a relatively small portion of a state, where most people were probably part of a tribe to having have a state in that status makes thinks very complicated for law enforcement. It's not like the tribes just randomly took over half of Oklahoma and established a new state. For most people, Oklahoma will still have jurisdiction over them.
It's been that way, this isn't much of a change for the tribes. Effectively, the tribes have a different system of governance that falls under federal jurisdiction. They're "outside" the state government. It's a hot mess, but I don't think forcing sovereign nations to conform the the occupational nation is a good idea.
Currently the federal government has a wide range of powers over reservation land such as the ability to prosecute crime. For better or for worse, Congress can expand these powers at any time to include dissolving the reservation. The law in all these aforementioned areas is well settled.
The issue in this case was with a state government, specifically Oklahoma. This ruling will limit Oklahoma's ability to prosecute crime when (1) it occurs on the reservation and (2) involves members of the tribe. Congress would have to act to change this, or some agreement could be reached with the tribe.
One thing I'm unclear about is this: "If Congress wishes to withdraw its promises, it must say so." The question in the case, as I understand it, was whether previous acts of Congress had in fact dissolved the reservation. Could Congress, if they wanted to, pass a resolution saying, "Actually, such-and-such bill from 100-some years ago dissolved the reservation." Or can they only say, "Starting today, the reservation is dissolved."
Is Congress empowered to clarify the meaning of its own past statements? Or once the text leaves Congress, only the courts can say what that text means, and if the courts disagree with Congress, then Congress can only remedy that going forward?
Congress writes the laws. Courts interpret them. Congress can't simply say "oh actually back then we meant this other thing," as that would be completely nullifying the power of the Courts. Yes, they can make an amendment that changes/clarifies the meaning of an existing law, and that might sound like the same thing, but doing that requires the formality of the process -- in particular, bringing it to a vote.
That only applies to criminal matters and only in terms of punishment. Congress could decriminalize drugs and make it retroactive for people who have yet to be convicted or charged.
Sorry for stupid question but I'd imagine this ruling means the State of Oklahoma (and therefore all counties and cities/towns in Oklahoma) never had the authority to bring criminal cases against those Native Americans in tribal lands?
Would action of Congress mean any such criminal convictions stand? If yes, would that be a violation of the Constitution of the United States?
Like wearing white shirts is illegal, effective 2001? So anyone you can prove wore a white shirt 2001-2020 is going to jail? That would be pretty stupid.
That's a good question. I'm not a lawyer, but I think it would be problematic if Congress could make those decisions. That would allow them to de facto create ex post facto laws by contriving "interpretations" of past laws. It might incentivize intentionally ambiguous laws that allow them flexibility in the future. At that point, the Supreme Court would be in the very odd position of deciding whether something is a plausible interpretation of a previous law.
Yeah, I agree. That could definitely get into some really sticky territory. I guess the other side is that a malevolent court could contrive those interpretations, and Congress would be only be able rectify the situation going forward. I don't know what the best solution is, but I guess I trust the Supreme Court more than I trust Congress. Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.
>I guess I trust the Supreme Court more than I trust Congress
It's quite a damning indictment of US-style democracy that people trust a small cabal of unelected lifetime appointees without any meaningful oversight, over a larger pool of democratically elected officials.
The root of the problem (and this isn't unique to US-style democracy) is that any body that has to deal with re-election every few years is going to focus more on things that get them re-elected, not necessarily things that are good or sustainable for the state as a whole. That's just human nature, and I don't think there's a way to fix that problem without fundamentally changing how with think of elections and terms in office, and I'm not sure what that would look like.
One thing that makes SCOTUS interesting is that they have no enforcement mechanism. It's mainly only tradition and respect for the institution that causes people to follow Supreme Court rulings. If the executive branch suddenly decided to do whatever it wanted, as long as they had support within their own ranks, including the military, there'd be no one to stop them.
On the flip side, this means that SCOTUS has a huge incentive to do their best to figure out what the actual right thing is, and rule that way. Because if too many people think SCOTUS is a shady group of individuals whose rulings are arbitrary and don't deserve respect, that's it for their power. And that's why even when I believe one of their rulings to be counter to my values, I can usually understand why they came to the decision they made, and at least respect the process.
> One thing that makes SCOTUS interesting is that they have no enforcement mechanism. It's mainly only tradition and respect for the institution that causes people to follow Supreme Court rulings
You're underselling this, I think.
It is "respect for the institution" why the military accepts the civilian authority of the POTUS as commander in chief. If we are only considering the ability to use violence to enforce one's position as legitimate, it's the military and police forces who rule. Once you factor in laws, the SCOTUS is authoritative as to how the laws can be legally interpreted.
This very much reminds me of the riddle in Game of Thrones:
"In a room sit three great men, a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. ‘Do it,’ says the king, ‘for I am your lawful ruler.’ ‘Do it,’ says the priest, ‘for I command you in the name of the gods.’ ‘Do it,’ says the rich man, ‘and all this gold shall be yours.’ So tell me – who lives and who dies?”
The more interesting question to me than "who lives and who dies?" is "who holds the most power?" The three great men have enormous resources to influence the sellsword, but in this situation isn't it the sellsword ultimately making the decision and being the agent of change? Does the military let POTUS pretend he has ultimate power, or does "respect for the institution" really overpower the military?
I really hope "respect for institution" is more powerful than our military. I think so far we've seen that it is, but the current administration seems to be attacking our institutions pretty aggressivly.
>Does the military let POTUS pretend he has ultimate power, or does "respect for the institution" really overpower the military?
A huge portion of the military really comes down to who has money to keep paying the soldiers, fueling the bombers etc. If the military revolts but no one ends up paid, a problem ensues.
I think in the scenarios where the military decides to no longer respect civilian rule (a coup), it's not particularly hard to occupy the Treasury and the mint.
A potential improvement might to split the scope of duties across more independent government entities. It's actually similar to how corporate management tends to plan management roles: things like end-to-end ownership of clear (and relatively limited) responsibilities. These days, the federal government's scope is massively larger than when the constitution was created.
One approach to splitting things might look something like this:
government A: education, taxes, social services, abortion, immigration, ...
government B: electoral issues, telecom/internet, mail, privacy, utilities, workplace regulations, ... basically, mundane areas that are more about boring competence and finding smart solutions. Or at the very least, serving the public will more directly.
This way, the boring yet important stuff can be done by B without being drowned out by the divisive stuff in A, where people become polarized into thinking they just need to vote against particular issues and there's no real accountability for the rest of it.
You might think that state-level government provides more accountability by being smaller, and this is true in some way, but for the most part I see the exact same thing happening where state government elections are mostly not providing much accountability in a lot of government domains because they aren't contentious enough to be the deciding factors in elections. But they are still important nevertheless.
Doesn’t the system already work like this? The federal government is responsible for the things enumerated in the Constitution (accepting, as you say, that the scope of these powers has become wider in practice over time). The states are responsible for everything else. The “boring yet important” decisions are made by unelected bureaucrats rather than politicians.
This (to my understanding) was the purpose of the Senate originally. Appointed by the states (however they choose), for terms of 6 years. This means they represent the interest of the state as a whole, not of the individual voters.
Yeah. And I was about to say something to the effect that this plan was a bad idea, because then you end up with out-of-touch political elites in the Senate. But then I thought about the current makeup of the Senate...
Very interesting points regarding enforcement mechanism.
> I'm not sure what that would look like.
Just iterating a few possibilities:
1) Lifetime terms (like Roman senate or SCOTUS)
2) Term limits (like US Pres)
Honestly really naive about political theory and I wonder what the case is for each and what the process for changing would look like (guessing it is something congress would have to do, so hard to do).
And they have an incentive to angle for their next job. Like congress people walking into a lobbying job on the other side of the desk. Conflict of interest
Even if you could somehow “fix” the press, you’d still be left with the problem of individuals favoring those elements of the press that reinforce their existing beliefs. It’s not a lack of information that’s the problem; the problem is that people self-select news sources that reinforce their existing beliefs. In fact one could argue that the present abundance of “information” is a primary enabler of such bubbles.
>long ago I concluded that quite broadly, astoundingly, that the media doesn't know how to draw a graph!
I'm almost certain most people doing these graphics know exactly how to draw a graph, it's just that their audience has made it clear that they like incorrect graphs, so long as they reinforce existing beliefs.
Someone, somewhere, has almost certainly done an A/B test of "correct graph" versus "misleading graph" and learned that the latter produces more clicks, shares and revenue.
Sorry, I conflated my mention of SCOTUS existing "without any meaningful oversight" with your mention of "enforcement mechanism" - I missed that you were replying to someone who replied to me, not directly to me!
From my perspective, I would simply restate it as such:
"It's quite a damning indictment of US-style democracy that people distrust a larger pool of democratically elected officials over a small cabal of unelected lifetime appointees without any meaningful oversight"
You're framing it like Congress is elected by the people and are thus more worthy of their trust and the fact that doesn't happen is the damning part. But that's one-sided.
In reality there's a TON of special interests driving who gets in front of the population to even be elected to Congress and then what the agenda is for them after being elected. That erodes the public's trust, not to mention all the Congressional scandals over the years and the cutthroat tactics politicians will do to simply get re-elected.
So I see the same conclusion as you but in reverse.
> In reality there's a TON of special interests driving who gets in front of the population to even be elected to Congress and then what the agenda is for them after being elected.
There aren't really. In other countries yes, the party can kick you out if they don't like you. In the US the parties don't really exist, there are just people.
There have been tons of primary upsets just this week and none of them are because of "special interests". No elite wants Jamaal Bowman or Lauren Boebert elected, but they'll be on the ballot.
Afterwards the control is mostly because we don't fund elections properly, so everyone except AOC has to spend all day calling donors.
Precisely. Big donors provide money to get a return. In fact, its one of the best investments you can make.
"Corporations Lobbying Government Reap 76,000% Return On Investment. Between 2007 and 2012, 200 of America’s most politically active corporations spent a combined $5.8 billion on federal lobbying and campaign contributions." [1]
"How The Fortune 100 Turned $2 Billion in Lobbying Spend Into $400 Billion of Taxpayer Cash" [2]
I'll just disagree because I think your statement is highly inaccurate.
Regarding who gets on the ballot - yes there are a special interests that fund their candidate. We generally get whomever has a larger budget, not who the best candidate might be. Special interests also drive the ballot measures too.
> In the US the parties don't really exist, there are just people.
This makes no sense. Just recently (2016) the Dems showed clear bias against Bernie in the leaks. The Chair resigned. The party always has a platform, a brand, an agenda and big budgets. Also third parties have almost zero shot because the 2 major parties conspire to keep them out. It's not just "people". The Ds have their consistent supporters and the Rs have theirs. That includes corporations, special interest groups and more.
You have non-citizens driving these politicians. Big donors, some unions (like police), special interest groups. Health care, gun lobbyists, etc.
"Analyst James A. Thurber estimated that the actual number of working lobbyists was close to 100,000 and that the industry brings in $9 billion annually.[6] Wall Street spent a record $2 billion trying to influence the 2016 United States presidential election." [1]
"Who got special deals in the stimulus and why they got them. In the $2 trillion package, senators took care of their home state industries and pet projects." [2]
Casinos and airlines, among others, flexed their clout in that stimulus.
From the homepage today: "AP: Catholic Church lobbied for taxpayer funds, got $1.4B" [4]
Even more damning:
"We looked for legislation that was written by special interests. We found it in all 50 states. When legislators propose new laws, they don’t always write the bills themselves. Corporations, interest groups or their lobbyists often write fill-in-the-blank documents then shop them to state lawmakers."
"These copy-and-paste bills are commonly known as model legislation. More than 2,100 of these bills have been signed into law in the last eight years." [3]
> Regarding who gets on the ballot - yes there are a special interests that fund their candidate. We generally get whomever has a larger budget, not who the best candidate might be. Special interests also drive the ballot measures too.
I mean, evidence suggests this is not true because of the small-donor revolution. Like I said above, there were left and right primary upsets this week, and now senior House members will probably be replaced by a socialist high school teacher and a Qanon conspiracy theorist.
Meanwhile in the presidential race, Bernie raised the most with only small donors, two billionaires outspent everyone and failed, and Biden is winning despite hardly fundraising or advertising the whole primary.
The less popular congresspeople who don't have as many small donors do spend too much time calling for donations, so reform is still needed, but AOC and co really do seem to not have this problem.
> This makes no sense. Just recently (2016) the Dems showed clear bias against Bernie in the leaks. The Chair resigned. The party always has a platform, a brand, an agenda and big budgets.
And in 2020 because Bernie had such a strong youth vote (even though he ran a kind of bad campaign this time), Biden moved to the left after winning and put his people on the policy team. Probably the reason he didn't win is that old people who own homes are the most reliable voters - they're the real interest behind everything in the US.
> "Who got special deals in the stimulus and why they got them. In the $2 trillion package, senators took care of their home state industries and pet projects." [2]
I read this article and idk, seems fine to me. It would be quite bad if the airlines went out of business; they have some of the largest union contracts in the US and those would not survive bankruptcy.
Not just US-style. The House of Lords in the UK, a cabal of unelected lifetime appointees without any meaningful oversight, is consistently saner than its elected counterpart. Political parties, and being constantly afraid for one's job, seemingly have quite the detrimental effect.
The House of Lords sane? I admit I don't really follow it in any detail, but my impression from various reports was that it was a mess of scandals and corruption. Though I admit that being saner than the House of Commons sounds like a fairly low bar.
* Inherited peers who were supposed to be abolished or at least phased out but then weren't either, just statistically they'll tend to be older and have also inherited riches so while a few are knowledgeable and add value most aren't even decorative. Some of these are just a drain on the purse, they show up to collect "expenses" but don't actually do anything whatsoever. But others insist on having their say even if they nothing to offer.
* Politicians sent there. No better than they were when (or if, some had previously been in high ranking unelected positions) elected. Some of these serve as Ministers. Unlike the US the British cabinet must be selected from Parliament, all the Great Offices (most important) must by tradition comes from the Commons and thus elected MPs. But it's normal (and when your talent pool is a bit empty necessary) to have a bunch of Cabinet Ministers from the Lords. You can deliberately "elevate" people there because you want them for this purpose but as it's a lifetime deal they are still there until they die. The alternative, if someone seems electable, is to "parachute them in" to replace a retiring or dead MP from your party in a by-election, but this is a less certain way and usually much slower.
* Rich people who thought this sounded interesting. In principle you can't buy a place in the Lords. In practice if you are rich enough it's definitely possible though you may look very desperate in the process, particularly if you're in such a hurry that you must be lobby different groups as power shifts from one year to the next.
* Do Gooders. These people at least didn't really set out to be in the Lords and thus could be the voice of the ordinary person. Except they tend to be pretty exceptional - for example the 1980s children's TV presenter Floella Benjamin was made a Baroness, but that's after not only being probably one of the few black women lots of very white children in England saw (on TV) from one week to the next in their childhood but also a lifetime of charitable work.
The best of the Lords are when some expert (say, a person who worked as a General Practitioner seeing NHS patients for four decades before arriving in the Lords) tells the rest of the Lords how things are, and they realise they've just been schooled and vote accordingly. Lords are not required to have a party affiliation (technically neither are the Commons but you're basically useless without one there). So-called "Cross benchers" are common, and relatively powerful.
* A bunch of actual Bishops. They probably shouldn't be there these days, and they mostly stay out of the way because they know that too, but for now they still are. When the Lords was created it made sense to have Bishops. There also used to be Judges, but those are now across the road in the independent Supreme Court.
The Lords often end up doing a lot of the "good" stuff you see the Senate doing. Dragging powerful people in to explain themselves on camera; actually reading the paperwork that the Commons was in too much of a hurry to get out the door and noticing all the horrible technical mistakes. "Did you mean to miss six year olds out for some reason? Or is this age mismatch between paragraphs 16b and 16c a typo?". That sort of thing.
Yeah, but on the other hand, Congress voted to confirm those Supreme Court justices, so maybe I trust Congress more than I think!
Really what I meant was that I trust the supreme court more specifically on the question of whether a body might use a loophole to achieve a political end. I trust Congress less on that because they're a political body and so will naturally pursue political ends. The Supreme Court is at least nominally apolitical, so I trust them to have a bit more restraint on that particular front. The job of a Congressperson is to fight for what they believe should be the law, and I trust them to do that. But that also means I don't trust them to avoid using a loophole to win that fight.
The court is supposed to be exactly as you describe as a counterweight to legislators affected by vicissitudes of an electorate every 2 or 6 years. This is a feature, not a bug, of the American republic.
Public knowledge of doesn't define a cabal, only the secrecy of its decisions and who it benefits. The Supreme Court hears arguments with no recordings allowed, then makes its decisions in secret. What do they have to hide? And the only thing we ever get from the Court is the hundreds of pages in reasoning as to why they made the decision.
> The Supreme Court hears arguments with no recordings allowed
This could not be further from the truth. Complete audio recordings and transcripts dating back to 1955 are available on oyez.org, the more recent of which are likewise available on the Court's own website. During non-pandemic operation, the Court hearings are open to the public. For the cases argued during the pandemic shutdown, the hearings were, in fact, livestreamed.
You can hear the justices trying on different lines of reasoning for size during these arguments. So in a very real sense, we get to see a lot of their decision-making process.
Yes, they hold a private conference at which some discussion and the vote takes place. I wouldn't have it any other way. I don't want any of the justices to face social pressure in that moment.
> hundreds of pages in reasoning as to why they made the decision
This reads as an argument against the position that the Court is secretive.
The court is actually meant to be more trusted than congress. They don't pass laws, they just interpret them. That's why there's only 9 members and why supreme court appointments are taken so seriously.
There was a contentious period during the great depression where FDR threatened to pack the court. A serious infringement on what is supposed to be an impartial court.
> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.
That's an interesting point that has me thinking.
My feeling on this is that this is actually as designed. Congress' job is to pass laws after writing them in whatever way they deem prudent. But Congress doesn't really have an interest in the enforcement of those laws, up until the point their constituents come to them and say "hey, this law y'all passed, it isn't really working out... do something to make it better". And if there's a dispute as to the enforcement of those laws, an independent third party (the judiciary) mediates and decides, as seems appropriate. But, again, Congress doesn't get involved there, because it's the executive's job to actually apply the law.
If Congress does get a say in interpretation, that means they could change their minds on existing law as political winds change, without going through the proper process of passing new legislation. They shouldn't get to do that, especially not for laws that are already on the books. That would amount to the power to write ex post facto laws, which are considered such a bad idea that they're expressly forbidden by the US Constitution. I think the risk of passing a law that gets interpreted in a wildly different way than Congress' intent isn't that high, and in cases where it does happen, it's usually because culture has fundamentally changed over time. Congress' remedy of passing a new law, but one that will only cover future cases, is a fair trade off, I think. And in cases where there's a big screw-up, I'd expect it would get noticed fairly quickly once cases start hitting the courts, so Congress would have the opportunity to fix things, but only have a short window of time where unintended consequences happen.
