Trump
Lawsplainer! Trump Doing Illegal Fu@k-Sh*t To Census, Surprise!
Shut up is too the legal term.
July 22, 2020 03:18 PM
Well, we now know Trump's latest plan to subvert democracy and screw over the American people — by pretending that undocumented immigrants just don't exist!
Donald Trump, with the help of John Yoo, as in George W. Bush's torture guy John Yoo, announced yesterday in a memorandum that he would be fucking with the data collected by the Census Bureau and altering it to exclude undocumented immigrants before sending it to Congress. The result of this would be that undocumented immigrants would be ignored when determining how many congressional representatives are allocated to each state, taking congresspeople away from states with high immigrant populations and instead giving them to other, whiter states.
In addition to being white supremacist nonsense, this is also blatantly unconstitutional. But that has never been a problem for this regime!
Yoo and Trump have apparently decided that the Supreme Court's recent decision striking down Trump's attempt to rescind DACA gives Trump carte blanche to do whatever he wants, Constitution and federal law be damned. (Don't try to make sense of it. It is as batshit insane as it sounds.)
<p>
If you're having a sense of déjâ-vu right now, it's not just you; Trump has been trying to manipulate the Census to screw over people of color, immigrants, and people in blue states ever since he took office. He already tried to fuck with the Census and intimidate people of color and immigrants, both documented and undocumented in 2018, when he tried to include a question on the Census specifically <a href="https://www.wonkette.com/mean-judges-wont-let-trump-ratf-ck-census-unfair" target="_blank">asking respondents</a> about their citizenship status in a baldfaced attempt to intimidate immigrants and people of color into not responding. After documents came out showing Republicans were specifically hoping to benefit "Republicans and Non-Hispanic Whites," the Supreme Court <a href="https://www.wonkette.com/the-census-is-coming-and-it-just-might-destroy-our-constitution-before-it-even-gets-here" target="_blank">struck down</a> this bullshit.
</p><p>
But with Trump, enough is never enough. And since he will hopefully, fingers crossed, be <a href="https://www.wonkette.com/new-york-times-polls-say-trump-is-bigly-f-ckin-loser-whos-gonna-bigly-f-ckin-lose" target="_blank">leaving office</a> in January, he is desperate to try to find other ways to destroy our democratic system in the meantime.
</p><p>
The executive order comes right out and says that its purpose is to ignore undocumented people, stating<br>
</p><blockquote>
For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status[.]
</blockquote><p>
It also ridiculously claims that "[t]he Constitution does not specifically define which persons must be included in the apportionment base." Unsurprisingly, the memorandum pretends that the words in the Constitution that directly contradict this just don't exist. Section 2, clause 1 of the 14th Amendment states that
</p><blockquote>
Representatives shall be apportioned among the several states according to their respective numbers, counting the <strong>whole number of persons</strong> in each state[.]
</blockquote><p>
As we no longer count anyone in the United States as being merely three-fifths of a person, this language seems to be self-explanatory. And the Supreme Court has long agreed.<br>
</p><p>
The memorandum also claims it is proper for the president to fuck with the data collected by the Census Bureau, saying,
</p><blockquote>
The President, by law, makes the final determination regarding the "whole number of persons in each State," which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)).
</blockquote><p>
Of course, that's not at all what Title 2, Section 2a(a) says. Rather, it states
</p><blockquote>
the President shall transmit to the Congress a statement showing the whole number of persons in each State[,] as ascertained under the [...] decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.
</blockquote><p>
So, no. There's no part of the law that says "but if Donald Trump is President, he gets to do whatever he wants!" No matter what Trump, Stephen Miller, and John Yoo think.<br>
</p><p>
The ACLU has already <a href="https://www.aclu.org/press-releases/aclu-calls-trump-anti-immigrant-census-order-unconstitutional" target="_blank">announced</a> that it plans to challenge Trump's latest attempt to Make America White Again. Dale Ho, the director of the ACLU's Voting Rights Project, said yesterday that
</p><blockquote>
The Constitution requires that everyone in the U.S. be counted in the census. President Trump can't pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court. His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We'll see him in court, and win, again.
