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Comment by Gunax | Hacker News Reader

So the case at hand is about the prosecution of a tribal member by the state court.

While I think the SC made the correct legal decision, I am worried about the implications of this. Do we really want to have separate legal systems based on ethnicity or tribal membership? What if the tribe legalizes marijuana but the state doesn't? What if the punishments in one are more severe than another?

Typically the jurisdiction of crime is based on territory, not ethnicity.

Im not a lawyer and I'm not American, so I could of course be completely misunderstanding what the implications are.

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The territory is "owned" by the tribe(s) although that ownership is subjugated by federal (not state) interests.

Imagine if MA tried to claim that RI was really part of its territory. Eventually, the case reaches the Supreme Court, which rules that in fact RI is actually its own thing. MA has no jurisdiction to prosecute in RI, but the federal government still does.

Except that eastern OK is a lot larger than RI, and the origins of the reservation there are much darker and wrapped up in the appalling treatment of indigenous people.

I'm really not trying to discuss the legality of it.

However, that analogy does not match up with what I read.

>The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said Washburn.

So it's not the territory that determines jurisdiction, but citizenship. In other words, based on who you are not where you are.

https://www.npr.org/2020/07/09/889562040/supreme-court-rules...

> certain major crimes committed within the boundaries of reservations must be prosecuted in federal court

(emphasis mine)

> So it's not the territory that determines jurisdiction

Seems like there is some contradiction here.

If you are a tribal member, you may go to tribal court and be subject to their laws. If you are not, you won't.

Some of the Pueblo communities close to where I live (Santa Fe) do in fact claim jurisdiction over visitors on their land. There are large roadside signs notifying you of this as you cross into their territory.

The fact that this may not be true is almost certainly just the result of the federal government saying it isn't true, rather than anything to do with the desire of the various tribes.

In most countries, if you're an overseas visitor, you're subject to the law of the country you are in (though they may simply deport you pre or post trial). The fact that this is not (always) true for indian reservations likely reflects the fears of non-indian people rather than the desire of indians.

> Do we really want to have separate legal systems based on ethnicity or tribal membership?

And how does one certify identity/ethnicity and why won't individuals claim as many (or as little) of them?

Well it's certified based on tribal membership, which is an actual, de jure status. When I wrote ethnicity I am just acknowledging that it's so closely tied to tribal membership that they are effectively the same.

I imagine the tribes can grant status to anyone they like as a sovereign nation, just like America can grant citizenship to whomever it decides.

In the exact same way that every country in the world operates. The tribal government sets the criteria that must be met to be a member of the tribe.

I see, so, just like how around the world peers recognize the ability of a self-proclaimed nation of define their own nationality so in this case the US is the peer that recognizes tribal government sovereign authority to define who is has membership in it (among other things).

Does tribal governments not have legal jurisdictions? Judicial institutions?

That's the point the tribe is a separate nation by treaty. The tribe has the right to make legal laws and rules. We almost never actually recognize them but they do exist.

That seems like a horrible precedent. I don't see how this would be any different than, say, a group of Christians or Muslims installing a parallel system of courts to police their own people.

It's not different. Such courts exist in many countries.

> Typically the jurisdiction of crime is based on territory, not ethnicity.

The US Constitution allows the country to enter into treaties which are otherwise unconstitutional.

It has entered into a treaty with a different nation with overlapping boundaries, due to the nature of the treaty, and it has to honor that. Congress can further renege on their promises and change the treaty, but the reason that treaty exists is because a prior older unconstitutional act involving the relocation of those indigenous nations to that area of Oklahoma. So Congress and the President won't touch it, not just the current one, but no congress and President will touch this without consequence.

So its not about what we want, its about atonement and having to deal with this incongruency now in the 21st century. We are still in the process of recognizing that there are hundreds of separate semi-autonomous and co-dependent nations within the continental US, and we have to have diplomatic relations with their people, people that cannot be simply deported when they commit a heinous crime, and share a porous border with the rest of the country.

SCOTUS left the door open for Congress to change or nullify the treaty that created the reservations in OK.

If we (American society) decide we'd rather not deal with the complexities of a massive reservation that overlaps half of OK and includes one of OK's largest cities, we can ask Congress to change the rules.

SCOTUS can't close the door on congress changing the law, though. That's the purpose of congress.

True, poorly phrased - the judgement explained quite plainly that Congress is the correct body to clear up whatever mess exists. And that SCOTUS can't simply throw-away/ignore an otherwise legal treaty.

The point that Gorsuch made in his majority opinion was that it's not the Supreme Court's role to figure this out — that's Congress' job.

The SC only interprets the law, which in this case referred to a treaty that never repealed by Congress, so the SC ruled that it must be honored.

Clearly this results in confusion, and can't stand, and the court sent a strong signal that it needs to be resolved by Congress.

... which if past practices provide any indication means that the USA will abrogate yet another treaty.

> Clearly this results in confusion, and can't stand

I'm not so sure. The only real effect of this decision is that everybody now has to recognize that a certain class of criminal cases (those in which all parties are members of the Creek nation) in eastern Oklahoma can only be tried in Federal courts (or, for some, Creek tribal courts), not Oklahoma state courts. Nothing else has to change. The Creek nation is already coexisting with non-Creek inhabitants of the same territory and none of that has to change; the city of Tulsa doesn't have to move, people don't have to leave their homes, businesses don't have to relocate. I don't see what makes the state of affairs after this decision particularly confusing or unstable.

The Chief Justice doesn't agree with you there. He wrote the decision "will undermine numerous convictions obtained by the State, as well as the State's ability to prosecute serious crimes committed in the future ... [and] may destabilize the governance of vast swathes of Oklahoma."

> The Chief Justice doesn't agree with you there.

I know. I don't find his claims compelling, for much the same reasons that the court majority doesn't, as discussed in some detail in the court's opinion.

> Clearly this results in confusion, and can't stand

It seems pretty clear to me. Both Oklahoma and the federal government willfully ignored established law and usurped jurisdiction that didn't belong to them. That it's inconvenient to the status quo doesn't mean it can't stand.

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