It actually depends on the judge whether the lawmaker has a say in it. Traditionally, most judges looked to the legislature for this kind of thing, but that type of judge has been in rapid decline over the last few decades.
Let's take an example. Imagine a municipality wanted to pass an anti-electric scooter law. So they pass a law that bans "electric scooters, electric bicycles, and other such electric motor powered conveyances not generally used by handicapped people" from city sidewalks.
Then one day someone gets arrested for driving a mobility scooter on the sidewalk (like, the three-wheeled things in Wal-Mart, not a Bird). Is this covered by the law? On one hand, it explicitly bans "scooters" and this is a scooter. On the other hand, it says it doesn't target conveyances generally used by the handicapped.
So the court takes it up. Traditionally, a judge might look a the transcripts of the city council as evidence, and find that the line about handicapped vehicles was inserted by a city councilman who said he specifically wanted to allow mobility scooters. When he said this to the rest of the council, they unanimously agreed to add the exemption. So with this very clear evidence of legislative intent, the judge rules that mobility scooters are fine.
Another judge is a textualist. This is an increasingly popular way to look at laws in judicial circles right now. A textualist doesn't care about what the city council meant only what the law says. The text of the law is the text of the law, period.
Which sounds convincing, but the problem with that is two people can look at a law that's a bit vague or seems to conflict in two places, and come up with different readings. One textualist might say, sorry, mobility scooters are banned. Hell, the law is called the "Get Scooters Off Our Sidewalks Act." It's a dumb law, the judge says, but that's what it says.
Another textualist looks at the same law and says, of course it doesn't mean mobility scooters. Any idiot can see that!
The great thing about textualism to a judge is it basically boils down to "the law is what I think it is." And they can ignore the legislature's opinion. It gives judges much more power. Which is why it's popular with the kind of judges that like to overturn precedent like Scalia was.
I think there's a difference, though. I'm fine with (and agree with) the idea of your example of looking back at the city council transcripts and finding that the intent was obvious, and going with that. But I think at least some of this thread is about the idea that the legislature could have some sort of effective litigation or consultation power at the time a law is disputed.
At that point, it might be many years since the law was passed; its original authors could be retired or even dead. In that case, I don't think it's fair to allow the (current) legislative body a seat at the table, because they don't have the context to provide input on the original meaning, and would likely ignore that anyway and try to push their personal agenda.
> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.
Ah yes, rule by Humpty Dumpty, where you don't know what the words they used mean until they tell you, and words mean what they choose them to mean, neither more nor less.
If it were a law passed by the current congress, then maybe they would have some insight into their own intentions. But I don't see that the congress of 2020 is any better informed about what the congress of 1909 intended than you or I.
And even under the same congress the idea a law could have a secret meaning, passed by congress but defined only in their minds and unknowable to those under their rule, seems completely contrary to the idea of the rule of law.
Require simple easily parsable English and as little ambiguity as possible. and then well define every term and phrase. include commenting much like code in the law it self. Along with a version history and changelog for with reasons given for each change.
But we live a the world of common law tradition in the US. and law unfortunately or not does not behave like code.
To ruminate about this a bit, let's assume our Congress critters never change. So Congress passes law "X" during Congress "Y". It is now 50 years in the future. Who do we ask about the intent of the law? Do we ask the initiators, cosigners, committee, do we take a survey of the entire congress? I'm not trying to prove any point -- I'm genuinely interested in understanding how this could play out!
That's a good point. I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Like would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?
> I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity.
Congress as an institution is one continuously operating entity. But the important question legally is not what Congress is, but what the actual text of the statute passed by Congress and signed by the President is. That is the law. In other words, the Constitution does not say "whatever Congress says is the law". It lays out a specific process by which laws get passed, and says what the limitations of that process are (no ex post facto laws, which means Congress can't pass a law that says some previous law meant something different, and have that retroactively apply).
> would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?
No, but they could pass a new statute repealing the old one, or replacing it with new language, which would limit the time the old statute was in effect.
Congress has no ability to do this, period. If they screw up and pass something ambiguous that gets interpreted contrary to their desires, their only remedy is to pass a new law to fix the problems. That will only -- by design -- cover new cases, as they are constitutionally barred from passing legislation that takes retroactive effect.
Congress controls the reservation system. It's not real sovereignty. That's one of many reasons why there is such large debate over accepting federal recognition among Kanaka specifically. At that point the federal government controls the land, distributes it, decides who is and is not eligible to use the land. The government literally stole my friend's house just by revising the definition of "hawaiian" and telling her she was not eligible.
I'm not sure it matters. Whether Congress creates a new law overwriting the old, or passes one that tries to explain the old differently than it was executed on, if anyone doesn't object it's moot, and if anyone does, it will end up in the courts.
Particular to this case, Congress could do either, and either way the courts will have to decide whether it's fair to do. But, also particular to this case, Congress has done neither, so the courts were left with interpreting what Congress last decided.
I think they could, but even if it matched the SCoutUS decision it could only apply going forward or it would be unconstitutional via Section 9.3 on barring ex post facto laws. Now if Congress were to pass a law saying not that something 100 years ago meant XYZ but that as of the sign date the reservation no longer exists, that might pass 9.3 but if that bill hits the courts, lower courts would need to reference this case and probably conclude that it isn't a correct application and ax it.
I believe the Congress can simply enact a new law and say there is no such thing as a reservation and the law would he constitutional. That being said it would be similar with China's latest laws on HK if not worse.
No. Congress writes laws but they're supposed to be careful because the Supreme Court interprets.
They'll essentially have to create a new bill (or tack this on to something else going through) and go through the full process, i.e. get senate approval and the presidential signature.
> Is Congress empowered to clarify the meaning of its own past statements?
I don't think so. The statute is the actual text that is passed by both houses of Congress and signed by the President. Congress does not have the power to "interpret". It only has the power to pass a new statute, which can only be in effect as of the date of its passage (when the President signs it). Anything Congress says or does that does not follow the process given in the Constitution for passing a law is not a law and does not have the force of law.
But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? You need to consider this as something less brazen could be used to undermine congress' authority.
The judicial branch de facto has the most power of any branch in the US. The positions are not elected.
> But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress?
This would apply for whichever organisation is responsible for interpreting the existing law: there has to be some such organisation, with significant political power: especially where this power is centralised as in the US Supreme Court, rather than distributed.
Giving the executive this power, of unlimited re-interpretation the words of its previous incarnations, seems unwise and worse. Should congress be able to say about the negotations of its predecessors, "ah, in retrospect the previous session didn't mean it like that"?
I think you mean the legislative branch, since you say "Congress".
Although the way most "law" is made now, Congress delegates so much of the details to executive agencies that the executive arguably does have the de facto power to re-interpret the laws passed by Congress.
No, it doesn’t mean Congress has that power. That question hasn’t been decided. That question would be raised if congress attempts to change the law. Until then, a Congress is bound by the Court’s interpretation of what the law is/was/means. In short, Congress lack the authority to tell the courts what a prior law meant. If they’re not happy with the interpretation then. Ingress has to change the words of the statute / treaty.
If your interested in this kind of stuff, I highly recommend the podcast "What Trump Can Teach Us About Con Law". It's a podcast focused on constitution law rulings made by the supreme court. Often looking at a current court ruling, giving historical context with historical cases that laid down precedent. The political disdain for Trump comes through the hosts a little bit, but I think it's fairly neutral in it's evaluation of the cases, and very educational.
As I understand it:
The court's job is to interpret the law under specific circumstances.
As a stupid example, lets say that congress makes a law that you can't have those fake flamingos on your lawn, else you'll go to jail.
Fred ignores the law and puts some fake flamingos on their lawn. The executive branch enforces the laws, so the police arrest Fred. The courts rule that you violated the law, so to jail you go.
Bob is rebellious, so he paints his fake flamingos with orange spray paint. The police arrest Bob under that law, and in court he argues a core characteristic of Flamingos is that they're pink. So really he just has decorative orange birds in his lawn. If the court agrees with his argument, then he goes free.
This sets a precedent: The judicial branch didn't really make any laws here, but they kind of did. Courts don't have the power to make laws and decide on a case by case basis what's legal or not. So they take breaking precedent as a really, really big deal.
Now what congress can do is go back and make any birds in the form of flamingos illegal, no matter the color. Now that the law has changed, the courts will use a new interpretation, and Bob could now be arrested if he doesn't take down his "decorative orange birds".
However, he could make another argument in court: That he has the first amendment right to have orange flamingos because that's freedom of speech. The courts (possibly up to the supreme court) can rule that he is indeed protected by the first amendment, and nullify congress's law.
Of course, the constitution can be amended. So if people really hated fake lawn flamingos, they could go through that process and remove the first amendment's protection in this case. The bar for changing the constition is so high that it basically doesn't happen for anything political.
This is why the supreme court's rulings can be so politicized, against the court's wishes. The courts aren't political because they don't make laws, and are intended to be impartial interpreters of it. However a 5-4 split supreme court ruling today is basically law until there's a super-super-majority of people who want to change it.
Does anyone know the status of private land, not belonging to tribe members, now considered within the reservation? Can it be confiscated by the tribe?
I don't have background other than reading the background included in the decision, but it seems that in late 1800s/early 1900s, the land was allotted into parcels with individual ownership by members of the Creek Nation, and after a time that ownership became freely conveyable to any person.
Conveying property to a non-member does not remove land from a reservation, and this ruling does not void any conveyances. Whoever owns the land, owns the land. This ruling just makes it clear that all of the land within the treaty boundaries is still a reservation. I don't know all of the implications this will have, but I imagine a lot of things done by the state of Oklahoma assuming they were operating within the state of Oklahoma may need to be reviewed, given that they were operating within the Creek Nation.
For example, can the state allow formation of counties and cities within the Creek Nation? What about if said counties and cities were formed inclusive of only land owned by non-members of the Creek Nation?
Of course, the court mentioned that Congress is free to stop honoring the treaty, the only requirement is that it must do it explicitly.
Here is Washington state, sometimes tribal land is leased to non-natives for 99 years. Will definitely be interesting to see what happens, but it is quite possible that "property tax" could be moved over into a land leasing fee.
Around Lewiston, Idaho, the Nez Perce tribe has been buying up land as it comes onto the market. They're also doing land swaps with non-tribal land owners for other reasons - better wildlife acreage for better farming acreage, for instance.
Land that is privately owned will not be affected. The tribes often manage large amounts of reservation land in trusts, but fee simple/patent land (land privately owned outright) is protected by the constitutions of the states and federal government. Reservations are managed by the federal government via the Bureau of Indian Affairs. However, the tribes can establish many zoning rules, but they can be successfully challenged by private owners.
Here is a recent significant case about this matter where the courts sided with the non-Indian private land owner regarding a permit he received from the county even though he refused to also go through the Reservation's own permit process: https://caselaw.findlaw.com/us-9th-circuit/1651530.html
I have no idea, but a policy what would make sense to me would be to respect existing private property, though layer a "right of first refusal" for the indigenous nation to buy it back if it comes up for sale.
Why should the rights of stolen property be respected?
If I buy a TV that "fell off the truck", I wouldn't expect the manufacturer to buy it back from me. I wouldn't expect the manufacturer to buy it back from my grandkids either.
In many places, good faith sales are respected. Say someone bought a TV that "fell off a truck", but then after a year sells it to another person insisting it was legitimately acquired. The second buyer could be a legitimate owner given the they purchased the TV in good faith. On a side note, even if you did legitimately purchase the TV why would you expect the manufacturer to buy it back from you after it was used?
Regarding the realities of the situation in Oklahoma: as of this ruling non-natives on native land outnumber natives more than 4:1. If the government aimed to take or redistribute private property I would expect major unrest as a consequence.
All land is stolen property, there are very few direct inheritance lines going back for more than a few hundred years. There are none that go back thousands.
To give an example from the german jurisdiction, if you buy a TV that fell off the truck, you are in posession of the TV but do not have ownership of it (however, you are not required to actually give the TV back, you can do what want with it).
If you sell that TV to a third party, ownership passes to that third party and the original owner looses all property rights on it. One of the few examples where ownership can pass from a party to another without the first party's consent (in neither express or requirement).
It certainly makes sense for government/crown land to be given back to indigenous nations that hold title.
You could do the same thing I suggested albeit free for the Nation and the private landowner seller could be compensated by the government (which stole the land and resold it in the first place).
[Not US lawyer, but] an option open to some common law courts is leaving the legal owner in place while declaring that the thing owned is for the benefit of someone else (i.e. a beneficial owner).
Sometimes Supreme Court justices will surprise you. Justice Gorsuch is from the American West, and has proven to be a strong and consistent advocate for Native American rights in the Supreme Court, just as Justice Scalia was for the Fourth Amendment.
This comment just demonstrates your political biases, that's all. I don't know why you would be surprised that Gorsuch or Scalia would be in favor of freedoms for the people.
None of the other conservatives on the court agreed with the decision, so it's reasonable to be surprised. Alito is probably the current judge closest to Scalia and he dissented, so it's reasonable to be surprised. Why would you assume political bias?
Are all the other treaties going to be reviewed? What percentage of the USA would become reservation land if all the treaties were honored? If it was >50% would we still call them reservations?
It seems that what they've ruled is not that the treaty must be honored, but that only the federal government gets to decide not to honor it. Absent a specific decision to that effect, the treaty is still in force which limits the state's authority.
They're not saying the treaty must be honored. They're saying, unlike the many other treaties that were explicitly invalidated by laws passed, these ones were never really directly addressed so they must de facto still stand.
Also, no where near 50% of the US was ever granted in treaties. The vast majority was simply taken militarily without compromise.
I think this had more to do with the specifics of this specific land and how things played out legally. I'm not sure these circumstances apply anywhere else.
It's so weird how sentences so significant are often "protecting" the rights of terrible, terrible people:
> McGirt, 71, has served more than two decades in prison after being convicted [...] of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt [...] did not contest his guilt in the case
I'd be interested in learning who was involved in McGirt's proceedings and why. Did they mean to actually get this guy free (which, to be fair, at his age could be a charitable act in itself), or did they just think it was as good a chance as any to get this old treaty back on the table? There is a book and a film in that story.
Everyone deserves a vigorous legal defense, even the most reprehensible. If the accused or convicted are exempt from the rule of law, so are those who are accused or convicted by mistake, corruption, or abuse of power. Competent and committed legal defense for everyone defends the rule of law as it's applied to all of us.
> Competent and committed legal defense for everyone defends the rule of law
I agree wholeheartedly, but in practice this often doesn't happen, for a multitude of reasons. Legal representation costs money in most countries, and most lawyers don't particularly enjoy defending guilty people (obviously they do it anyway, but it's a bit like having to fix a '90s PHP website when your passion is Python 3...). Hence my curiosity about the backstory of this particular situation going on for so long (20 years and all the way to SCOTUS is a lot of work).
Definitely on the same page. I'm just glad there are dedicated people doing the hard work to hold government's actions under the light of their own rules. There's way too much room for improvement in the system(s).
Unlikely. I can’t think of any immediate reasons that federal courts would consider anything different to the states, where something so heinous as rape of a child is concerned.
You should look into Ernesto Miranda. He did horrible things but the Supreme Court said that he incriminated himself without knowing his rights. Because of this, his conviction was overturned and now cops have to read ‘Miranda’ rights to everyone they arrest.
> and now cops have to read ‘Miranda’ rights to everyone they arrest.
This is a common misconception, but the requirement is not quite that broad. The police are not obligated to read you your miranda rights immediately upon request—it's possible that they might not at any point read you your miranda rights.
What they cannot do is begin to question or interrogate you if they do not read you those rights. Any questions they ask without having read you those rights are at risk of being thrown out in court. Police will usually interrogate people after an arrest, so will often read them their miranda rights. (Edit: I also found out that any spontaneous statements you make are also fair game, if they didn't ask a question or prompt the statement)
But, it's not an obligation for every arrest. If you are arrested the police might not read you your miranda rights, and your rights probably haven't been violated if they don't question you.
If you are ever arrested, and interrogated, DO NOT TALK TO THE POLICE BEFORE YOU CONSULT YOUR LAWYER. Never, ever, talk to the police without speaking with a lawyer first. Here's an excellent video that explains the reasons why better than I can. I highly recommend this video: https://www.youtube.com/watch?v=d-7o9xYp7eE&t=4s
I do know about Miranda, I was tempted to mention him but I didn't want to end up implying this sort of sentence is always about bad guys - "often" was already a bit too strong for my taste.
The genesis of this case (it started with Murphy) is an amazing and wonderful story.
https://www.nytimes.com/2007/02/05/us/05bar.html
... and for more depth, check this excellent podcast series:
https://crooked.com/podcast-series/this-land/
Full disclosure -- I knew and worked with the attorney who discovered the original issue.
She was also a geologist, so she checked on the mineral rights to see if she could develop a jurisdiction claim.
What do you mean? Murphy is reported as a murder, whereas McGirt is a rape. Do you mean that McGirt's defense adopted the strategy Murphy introduced...?
Sorry if I wasn't clear, the initial jurisdiction (state vs federal) issue started with Murphy, a murder case. When the Murphy jurisdiction issue began to achieve significant legal traction, McGirt adopted the same strategy. The SCOTUS reviewed the Murphy case with only 8 Justices, didn't issue a decision (they probably voted 4:4 in conference), and used the McGirt case (with 9 Justices) to decide the jurisdiction issue.
The links in my comment provide a lot more info, it's a remarkable narrative. If the initial Murphy attorney had not first been a geologist (and then a mineral rights litigator) the whole situation probably would never have surfaced.
"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."
Courts need to apply the above to Article 1, Section 10 of the US Constitution, as well as the 10th and 2nd amendment.
The Constitution? No, it applies to states as well. The SC has also explicitly ruled that the Due Process clause of the 14th Amendment makes the Bill of Rights applicable to the states.
I follow court news pretty closely and was genuinely curious about this decision. Here is a brief description of what I understand the decision to mean (I am not an expert by any means). Under the federal "Major Crimes Act" (MCA) members of various Native American tribes are not subject to state prosecution for crimes committed in "Indian territory". This case was brought by McGirt, a member of the Creek Nation, who challenged his conviction based on the original treaty establishing the Creek reservation in eastern Oklahoma. The headline is a bit misleading: for purposes of the MCA, eastern OK is now considered a part of the Creek Nation. This means McGirt must be convicted with the reservation's justice system or in federal court. It also has the consequence (discussed extensively in Roberts' dissent) that many existing convictions could potentially be vacated. It will be interesting to see how the Creek nation works with Oklahoma to address these changes.
They guy has already served 20 years for a crime which he originally plead guilty for. He was convited for raping a four year old girl.