</blockquote><p>
Whether this latest will hold up in court (spoiler: it won't), however, is probably not the point. While we all rightfully scream about what utter poppycock this is, Trump gets to distract everyone from the absolute disaster that is his COVID-19 "response." Plus, racism and xenophobia are two of his absolute favorite ways to rile up his bigoted, hateful base.<br>
</p><p>
Like most things Trump tries to do, this is discriminatory, anti-democratic bullshit. But don't take my word for it! Let's see what Trump's own <a href="https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html" target="_blank">Census Bureau</a> has to say about the Founders' intent in writing the Census into the Constitution. After all, we're all "originalists," right?<br>
</p><blockquote>
The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.<br>
<br>
</blockquote><p>Oh.<br></p><p>
[<a href="https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/" target="_blank">Memorandum</a>]
</p><p>
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Cops Behaving Badly
The Battle Of Portland Heads To Court
The first of many many many many MANY MANY MANY MANY lawsuits to come!
July 20, 2020 01:35 PM
Portland is under attack. Armed men in military-style fatigues are roaming the streets and throwing people into unmarked minivans, shooting at peaceful protesters, and intimidating protesters who dare speak out against police brutality against Black Americans.
And, because we are here in the year of our Satan, 2020, these thugs are federal officers.
As we've previously written about here, here, and here, Donald Trump and acting DHS Secretary Chad Wolf (yes, amazingly, that is his real name) have sent stormtroopers to Portland to harass, shoot at, and disappear people. These goons have been terrorizing protesters in the name of "law enforcement," with Wolf calling the protesters "violent anarchists" because of ... wait for it ... because of some graffiti.
Thankfully, the Oregon attorney general is fighting back. Friday night, state AG Ellen Rosenblum filed a complaint in federal court, seeking a stop to this fascist fuckery.
<p>The complaint (posted below), styled<em> Rosenblum v. John Does 1-10</em>, alleges federal officials are violating the First, Fourth, and Fifth Amendments, as well as creating a "public nuisance" by unreasonably interfering with the general public's right to public safety, public peace, public comfort, and public convenience. </p><p>Rosenblum notes that federal officers "have engaged in actions endangering Oregon's citizens and the people walking Portland's streets," and have engaged "in unlawful law enforcement in violation of the civil rights of Oregon citizens by seizing and detaining them without probable cause." Her office is seeking a temporary restraining order and eventually a permanent injunction to put a stop to this absolute madness.</p><p>What's happening right now in Oregon is so utterly insane that it borders on unbelievable. And yet,</p><blockquote>federal law enforcement officers ... have been using unmarked vehicles to drive around downtown Portland, detain protesters, and place them into the officers' unmarked vehicles, removing them from public without either arresting them or stating the basis for an arrest, since at least Tuesday, July 14.</blockquote><p> As the complaint notes, <br></p><blockquote>Citizens peacefully gathering on the streets of Portland to protest racial inequality have the right to gather and express themselves under the First Amendment to the United States Constitution.</blockquote><p>The federal government's actions<br></p><blockquote>are undertaken with the intent of discouraging lawful protest and therefore constitute an illegal prior restraint on the First Amendment right of Oregonians to peacefully protest racial inequality. Citizens who are reasonably afraid of being picked up and shoved into unmarked vans—possibly by federal officers, possibly by individuals opposed to the protests—will feel compelled to stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do. </blockquote><p>The lawsuit names the Department of Homeland Security, Customs and Border Protection, the US Marshals Service, the Federal Protective Service, and 10 unidentified officers as defendants. </p><p>Of course, the feds haven't helped the Oregon Attorney General identify the people or agencies involved in this twaddle. Rather,<br></p><blockquote>They have prevented the Attorney General from knowing which agencies and which officers are acting. [...] The identity of the officers is not known, nor is their agency
affiliation, according to videos and reports that the officers in
question wear military fatigues with patches simply reading "POLICE,"