Why he is challenging it now and by contesting the court's authority rather than his own guilt? Does he expect to be found not guilty under the Cree Nation?
I understand the to the winner go the spoils...lose a war, regardless of who declared or started it and there goes your land. Human history...but I also think that treaties made at the time should be honored.
Apparently Congress can unilaterally change the treaties, as per another SCOTUS decision in https://www.oyez.org/cases/1900-1940/187us553
In a unanimous decision, the Court affirmed the Court of Appeals and upheld the Congressional action. The Court rejected the Indians' argument that Congress' action was a taking under the Due Process Clause of the Fifth Amendment. Justice Edward D. White reasoned that matters involving Indian lands were the sole jurisdiction of Congress. Congress therefore had the power to "abrogate the provisions of an Indian treaty," including the two-million acre change. Justice John M. Harlan concurred in the judgment.
I think treaties must be able to be reneged. And since Congress is signing the treaties, they should also have the power to renege.
Now there might be consequences for those actions (the counterparty might attack you, your allies may no longer trust you, etc) and those consequences are what keeps treaties stable.
The issue here is that the other party (Native Americans) has no power to enforce the treaty... But IMO, that is a public outrage issue and not a Constitutional issue.
“ McGirt, 71, has served more than two decades in prison after being convicted in 1997 in Wagoner County in eastern Oklahoma of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt, who did not contest his guilt in the case before the justices, had appealed a 2019 ruling by a state appeals court in favor of Oklahoma.”
Many reservations were affected by the allotment of 'excess land', and by tribal members selling their allotments (by wile or by intimidation), which led to the 'checkerboarding' of ownership. In recent decades, multiple tribes have had programs to recover their lands by purchase.
"The Dawes Act of 1887 created the most Native American checkerboarding. The act was intended to bolster self-sufficiency and systematically fracture native cultures, giving each individual between 40 acres (16 ha) and 160 acres (65 ha)." [0] [emphasis mine]
Highly recommend "The Five Civilized Tribes" by Grant Foreman to better understand the period, as well as "A Traveler in Indian Territory" to add some color. The OHS or Oklahoma Historical Society has a wealth of information, too.
Likely very little. There's about 20,000 people who report Native American as their ethnicity in Tulsa, and likely the number of tribal members is lower.
Nothing drastic. The real consequence is going to be to the state criminal justice system, where and who it applies to. Federal laws will still apply.
Here's most of it:
"Tribe members who live within the boundaries are now set to become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling. "
This just talks about the case with the rape, but there was also one with a murder that SCOTUS decided on the same day, and it was based on the same question of whether the reservation still exists:
Can somebody explain why is it that in "Sharp v. Murphy" only Thomas and Alito dissented, while in "McGirt v. Oklahoma" Roberts and Kavanaugh dissented, too?
My guess is that it's because it was a per curiam decision, meaning the majority felt that it didn't need a lot of elaboration. The reason for that is probably that givenMcGirt v. Oklahoma, Sharp v. Muphy was an obvious ruling.
In other words, Roberts and Kavanaugh disagreed with McGirt, but once McGirt was precedent, Sharp followed immediately. Thomas is known for thinking precedent doesn't matter and should therefore be (mostly) ignored, so his dissent is not surprising to me, though I didn't read it. Likewise, I didn't read Alito's, so I don't know what his reasoning was.
I suspect that Congress will consider repealing the Major Crimes Act with respect portions of Oklahoma. Congress has already done so for other reservations in several states. See 18 U.S.C. § 1162.
>"The decision means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city."
[...]
>"Unless changes are made, tribe members who live within the boundaries would now become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts would be able to challenge their convictions on jurisdictional grounds."
Was looking through the comments hoping I would find some discussion about how this would affect things like property rights and title insurance for affected land, but I didn't see anything. I realize what was at issue in this case was jurisdictional priority, but still, if the court is arguing half of Oklahoma is "tribal land", what does it mean for people who theoretically own parts of that land?
By the way, has anyone else noticed that Gorsuch takes a much more conversational writing tone in his opinions? He uses contractions like "can't", "doesn't", "it's", etc.
I'm am not sure yet whether I like it or will get used to it. But it is noticeably more informal than the other justices.
I realize this is a petty concern compared to the repeated and compounded violations of the rights of Native Americans, but I can't help wondering if the unsettled questions related to this ruling will make it impractical for Tesla to choose Tulsa as a factory site.
Anyone interested in historical Indian law cases that didn't set good precedent might be interested in reading In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, by Walter Echo-Hawk.
I don’t know how to feel about this. I would be nice if there was good warning.
Even worse is the “for purposes of the MCA” which means it may or not be state territory for other purposes.
We need to know who is in charge so they can be held accountable.
I’ve lived near plenty of reservations and they are very different places. Some have very good government services, and relations with non-tribal authorities. Others, not so much.
The idea of telling a tribal authority: “surprise you’re responsible for criminal laws of half a state” puts a ton of pressure on tribal authorities, and even more pressure on tribal members to hold them accountable.
I’m not for or against this decision. I’m saying the small print and details matter a lot. And “small print” is an area where tribal relations often go bad.
I hope this works out. It has great potential- for bad and good!
I think it means that the borders of Oklahoma get more complex when you consider the treaties that the US has entered into.
It's worth noting that according to the constitution, treaties have equal weight to the constitution. Therefore this ruling seems to me a way of saying "hey, maybe we should draw the maps according to the highest law in the land".
It has a bonus effect of signalling that the native people are actually people for both punishment AND benefit. Traditionally the US is bad at acknowledging the benefit side for folks with pigment (and doubling down on the punishment side, but that's a different discussion).
That's all nice and well, but what does it mean for the 1.8 million non-native-american people in that area, can one of them now rob another and not be guilty of a crime ? Or does it mean every robbery/arson/murder there can only be investigated by the FBI and charged in a federal court ?
Well, fortunately from what I gather, this only applies to tribal members on reservation land. So some of those 1.8 million will have it apply, and the rest wont. I mean it's right there in the article and the ruling... but you know, racist FUD is a better source I guess.
What racist FUD ? If the jurisdiction is territorial then how would state LEOs be able to enforce state laws even against non-tribe members on that territory, and if its limited to offences committed by tribe members there are potential victims both native and non-native Americans that are being harmed here - those who thought of themselves and their properties as being under protection of Oklahama state law (and paid taxes for it) and suddenly find it voided in some or all circumstances.
Unresolved. All they've really judged is the jurisdiction of the state government over tribal members in this area of the state. It does not affect non-tribal members. And it may also only apply to tribal members who have committed crimes against other tribal members.
So the scope is very limited at this point, but it does open the door for more interesting discussions.
If you believe the means weren't good, and that ends shouldn't justify means, then you accept it as part of functioning due process, similar to Miranda rights.
Seems like all they did was say the feds get to punish native americans rather than state officials. Where's the sovereignty?
Nearly all US presidents, including George Washington, led genocidal campaigns that burned down entire towns or otherwise committed crimes against humanity in the name of expanding the colonial lands of settlers.
> McGirt, 71, has served more than two decades in prison after being convicted in 1997 in Wagoner County in eastern Oklahoma of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt, who did not contest his guilt in the case before the justices, had appealed a 2019 ruling by a state appeals court in favor of Oklahoma.
The crime part seems largely insignificant to this ruling. It was mostly just a proxy for a larger question at hand of who should have handled his case.
It's unlikely this guy will suddenly go free given his admission of guilt.
I didn't read this article as saying that he had admitted guilt. I read it as saying that for purposes of this case, he didn't contest his guilt. That is, the basis of this case is not a claim that he is innocent; it's a claim that the wrong court convicted him.
If I missed something, feel free to point it out...
Honestly I'm surprised he's still alive, pop culture has lead me to believe that men who commit sexual crimes on children don't survive long in prison. This is also one of the most heinous acts imaginable, what gives?
Not necessarily the case. There are lit fees of course, and filing fees, discovery, etc. But once you get to the SCOTUS stage, assuming you're not retaining Gibson Dunn or Covington or someone's supreme court practice, there are many clinics with some star power that will do the case for free. Many top law schools have Supreme Court clinic and we sought out cases that we could bring to SCOTUS. We would have died to help take this case to SCOTUS, for example, completely free.
I would if I believed in the system. The system has become an oligarchy where the ruling class is not subject to rule of law. The system ignores blatant violation of law by making frivolous excuses. For example, how can we allow people to wait years for a trial when the constitution guarantees the right to a speedy trial?
The system is the people. It only exists because people say they can't be bothered. It's easier to convince yourself it won't work because the the alternative is trying, and that takes effort. But that indifference permits the system to continue, from the bottom up, allows it to grow cancerous and metastasize.
The world you allow to happen us the world you get. The blame falls on you this time. You get what you deserve if you let it.
It falls on the collective. I do my part - I vote, write my representatives, attend protests/counter-protests. The system will not change because it does not work the way it is supposed to work. Your statement saying that the system is the people is no longer true.
Maybe, maybe not. Plenty of activist judges out there, so you never know how stuff will go. SCOTUS also gets to select what they will look at, and there are plenty of topics that they have left as split circuit opinions (look at all the stuff under gun rights).
Just so you know, we are a republic. Not quite as easy as a democracy, especially since we are more of an oligarchy (the ruling class is not subject to the complete rule of law).
> Just so you know, we are a republic. Not quite as easy as a democracy,
That's very peculiar specially American internet thing to say. In 1787 the terminology was still unsettled but it's not so today. In both political science and in the common use outside the United States democracy and republic are not excluding each other.
United States is democracy (the source of power) and republic (the structure of the democracy as opposite of monarchy) and federation (structure of the government).
Most modern representative democracies are republics. The term republic can be used to any form of government in which the head of state is not a hereditary monarch. For example many communist states are Republics.
US is also first or one of the first liberal republics.
It's a democratic republic. This means that the individuals holding the positions of authority in the republic have more concentrated power than the citizens in the democracy. For example, SCOTUS has the power to turn down appeals, even when the circuit decisions are split. Logically, this means that they are denying the rights of one of those two (or more) plaintiffs.
It may be in common language, but it does make a difference in this specific situation because you are essentially suing the people who have been placed into power and those people could use their power to suppress your objections. Sometimes the judges can be a part of the complaint too, and they aren't even elected but rather appointed.
Even if I had standing, it would never make it up courts because the oligarchy (judges) decide whether it is worthy or not. Just look at all the split decisions that SCOTUS leaves in place by declining to hear. Logically one of those two plaintiffs is being screwed.
Worthyness only matters when the matter goes up to the SC. There are many layers of courts below them.
If the SC decides the matter is not worthy, that doesn't mean that no decision is reached - it just means that the decision of the lower court is binding.
Yes, but it may be based on a flawed precedent that only the supreme court can overturn. There are also many circuit decisions which conflict with each other that SCOTUS has refused to address. In these instances the court is allowing one of those two plaintiffs to be screwed.
No, it's split decisions from two separate circuit courts on the same issue with conflicting results. Basically one plaintiff from TX would be told 'yes, you have this right' while a plaintiff from NY would be told 'no, you dont have this right'.
"We reject that thinking. If Congress wishes to withdraw its promises, it must say so."
As with so many controversial court rulings like the ACA mandate case, our courts keep getting put into the decision because of the massive failure that congress is. Congress should either fulfill the promise or not, or whatever. instead the judicial bodies end up making legal judgements with big ramifcations that largely should be left to the legislative body.
This is a conclusion I'm coming to more and more. It's easy to blame Presidential overreach or Supreme Court overreach, but the Congress seems to be steadily abdicating responsibility while still managing to get very little of substance accomplished.
They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness. In some ways we're probably fortunate that the other two branches have picked up the slack, as much as we (myself included) like to complain about it.
Madison thought it highly unlikely that people who held immense power would not choose to use it. The Framers' model (and fear) was Rome, and much of our Constitutional design is intended to prevent an American Caesar. (One of the reasons Washington was universally revered was because he acted so contrary to what everyone thought was human nature.)
"Ambition must be made to counteract ambition" he tells us in Federalist 10. The idea of a legislator who would derive self-worth not from actually doing things (good or bad) but rather by approbation from their faction solely for making the other side mad was not something they thought possible.
Ironic, given that these same tendencies were very present around the fall of the Roman republic. Rome had a similar gridlock of opposing positions of power, and similarly fell into a state where little could be accomplished due to the regular undermining and vetoing.
Edit: Since most replies are talking about the empire, I just want to reiterate that my comment was regarding the end of the Republic, which imo is a more analogous situation to modern USA. (Not to say it's identical, of course!)
Rome also had decades of civil war where a majority of the ruling class was either a) killed in said wars or b) killed after the wars in proscriptions by the victor. The only people left in the Senate were either weak-willed or allied to the "winner". The proscriptions by Marc Antony basically wiped out whatever resistance was left after the death of Julius Caesar. Couple this with the fact that the populace by-and-large just wanted peace, you can see why Octavian was able to rise.
In relation to the parent point, Octavian also went through great lengths to _appear_ to be acting at the will of the Senate. He was "first citizen" and all rights and protections granted to him here "granted" by the Senate. Whether this was under duress or just abdication for the sake of peace is debated.
There are some parallels between the current situation and the fall of the Republic, but there are for more differences. We are more at the Gracchi stage than the Caesar stage at this point. So there is hope!
America was thought to be an exception because both parties used to be more centrist with wide overlap, but it seems they've become increasingly polarized, which makes the whole system less stable.
I wanted to provide a little near-contenporary source material to back up this answer which ought to be read by everyone. From Suetonius' The Twelve Caesars:
"The violent death of Caligula [the previous emperor] afforded the Romans a fresh opportunity to have asserted the liberty of their country; but the conspirators had concerted no plan, by which they should proceed upon the assassination of that tyrant; and the indecision of the senate, in a debate of two days, on so sudden an emergency, gave time to the caprice of the soldiers to interpose in the settlement of the government.
By an accident the most fortuitous, a man devoid of all pretensions to personal merit, so weak in understanding as to be the common sport of the emperor’s household, and an object of contempt even to his own kindred; this man, in the hour of military insolence, was nominated by the soldiers as successor to the Roman throne."
Ironically, the Gauls who would sack Rome multiple times were more “Roman” than the inhabitants of Rome proper. The Gauls had strong chieftains and military generals, whereas Rome had weak ones.
Well, Congress is only able to abdicate their responsibility because we have departed from our "Constitutional design." All 3 branches now write law, not to mention other unelected government agencies, so Congress is now free to avoid doing their job and point the finger at someone else instead.
Not to mention our new 4th branch of government: bureaucracy. They do tremendous work, but I don't think they should have the power to draft regulations that have the force of law.
Despite their fashionable references to Rome, I think the English Civil War was a stronger influence on their thinking - a king's attempt to establish untrammeled authority leading to a parliamentary backlash that was equally untrammeled.
The US Congress has incredibly low approval ratings, as a whole. But each individual congressperson enjoys surprisingly high approval from their constituents. I guess Madison just didn't see that those two things could happen at the same time.
It was a good fear. He missed the possibility that congress could choose to not pass laws or enter a revolving industry door where they consult on laws they did.
While in effect it is abdicating, in reality, Congress is spinlocked by indecision.
There are deep divides between the branches of the electorate that have brought the representatives to office, as the United States faces a number of divisive issues. Those divides, and a preference for combat over compromise, leave us deadlocked. The center is there for the first party that chooses to leave its entrenchement.
When Congress reaches approximate agreement on an issue, particularly an emerging one, it can move fast. See the passage of the PATRIOT Act or the recent move to spend more than $1,000,000,000,000 on COVID-19 economic relief.
> The center is there for the first party that chooses to leave its entrenchment.
Unfortunately, that just isn't so. The evidence of the last three decades has been that every time the Democrats compromised a little, the Republicans just moved further to the right and re-entrenched themselves.
The republicans effectively demonised the ACA, even though it was basically the compromise position (as it was quite similar to what Mitt Romney did in Massachusetts). I would love some examples of democrats doing that.
Would same-sex civil unions count? Or women and gay people in the military? There are a ton of social issues that society has moved dramatically leftward on; the fact that I agree with them doesn't mean I'm unable to step outside of my biases and understand why a conservative could just as easily make the claim that the left is intransigent.
But we are not seeing further-to-the-left arguments on marriage rights. It's not like now that same-sex people can marry, people are pushing for plural or animal marriage.
Not related to marriage rights but it’s pretty obvious that trans rights is the next big issue that’s being pushed nowadays. There was also that whole forcing businesses to make cakes for gay weddings thing (don’t remember the details but it was a whole controversy about rights of businesses to refuse service vs constraints due to discrimination laws).
There is a movement for polyamorous marriage. A city in Massachusetts just recognized that arrangement for domestic partnerships. I think, like with same-sex marriage, most people would struggle to think of a reason to be against it that isn't rooted in appeals to tradition.
Note that the dissent in Obergefell (the case ruling that states had to recognize gay marriage) actually explicitly said "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."
The above comments are about people in Congress constantly pushing farther right. Congress could've legalized those at any time but didn't. Courts did.
Gun control and the "Gun Show loophole" comes to mind. Avoiding background checks for private transfer was the compromise position for requiring background checks for sales from FFLs.
Very much this. There hasn't been a gun rights "compromise" (or proposal for one) where democrats gave anything back in congress in ... well never. It's always more restrictions of existing rights.
Compromise implies both sides give and take, and in the case of gun rights, democrats have only taken.
I think the problem here is that the left has learned that compromise positions leave gaping holes in the legal framework to the point that the laws that do get passed become largely useless.
Sure, we can compromise on the background check requirements such that certain types of sales don't require background checks... well, ok, but then that just means that the people who would fail a background check will buy privately or from a gun show, and their access isn't really diminished, so the so-called "compromise" was little better than not passing a law at all.
It still boggles my mind that if I want to drive a car, I have to be tested and licensed, and carry insurance, but if I want to buy a device specifically designed to kill, I can just walk into a store, and after any weak legally-mandated waiting period, walk out with a gun I don't even know how to use, let alone use safely.
And all this because it has to do with an amendment to the constitution that was never intended to mean what people have since "decided" it means. The current legal interpretation of 2A only exists because of lobbying groups like the NRA.
If you read the Heller decision, they go back to original intent and the common meaning of the words at the time the 2nd was ratified. This idea that we've only had gun rights since Heller is itself a modern invention.
On your automotive analogy - anyone can own a car. I can gift one to my 5 year old and so long as it stays home, he's 100% legal. Driving it is a privilege that's regulated. Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
The "gun show loophole" is nonsense. Very few guns are transferred that way, and essentially zero "crime guns" were purchased this way. They were all either acquired via straw purchases (already highly illegal) or completely above board in a state with lax reporting requirements to the background check system. Ironically, the gun industry and gun community are, generally, huge supporters of addressing both of those issues.
> I can gift one to my 5 year old and so long as it stays home, he's 100% legal.