with no other identifying information.</blockquote><p>It's all fascist bullshit.</p><blockquote>As of Monday morning, no hearings have been scheduled, but judges usually try to motions for handle temporary restraining orders quickly. For now, we'll just have to wait and see. And hope that, in the meantime, people like last night's amazing <a href="https://www.usatoday.com/story/news/nation/2020/07/20/portland-protests-wall-moms-formed-protect-demonstrators/5470348002/" target="_blank">wall of moms</a> continue to step in.Defendants' tactics violate the rights of all people detained without a warrant or a basis for arrest, and violate the state's sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest, without serving any legitimate federal law enforcement purpose.</blockquote><div>And not only is this fascist bullshit, it's also incredibly dangerous in other ways. How easy would it be for white supremacist militias to wear and do the same things?</div>But don't worry, the complaint touches on that, too, noting that<p><br></p>
<blockquote>Oregon's citizens are at risk of kidnapping by militias and other civilian "volunteers" taking it onto themselves to pull peaceful protesters into their cars, in a manner that resembles the federal actions described above. And Oregon's own police agencies are therefore injured, by roving federal officers confusing citizens about whether they are obligated to comply with armed men ordering them into unmarked vans.</blockquote><p>In one case,<br></p><blockquote>in the early hours of Wednesday, July 15, Mark Pettibone alleges that he was confronted by armed men dressed in camouflage who took him off the street, pushed him into a van, and drove him through downtown until unloading him into a building, which is believed to have been the Mark O. Hatfield United States Courthouse.</blockquote><p>And he's not the only one!<br></p><blockquote>On information and belief, unidentified federal officers including John Does 1-10 have likewise detained other citizens off the Portland streets, without warning or explanation, without a warrant, and without providing any way to determine who is directing this action. There is no way of knowing, in the absence of those officers identifying themselves, whether only U.S. Customs and Border Protection is engaging in these actions. The Marshals Service and other Homeland Security agencies reportedly have been sent to Portland to respond to the protests against racial inequality.</blockquote><p>As the lawsuit points out,</p><blockquote>Oregonians have the right to walk through downtown Portland at night, and in the early hours of the morning.</blockquote><p>And<br></p><blockquote>Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime. <br><br>[...]<br><br>Defendants are injuring the occupants of Portland by taking away citizens' ability to determine whether they are being kidnapped by militia or other malfeasants dressed in paramilitary gear (such that they may engage in self-defense to the fullest extent permitted by law) or are being arrested (such that resisting might amount to a crime).</blockquote><div><br></div><p>The ACLU of Oregon has, of course, <a href="https://www.aclu-or.org/en/press-releases/aclu-sues-federal-agents-portland" target="_blank">filed</a> its own suit against the feds on behalf of protesters and legal observers. The ACLU suit "seeks to block federal law enforcement from dispersing, arresting, threatening to arrest, or using physical force against journalists or legal observers." And the civil rights organization has promised that there is more to come, noting that "[t]he lawsuit is one of many the ACLU will be filing against federal authorities in Portland for their unconstitutional attacks on people protesting the police killing of George Floyd."</p><p>Rosenblum and the ACLU are far from alone in objecting to the authoritarian tactics being used by federal ghouls. Portland Mayor Ted Wheeler (who is <a href="http://katu.com/news/local/protesters-rally-outside-mayor-ted-wheeler-northwest-portland-apartment" target="_blank">no friend</a> of BLM protesters) and Oregon Governor Kate Brown have already told Trump's "personal army" that it is not wanted there, to no avail.</p><p><span></span>Here's the complaint!</p><iframe class="scribd_iframe_embed" data-aspect-ratio="null" data-auto-height="true" data-rm-shortcode-id="df7b430f872065486e3d27380d8309ec" frameborder="0" height="600" scrolling="no" src="https://www.scribd.com/embeds/469786049/content?start_page=1&show_recommendations=true" width="100%"></iframe><p><br></p><p><em>Follow JLC on <a href="https://twitter.com/jamielynncrofts" target="_blank">Twitter</a>!</em><br></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p></p><form name="donation" method="post" class="donation-form"><p class="subheadline">How often would you like to donate?</p><div class="form-row row--plan"><label class="plan-type__label"><input type="radio" name="plan_type" value="once" class="plan-type" required="" checked> Just once
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Cops Behaving Badly
Ask Wonkette: Is It LEGAL To Disappear People Off American Streets, Or The OPPOSITE Of That?
This one's a real sticky wicket!
July 17, 2020 03:41 PM
The city of Portland, Oregon, is under assault from its own federal government.
People are being detained by unidentifiable alleged law enforcement officers, blindfolded, thrown into unmarked vehicles, and detained without even knowing where they are or who is holding them. This is not a dystopian thriller — it's America in 2020.
Since at least July 10, federal officers from the Department of Homeland Security have been terrorizing Black Lives Matter protesters. Now, alleged federal officers wearing military fatigues have been rounding up Portlanders and throwing them into unmarked vans. Because apparently, forcibly disappearing people is something we do now.
Usually, the Department of Homeland Security props up white supremacy by acting as immigration Nazis. Now, it's also brutally attacking journalists, peaceful protesters, and apparently anyone who happens to be in downtown Portland in the middle of the night.
Last weekend, federal officers shot peaceful protester Donavan LaBella in the face with an allegedly "less lethal" weapon. His skull was fractured and he had to undergo reconstructive surgery.
Portland Mayor Ted Wheeler and Oregon Gov. Kate Brown have both asked the feds to GTFO. These requests have been ignored by both Trump and his chief DHS lackey, Chad Wolf.
Can Trump do this?!
Well, he shouldn't be able to.
<p>Forced disappearances are, of course, not supposed to be a thing here in the US of A, where we pretend to care about things like the rule of law. It's also illegal, fascist bullshit. You see, we have a constitution. And it requires <em>crazy</em> things like "free speech," "due process," "probable cause," and "equal protection under the law." All of these things mean you can't just arrest, disappear, or shoot at people who are peacefully protesting.</p><p>Protesting injustice is a celebrated exercise of First Amendment rights — the government isn't allowed to stop protests just because it doesn't like them. The government also can't search, detain, or arrest people for no reason. The Fourth Amendment's prohibition on unreasonable searches and seizures says that's a no-no. And, just for posterity, the Fifth and Fourteenth Amendments' guarantees of due process mean that the government isn't allowed to just disappear people. THESE ARE THINGS WE SHOULD ALL BE ABLE TO AGREE ARE GOOD.</p><p>Under US law, generally law enforcement needs a warrant and probable cause of a crime to arrest a person. But in violation of the Fourth and Fifth Amendments people in Portland are being detained and arrested for <a href="https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/" target="_blank">no reason</a> other than being outside while there are protests happening. <br></p><p>Juan Chavez, director of the civil rights project at the Oregon Justice Resource Center, <a href="https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/" target="_blank">called</a> the arrests "terrifying," saying </p><blockquote>It's like stop and frisk meets Guantanamo Bay[.] You have laws regarding probable cause that can lead to arrests[.] It sounds more like abduction. It sounds like they're kidnapping people off the streets.</blockquote><p>In fact, under both US and international law, what's happening in Portland is what those of us educated in the law call "fascist fucking bullshit." Enforced disappearances are a crime against humanity, codified in such documents as the <a href="http://www.un.org/documents/ga/res/47/a47r133.htm" target="_blank">United Nations Declaration on the Protection of All Persons from Enforced Disappearance</a>, the <a href="http://www.oas.org/juridico/english/treaties/a-60.html" target="_blank">Inter-American Convention on Forced Disappearance of Persons</a>, and the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf" target="_blank">Statute of the International Criminal Court</a>.<br></p><p>This is in addition to the fact that using chemical weapons like teargas would be a fucking war crime if our government did it abroad instead of against its own citizens.</p><p>The federal officers deployed to Portland aren't your everyday DHS stooges, either. They include members of BORTAC and the US Marshals Special Operations Group. According to <a href="https://apnews.com/4435a1f27cf85e087e112ba1224a2f1f" target="_blank">the AP</a>,</p><blockquote>Among the federal forces deployed in Portland are members of an elite Border Patrol tactical team, a special operations unit that is based on the U.S.