Not everywhere; in some (many?) states, even cars intended to sit idle on private property must be registered (usually for a lower fee), and you can't put a 5 year old's name on the registration. Regardless, giving your 5 year old a car and saying he "owns" it is laughable.
Your analogy doesn't really make sense, either. You could give your 5 year old a gun to keep in his room, and while that's a terrible idea, it'd be difficult for you to get in trouble for it. Either way, your 5 year old isn't gonna be able to walk into a car dealership and buy a car any more than he could walk into a gun store and buy a gun.
> Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
No state regulates guns as I wish. I won't elaborate much because I doubt we're going to find any form of agreement there. I will say that I support the repeal of 2A (not like that will ever happen), and at the very least I'd like the states to have the power to regulate firearms in whatever ways they see fit.
> This idea that we've only had gun rights since Heller is itself a modern invention.
I don't think anyone's claiming that we didn't have gun rights before 2008. But Heller (and other cases over the last 80? years or so) have narrowed the kinds of restrictions that are considered constitutional. Heller finally taking the position that 2A protects gun ownership regardless of participation in a militia was a big deal as well.
> well, ok, but then that just means that the people who would fail a background check will buy privately or from a gun show, and their access isn't really diminished, so the so-called "compromise" was little better than not passing a law at all.
This is a gross misunderstanding of the law. If you run a firearms business, you must have an FFL. If you have an FFL your must perform background checks for transfers regardless of where they occur.
Private party transfers are only from one non-dealer to another and must be infrequent / not a source of income for you. Purchasing a gun on behalf of another (such as to avoid checks) is called a straw purchase and is illegal regardless.
>Very much this. There hasn't been a gun rights "compromise" (or proposal for one) where democrats gave anything back in congress in ... well never. It's always more restrictions of existing rights.
This is actually a very good point. I wonder what the response would be to a Democrat-authored bill that (say) demanded universal background checks and proof of a firearms safety course completion and mandatory insurance like a driver's license that ALSO banned any restrictions on large magazine size and removed any restrictions on fully-automatic weapons, or something similar.
Seeing how compromise didn't work and the history of abuse some of the restrictions you gave have seen (i.e. poor availability of classes, failure to issue in reasonable time, concerns about abuse of psychiatric diagnoses, or attaching a monetary cost to the exercise of a right) many will no longer settle for anything but the repeal of all restrictions on the right to bear arms.
Imagine carrying free speech insurance.
Most accept drivers licenses however the constitution grants the absolute right to travel in the same way it grants the right to speech. This has actually been used by the ACLU in an attempt to challenge no-fly lists, and hopefully drivers licenses will also be challenged.
I know a lot of liberal gun owning people. I have a hunch this is like environmental issues. I think many conservative want to support environmental issues but since it clashes with more government control, it get's thrown under the bus.
> I know a lot of liberal gun owning people. I have a hunch this is like environmental issues. I think many conservative want to support environmental issues but since it clashes with more government control, it get's thrown under the bus.
The American political system doesn't support a la carte ordering, it only has prix fixe options. If your priority is some main course, you might not be able to get the side you want with it.
America has by far the most relaxed gun laws in the western world. Most other countries simply ban ownership of most guns outright.
The current situation IS the compromise. And it's pretty stupid I agree. But, there are no states that ban guns and plenty of them want to.
There is no hyper political, highly targeted, industry funded political action group just like the NRA on the side of banning guns.
After every mass shooting in this country democrats have to fight tooth and nail to get even a tiny consideration of regulation in response to human tragedy. And even that usually fails. In what world is that rational? In what world is that not compromise from the left?
Our country was founded with gun rights, and 100 years ago gun ownership was nearly unrestricted. Our country is unique in the fact that we have a constitutional right to arms - most don't.
At every step, law-abiding gun owners have given up rights and gotten nothing in return.
The great irony, to me, is that almost all of the "successful" gun/weapon control campaigns have been rooted in nearly blatant racism. Yet repealing those laws born of racism isn't something the left is willing to entertain.
No, it wasn't. The current legal interpretation that most gun-rights advocates swear by has existed for a relatively short time, after the lobbying efforts of groups like the NRA.
According to this article[0], the early US adopted numerous restrictions on guns based on preexisting English common law, and during the revolutionary war even forbid anyone from owning a firearm without first swearing a loyalty oath to the government[1].
And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
>According to this article[0], the early US adopted numerous restrictions on guns based on preexisting English common law, and during the revolutionary war even forbid anyone from owning a firearm without first swearing a loyalty oath to the government
Which is not what I was talking about. I was talking about gun types not regulations to get a gun, store a gun, registration or anything like that.
>And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
I wasn't clear. I meant any free adult not anybody.
Some slaves were slave drivers. White slave drivers had access to guns. It is not clear if slave drivers who were slaves had guns but it is possible. This of course would be an exception if it did happen.
The average slave of course would not own a gun.
>It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
Again, that is not what I was arguing. There doesn't appear to be any restriction on the type of gun you could own. There were other restrictions like not shooting cannons inside of city limits for example. People were allowed to own cannons though.
No, that's not what I was saying, but it's not exactly false, either, now that you've brought it up. George Washington himself went on several forced disarming campaigns in the first few years of the US (notably, before 2A was ratified). It's a persistent myth that gun ownership was unfettered and unregulated before the 1900s.
> There is no hyper political, highly targeted, industry funded political action group just like the NRA on the side of banning guns.
You may be unaware because this isn't an important issue to you but just off the top of my head the Brady Campaign, Everytown for Gun Safety and the Coalition to Stop Gun Violence all have major financial backing and support firearm bans in one form or another.
Plenty of states do effectively ban guns. Like states that don't let you leave home with a gun except to very narrowly defined shooting ranges. Or states that require guns to be secured, even overnight when you're in your own home. Hard to use it for anything in those cases, let alone self-defense.
Putting aside a lot of nuance and complication, both parties have an 'ideal state' in mind. They will make decisions that move the law closer to that ideal state. It'll be happening all the time, neither of them think the ideal state is compromising with the other.
And if you want an example of the Democrats doing something similar, maybe the immigration situation? It is also nuanced and complicated, but the appearance isn't that the Democrats are consistently working to uphold the consensus position as found in the law. There is a lot of demonising.
People can think whatever they, that doesn’t make it real. Your argument is a false equivalence. Even if both sides do it, it’s not of the same proportion and that matters.
Objectively, Republicans are not compromising, they are often explicit that they are waging a scorched earth zero compromise negotiating style. The heritage foundation wrote the template for the ACA in the 70s as an alternative to Medicare expansion. It was then Bob Dole’s plan when he ran against Bill Clinton, and was Dole’s alternative to Clinton’s health plan. Then Romney passed it in Massachusetts. But when Obama consciously tries to compromise and meet in the middle instead of participating they say it’s communism. They spent a decade to repeal a plan they invented.
Similar with global warming. Cap and trade was a republican idea. Where have they compromised? Instead they are demonizing all of science to shift the conversation to absurdity.
How about the 2008 stimulus. Obama has to fight tooth an nail for 800 billion even though economists say the output gap is $1.5 Trillion and the stimulus needs to be bigger. But Obama agrees thinking when it’s clear more is needed more will be available. He underestimated how much Mitch meant it when he said “the single objective is to make Obama a one term president” and was willing to let the economy struggle if needed. Then Trump gets $3 trillion with Democrats compromising all over the place.
But yet again, while both sides may feel this way, when measured objectively (as has been done) it's shown that almost all of the sudden polarization of the past 30 years has come from the right continuously moving further right.
I have seen this claim about the left at least as much as about the right. I would definitely appreciate someone who could bring facts to the discussion.
And a one sided list of things that party X did is just emotion.
(Also, a good rule in honest debate is to never argue unless you have at least two advantages to the opposing position. Such that I hate Windows, but I wish Linux had their GUI... This helps bridge the "us" and "them", and gets to a much more accurate result)
There's a chart I saw once, that's I can't find now. Hopefully someone else can, with the description below.
It seems that the vast majority of comparisons of left/right in the US are comparing either how many people identify with one side, or how each side views the other. This particular chart however was part of an article that tried to enumerate the actual political stances of major parties (in the US, and I think it included UK ones as a reference point, but not sure about that - may have been a separate part in the same article) and show how they changed over time.
The structure of this chart was a vertical line graph, where "now" was at the top and the past was at the bottom. I think it went back to around 2000, maybe a little earlier. Being vertical it was rather distinctive and I'm hoping this jogs someone's memory so it can be found again.
On it, over the past 10 years or so, the Republican party has only shifted slightly to the right, while the Democratic party veered way way way to the left.
Look at the number of filibusters executed by party over time.
The republicans have led for decades. They are responsible for each vast increase, especially during Obama. Always pushing it further and further toward nothing getting done in the name of never compromising.
Have they really moved farther right, or do they seem farther to the right since a lot of politics have moved to the left over that time? See same sex marriage, for example.
> According to the system, both parties have been on a trajectory toward more “extreme” positions since roughly 1970, the natural result of which is more polarization. However, the parties do not quite share equal responsibility for this: Republicans have moved about twice as much to the right as Democrats have to the left. Also, while the Democrats’ leftward shift was essentially a one-off event, the result of many moderate, Southern Democrats losing their seats in the early 1990s, the Republicans’ rightward transition has been continuous and steady.
Although to caution too-credulous interpretation, the DW-NOMINATE scores are derived from roll-call votes, so they may be biased by the issues brought up for such votes.
The opportunity probably isn't for an existing political party to move to the center - it's for a third party to come up the center, capitalize on the two major parties being so obsessed with making the other lose that they can't articulate a clear reason why they should win, and capture the voters who have become cynical about politics altogether.
Although ranked-choice voting (more precisely, instant-runoff voting) is a step in the right direction, it will not solve this problem. Yes, it lets voters safely express maximum support for a third-party candidate that’s guaranteed to lose. But as soon as that candidate gains enough support to become a viable threat to the two major parties, the game theory doesn’t work out so nicely.
Approval voting is a much simpler system that gives better results.
Interesting info! I suppose I could have said what I really intended to say: "We'll never have more than two parties in the FPTP system, so we'll need to change that first."
I agree completely. I really think the current state of affairs is the only likely conclusion of a winner takes all system in a society with instant, nationwide communication.
Not voting for someone who can win is "wasting your vote" so people won't do that. Which, essentially, locks us into two parties. When the two parties know they are safe from a third, they're naturally going to be driven by the extremes and not the middle ground, because the national, fast-paced media lives off controversy between the extremes, which just ratchets it up farther.
IMO, the fact that we had political parties rise and fall (via third parties) in the past was more a historical artifact of not having a national, near-instant media to make sure things were polarized the same way nationally, nor could they let you know that a third party vote was a waste. In a sense it was more like local politics today, in that things weren't uniformly hyper-partisan, and a third party could make headway regionally and become a real contender before the rest of the country knew they were a wasted vote.
If there is something that both the left and right leadership can agree on, it is that there will never be ranked choice voting. It benefits the Democrats and Republicans (the leadership) to have a 2 party system. So I don't see either of them trying to change that.
I wonder if the voters would have a lasting appeal for this, though. While I would appreciate more consensus-building and agreement in our government, there are quite a few left-leaning positions that I will just not budge on, and consider the centrist approach on them to be just tolerance of and pandering to bigots. Not sure how many share that attitude, but I bet there are quite a few on both sides of the aisle.
It seems like a good design to me. We don't want a congress that always votes along party lines, and if there is not a strong consensus, then keeping the status-quo is often not the worst thing.
Especially since law-makers have a strong incentive to further their own careers by introducing changes. This system forces law-makers to work harder to get change passed, it often must be a change that benefits more than just a simple majority.
"Keeping the status quo" sometimes is the worst thing, because it leads to tyranny of the majority. The majority has configured the laws to its benefit, and as the margin of its majority reduces, fights harder and harder to prevent minorities from seeking justice through the legislature.
It doesn't even require a majority: we've so predisposed the system to inaction that a small number of people can block it. To pass legislation you need the consent of the House and the President and a supermajority of the Senate. Any of those can stop a law in its tracks.
It's easy to say that we should favor not changing things, and there are definitely ways that we should force people to seek consensus. But when the current setup works against you, you can suffer for decades without getting relief, and it's not a good look to just shrug our shoulders and say, "Well, it's working for me".
The only thing worse than the tyranny of the majority is the tyranny of a minority (oligarchy).
Generally though, I agree with you that we should all strive to vote for the greater good. We should fight against injustices even if they do not directly affect us.
I think that many of the issues come down to differing views of what more just: IE employment opportunities for a citizen vs. an immigrant, rights of a criminal vs. a victim, autonomy over one's body vs. a potential life. Those don't have easy answers.
The design incorporates the idea that we're going to behave with some sense of compassion and justice. There are, famously, four boxes of liberty[1], and if the majority uses the first three to the detriment of the minority, we'll find ourselves the target of the fourth.
So out of simple self interest it behooves us not to just say "the status quo should be hard to change". When we see an injustice, we should fight to change it, even when it's not to our own immediate advantage.
The Federalist Papers #10 [1] deals with this. The original design was made very different and was intended to blunt the force of tyranny by majority by splitting power centers. One major issue is that over the centuries, the system was changed to be like what Fed #10 warned about.
It is an amazing read, but the things that stand out to me are these.
1. Have diffuse/decentralized power centers to make it harder for special interest groups to gain power and control things. The last two centuries have had a tendency to move power from states to federal government; and from Congress to the President. So the balance of power has centralized.
2. Avoid a direct democracy because they tend to get subjected to demagogues. The direct election of senators was a major turning point in helping centralize power; since states became more and more irrelevant.
I am always impressed by how much Madison understood the nuances of political power and tyranny.
Congress should be ineffective the problem is the scope of their activity has grown so much... The US shouldn't have a strong federal government it was supposed to be executing enumerated powers, and granted those powers through amendments. We've given up on constitutional authority a long time ago - there's a reason prohibition required an amendment and the war on drugs didn't.
Prohibition didn’t require a constitutional amendment. The proponents wanted an amendment to make it more difficult for a future congress to reverse the decision. If alcohol was prohibited through legislative action, it could have also been restored just as easily. In retrospect, this strategy turned out to be pretty effective.
Sure it did. In the 1910s Congress' Commerce Clause powers wouldn't have encompassed purely intrastate commercial activity. The legal landscape was already changing, slowly, but in no way would a national law have been effective without a constitutional amendment. Heck, at that time the Supreme Court interpreted the ratified Prohibition Amendment not to apply to homemade liquor for personal consumption, despite the plain text of the amendment.[1] Compare that to Gonzales v. Raich (2005) where the Supreme Court permitted Congress to regulate, under Commerce Clause powers alone, homegrown marijuana for purely personal use.
Perhaps the line of reasoning you're alluding to is that, at the time, state and local prohibition laws were already so common that the Prohibition Amendment shouldn't have changed the effective legality of alcohol consumption for most Americans. But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
[1] I'm still looking for the citation, but IIRC the reasoning was that the court wouldn't interpret the amendment to reach private, non-commercial activity unless it was explicit on that point; it wasn't just a cop-out textualist dance with the word "manufacture".
That is a far more well thought out argument than mine.
> But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
But overall yes — this what what I was referring to. Even if I wasn’t clear on the state vs federal level, the overall argument that I’ve seen is that the proponents of prohibition wanted to increase the difficulty of rolling back prohibition. And if alcohol was banned through legislation, it would just take a single election (state or federal, depending on the law) to change things back.
> In retrospect, this strategy turned out to be pretty effective.
You think so? It lasted all of fourteen years and did very little to stop the flow of alcohol throughout the country. And I believe it's the only amendment to have been repealed.
If it were a legislative action, rather than an amendment, I suspect it would have been more effective in the long term since legislation is usually more thorough and detailed than constitutional amendments.
I think their referring to the 2/3 of the house and senate that voted for it and 3/4 of states ratified it.
Weather or not the law had the desired effect relative to hypothetical legislative action is an open debate but undoubtedly could be overturned with less votes.
It is their principle, they just prefer to shrink the parts of government they disagree with ideologically. Which is why we have the biggest, most powerful and most expensive military in human history but our healthcare and education systems are a joke.
That seems like an odd metric. Why should education spending scale with the size of the economy?
Regardless, you could also argue that -- similar to healthcare -- dollars in is not a great metric anyway. Are we getting the best outcomes for that money? We certainly aren't for healthcare, and my (admittedly incomplete) reading on this topic is that our K-12 education system is nothing to be particularly proud of.
This is a great example of the flaw of using averages in an unbalanced society. Some wealthy districts spend far above the OECD average, while many poor districts are grossly under-funded (and under-achieving).
Obviously high-cost states spend more than low-cost states. But their education spending is consistent with the size of their economies. Mississippi has a GSP per capita of $35,000 and spends $8,700 per student. Italy, Spain, and New Zealand have similar GDP per capita and also spend a similar amount per student.
I think it is in large part due bad spending priorities at schools. Several years ago I lived small rural community and the school district passed a heavy levee on homes to pay for a new football field and a far larger than needed grandstand/bleachers and field lighting. Turns out the high schools roof was needing replaced at the same time but they purposefully waited until they got the levy for the field through first to put forward the one to repair the school because they figured that they could get them both that way but could not get the field after replacing the roof.
The highest paid government employees in most states are football coaches for the state schools? Why? I thought schools job were to educate not cause brain injuries in their students? Why pay millions of tax payer dollars earmarked for education for someone to coach a game that injures the mental capacity of the students. Why not hire more professors with that money? why not pay teachers more or fix facilities buy material and equipment make teachers not have to spend their own money on basic supplies?
> The highest paid government employees in most states are football coaches for the state schools? Why? I thought schools job were to educate not cause brain injuries in their students? Why pay millions of tax payer dollars earmarked for education for someone to coach a game that injures the mental capacity of the students. Why not hire more professors with that money? why not pay teachers more or fix facilities buy material and equipment make teachers not have to spend their own money on basic supplies?
I used to feel this way too, but my understanding is that investing in sports programs tends to _bring in_ more money for universities, on net. I don't think it's accurate to consider it as trading off against academic investment.
At any rate, this is a bit tangential: American universities are the best in the world, so the conversation is more about high school and lower, where our educational outcomes lag by some metrics.
This is high school. They don't need to attract students, they need to educate the ones they have. Considering the risks football should not be in public schools at all. Sure at university it pays for itself but that is a different level with different conditions
I would say that the discourse is insufficently precise in accounting for variables as well. One complication found is also that the better off need less funding in the first place. Which makes some sense upon reflection - parents who are illiterate in the local language for whatever reason would be incapable of providing "baseline" assistance in knowledge transmission. Asking for 100% equal outcomes would clearly result in a procrustean bed but counterintuitively equal opportunity does not require equal input costs as convenient as it would be.