-Mexico border and has been deployed overseas, including to Iraq and Afghanistan.</blockquote><p>Among the BORTAC members patrolling the streets of Portland are snipers.<br></p><p>Yeah, you read that right. There are government-sponsored snipers in Portland. Training their weapons at protesters. Who are protesting police brutality.<br></p><p>What a world.</p><h2>Ugh<br></h2><p>Litigation over the feds' fuckery is already happening in federal court. Local officers in Portland are under a court order preventing them from using violent measures like tear gas unless lives are in danger. The feds don't think it applies to them, but yesterday, lawyers for protesters argued in court that does.</p><blockquote>"It's a question of aiding and abetting," Juan Chavez, attorney in the case and director of the Oregon Justice Resource Center's Civil Rights Project <a href="https://www.courthousenews.com/clash-with-local-authorities-as-feds-continue-to-advance-on-portland-protesters/" target="_blank">told Courthouse News</a>. "You see this in domestic violence restraining orders. You can't get a third person to continue the harassment that was restrained in an order. If the evidence shows that [the Portland Police Bureau] was directing the federal police to fire tear gas into a crowd and it's not in accordance with Oregon law, then it's a violation."</blockquote><p>And protesters aren't the only people under threat. The ACLU had to file a class action suit on behalf of journalists and legal observers had to file a class action suit to get Portland police to stop arresting them simply for documenting police violence at the protests against police brutality. Now, they are adding the federal officers terrorizing their streets to their list of defendants. <br></p><blockquote>"It's a logical relationship," Athul Acharya, attorney for the journalists <a href="https://www.courthousenews.com/clash-with-local-authorities-as-feds-continue-to-advance-on-portland-protesters/" target="_blank">said Thursday</a>. "Claims against city and the federal police involve both actors doing the same thing, at the same time and working together on the same nights while using the same tactics, like tear gas and batons. Federal police are working in the PPB command center and plaintiffs in the case saw federal agents swarm out of the Justice Center, which is PPB's headquarters."</blockquote><p>Judge Michael Simon <a href="https://www.opb.org/news/article/oregon-aclu-federal-law-enforcement-portland-police-lawsuit/" target="_blank">ruled today</a> that the federal defendants could be added to the suit, opening the door for the ACLU to file a motion for a temporary restraining order against them for all of this authoritarian garbage.</p><h2>It's all fucked<br></h2><p>People on the ground in Portland often had no idea whether these military-looking men were federal officers at all. Terroristic militias love to do things like cosplay as soldiers and go after protesters — and these days, the federal government is looking more and more like a white supremacist militia.</p><p>And where are all of the Oregonian "sovereign citizen" freedom fighters who scream — while holding assault weapons and wearing fatigues — they will gladly lay down their lives to protect freedom? I know that I, for one, am entirely shocked that the Ammon Bundys of the world haven't made a peep about all of the actual fascism going down on American streets.<br></p><p>While prominent people whine in Harper's about "illiberal cancel culture" because they got called out for their bigotry, we have an<em> actual</em> free speech crisis on our hands. And it has nothing to do with JK Rowling being a transphobe.</p><p>Remember: this is not normal, it is not okay, and it must be stopped.<br></p><p>[<a href="https://www.courthousenews.com/clash-with-local-authorities-as-feds-continue-to-advance-on-portland-protesters/" target="_blank">Courthouse News</a> / <a href="https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/" target="_blank">OPB</a> / <a href="https://apnews.com/4435a1f27cf85e087e112ba1224a2f1f" target="_blank">AP</a> / <a href="https://www.wonkette.com/donald-trump-invades-portland" target="_blank">Yr Wonkette</a>]</p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p>Wonkette is ad-free and funded ENTIRELY by YOU. 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SCOTUS
ICYMI: Neil Gorsuch Wrote A Really Good Supreme Court Opinion. Wait, Where Are You Going?
Yes, that Neil Gorsuch.
July 13, 2020 03:54 PM
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding"all their land, East of the Mississippi river," the U. S. government agreed by treaty that "the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians." Both parties settled on boundary lines for a new and "permanent home to the whole Creek nation," located in what is now Oklahoma The government further promised that "no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves."
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
(McGirt v. Oklahoma, opinion written by Supreme Court Justice Neil Gorsuch, yes Neil Gorsuch)
Y'ALL, THE UNITED STATES SUPREME COURT RULED IN FAVOR OF INDIAN TRIBES!
IN THE MIDDLE OF THIS TERRIBLE, HORRIBLE, NO GOOD YEAR!
We can hardly believe it, ourselves. And we would have told you about it last week, except for how there were 300 other huge Supreme Court cases that came down last week.
<p>Last Thursday was the final opinion day of the Supreme Court's 2019-2020 term, and boy was it something. We finally got the opinions we've all been waiting for in the <a href="https://www.wonkette.com/scotus-issues-rulings-for-future-trumps" target="_blank">Trump financial records</a> cases. Oh, and by the way, it turns out almost half of Oklahoma is an Indian reservation.</p><p>The case was <em>McGirt v. Oklahoma</em>. At its heart, it was about whether the Muscogee (Creek) Nation still had jurisdiction over the land its people endured the genocidal Trail of Tears to get to.</p><p>In a 5-4 decision, the court's liberal bloc was joined by none other than Scalia replacement and Trump appointee Neil Gorsuch. And credit where credit is due, it's a pretty great opinion. So congrats to whoever had Neil <a href="https://slate.com/news-and-politics/2017/03/neil-gorsuchs-arrogant-frozen-trucker-opinion-shows-he-wants-to-be-like-scalia.html" target="_blank">"Frozen trucker"</a> Gorsuch writing a genuinely moving SCOTUS opinion on their 2020 bingo card! <br></p><p>Seriously, though, it's an excellent opinion. And to be fair to Gorsuch, he isn't entirely irredeemable, like some <del>Kavanaughs</del> other people; he's actually good on Native rights. As Acee Agoyo noted at <a href="https://www.indianz.com/News/2020/07/09/on-the-far-end-of-the-trail-of-tears-nat.asp" target="_blank">Indianz.com</a>, Gorsuch's "experience in Indian law is unprecedented in Supreme Court history[.]" The native Coloradan spent a decade on the 10th Circuit Court of Appeals, which has jurisdiction over Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma. In that time, he <a href="https://www.indianz.com/News/2017/03/20/supreme-court-nominee-fares-well-in-revi.asp" target="_blank">ruled for</a> tribal interests nearly 60 percent of the time. In fact, when Gorsuch's nomination was up before the Senate, the Native American Rights Fund wrote a <a href="https://www.indianz.com/m.asp?url=http://sct.narf.org/articles/gorsuch-indian-law.pdf" target="_blank">memo</a> noting that Gorsuch had a a pretty good overall record when dealing with Native rights.</p><h2>Wherein we murder and steal from Native Americans<em></em><br></h2><p>The underlying question in <em>McGirt v. Oklahoma</em> doesn't sound very exciting: should a man convicted of serious violent crimes have been tried in federal, rather than state court? But what sounds like a dry procedural issue is actually anything but.<br></p><p>The case began with a conviction. In 1996, Jimcy McGirt was convicted of serious sex crimes against a minor and sentenced to 500 years in prison.</p><p>The problem? McGirt is a member of the Seminole Nation of Oklahoma and the crimes took place on what he argued was tribal land. And under federal law, state courts have no jurisdiction over crimes committed by tribal citizens in Indian Country; only federal courts can hear those cases.</p><p>This raised the issue of what land in Oklahoma still belongs to the Muscogee (Creek) Nation. And to get to the heart of that, we have to go all the way back to the Trail of Tears.</p><p>In the mid-1800s, the United States stole the ancestral homelands of Native Americans living in the southeastern part of the country. Trump's <a href="https://www.indianz.com/News/2017/03/16/trump-praises-andrew-jackson-but-neglect.asp" target="_blank">favorite</a> president, Andrew Jackson, forcibly removed around 60,000 people from the "Five Civilized Tribes" (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) from their ancestral land. They were then forced to march thousands of miles to what they were told would be their new homeland. Thousands would perish without ever making it there.