This awkwardly also highlights ignored externalities and implied awkward questions in ways essentially nobody is comfortable is with the implications of especially regarding free choice and perverse incentives where the "best" option still has messed up implications.
Strictly speaking what you're saying is true, but it ignores other realities of the association of wealth and education outcomes which are implied when folks are talking about these subjects.
One of the best places in America to get education happens to be free: the public school system of Lexington [1]. But you'd be hard-pressed to get a house there for less than a million. Secondly, every other student in Lexington happens to have private instructors on the side. It's funny, if you randomly walk into a Starbucks in Lexington, chances are very highly you'll see an elder person with a young person training for standardized exams.
The thread is about government (specifically, the congressional gop) underfunding education spending. The effects of parental wealth on educational outcomes is a complete non sequitur.
Sure, but that is not evidence that republicans have shrunk educational spending.
Instead, it is evidence that there is bipartisan support for educational spending, but with uneven beneficiaries.
This is a different issue and the solutions to the first problem are not the solutions to the second.
Last, this isn't really a partisan federal issue. Most school spending is determined the state or local level and the same inequality is present in predominantly red and blue states.
> it is evidence that there is bipartisan support for educational spending,
That does not correspond with the rhetoric that I've seen. Republicans are adamantly opposed to increasing spending for public education, and have systematically cut support for higher education spending in state budgets. Instead, I regularly see the meme that there's tons of fat in the education system; that we spend just as much as everyone else, but have worse outcomes. The fault is in the schools for not spending what they have wisely enough.
And I think that the funding story is flatly untrue. Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
> And I think that the funding story is flatly untrue. Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
This is patently false. Local governments provide 45% of K-12 educational spending. State governments spend 47% and the federal government spends 8%: https://www.urban.org/sites/default/files/styles/optimized_d.... State and federal funding go overwhelmingly to erasing the disparities in local funding.
Look at the funding numbers in your own state. Here is mine: https://i2.wp.com/conduitstreet.mdcounties.org/wp-content/up.... The funding differences are based on cost of living, not local income. My solidly middle/upper middle class county has spending near the bottom because it’s pretty rural. Baltimore which is very poor has among the highest. Montgomery and Prince George’s, which are opposite sides of the income spectrum, get almost the same amount of funding. You can also see in that chart how differences in local funding are more than compensated for by differences in state funding.
> State and federal funding go overwhelmingly to erasing the disparities in local funding.
And it isn't enough. Not even close.
Boulder Valley: 13.8k/student. Pueblo: 10.5k/ea. Fort Morgan: 9.5k/student. Those are sufficiently widely varying that looking at "average spending" paints an inaccurate picture.
Durham public schools: 10.5k/ea. Chapel-Hill/Carrboro: 15k/ea.
Second, I’m not sure what your Colorado example is supposed to prove. Boulder is a much more expensive city than Pueblo. Land for schools is cheaper, salaries are lower, etc. Those costs seem roughly comparable accounting for local costs.
Third, comparing spending across states is deeply misleading. The cost of schooling in Idaho (which makes up several of the lowest spending school districts in your link) bears little relation to the cost of schooling in New York (which makes up several of the highest spending school districts in your link). The irony of your example is that Idaho spends about 1/3 of what New York spends per student, and Idaho students outperform New York students: https://www.sde.idaho.gov/assessment/naep/files/general/naep...
Fourth, even the low spending school districts in your examples spend more than European countries: https://www.statista.com/statistics/381745/education-expendi.... School spending in London is about $7,402 per student. That’s substantially less than Pueblo or Durham, and only a bit more than the state average for Idaho ($7,100). I guarantee you that money goes a hell of a lot further in Durham or Boise than London!
I just wanted to say thanks for the insightful comment. I wasn't aware that this data had been compiled in such a clear and concise manner!
That said, what do you think drives the disparity in outcomes between different US districts and schools, if the funding roughly tracks with cost of living? Similarly, why are schools in European countries so much more efficient in terms of educational costs?
One thought on the first question that comes to my mind is that students who are impoverished or have english as a second language will not have comparable outcomes, even if their school districts have comparable funding.
I wonder if one aspect of the second question is the handling of special education for disabled students. Do European countries educate these students in a different manner from the US. Is the funding taken into account when we look at per student costs?
And yet, we still can't afford 5 full days per week of school. 60% of all districts in our state only have funding for 4 days per week. Many of the remainder are on 4.5 days/week.
> Third, comparing spending across states is deeply misleading.
This is why you cannot use averages to talk about school funding relative to the rest of the OECD. That's my point. You asked for statistics in my state. I gave them, in my most recent two states of residence.
Why do you think that the individual school districts have so much of a problem providing and equivalent educations when compared to other individual school districts that have much better outcomes with less funds, even controlling for cost of living?
I wonder if it has to do with the level of services expected and provided between locations, states, and counties.
For example, I know that special needs students, which can be notoriously expensive to educate.
Here's another data point, having looked at a few different US district budgets: Employee benefits are about 1/4 of the staffing budget. Those benefits include things like health care and pension that are part of national coverage in the rest of the OECD, but come out of the "education" budget in the US.
No. Nearly all OECD countries pay for health and pension insurance through payroll taxes. So a school in France would pay employer-side payroll taxes for a teacher, which would show up as education spending. And the teacher would pay the employee-side contribution from her salary, which itself would show up as education spending. (That is to say, “national coverage” in most European countries doesn’t work how Americans think it works, which seems to be that health benefits for middle class people are paid for through income taxes on rich people. If it did work like that, you’d be right, but pretty much only Denmark does that. See: http://www.oecd.org/tax/tax-policy/taxing-wages-france.pdf. Look at France. About 25% of the total cost of an employee to an employer, such as a school, is employer-side social security taxes—the OECD’s term for payroll taxes for health and pension benefits.)
Moreover, many countries exempt teachers from the national pension scheme, just like the US. The UK, which I used as an example above, has a teacher pension system
I was with you up until here.
Are you claiming that France does not have progressive income tax rates? This is certainly not the case. France has both a higher average tax wedge, as well as proportionally higher tx for high incomes.
French income tax maxes out at 45% on income above €157,807, while US federal income tax maxes out at 37% above $518,401
I spent some time digging into the London story. Here's some facts:
Spending levels are much higher than parent reported. [1] for one school chosen at random shows that their budget was almost 8000 GBP/pupil - over 30% higher than cited. Furthermore, 82% was staffing. A mere 3% is allocated to facilities.
In my local school district[2], salaries for all staff add up to a little less than 60% of the budget. Facilities (21.6%) and debt service (7.6%) are a far greater fraction of our costs.
In short, the "education is cheaper in London" story is a lie. Many of their costs are payed for by a different color of money entirely, and simply doesn't show up on the education budget.
The school you picked “at random” is a community academy, which is a special kind of charter school outside the regular school system, which may also receive outside funding. So that doesn’t contradict the numbers I posted, which are for regular public schools in London. Here is another chart that’s consistent with my numbers: https://dfemedia.blog.gov.uk/2019/10/11/school-funding-alloc...
You hear that rhetoric often. However the truth is different. If both the democrats and Republicans propose increasing spending, but one increases less than the other, the one that increases less is said to cut spending. I've seen cases where the larger spending passes and they take credit for it the next year even though the states budget didn't balance (the state has a balanced budget requirement) and so what was actually spend was less than what the spending cut party proposed. (we don't know what would happen if the other party had won, since they claim they would have delivered by spending less elsewhere)
>Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
This is what I said as well. There is also vast difference in per-student spending within blue states and blue counties. This is evidence that the problem crosses party lines.
First, it has: https://foreignpolicy.com/wp-content/uploads/2019/01/dod_cha.... As a fraction of the economy, military spending is a little over one-third of what it was the year I was born. It’s actually pretty much the only part of government that has shrunk.
Second, the military is one of the few aspects of government that’s clearly supposed to be done at a federal level. Why do you think there is anything inconsistent about conservatives not cutting back government uniformly?
Without knowing your age - I'm guessing you were born during the cold war/before the fall of the Berlin Wall (or at some point in the immediate aftermath). That event alone (and not some small government principle) was responsible for less military money allocated to counteracting the specter of a Soviet world order
> Second, the military is one of the few aspects of government that’s clearly supposed to be done at a federal level.
According to the 18th-century conception, the army indeed becomes a federal concern in wartime, but on an everyday peacetime basis, the training of soldiers was supposed to be done within militias regulated by the states.
> Why do you think there is anything inconsistent about conservatives not cutting back government uniformly?
There are 2 things that are not being taken into account.
First, historic trends are not reversed by relatively recent changes in allocation to the US military.
Second relatively recent changes in military utility of manpower vs aircraft vs cruise missile has made certain kinds of spending obsolete. A modern, effective military does not require the same logistics anymore, so of course spending has gone down.
There is nothing inconsistent about conservatives (Republicans) expanding military spending, as they always have and will continue to do so within the bounds of recommendations from the industrial military complex.
I don't know how you're reading all of that into my comment, but my point is that the members of a political party dedicated to shrinking government to nothing isn't going to do much work. That's the shrinking.
I wish people could take a step back from the “shrink government” debate and focus on making laws more effective and efficient.
I could write a piece of code that adds two numbers but takes two days and all available memory to compute the result.
A lot of laws are on all levels of government from both sides of the isle are well intentioned but the costs surrounding the laws are prohibitive.
That doesn’t imply we need less laws, that doesn’t imply we don’t have enough laws, it means we need to take a hard look at where the bottlenecks are and streamline the process and to achieve the desired result.
The filibuster doesn’t need to be eliminated. It can serve it’s purpose if we hold to the original implementation: Make members read the phone book on the floor on Sunday morning at 2am instead of requiring 60 votes to end debate.
Filibuster is almost never used. It's occasionally threatened, frequently used as an excuse for not even trying, but rarely used. If it were used more often, it would elevate the debate around the bills under consideration. Congress doesn't even try.
The threat of a filibuster is enough to make it not worthwhile to bring legislation to the floor. "debate" is pointless when everyone's mind is made up.
Eh... I'm not sure about that. When Democrats had control of both houses + the presidency in 2008, they actually got some stuff done (which included the ACA).
The problem with the 115th Congress is that Republicans have done a good job getting their base to believe that various policies are bad for the country, but when push comes to shove even they recognize that: 1 - they have no viable alternative, and 2 - that said policies are better than nothing.
You should not conflate one party's inability to govern with Congress being dysfunctional overall. When the Dems get control of all branches of government again, I fully expect to see the logjam clear up for at least a few years.
Tim Alberta's excellent book "American Carnage" covers this period in detail— the closest thing to a short answer on it is that the Freedom Caucus is essentially a second party inside the Republican party, and are hardwired into a scorched earth mode where they vote no to anything that has even a whiff of compromise to it.
This time was an extraordinary humiliation for Paul Ryan in particular because it should have been an opportunity to get lots of ideologically-motivated things done really quickly, and yet they failed to achieve even incremental progress on Trump's top legislative priorities, like repealing the ACA and securing funding for the wall.
The problem there was although they were stated to be priorities, neither Trump nor the Republican caucuses in Congress or the Senate actually thought either things were a good idea. Those weren’t ideologically motivated objectives, they were publicity motivated positions.
Okay, fair, but the end result is still a two year tenure starting in 2016 where the whole federal government was until Republican control, and almost no progress was made on anything. The big achievement was passing a set of unfunded tax cuts— it's got to be pretty devastating for that to be the high point of a career (Ryan's) built on being a deficit hawk.
Sure, but I suspect that deadlock was more to do with the specifics of the awkward relationship between mainstream Republican representatives and Trump in particular than a systemic problem. Ugh, as someone who considers themselves a natural (moderate) conservative it pains me to say this, but frankly it's just as well.
If you look at the our American history, you will find that changes in party power happen much more frequently than it had in the first two centuries of the U.S. For many epochs of a decade or more, one party tended to hold sway in both houses of congress and the presidency, allowing much to get accomplished. Switches in party control of government usually followed rises in corruption/ineffectiveness that can happen to those who remain in power too long. In the last several decades, party control switches back and forth rapidly.
Calling it a Republican House and Senate doesn't really do justice to the entire argument.
Yes, Congress is ineffective -- I think that's almost become an axiom at this point.
But it is often ineffective because of the rules it has adopted itself. The filibuster was removed for federal justices, and guess what? I think it's nearly 200 justices confirmed in the last three years, and while I don't remember the exact number during previous congresses I believe it's significantly higher.
As already noted, the filibuster is the root of a lot of this, but should the filibuster go away? McConnell famously told Reid he was going to pay for removing it, and he's made good on that promise, essentially transforming the entire federal judiciary with the power he was given. I view the filibuster as a check on the power of a tiny fractional majority -- should one party totally control everything that happens with a single vote majority? That essentially ignores the concerns of the rest. The filibuster at least forces some consensus building.
Better would be to have more than two parties. But how we could ever get there now I have no idea, the two parties in power have no intent of giving it up, and most people quite frankly are too stupid to even be bothered to vote, and those that do might be even more stupid in some ways. "Congress" is bad, "my congressperson" is the greatest ever because they get me money, and that seems to be the guiding principle for people voting these days. Maybe it always has been.
The only way we'll get a viable third party is to change our voting system. Allowing a voter to vote for only one of several candidates locks us into a two-party system, because it requires the voter to vote against all but one candidate.
Approval Voting simply allows the voter to vote for or against each candidate independently. (The instruction is to "vote for all candidates you approve of" -- hence the name.) "One person, one vote" becomes "one person, one candidate, one vote".
Instant-Runoff Voting (aka Ranked-Choice Voting, though there are other ranked-choice systems) is getting more buzz these days than Approval Voting, but AV is superior: much simpler to implement, easier to understand, and much less likely to return an anomalous result.
Political parties have very intentionally created the deep divides in the electorate. It's not something that just happened, it was something that was made to occur for the benefit of the politicians.
The power of political parties has _greatly declined_ in the last 50 years. Do you think perhaps more powerful parties had a longer-term outlook and were more willing to compromise?
Personally I don’t think the decline in Congressional power has a single cause. But the decline of political party power is surely one.
Sure, but it would be more useful to attempt to understand why the system incentivized politicians this way. If everyone that engages with a system can be blamed for doing something wrong, then the system needs to be rethought.
Concretely, I think we should prioritize campaign finance reform and lobbying. It's only a start, but a potentially important one.
> The center is there for the first party that chooses to leave its entrenchemen
No, it's not; political opinion in the US is closer to a bimodal than a normal distribution; the center of the current Overton Window is a place where you lose your base while not meaningfully appealing to people inclined to vote for your opponent, plus even if you succeed momentarily when (probably not “because”) you do that (e.g., Bill Clinton), the result is shifting the near pole of the Overton Window toward your opponents’ position which almost invariably results in a similar movement of the far pole maintaining the width of the Window.
A lot of the dynamics of this is tied to the structure of our electoral system; more effectively representative, multiparty systems have different dynamics.
It's not an artifact of division necessarily -- it's that the US government, structurally, has an extraordinarily high number of veto points.
eg in federal legislation: the House (majority); the Senate, representing increasingly tiny numbers of Americans (supermajority, often: cloture); the president, and the supreme court.
> The center is there for the first party that chooses to leave its entrenchement.
1. What sort of compromises with the modern Republican party do you expect the Democrats to have to make, that they haven't already been making?
2. And what will their reward for making them be? Another supreme court appointment unfilled until the president is a Republican? Another crappy compromise healthcare bill that maintains the status quo? Another decade or two of inaction on climate change?
As you note, when congress sees an urgent problem worth solving, they move quickly.
When I read, "congress is abdicating its responsibility", it seems to me people are just upset a law they like wasn't passed.
In other words, people want a dictator they agree with, rather than taking the time and effort to change the minds of their fellow citizens on any given issue.
Besides, inaction is often the best path to take, particularly when there isn't a clear winning idea.
I think there are perceived deep divides but those are mostly fictional. e.g. a number of conservatives like the ACA but hate Obamamcare. Propaganda is doing its job of keeping the electorate divided, even if a large number of our aims are actually aligned.
Congress merely reflects the candidates that we elect and the underlying political sentiments of their constituents. Since they serve shorter terms than judges and are more localized than the President, it's hardly surprising that they are more impacted by the political divide.
If Americans cannot agree on anything, therefore, congress cannot either. People blame congress, but it's the American people who are ultimately responsible.
It may be that the 17th Amendment changing the appointment of Senators to a popular vote from elections by state legislators was a mistake, as "anti-democratic" as that may sound, it may be a good principal in a Republic. The house weighs the popular opinion, the Senate, the will of States.
the senate itself existing was a mistake. It only is fair in the context of some kind of relative equality of states, letting low-population states grind policy to a halt is inherently antidemocratic.
(by design! the point was to give smaller states a say and that itself is the problem, it is a bad idea to let a minority be able to grind all action to a halt. You say "but what if they do something I don't like" and the answer is vote them out next time, elections should have consequences and winning an election should result in a government that is able to accomplish policy. Setting it up deliberately to deadlock just because they might do something you don't like is a terrible idea and needs to stop being viewed as some kind of virtue of the design of the American system. Just because the founders did it, doesn't mean that it is a good design, they had lots of bad decisions... like slavery, and setting up the government to allow slave states to have equal control to the free states.)
if you assume some kind of relative equality of states, then on the whole the senate should approximate the house, and you can easily come to the conclusion that we really don't need the senate itself at all. abolish it and go to a unicameral system.
Similarly the parliamentary system where the executive is chosen by the majority of the legislature is a much better idea - again because it results in a government that is actually able to accomplish policy.
there is very much a reason that none of the other countries whose constitutions we wrote over the years (Japan, Germany, etc) use the American system. Everyone in power realizes that the American system is terrible and doesn't produce a mandate to govern.
It was a necessary compromise to get 3/4 of the first thirteen states to ratify the constitution. I'm not saying it's great now, just pointing out why it exists.
It's ironic, isn't it? Our system was designed as a compromise, and has resulted in compromise becoming essentially impossible (or at least unpalatable.)
It's amazing that it worked for as long as it did.
We must inspect your assumption that the Senate is unfair because States differ in population. I believe this assumption reflects an inordinate weighting of American citizenship above State citizenship in the union. Historically it could be argued that State citizenship is central to the Republic, whereby territorial governments voluntarily entered the Union as a State, where in exchange for subjugation under the Federal, the State's insterests would receive equal representation in the Senate.
The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
> We must inspect your assumption that the Senate is unfair because States differ in population.
Oh we must, must we? Why's that?
It's not an assumption, but rather an assertion, based on the observed outcomes of this system in action, and the strife it has caused (literally a civil war, and gridlock in the modern era).
The assumption here is that representing states themselves is in any way a desirable goal. Just because the founders did it, does not mean that it was a good idea. Being able to observe outcomes and change your course of action when the results are not good is the mature thing to do. We do not need fetishism of the actions of people who are 200 years in the grave, the founders themselves advised against such a thing and gave mechanisms for the constitution to be changed. Unfortunately these have atrophied along with the rest of the american federal system.
States have lots of other ways to express their will: they have unitary power within their territory, they have the ability to lobby congress and the people, and they can sue if they believe their powers have been unfairly abrogated. The senate as an institution representing states directly has been dead for over a century. It is now an institution representing the people in those states already - but a very undemocratic and unfair one.
> The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
Which is a tacit admission that you think equality of states is a necessary and worthwhile goal to make the Senate work properly. You just disagree about how to fix the current problems with the Senate.
Sure, dividing states up to a more equal population is one way to make it work. Probably not really possible when New York City alone has the population of what, 15 or so states combined? Do you suggest fracturing the city into 15 states? That would be incredibly awful to administer.
Very simply, the Senate is just a failed design and cannot be reasonably fixed without inflicting even more cumbersome forms of government just to try and preserve it for the sake of preserving it. It needs to just be eliminated.
Not that there is any plausible means to reach any of these goals of course, Congress would not approve of states dividing themselves up since that would disadvantage Republicans. Politicians will never vote to remove their own structural advantages even when it is the democratic thing to do.
Yes, I think States as an entity have worth beyond the population (number) they contain. States embody a collective decision to form a cohesive institution of self governship. Your view appears to be that that decision should be diminished without the consent of those who made it. It is paramount to how the U.S. has successively cheated and stolen land and power from Native Americans. The right to locally self govern is important, maybe the most important aspect of this American experiment.
> They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness.
They were always intended to be both. Since there had to be such a powerful entity within the government (the power exists, so it has to be put somewhere), the best course of action to prevent any whim of politics doing irreparable damage is to pit congress against itself so that any actions it takes are generally too slow for transient whims to affect it.
Our system of government really, really wasn't designed to handle politically polarized parties. We've had partisanship forever but mostly it was about competing for patronage rather than ideology. Then after the Progressive reforms of the turn of the 20th century we had a long period where each party had their liberal and their conservative wings that meant low polarization.
>Our system of government really, really wasn't designed to handle politically polarized parties. We've had partisanship forever but mostly it was about competing for patronage rather than ideology.
The first hundred years of the US tend to disagree with that statement
Really? What issues of principle would have the Democratic Republicans or the Federalists not been willing to abandon for the sake of the pork barrel, at least after Andrew Jackson? I will grant that the Republicans and Democrats initially had substantial ideological differences they weren't willing to compromise on but that immediately resulted in a civil war and then we were back to the normal state of affairs.
Weirdly, Mazars actually shrinks what I believed was the scope of Congressional power, where in the one instance the House actually attempted to exert equal balance, there now exists a four-part test for validity of presidential subpeonas. Congressional power is squeezed from all sides whenever exerted.
Why is Rome important here? I can see the symmetry between Rome and what USA currently has - different rich powerful groups arguing and ignoring half the people, for example; rife corruption and nepotism - but how is Rome a model for a democracy, and one that seeks (in theory) not to divide the people into ruling and subservient classes at that?
I think part of the point is that aspects beyond democracy are taken for granted. The US citizenship and model of "being Roman" is pretty imperial in many ways. It has undersung virtues of tolerance. It doesn't matter if you were Greek, Gaul, Barbarian, or even Carthigian - once a citizen you are fundamentally Roman. Viewing nationality as not an immutable accident of birth is pretty damn "Roman". Many "modern" issues like Political Correctness and Multiculturalism are millenia old and can really be better described as "Imperial" Issues. They are encountered due to past and present expansionism and and broad interactions. Despite the negative connotations not everything classified as Imperialism is bad - just as it is a mistake to ignore the travesties of empires so is it a mistake to ignore its virtues.
Rome had many periods and the dynamics have played out before and provided disturbingly apt precedents even with the alien trappings and values.
There is a school of thought (with some validity, though I think it lacks nuance) that points out that the early Roman Empire, the Principate of Augustus until the Dominate of Diocletian, tried to empower the Senate. The Senate had its set of provinces, the emperor his. The cursus honorum was still used to track and groom administrators and leaders and the senate's support (balanced against the army and the people of the city of Rome generally) still legitimized the emperor. But over time, goes this line of thinking, senatorial attention and interest fell away somewhat from administrative and managerial responsibilities and turned more into a social/politicking club, and the emperor "naturally" picked up the slack.
There is an element of bias to this, and it often reveals a political preference of the author, but it's not without some merit.
I believe the claim is that the Roman emperors came about because the Roman senate became so mired in infighting that it was incapable of governing. I'm not a historian, but from what I understand, there is at least an element of truth in the claim.
Usually those of us who have voted for less government have voted for candidates that haven’t even gotten elected. People instead are voting for-or-against abortion, for-or-against gun control, or whatever other never-been-solved issues and then letting their voted-for representatives run rampant on nearly every other issue. (Never mind the role of the two party system, the anti democratic shenanigans in those parties, and the only real choice being the lesser of two evils.) Those politicians have given us more and more government in the form of regulatory bodies, enforcement bodies under the umbrella of the executive, and bureaucracy. You may or may not like those things but to lay them at the feet of people who want less government is absurd.
I… find it rather difficult to believe that a sufficient number of Americans coordinated and voted strategically over decades in order to intentionally bring to existence the current two-party deadlock situation.
What is a political party if not a means of mass coordination and strategic voting?
American politics has become less about policy and more about ideology and party loyalty over time, and that ideology has become more entrenched and unwilling to compromise with opponents.
It's working as designed. The same system that prevents Congress from properly voting on PPP Loans is the same system that prevents Trump from banning all muslims from the country overnight.
I'm not smart enough to know if there is a better solution for America.
A government that doesn’t govern leave a power vacuum that will be filled. In best case by more local governments, but more likely by corporations or mafia style organisations.
The filibuster doesn't help the situation and seems like a mechanism designed to encourage obstruction. Until we do away with it, I fear we'll be stuck with the status quo.
The real problem is that there are just two parties that hate each other to the core. In a multi-party system, parties would be forced to compromise and find agreement with other parties, and this would become normal.
So get rid of congressional districts and instead fill the House according to proportional representation.
You don't need to go that far, just getting rid of gerrymandering (and thus, "safe" seats) would accomplish much the same in terms of forcing candidates to appeal to a broader constituency.
Any kind of district system will still result in a two-party system. You need to get rid of the district system. A district system only represents the majority opinion in each district, so a very large minority of Americans will effectively not be represented. It also pushes people to vote for the "lesser evil" instead of voting their conscience.
I'm tempted to say that the uselessness of Congress is in indication of something else - we've pushed too much to the federal level. The decades-long tooth-and-nail fighting over healthcare makes me think that an effective system just can't be done federally; there's too much disagreement between states. Why not scrap most of the social programs, cut federal taxes, and let states implement their own?
> Why not scrap most of the social programs, cut federal taxes, and let states implement their own?
Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
>Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
>Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
>(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
You could write an analogous comment from a perspective of "people in the blue states need saving too".
Are you going to be singing that same pro-federal tune if issues don't go your way at the federal level?
I live in Massachusetts too. While the burning dollars of taxpayers does keep us warm there is no shortage of states in the nation that would revolt if it had government that "works" the way our government "works". People in other states are not so willfully subservient to government in the name of the common good as we are. We step in line for things that would provoke revolt in states with stronger traditions of individualism and distrust for government.
We have a limited federal government for a reason. Massholes like us have no business telling people thousands of miles away with different cultural values and different economic circumstances how to live their lives. The hell do you or I know about what's best Wyoming? Exactly.
This is not specific to one party. There is someone out there, opposite to you, who says the same thing but replace red state with blue state.
The root problem here is the people who insist that their political beliefs should be implemented for everyone in the country, not just for the people around them who agree with those beliefs. This idea that "we can't leave anything up to local government because there might be some local government out there who disagrees with me" is why we have so much federal gridlock.
Of course there is "another side". They're wrong, but they understand it's a fight, and my side still doesn't, so kudos to them at least for that.
I don't particularly care about self-inflicted wounds, but the splash damage upon the people whose lives they make worse in the offing is a damning indictment of this conception of federalism.
Shit's broken, and it's broken for the weakest among us, and it's only getting worse with the "drown it in a bathtub" corps stomping through the White House.
Is this the same "drown it in a bathtub" corps that signed a trillion dollar emergency social welfare spending bill a few months ago?
I respectfully submit that you might want to reconsider your priors and update them if you want to accurately reason about the present state of the USA Republic.
The Trump administration has observably almost fully embraced an MMT style social welfare program. The sovereign currency denominated deficits don't matter position has won. The only thing that's missing is the employment backstop, but the $600 a week federal unemployment bonus arguably achieves the same fiscal effects as paying for busywork.
This is verging on an ad hominem attack: we need more federal powers because those people are awful baby killers!
The reality is everyone cares, they just disagree sharply on how to solve issues or which issues are priorities — to which the solution of several independent approaches seems reasonable.
When people in state A see that state B is doing much better because of policy X, they can choose to enact similar. I’m not sure I understand why they need to be compelled to adopt your preferred policies.
It’s interesting that you discuss “red states” being in need — but ignore the prolific violence in “blue cities” and poor trapped there.
> Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
I'd be inclined to agree with you, expect I feel this is what got us Obamacare instead of a better system - and _even then_, there was a multitude of red states that refused to accept the Medicaid expansion, to the harm of precisely the people you speak of. Pushing societal improvements on states that don't want them feels like buying a sandwich for a homeless person and having them throw it on the ground, and I no longer feel its worth the effort.
Balkanization is the fastest way to find out what works and doesn't and allow for local control and decision making, it also makes nice for frequent wars and nutty leaders.
But if Arizona implements a different healthcare system than New York, even if each hates the other system, they don't get to have a war, because neither of them has a military. (OK, they each have their own National Guard elements...)
Nuttier leaders than what we currently have, you mean? As far as I can tell, the US did pretty well with less federal power for several hundred years; I don't really see how rolling back 50 years of federal policy would lead to balkanization.
In the US, about half of all spending happens at the federal level. Germany, which also has a federal system as a matter of its constitution, also has the central government spending about half of all government dollars. Canada is even more federalist. The vast majority, about 3/4 of 4/5 of government spending happens at the provincial level. Denmark also has the majority of spending at the local level. Belgium, Spain, Sweden, Chile, and Mexico are about the same as the US in pushing about half of all spending down to the local governments.
there's nothing wrong with a federal system, the problem is specifically with the US's system and how there are too many "veto points". Checks and balances and getting policy accomplished are essentially opposing goals. If you allow tons of "veto points" where having literally any control of any branch of government allows you to grind policy to a halt, then getting anything done relies hugely on gentlemanly good-faith.
In a two-party system that gentlemanly good faith eventually breaks down and you end up with our current problem, where you need supermajority control of all branches of government to actually do anything, because if you lack even one single point of control then party-line behavior will allow everything to be ground to a halt.
Parliamentary systems are better, there is just one house in most cases, and the executive is of the same party as the legislature, so when a government forms it has consensus and can execute policy. Yes, this is less checked-and-balanced, and that's a good thing, because accomplishing policy and checks and balances are opposing goals. Too much checks and balance and nothing gets done. If everything is fine that's great, but our system has been deadlocked for 20 years now, things are not great, and nothing can be done about it.
And there are still an executive and judicial branches in a parliamentary system, it is still a federal system, just not the American federal system.
The real "checks and balances" is ultimately voting.
Having snap elections allows that check to be manifested much more readily when the government begins to go off the rails of public opinion.
(the queen is actually a very interesting apparatus in the british government... apart from having some kind of maximum duration between elections, you are dependent on someone to decide when to call a snap election. Obviously you can't really rely on a government that is completely off the rails to call an election on itself, and party line voting poses obvious problems. So how do you deal with it? An oracle machine (in the crypto sense) that exists outside the system and can operate independently to decide when to call an election. Which is what the queen does, she can dissolve parliament and call an election.)
A conclusion I'm leaning toward is that any sufficiently large and complex political system evolves to a focus on veto as the principle means of power. The etymology, direct from Latin, for "I forbid", is insightful.
Smaller, simpler systems, with greater levels of trust, or greater inequalities of power, seem to avoid this. Large ones, not.
I'm sure there's some discussion of this in political theory, though I'm unaware of it. Listing out a typology of other loci of power would also be interesting.
Interesting ... a "focus on veto" would give a more nuanced role to the permanent members of the UN Security Council than just "those who hold the nuclear umbrellas."
Rural counties are conservative, urban counties are liberal, and never the twain shall meet.
I posit that there will always be this conflict until cities have a blue federation superimposed on a red countryside. But the constitution isn't set up that way. Maybe next time.
This can also be reformulated as "rural counties are empty" and point to a lot of the agita around much of the current political climate, 'cause land having as much of a vote as it does is pretty odd.
I think we need to reverse the unconstitutional Reynolds v. Sims decision which forbids the states from being set up like the federal government, with one house elected in proportion to population and one house elected geographically. The decision itself was rooted in little more than pipe dreams and moonshine, and the results are, I think, responsible for more than a little of our current dysfunction (another huge problem is the weakening of the parties themselves — they used to serve as a moderating layer, but no longer do).
The political disagreements within states are a lot less intense than the political disagreements between states. Maryland is a solidly blue state at the federal level. But we have a Republican governor with a 78% approval rating who won a third of Black voters against a Black candidate in 2018.
> They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness.
If Congressional lockdown was useless, it would've been fixed. Clearly, there's plenty of interests that favor a Congress/Senate that isn't able to move legislation forward.
While congress is idle and obstructionist in a way of refusing to allow votes as opposed to "most bills get a failing vote even after ammendments" I wonder how much of the dysfunction is a matter of failing to scale governance.
It's a feature not a bug. The entire system was designed s/t it is incredibly hard for anyone in Washington to do anything. There are good reasons for that.
If congress doesn't change something, then that means they have determined no change is necessary.
That isn't an invitation for the executive branch (or judiciary) to overreach.
In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient.
(As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
A recent dissent by Justice Thomas is elucidating.
"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government."
.
This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.
> This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
It didn't rule that the current administration can't undo the program, it ruled that the administration has to properly justify that decision, and not doing so is unlawful.
At no point did it rule on DACA itself, or prevent the administration from providing actual, motivated and legal reasoning for rescinding the program.
Also
> This was his dissent on DACA.
Which corresponds to the majority ruling on this case, yet I can't help but notice Gorsuch joined the liberal justices in the majority, not Thomas.
However DACA itself is unlawful in that it is an Executive Order undermining Federal immigration law, so the administration's rescinding it on the basis of its unlawfulness should be sufficient enough justification. The problem is that the Court's ruling indicates that an EO which subverts existing law cannot be overturned by subsequent administrations simply on the basis of its illegality. Justice Thomas' dissent says exactly this.
That's incredibly problematic. According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws.
> Now the court rules the current administration can't undo the program?
The court rules that the current administration can't undo it simply by waking up one morning and say "I wish that it be done;" it actually has to go through a process to explain why it is taking the decision it is, which is the same process it had to do to enact the program in the first place.
"The Court could have made clear that the solution respondents seek must come from the Legislative Branch."
In this case, that's exactly what the majority concluded. In layman's terms, this is a decision that says, "We aren't doing a thing. Congress made a promise. If you want to rescind it, go talk to congress, not us."
Congress created the reservation situation in Oklahoma many, many, many years ago. Not the Supreme Court.
If respondents want to undo that promise, they need to take the matter up with congress. That's what the court is saying. You can't short circuit the constitutional order. The court is right to drop this right back in the lap of congress.
True. In this case, either way, half of Oklahoma belongs to the tribe. Congress has not taken it away in the legally prescribed manner, therefore SCOTUS has no choice but to say that until congress does, the promise has to be upheld.
Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.
> In this case, either way, half of Oklahoma belongs to the tribe.
If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens.
> (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.
> If congress doesn't change something, then that means they have determined no change is necessary.
This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.
To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry.
Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.
> This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.
That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people.
If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.
This is by far one of the pieces a lot of people seem to miss. The system was set up for gridlock in hopes that it will temper some of the more dangerous tendencies of powerful and ambitious men.
It does indicate a consensus is not met, and merely that; the GP claimed the this lack of specific consensus on action is actually a form of broad consensus on inaction, a leap in logic that is unfounded because it ignores the political game theory that is employed in obstructionism.
It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.
I understand your point, but I fear you may misunderstand, because I believe the Decision is in line with your views.
The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity.
For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.
My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."
The judicial branch can decide that a law is not constitutional. It's then Congress' job to find the political will to make the law constitutional. Either by altering it, or amending the constitution. It's a governor on the system. Only the important stuff is supposed to make it past all three branches unscathed.
It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.
And this is exactly what the court ruled - if Congress intended to withdraw from or change the agreement they’re well aware of how to make that happen. And they didn’t make it happen so they must not have intended to change anything.
I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.
This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands.
The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.
"As with so many controversial court rulings like the ACA mandate case, our courts keep getting put into the decision because of the massive failure that congress is. Congress should either fulfill the promise or not, or whatever. instead the judicial bodies end up making legal judgements with big ramifcations that largely should be left to the legislative body.
"
Agreed. Congress is way too addicted to political grandstanding and partial fighting instead of making laws to clarify the situation. It seems pretty clear that with all the 5-4 divisions the Constitution is not precise enough to decide these things unambiguously.
There are countless situations in which Congress tries to punt its responsibility to the other branches. If they want to be a responsibility-free elected TV pundit class that lives high on the taxpayer hog, then let's amend the constitution accordingly. Congress just tries to delegate responsibility to the other two branches so it can get back to fundraising, "investigating," and grandstanding.
I've recently adopted both Francis Fukuyama's vetocracy thesis as well as Ezra Klein's prescription for majoritarian rule.
Yes, both are major oversimplifications to a complicated situation, with path dependencies and subtle counterintuitive cofactors. But it's good battle cry.
We need more accountability, more transparency, more democracy.
A systems engineer strives to create functional feedback loops. Today, that means closing the gaps in our broken feedback loops. Consent of the governed, and so forth.
But isn't this literally Justice throwing the ball back to Legislature? "We understand why you may want this to be true, but if that's the case, you need to do it specifically"
> our courts keep getting put into the decision because of the massive failure that congress is
We need more Civics classes for students.
Branches of the Federal Government being put into the decision because of a massive failure of another is exactly why we have 3 branches. It's rock-paper-scissors. Checks and balances. Which is why, for instance, people squawk so much when the executive branch imagines itself new powers it was not granted.
I disagree with your assertion that this "is exactly why we have 3 branches".
The normal idea behind "checks-and-balances" is that if one branch exceeds their authority, the other two branches can serve as a check on abuse of that authority. The argument being made by GP, though, is pretty much the opposite: Congress isn't overstepping their authority, they're abdicating it. It's basically like they want to be 'checked' by the Supreme Court, because they don't want to have to take a clear stand in the first place.