</p><p>In return for stealing their land and genociding their people, we promised the tribes new land in the American West. But, of course, white colonizers can never just live and let live. As the <em>McGirt</em> opinion notes, Congress and the white people of Oklahoma spent decades screwing over Native Americans. </p><blockquote>Starting in the 1880s, Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribe members.</blockquote><p>According to the state of Oklahoma, the various methods of fuckery used to harm tribes and their citizens disestablished the Muscogee (Creek) reservation. But to that, the Supreme Court said "NOPE."</p><p>And to Oklahoma's argument that wypipo might be sad to learn they're living in Indian Country, Gorsuch has a great quip.<br></p><blockquote>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.</blockquote><h2>Neil Gorsuch shocks us all (and John Roberts reminds us he's a conservative Republican)<br></h2><p>It took the Supreme Court a while to get here. The justices first heard arguments in <em>Sharp v. Murphy</em>, another case raising the same issue, in 2018. Gorsuch was recused from that case because he had ruled in it while on the 10th Circuit. The Court never issued an opinion in <em>Sharp</em>, probably because it was going to be a 4-4 tie. Instead, SCOTUS granted cert in <em>McGirt</em>, allowing the justices to take a look at the issue with the full Court.</p><p>And I can't believe I'm saying this, but thank goodness for Neil Gorsuch!</p><p>Noting that "Oklahoma is far from the only State that has overstepped its authority in Indian country[,]" Gorsuch takes the states to task.<br></p><blockquote>In the end, only one message rings true. Even the carefully selected history Oklahoma and the dissent recite is not nearly as tidy as they suggest. It supplies us with little help in discerning the law's meaning and much potential for mischief. If anything, the persistent if unspoken message here seems to be that we should be taken by the "practical advantages" of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.</blockquote><p>The majority also took the time to remind us why it's important that states don't get to decide on their own to get rid of tribal land.</p><blockquote>Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did. A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the "supreme Law of the Land." It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.</blockquote><p>There's been a lot of talk this term, especially the last few weeks, about the man who gutted the Voting Rights Act a few short <strong></strong>years ago secretly being John Roberts, The Liberal. In <em>McGirt</em>, Roberts reminds us that he is, in fact, a gross conservative Republican and there's a reason George W. Bush appointed him.<br></p><p>Roberts doesn't even really attempt to justify his view with anything as silly as legal analysis. Rather than attack the majority's reasoning, the Chief Justice focuses on what he perceives to be problems with the outcome, whining about potential confusion in state and local issues "from zoning and taxation to family and environmental law[.]" And, according to Roberts,<br></p><blockquote>None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation.</blockquote><p>Clarence Thomas, who joined almost all of Roberts's dissent, also felt the need to chime in with his own one-paragraph dissent to say "SCREW YOU, PEOPLE ASSERTING SO-CALLED 'RIGHTS.'" <br></p><blockquote>I agree with the Chief Justice that the Court misapplies our precedents in granting petitioner relief. Ante, at 6–38 (dissenting opinion). But in doing so, the Court also overrides Oklahoma's statutory procedural bar, upsetting a violent sex offender's conviction without the power to do so. The State of Oklahoma deserves more respect under our Constitution's federal system.</blockquote><p><em>Wahhhhhhhhhhhhh</em>.<br></p><p>Over the tears spouted by the four dissenters, Gorsuch reminds us that tribal sovereignty is not a novel concept.<br></p><blockquote>In saying this we say nothing new. For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument. Remember, Congress has defined "Indian country" to include "all land within the limits of any Indian reservation ... notwithstanding the issuance of any patent, and, including any rights-of-way running through the reservation." So the relevant statute expressly contemplates private land ownership within reservation boundaries. Nor under the statute's terms does it matter whether these individual parcels have passed hands to non-Indians.To the contrary, this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.