I feel like that's implied by the "balance" part of "checks and balances."
It's also simply the fact that politics abhors a power vacuum. If one branch of government abdicates its power, that slack has to be taken up elsewhere.
Many of "the people" have gotten lucky because SCOTUS went "their" way over the last few generations. Part of that lies with Executive choices for judges and some has been a wildcard (Kennedy, Roberts on ACA, Gorsuch for the last couple of weeks).
It could all spin based off of the next appointment.
But The Founders clearly thought Congress should be somewhere else than yelling from the sidelines.
The people have ceded their authority in this regard as well, through their own apathy and cynicism. Democracy requires an educated and engaged voting populace that actually believes effective government can exist and politicians should be qualified and held up to a standard.
I don’t have kids so I have no idea what is thought/taught anymore, but this is the sort of thing I was exposed to repeatedly starting in late grade school through early high school. I found government boring back then so I didn’t elect to take classes beyond the basic curriculum in that area.
Honestly after all the Native Americans went through, give them the whole state at least. People in the United States speak and reflect often about the atrocities of slavery. We need to equally reflect on and remember the atrocities against Native Americans.
This is correct. People treat native Americans as some sort of monolithic bloc when they were anything but. The tribes themselves had many warring feuds going back centuries and developed competing alliances with imperial forces when they arrived, some allying with the French, others with the British or Spanish.
Giving the Florida Seminoles territory in Oklahoma (or giving land to an Oklahoma tribe and calling that a ceding to Seminoles?) would be weird at best.
This is what Oklahoma was initially meant to be. There were even talks of having two Native American states in the united states, the other being Sequoia I think. Then the US renegged on those promises, land was given to railroad companies, and flooded colonists.
In many ways we're seeing the same thing with Tibet and China. It's horrific.
Oklahoma was originally all Indian territory, and reserved for future allotment of reservations. The western half of Oklahoma was (mostly) never assigned, and instead opened up to white settlers in a variety of land rushes, relegating Indian territory to the land already allotted to reservations in the eastern half.
That rump Indian territory applied to be a state as the Sequoyah, but it was turned down, so it was merged with Oklahoma territory to become the State of Oklahoma.
I'd rather not. In the NorCal (Jefferson) reservations, the natives setup huge nets to catch fish, load them into refrigerated trucks, and sell the catch to San Francisco restaurants. It's devastating to the ecosystem. As with building casinos, or the Grand Canyon Skywalk, they tend to commercialize/exploit as much as they can when they are free from state laws.
They are sovereign. Neither you nor the state of California should impose your views on them. If anything, we should ask permission from them to be on California land.
It's also disappointing how little has been done to close the racial wealth gap from the legacy of slavery and Jim Crow. It seems the gap hasn't changed much since the 1950s and 1960s and I don't see how it gets better short of a massive reparations package and investment in building up distressed communities.
This is a really strange ruling. It also means that all prior convictions must be overturned, as they happened on a reservation instead of the state of Oklahoma.
I don't think it's a dumb question at all. A quick perusal of Wikipedia seems to imply it's a complex issue:
"In addition, because of past land allotments, leading to some sales to non–Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This jumble of private and public real estate creates significant administrative, political, and legal difficulties." [1]
They aren't really sovereign nations though, right? Like if a tribe decided to build a giant meth industrial complex or a nuclear weapon facility on their land, the US federal govt is going to shut that down ASAP.
It's a bit messy. The US defines them as "domestic dependent nations". You're correct that they couldn't do those things - Federal law has been deemed to apply to Native Americans in most scenarios, and treaties (often broken/disregarded) give and take certain rights.
In any event, a tribe trying to build a nuke would likely be in the same scenario Iraq and Iran find themselves in, regardless of law or treaty.
I wonder about that. Right now, the fact that the Nations don’t have direct representation in Congress (yes, I understand citizens can vote in the state the reservation resides in) makes them appear more like subjects of an Empire than as coequals in a Republic. I think a lot about how to improve this. I think a lot about how to truly reckon with genocide and yet coexist. If anyone has resources about how to improve this, let me know!
One solution I thought of in an alternative history universe where the US doesn't genocide Native Americans is a tricameral legislature, where the third house is effectively ethnically-based instead of geographically based.
Although given the actual histories of countries that do have strict ethnic quotas for allotting political power, I doubt it would work quite so well in practice.
Yeah... I think explicit ethnic quotas can be really problematic. but ethnic quotas would've been better than how things worked out (i.e. genocide), though.
(I should point out that tribal membership is more complicated than just genetic background, and that it varies from tribe to tribe. Continuity from the existing tribal governments at the time until today need not have been explicitly ethnic.)
There was some parity in their conflicts, they had relative stability for thousands of years. The coming of Europeans was definitely a major disruption, to the amount of maybe 100M dead in a few years.
Of course back then Might made Right. Aren't we able to see a little further than that any more?
Wow, this response is projecting a whole lot onto my comment.
My only reply in turn is, no, I don’t believe an entity should be “allowed” (by whom?) to conquer a nation in violation with their agreement just because they happen to have different technological capabilities
I mean if we're getting into it, "white man" basically genocided their whole population with disease. The Native Americans never did anything nearly so heinous.
I'm not sure I understand your comment. If the genocide happened due to diseases imported from the Old World, how is it "heinous"? It happened at a time where people had no clue what diseases and immune systems were.
But that happened in the 18th century though, by then of course, empirical observation had played its role and a few people tried to weaponize it. I'm pretty sure accidental contamination during the 2 preceding centuries had already caused a massive decline in population.
Whether or not they knew they were transporting disease at the time really doesn't excuse the end result: mass genocide. And of course this doesn't authorize taking land.
It totally excuses it. Intent is key. If you have no clue what a disease, a virus, an immune system are I don't see how you can be called "heinous" for unknowingly and unwillingly spread diseases.
As for lands, I don't know, lands all over the world have been changing hands since human beings learnt how to walk, most of the time after violence/war. It happened in 1500 when the concept of "nation" didn't even exist and the only way to say that a land was yours was to be able to keep it.
Well, then China is responsible for mass genocide due to Covid-19 then. After all, whether or not they knew they were transporting disease to other countries 6 months back really doesn't excuse the end result.
We tried the "assimilation" thing for awhile. It ended up as a system of child abuse, kidnapping, forced sterilizations, and theft. There's a pretty decent case to be made for it also having been cultural genocide.
I'd personally prefer that we not go back to that.
Let the Native Americans go. Let them be free. Give them back their lands.
You have enslaved them for far too long. You genocided them. Killed their culture. Killed their language. Raped their women. Killed their men. Killed their children. And now, the Covid virus is about to kill off the remaining Navajo Tribe.
You must be a heartless monster, if you don’t feel any sense of sorrow, for what is about to happen to the Navajos. They’re all about to die from the virus. Their culture is about to disappear from this earth.
For all the hot air talk about foreign nations and their supposed cultural genocide, well, you have one right here in your own backyard. And you have the historical baggage that goes with it.
It’s time to let them finally be free. They have suffered long enough, for the sake of America’s Manifest Destiny project!
Americans need to depopulate the Oklahoma territories, and return that land back to the Native Americans. As wells as the Dakotas, and return that back to the Sioux Tribes.
Americans already took all the good lands on the east and west coasts, by the waters, and left the sh*t lands to the Native Americans. Do the right thing. Prove it!
Let's get rid of the Normans while we're at it, and return England to the Anglo-Saxons. Except they took it from the Romans, who took it from the Britons and Picts. The details might be off, but my point stands: land ownership is complicated; wars happened, and all the genocides and land disputes going unrecognized for political reasons are only recently considered issues that need restitution. I'm sure the Native Americans have their own history of wars (admittedly, likely on a smaller scale) that pushed tribes to live in different places (I wouldn't know, I'm a product of the California school system, and while we learned about the natives in the missions, we spent more time glorifying the missions with models than studying precolonial American history)
Every country in the world that exists today is occupied by a people who can be traced back to a conquering nation. If you think through the implications of your statement, you'd see you're talking about wiping out 10,000 years of history and forcibly moving 7 billion people somewhere else.
Proximity in time and space add important context to the issue. There are still many places in the world where injustices are happening due to this kind of problem, saying that it has always been this way doesn't add anything to the conversation.
> Proximity in time and space add important context to the issue.
It really doesn't and saying otherwise doesn't add anything to the conversation (see what I did there).
Do you really believe the Russian and German empires should reclaim their "rightful" territories in Europe? Do you believe Europe should reassert its domination over Africa because it had strong political control over it in recent history? What about the British Raj? What about Hong Kong?
"Time and space" is a bullshit argument and you don't believe it yourself. How could you? "So and so" holding "such and such" lands at "this and that" time is the basis of 99% of wars throughout history.
Its a stupid way to think. Its a stupid way to govern.
> Proximity in time and space add important context to the issue
So how long do non-native Americans have to wait for it to no longer be stolen land? What's the date? Because in order to believe that your line of thinking is logical, surely you at least have a vague answer to that question.
The answer doesn't lie in the temporal dimension at all.
We can stop stealing the land by choosing to live on it differently, and by respecting indigenous leadership with respect to use of and trust in the land.
The idea that the land was stolen in discrete acts, decades or centuries ago, does not comport with what I am hearing from indigenous leadership. The land is still being stolen today, all the time.
You have a distinctly queer idea of what happens after a war. This isn't an American idea to take land after conquest, it's how it's always worked throughout human history, even with the Indians that warred amongst themselves prior to the American government becoming the ultimate victor against them.
You may disagree with the foundations of the conflict, and you can argue on those merits if you choose, but the results are the results all the same, and it's not theft when you win.
This is a unique idea, that feels to be mostly semantic. Ok, you don't want to call it theft, but does that change the justice of the situation? America conquered a series of less developed nations of people through sometimes dubious means, and has spent the years after that conquering trying to erase or marginalize the conquered peoples. America won, so it's not theft, but whatever you call it it's unjust.
I find it amusing that you hold a blanket thought that the theft of Native American land was the result of war games and not a mixture of deception, racism, genocide, breach of trust, and thievery.
I'm amused that you possibly think war is just two sides in distinct colors simply lining up and shooting volleys at each other until one side surrenders from the field with a white flag in the air. That may be more civil and gentlemanly, but it's far from how wars are mostly fought.
Deception, killing, accepting/breaking agreements, and taking things is basically war in a nutshell. It is an extension of diplomacy. How you execute these parts is a matter of your goals, and your morals and ethics.
But it's not THEFT. There is no such thing as theft when it comes between two nation states, it's either yours or it's not yours, and how well you can defend it basically is the rule of the game.
If you deceive yourself enough to assume you aren't at war, while the other side sends you all the signals that they are at war with you, whose fault is it when you eventually fall?
You may hate it, but don't redefine something basic to the politics of humanity.
How do you think warring tribes treated each other? You are aware that some proportion of native tribes kept both native and black (and probably white to a lesser extent) slaves, right?
It's also interesting that you choose the word "theft" as though the natives even had a concept for land ownership. Seems people are too eager to view history through a modern moral lense these days.
> It's also interesting that you choose the word "theft" as though the natives even had a concept for land ownership
There were many tribes living without telecommunications across the Americas with all their varying climates causing different socioeconomic structures to emerge
>all their varying climates causing different socioeconomic structures to emerge
Which supports my point, that trying to view native practices through modern concepts is a bit like forcing a square peg through a round hole.
>One of the reasons that many continue to think that aboriginal Americans had no concept of private property, however, is because many tribes did regard land as being communally owned. Carl Watner explores the topic in The Journal of Libertarian Studies
The article seems to conflate "private property" with land ownership. Even this particular paragraph speaks of "communal ownership" which isn't quite the same as the concept of ownership in modern US law, though there are certainly provisions for group ownership.
Point is that article only supports what I'm saying, that it's borderline slanderous to assign morality to the behavior of cultures from 300+ years ago according to modern laws and ideas. Regarding this discussion, "theft" certainly becomes a strong word when you consider how different (and heterogeneous) concepts and practices were back then.
Theft is a concept that exists within a legal or normative framework. There is no such thing as theft outside of an established framework. If you want to argue that America unjustly took Native American land, you basically have to start from first principles.
This is kind of the same point I was making. I'm not trying to prove that anything was just or not in some grand scheme of things.
I'm arguing that "what happens after war" is not some fixed law of nature, but a human decision. Human decisions are not laws of nature, they can be changed. Historical precedent can be a useful tool, but it's not the same as "something immutable we must adhere to".
Because that is how this world works. You may be new out of the womb intellectually speaking, but if a child shows up at my doorstep one day and tells me I'm on his ancestors land from 300 years prior and I must vacate the home I bought and have legal title too, on the land my ancestors fought and bled over 300 years prior, even if they were assholes about it at the time, I have zero obligation to hand it over because of feelings.
That is why. You may not find it fair, but there does come past a point where the only fair thing to the present society, that had no hand in the original act, is to "keep on trucking" as they say.
* we can't just end slavery - this is not how this world works. There have been slaves forever. We can't change slavery because of feelings.
* we can't give women the right to vote. This is not how this world works, women are supposed to be property of their men. We can't just let them do it because of feelings.
* we can't try to have a geneva conventio. This is not how this world works, excessive torture and cruelty have always been part of war. We cant just expect or troops to show humanity.
* we can't give land ownership rights to commoners. This is not how the world works, nobility has always had special privelege to own a thing. We cant just expect to let lesser humans have land because of feelings.
Finally: if your argument applies equally to a pro- and anit-Isreal stance - it's existence both proves and violates your exact point at the same time, depending on which stance you are already more inclined to.
Lol at your last point. It works very well for the Jews. Not so well for those who oppose Israel. The initial way that Israel acquired the land was by ancestral right, but it’s since defended it by war. Additionally, most of the land that is disputed never had any legal ownership as recognized by any ruling government.
The rest of your post is utter nonsense and not worth addressing.
Seems like all of your points conflate current/ongoing wrongs with past wrongs. At some point things that happened in the past are best left there, read about in history books.
My examples were all historical, as a way to highlight that some things we now think of as obvious, basic rights could have (and did have) opposing arguments consisting of "this is the way this world works". The point being: when it comes to human laws, it's not actually a sound argument.
No thank you. As someone who lives in one of those states this is a worrying precedent.
Maybe if their laws didn't apply to me as a non citizen I would be ok with this. As it is, I can be arrested for stopping at the wrong gas station with a firearm in my car.
I have no choice but to pass through reservations on a regular basis. And I have no input in the government that makes their laws. Nor any hope of ever being heard. Yet those laws apply to me just the same.
Tulsa residents actually _chose_ to live in a land that happens to be a native American reservation. They may not have known prior to this day, but the Supreme Court was there to clarify it.
In fact, and given that the Supreme Court dismissed the state arguments about laws passed around the early 20th century, it is not that these territories are _now_ part of the reservation, they _always_ were.
Now, if you were to argue that there may be uncertainty and prejudice against current Tulsa residents, because of the change of the status quo, I would say that, again, this is the reality 40 million immigrants face in the US to this day.
Doesn't this just change things from state level to federal? You still are a US citizen and you still have input in the government. This seems like the same situation as when someone goes through multiple states?
When on federal or state land, I only have to comply with the state's laws. (Basically just don't shoot or threaten anyone.) When on reservation land, I'm protected under the FOPA[0] which is considerably more restrictive. Some of its provisions can be hard to meet. Especially in a two seater pickup truck.
Add checkerboarding[1] to this and it can be very easy to make a mistake because you're constantly changing jurisdictions. Usually with no fence or signage.
I don't want to get into it here but there are a number of reasons one might want a readily accessible firearm when the nearest civilization is ~100 miles away.[2] Hence why one might not always be compliant with FOPA.
>And I have no input in the government that makes their laws. Nor any hope of ever being heard. Yet those laws apply to me just the same.
It's almost as if they stole part of your country from you, ignored your laws and customs and forced you to submit to their authority without your consent. That must just be terrible.
The recognition of what right? How is it right to govern without consent? Take a moment to consider that the world can not go back to 1950 as some Republicans would like and it can not go back to 1850 as apparently some Democrats would like.
You believe its right to subject a person who lives in Oklahoma, who has never lived in a country other than the USA, who has never stolen anyone's land, to the non-representative rule of a person (who's land was never stolen) because of their racial origin?
I'm very interested in the ideology that led you to these beliefs.
The right of sovereignty of Native peoples over themselves and their lands, as recognized and respected by treaties signed onto in (ostensible) good faith by the United States, and natural law itself.
>You believe its right to subject a person who lives in Oklahoma, who has never lived in a country other than the USA, who has never stolen anyone's land, to the non-representative rule of a person (who's land was never stolen) because of their racial origin?
Yes, because parts of Oklahoma are the sovereign territory of Native peoples. That's been established legal fact for centuries. Here's a Wikipedia article on Tribal sovereignty in the US for further clarification[0]. When you cross from one sovereign territory into another, you become subject to its laws.
I'm sorry the situation is frustrating. Things would obviously be simpler if the settlers had either not committed to the path of Manifest Destiny and genocide, or else committed to it entirely. As it is, they half-assed it and now things are complicated.
But the Natives were there first and their rights are no less inalienable than yours or mine.
>I'm very interested in the ideology that led you to these beliefs.
The ideology is, simply, morality and respect for the rule of law.
> The right of sovereignty of Native peoples over themselves and their lands, as recognized and respected by treaties signed onto in (ostensible) good faith by the United States, and natural law itself.
Regardless of "whose" territory they reside in and regardless of their racial origins, the people have a right to self-governance. Your proposal for an American Indian ethnostate where other ethnicities are subjugated and deprived the right to representative democracy is disgusting, illiberal, and racist.
Recall what you said because it seems you have forgotten:
> forced you to submit to their authority without your consent. That must just be terrible.
"you" being white people (presumably but non-American-Indian is more correct) and "their" being American Indians. That was your appraisal of the situation. You are in support of one racial identity compelling the submission of another.
And if you think this is a stretch (or that you were just making light) I spelled out your racial ideology explicitly in my previous post. To which you responded:
> Yes, because [...]
But you have a reason, as people often do. I don't buy the "legal" argument. It has been legal to commit a great many evil acts throughout history. No, I believe your reasoning is two fold:
1). You believe the ancestors of one ethnic group committed genocide against the ancestors of another ethnic group.
2). You believe land belonging to the ancestors of one ethnic group was appropriated by the ancestors of another ethnic group.
That's why you come to the conclusion that modern peoples should be rewarded or punished based on their racial identity. Its a racial tit-for-tat where the children of abusers are punished for actions completely outside of their control.
> The ideology is, simply, morality and respect for the rule of law.
I have a different appraisal and I think you can guess what it is.
---
I know what your response will be. Its the tribe's land by right (which is an organization that has survived the duration and which has been materially harmed), it has every right to seek remediation. To which I would agree (maybe to your surprise).
But the people who reside within the territory must be, by moral law, given the right to participate in the government of the territory. And if they are not, then the people will exercise their natural right to protest, revolution, and self-governance.
They should not be subjugated to a single racial identity. I don't doubt their legal ability to do it. I doubt the morality of it. And I doubt the people who seem to cheer this "reversal".
A visitor obeying a territory's laws is one thing but a group of people forcibly removed from their country are in a peculiar situation which requires, in my opinion, their consent to be governed regardless of what piece of paper gives what racial identity the right to rule a parcel of land.
I am not an expert in Native American history but the Creek Nation are almost certainly not the originally inhabitants.
This is one of my biggest issues with stuff like this. Why should the Creek Nation get this land and not the tribe that lived there previously? Why not the tribe before that tribe?
Americans often did not treat the natives well but this is an issue with all countries. It was quite common for Natives to kill other tribes and take over that area. It sucks but that is how a country is formed.
I get the US made an agreement. I was talking more of a general principle than this specific case.
I have seen several comments here saying the US was wrong to take land through violent means and as such the US should return the land.
When the natives did the same thing to other natives nobody seems to think they should return it to the people they took it from.
There is a double standard and I don't like it. If we are going to return the land we should return it to the original inhabitants. Of course there isn't actually a way to figure out who occupied the land thousands of years ago.
Might makes right. Land has no true owners, only those with the means to defend it. Florida could be part of "greater Canada" if the US government was weak and the Canadian government felt it was worth it.
I don't think I'm saying any of this is fine, just pointing out that geopolitics isn't about what's morally correct. Anyone can own any piece of land for just about any reason so long as they have the firepower to back it up.
This part of humanity's impulses has me thinking we’re closer to the cosmic equivalent of “orcs” than to anything resembling a highly evolved species. Our impetus is to define things in terms that lead to conflict or must use conflict to resolve problems. We’re evolved mammals with a distinct us/them complex. Whereas if we were highly evolved organisms with a more hive like ancestor we might not war with each other as much or ever. I’m thinking like fungi or something.
> Conservative Justice Neil Gorsuch joined the court’s four liberals in the majority.
The US supreme court is a special kind of circus.
For the life of me, I can't remember any of the names of the justices on the Canadian supreme court. Its extremely uneventful, and even if there have been controversies, they were so minor or rare that I can't remember them.
The US on the other hand... The partisanship is so blatant and just accepted.
And not only that, the controversy.
I am still astounded that Kavanugh was approved after he started ranting openly about clinton conspiracy theories, awkwardly asking people if they like beer, and lying about common terms like "devil's triangle".
The United States has a different system of government from Canada so it's not surprising that there are differences.
Given the primacy of our Constitution and the Supreme Court's role in interpreting whether a law is consistent with our our Constitution, choosing justices is a rather existential question.
What differences? The Supreme Court of Canada is in essence directly appointed by the Prime Minister so is very vulnerable to politicization. The Supreme Court is also responsible for interpreting whether a law is consistent with our Constitution so it's just as existential.
I actually agree with tyre on this. Canada has the Westminster system, meaning a Parliament where one or more parties forms a government. In Canada particularly, party discipline is near absolute: you vote with your party or your party kicks you out. This means legislation is really passed on a party level. A party with a majority basically passes the legislation it wants to, with none of the horse-trading and whipping and deal-making that is common in the U.S. A minority gov't has to make a deal with another party to pass legislation, but that's between two entities, not the tens or hundreds of congresspeople who need to be corralled.
The result of this is basically higher quality legislation: no loopholes to gain this Senator's support, no watering down or poison pills; but also, no extremist bills with clauses to trade away to buy support. The gov't passes the legislation it wants to, in the form it wants to, for good or ill. As a result, I believe, matters reaching the Supreme Court of Canada really are more narrow legal issues, not another avenue of attack on legislation. There can be significant rulings with broad implications, but overall, Canada's Supreme Court isn't a battleground because legislation isn't a mess offering a variety of vectors of attack. It's more internally coherent.
> The Supreme Court of Canada is in essence directly appointed by the Prime Minister
And that's the crucial difference: if a Supreme Court judge in Canada starts misbehaving I guess Prime Minister can dismiss them just as easily. In the US judges are appointed for life, so if the wrong person gets appointed that choice will haunt us for a few decades.
Supreme Court decisions may be explained by (1) partisan views; (2) differences in judicial philosophy; and even (3) pragmatic views (e.g. 'what can the country handle right now?').
As to learning what specifically motivates the justices, this is a lengthy topic. There is a lot to chew on.
Actors outside the Supreme Court regularly try to influence it in many ways. Some want it to be more partisan, for example. Some want to make the court more insulated from elections of the president and senators. Some want to modify the structure of the Court itself.
I wish the Supreme Court had this kind of attitude towards other questionable decisions and actions by our Congress, namely the passage of the 16th amendment.
Can someone explain why America has reservations? From what I know, Native Indians had this land almost 2+ centuries ago. Why have a special, looks like an autonomous, region and special treatment to people that are a few generations down from when this happened?
Fair point. But I'd say that we kept them when we thought it was convenient to do so - when the land that it gave them wasn't land that we decided we wanted. So my point was, not that we never kept them, but that we should keep this one now, even if we decided it was inconvenient.
I'm not American, so don't know the topic in details. I have found this online:
"The main goals of Indian reservations were to bring Native Americans under U.S. government control, minimize conflict between Indians and settlers and encourage Native Americans to take on the ways of the white man." [1]
Arguably, the treaties are not only "how" but also "why" us modern Americans, detached from the times in which those reservations were established, should uphold them, as they are lawful.
We could certainly look at why the treaties were signed, but the original comment basically asked why we, modernly, should care.
The treaties, as legal instruments, partly explain why reservations still exist, yes, but a treaty only survives if it isn't an impediment. I think it's key to understand why they were created in the first place because that also explains why they still exist: IMHO they still serve their purpose.
> Lands (in what is now Oklahoma) west of the Mississippi River to be conveyed to the Choctaw Nation. Lands east of the Mississippi River to be ceded and removal to begin in 1831 and end in 1833.
A treaty is a tool, it's 'how' to achieve something, not 'why' achieve something.
The reasons are as per my previous comments, and also as a tool to displace native population (in effect ethnic cleansing) and to grab land, as is for example the case of the treaty you mention.
Because in many cases we signed legally binding treaties with what were sovereign people at the time (and ostensibly are today but in practice not actually). We have either used loopholes or outright reneged on the treaties to further take their land away. I don't know if the time passed is relevant, when we pass treaties and sign agreements in general they have to mean something if we intend to be a nation of laws.
As I understand it, it's not "special" status and more a result of the laws that were put into place when the land was "obtained" from Native Americans. Renegading on those treaties would be no different than the government repossessing your generations-owned land because "you shouldn't get special treatment because your great grandfather bought this land for $3".
It's complicated. Tribes, much like (capital S) States, are semi-sovereign, sovereign in some things but not in others. Much like States, reservations are still part of the United States.
The US government signed treaties (Legal documents) with Native American tribes. This decision rests on the fact those are, indeed, binding documents. Congress can explicitly modify these treaties, but that is an explicit legislative duty.
It really isn't that hard of a question to answer. If I legally own land, how far back in history should it go? Well, probably as far back as the entity that enforces legality says.
The court has never ruled the president can't unilaterally tear up treaties too though, so it may not require Congress. When Bush unilaterally ended the ballistic missile treaty the court refused to hear the case.
These rights existing because the US government signed treaties with independent foreign nations. Those treaties are valid law until the Congress withdraws from them.
Did the US government ever acknowledge them as independent foreign nations? The War of Independence was partly fought to get away from the British proclamation of 1763 that said you couldn't settle west of the Appalachians without a treaty.
Oklahoma was part of the Louisiana purchase, the US considered it their land for that reason.
The US signed treaties with the indigeneous population in an attempt to secure peace, not out of any sort of acknowledgement that they had to.
>The US signed treaties with the indigeneous population
and by doing so, acknowledged that those indigenous populations were soveriegn nations. It doesn't matter why they signed those treaties, the only thing that matters is that they did.
You don't get to cancel a treaty just because the other party used to have leverage over you and doesn't anymore.
> Did the US government ever acknowledge them as independent foreign nations?
Yes. That's why we had to write treaties with them, to gain proper title to the land. Even if we treated those who signed the treaties as having more authority than they actually did, and if we treated the treaties as mere scraps of paper, those treaties were still seen as treaties with legitimate sovereign nations.
I think like most things, reservations weren't a solution to all things all native peoples for all time. It was more of a point in time act for specific reasons.
In this case the US was engaged in very specific legal deals with these groups. Reservations grew out of that process.
It's contracts between nations (the US federal government and the the tribes). Native American tribes are numerous (the federal government recognized 550 distinct tribes when I last checked) and have agreements with the government that were to guarantee their sovereignty.
The US government was making treaties with Native American tribes as recently as 1871. One hundred and fifty years ago isn’t long at all. It’s two lifetimes. It’s recent enough for someone to have known someone who was alive then.
> The US government was making treaties with Native American tribes as recently as 1871.
Even later than that I think? The government was fighting Geronimo in the 1880s, and my understanding is there was some intermittent fighting as late as the 1920s. I'm not sure about treaties specifically though.
You own quite a bit of fenced-land and have built some dwellings on it, a main home, a couple outbuildings, a barn, etc... you and your family farm it, raise livestock, hunt, fish, etc... and live quite well off the land without ever needing to leave or venture beyond the fence.
One day you see some strangers outside your fence, looking quite haggard, and ill setting up a camp using nothing but the meager supplies left in their vehicles, and what looks to be parts of the vehicles themselves...
Feeling compassion you attempt to help them, you open your gate and land to them, your home even, providing food, additional shelter, and even teaching them some basic things about your land and how to harvest, hunt, fish and generally live off it...
Fast forward a couple centuries, and now your "guests" have double-crossed
you... taken all your land by force, persecuted your family while committing countless crimes including rapes, murders, and basically genocide on a continental scale.
In an act of "graciousness" during one of countless "treaties" you've been forced into accepting under duress - so that your entire family wasn't completely wiped from the face of the earth... you were "allowed" some small areas of undesireable land by your new masters where you be confined and kept out of the way without constantly needing to be harrased and supervised into submission... that was until those same people found out there was oil and other commodities buried underneath your newly constucted hovels... at which point they just pushed you into smaller and smaller areas, and took what they wanted from you and yours at-will anyway... I mean who could you complain to? their bought-and-paid for system of goverment and courts? the same that were used to persecute your family and steal your lands and heritage?
Now apparently some judges have decided to interpret the law as written, instead of posing for pictures in black gowns with pretty little wooden hammers...
This analogy falls apart some since there was never a concept of land ownership (to my knowledge) amongst the various North American tribes, so there wouldn't have been "fenced-land" semi-permanent dwellings to take over to begin with. Also, not all of them were welcoming in the romanticized way you present and many of them were very brutal to rival indigenous groups.
In short, it's a little more complicated than that. Certainly there was much evil committed towards indigenous peoples in many places, though. However, the Aztecs weren't very nice to their neighbors and the fact that they were betrayed by the Spanish seemed like an apt comeuppance for a group led by bloodthirsty warmongering maniacs.
Most reservations are not great places to live. A google search shows there's lots of crime, depression, and poverty. I think these people should realize its difficult to live in relative isolation these days and move forward. Let them keep this land but don't attempt autonomous independence. Pick your source. An oversimplification: white-guilt. You're being downvoted because people assume this comment is racist when I think you're just asking for information.
You can literally say the same thing about say, Alabama. It's full of crime, depression and poverty. How about we let them keep their land, but remove their statehood?
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.
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-virgin... for background on that.
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.
"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.
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.
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.
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.
> a decision in favor of a man who was convicted of sodomizing a 4 year old child
The decision doesn't mean he goes free. It means he gets a new trial in a Federal court. I expect the new trial will convict him and he'll just be serving more time in a Federal prison instead of the state prison where he has been for the past 20 years.
...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.....
I do not believe people are supporting the 'individual' in question but are focusing on the principle that was argued. In addition, this person can be retried in Federal courts
As you say, "ongoing treatment". The past is still present.
Just because our (US) myopic society places plaques on any building over 100 years old and calls it "historic" does not mean that we get the right to say that something is "too old" to be rememberd and corrected.
Native American's had histories going back, in many cases, thousands of years and for them much of the destruction was relatively recent and they have not forgiven or forgotten.
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.
> 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.
This position assumes the ills from over a century ago have been fully resolved _right now_. Watching the news, that does not seem to be case.
(I try not to put these words in your mouth, you're stating "And strongly support fixing our ongoing treatment of them."!)
> I don't support trying to redress ills from over a century ago
That isn't what this decision is doing. This decision is pointing out that the current state of the law is not what the State of Oklahoma claims to think it was. (But even that claim is dubious since, as the Court's opinion notes, Oklahoma admitted more than 30 years ago that it was improperly taking jurisdiction over cases that should have been tried in Federal courts.) It's not saying "we should give eastern Oklahoma back to the Creeks". It's saying "eastern Oklahoma, according to current law, is a Creek reservation". And it gives plenty of examples of how this fact has been implicitly recognized for quite a while.
The decision also does not affect anything involving non-Indians on the land in question. The city of Tulsa doesn't have to move. Nobody has to leave their homes. No business arrangements have to change. All it does is explicitly recognize that a certain class of criminal cases need to be tried in Federal courts instead of Oklahoma state courts.
> 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.
I can understand this, and I think a lot of people are open to argumentation on this. Where it seems to get complex is when those past harms seem to have had a chain reaction that lingers and causes problems for people today.
Do I support recompense for someone just because their great grandparent was a slave? No. Do I support recompense because someone lives in a slum and has had poor choices in life available to them because of structural problems resulting in their parent and grandparents situations because of the situation of that great grandparent? Maybe? Yes? I think it's a harder and more complex question with a lot more to consider when laid out in that manner, so I don't have a simple answer.
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.
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.
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.
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.
This is a terrible article, it just cites the facts of the decision, teases the implication (OMG half of OK!) and explains nothing. Here's a review article about the same case from a while back which does a better job: https://www.washingtonpost.com/outlook/2018/11/28/half-land-...
The tl;dr is that, yes, indeed, half of Oklahoma is part of land reserved for the Creek in a 1833 treaty. And almost two centuries of subsequent jurisprudence and state development has (unsurprisingly) completely ignored that with effectively no legal basis. Neither Congress nor the state of Oklahoma has ever lifted a finger to try to make this right.
Basically, this is the Supreme Court saying that enough is enough, this can't go on, and telling the relevant governments to get their shit together and figure this out.
Side note - as a part 'native' I wish that term you used would come back. Indian is now ambiguous and First Nations and Native American sound so stupid.
If we are going to truly treat this 1833 treaty as legally valid, does that mean that one party is entitled to compensation for 187 years of damages? Or is it more likely that we will somehow hand-wave it away and just find a way to retroactively undo the treaty?
I was thinking the same thing, if what the court was saying was that the land has always been a reservation, then, uh, get ready for the mother of all tax refunds.
Court decisions in the US (As in any other country in the world) are made in the context of the current social climate.
The current American social climate is not ready, willing, or interested in meaningful reparations. I doubt the tribe will be successful in suing for any damages.
> If we are going to truly treat this 1833 treaty as legally valid
If? SCOTUS literally just said it's valid. Today.
As far as what's going to happen, presumably the state legislature, congress, and the Tribal government(s) are going to come to some kind of deal. I'm no expert. I'm just reacting to the vaguely racist paranoia in the headline that has people freaking out that they'll suddenly be Ruled by Indians.
Ah, yes. I see. There is no doubt that the Federal Government ignores a number of Federal laws. More importantly, I believe, they ignore the US Constitution and Amendments.
They are Amendments that enshrine rights and limit the Federal Government. Amendments take more than a simple majority to pass, which is all a law takes.
However, I think your comment would have been more impactful if you coolly made your point and linked to the WaPo article for further reading instead of using that inflammatory tone and language.
So if it's not part of OK, how does that impact OK from a representation in Congress, electoral college, e-Rate/federal funding perspective.
All of those people are no longer part of the state?
States and reservations are orthogonal concepts. This has nothing to do with "taking land away from" a state, it's about which legal authority has jurisdiction within the borders. People on reservations still vote in their relevant state elections.
Over native americans on tribal land. The state still has authority over everyone else. And the tribal police don't have authority over them. It's convoluted.
From long observation: no, one thing HN is remarkably bad at, even compared to the rest of the web(!), is taking context into account. Usually that kind of thing is deliberate trolling when it happens elsewhere, but here I can never tell. It seems so sincere.
It's pretty clear to me that it was sarcastic, but sarcasm reads really badly on the Internet. In open forums, it's best avoided -- there are just too many ways for it to go wrong. (Especially when not everybody is a native speaker, which makes sarcasm even harder to recognize.)
I don't think there's a consensus on that. Regarding words that some persons find deeply offensive:
- Some readers feel that using such words should be avoided simply because it's emotionally hurtful to certain individuals. Or because it reinforces beliefs they find abhorrent. Or for the pragmatic reason that it tends to end constructive discussion.
- Other readers feel that having policies against using such words does more harm than good, and stifles free and honest discussion. And coddles individuals who are too easily offended, when they should in fact use it as an opportunity to mature.
I think HN's audience skews more towards that first group. I'm sure other forums exist that skew the other way.
You "sign up" with the sovereign tribal governments, just like any other nation. EU citizenship is worth a lot to many people, but they've still managed to find a system that doesn't include anyone with "some European blood".
Every tribe can determine their own criteria, and while some do consider how much "Indian blood" you have, that seems to be mostly because the US government heavily promoted the idea 100 years ago: https://chicago.suntimes.com/2018/10/20/18426433/warren-ance...
Native americans do pay the same federal income tax as everyone else. Tribes don't pay federal tax. If you live on a reservation, you generally don't pay state income tax. It is kinda complicated.
There was already an incentive - tribes running casinos had folks try to force their way in to get a cut. It didn't work; tribes get to manage their membership, and have historically been quite picky about how they do it.
You can't sign up. I know someone who is part (unknown tribe) , but her grandpa didn't Regiser with the tribe and she can't so she is fully American to the law. Some distant cousins of hers with less generic heritage are members of the tribe. There are advantages to being part of a tribe, but many have decided they are Americans and not bothered joining for reasons of their own.
"Indians" in the sense you're using are not an actual thing. To my understanding, if you want to be a member of the Muscogee Nation, then you need to show legal proof of a bloodline going back to at least one specific person on the Dawes Roll's list of Creek members.
If you believe you are a member of a tribe, contact them. Each tribe has procedures for determining membership as well as the rules, such as distance, in order to obtain benefit.
https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf
"The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. 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.
The judgment of the Court of Criminal Appeals of Oklahoma is Reversed."