<br><br>It isn't so hard to see why. The federal government issued its own land patents to many homesteaders throughout the West. These patents transferred legal title and are the basis for much of the private land ownership in a number of States today. But no one thinks any of this diminished the United States's claim to sovereignty over any land. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another. And there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercise governmental functions over land even if they no longer own it communally.</blockquote><h2>Tribal sovereignty wins for once!</h2><div>This case is a huge victory for tribal citizens and tribal rights.</div><div>Jonodev Chaudhuri, Muscogee (Creek) Nation ambassador, <a href="https://indiancountrytoday.com/news/good-day-to-be-indigenous-high-court-ruling-cheered-futwtM8XcEmuRm1fNVwWew" target="_blank">noted</a> that, for the Muscogee (Creek) people, this was about much more than criminal jurisdiction:<blockquote>Many folks are in tears. Despite a history of many broken promises, as is true with many tribal nations, the citizens feel uplifted that for once the United States is being held to its promises.</blockquote><p>And like McGirt's attorney, Ian Gershengorn, <a href="https://www.courthousenews.com/high-court-backs-tribal-designation-for-wide-swath-of-oklahoma-land/" target="_blank">said</a>,</p><blockquote>Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation — and the court today correctly recognized that that this reservation endures[.]</blockquote></div><div>Oklahoma's state and tribal governments are already working together to implement the decision. On Friday, five tribes and the state of Oklahoma released a <a href="http://www.oag.ok.gov/state-muscogee-creek-cherokee-chickasaw-choctaw-and-seminole-nations-release-joint-statement-in-response-to-scotus-decision-in-mcgirt-case" target="_blank">joint statement</a> saying:</div><div><blockquote>The State, the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by the U.S. Supreme Court's decision in McGirt v. Oklahoma.<br><br>The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.<br><br>The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.</blockquote></div><div>There is a lot of terrible stuff going on right now. But at least this one time, justice has prevailed.<br></div><p>You know what? I'll let Justice Gorsuch have the last word on this one.<br></p><blockquote>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.</blockquote><p>Many thanks to the Native American Journalists Association for this excellent <a href="https://najanewsroom.com/2020/07/08/naja-reporting-guide-u-s-supreme-court-cases-mcgirt-v-oklahoma-and-sharp-v-murphy/" target="_blank">reporting guide</a> on the case!<br></p><p>Here's the [shockingly good] opinion!</p><iframe class="scribd_iframe_embed" data-aspect-ratio="null" data-auto-height="true" data-rm-shortcode-id="cb95a75eaf22532b94c29dea035413d8" frameborder="0" height="600" scrolling="no" src="https://www.scribd.com/embeds/468613829/content?start_page=1&show_recommendations=true" width="100%"></iframe><p>[ <a href="https://najanewsroom.com/2020/07/08/naja-reporting-guide-u-s-supreme-court-cases-mcgirt-v-oklahoma-and-sharp-v-murphy/" target="_blank">NAJA</a> / <a href="https://www.courthousenews.com/high-court-backs-tribal-designation-for-wide-swath-of-oklahoma-land/" target="_blank">Courthouse News</a> / <a href="http://www.oag.ok.gov/state-muscogee-creek-cherokee-chickasaw-choctaw-and-seminole-nations-release-joint-statement-in-response-to-scotus-decision-in-mcgirt-case" target="_blank">Joint Statement</a> / <a href="https://www.indianz.com/News/2020/07/09/on-the-far-end-of-the-trail-of-tears-nat.asp" target="_blank">Indianz.com</a> ]<br></p><p><strong>For more hot legal takes, follow Jamie on <a href="https://twitter.com/jamielynncrofts" target="_blank">Twitter</a></strong><strong>!</strong><br></p><p><strong>And if you love reading hot legal takes, donate to Wonkette by clicking below!</strong></p><p></p><p><a href="https://amzn.to/33mKzZe" target="_blank">Do your Amazon shopping through this link, because reasons</a>.</p><p></p><p></p><form name="donation" method="post" class="donation-form"><p class="subheadline">How often would you like to donate?</p><div class="form-row row--plan"><label class="plan-type__label"><input type="radio" name="plan_type" value="once" class="plan-type" required="" checked> Just once
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