Tag: Aboriginal Peoples

OK, This is Not What I Expected

The Supreme Court just ruled that about ½ of Oklahoma remains an Indian reservation, and so sovereign land, at least to the degree that reservations are sovereign in the United States:

The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma was that Chief Justice John Roberts didn’t manage to be in the majority in every single 5-4 decision this term. Today, Justice Neil Gorsuch wrote for a majority of five (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Roberts writing for the four dissenters and Justice Clarence Thomas appending a brief solo dissent to assert that the court lacked jurisdiction to hear this case at all.

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to commit certain major crimes committed by “[a]ny Indian” in “the Indian country.” The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation.

The decision is a stunning reaffirmance of the nation’s obligations to Native Americans. It confirms the existence of the largest tract of reservation land in the country, about 19 million acres encompassing the entire eastern half of Oklahoma. The court took almost two full terms to decide this question. It first heard oral argument in a predecessor case, Sharp v Murphy (in which Gorsuch was recused), in the fall of 2018, before restoring Murphy to the calendar this term and then, instead of hearing re-argument, granting and hearing oral argument in May on the same question in McGirt (in which Gorsuch could participate). (In a one-sentence, unsigned opinion, the court today also disposed of Murphy, ruling in favor of inmate Patrick Murphy “for the reasons stated in” McGirt.) In substance, the court “hold[s] the government to its word,” reaffirming the continuing existence of the reservations that the federal government promised to the Five Civilized Tribes in the 1830s to persuade them to give up their ancestral lands in Georgia and Alabama and walk along the Trail of Tears to the lands at issue.

As Indian law cases go, the dispute in this one is easy to understand: whether the land once granted to the Creek Nation as a reservation retains that status. The majority of five says that it does, because Congress has not adopted any single statute that explicitly terminates that status; the dissenters say that it does not, reasoning that the total body of congressional intrusions in the area, culminating in the development of eastern Oklahoma as a predominantly non-Native American area, adequately illustrates Congress’ intent to disestablish the reservation.

Gee, what happened to strict constructionism there?  

Gorsuch begins by documenting the clarity of the historical record establishing the creation of the Creek reservation: a series of treaties and statutes that, among other things “solemnly guarantied” the land to the tribe, “forever set apart as a home for said Creek Nation,” “no portion [of which] shall ever be embraced or included within … any Territory or State.”


For Gorsuch, though, the allotment process sheds no light on the outcome of the case: “For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.” Rather, “this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots.” Gorsuch acknowledges that the proponents of allotment hoped that, after the land was parceled out, the reservations eventually would be abolished, but he concludes that “to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.”

Finding allotment insufficient to show disestablishment, Gorsuch turns next to the many “other ways Congress intruded on the Creek’s promised right to self-governance.” He discusses those at some length, but, as with allotment, his overarching view is that the various “laws represented serious blows to the Creek … [b]ut, just as plainly, … left the Tribe with significant sovereign functions over the lands in question.”


There is a notable symmetry in the articulation of a strong voice in support of Native Americans by the only justice with roots in the western part of the nation. Observers of the court know that it frequently has given short shrift to the promises and obligations that Congress has undertaken for Native Americans, and that a decision so firmly vitalizing the nation’s obligations to Native Americans does not come along every year. It will be interesting to watch in the years to come to see whether Gorsuch continues to stake out an interest in the topic.

I do not know what this means from a functional perspective, except that members of the various tribes encompassed by the reservation will not have to be prosecuted in a federal court.

However, there might be significant changes in the regulatory and tax regimes as a result of this, as well as potential renegotiation of energy leases in the area.

This Pretty Much is the End of a Political Career

Richard Milne lost the Republican New York state assembly primary to Bill Nojay who is both indicted and DEAD:


In the state’s Republican-leaning state district, which covers parts of suburban Rochester and the Finger Lakes region, crooked State Assemblyman Republican Bill Nojay beat his primary rival Richard Milne on Tuesday – four days after his death. The 59-year old Nojay took his life Friday at family’s cemetery plot in Rochester, shooting himself near his brother’s grave as a police offer was arriving.

Only in New York, folks, only in New York.

“I really believe we would have fared better with Mr. Nojay still alive,” said Richard Milne, his party rival. “They really did some things in the past few days that were in poor taste in my opinion to sway the vote.”

Milne was referring to the onslaught of GOP “robocalls” and other efforts to boost the Nojay vote after his death.

“Despite the unexpected and tragic loss of our Assemblyman, the endorsement still stands,” Republicans from the town of Hornell wrote, encouraging voters to back the dead candidate.


Milne posted a statement on his Facebook page3 that read: “I appreciate all the incredible support we’ve received,” adding that he was “proud that we have run this election campaign fairly and professionally even when others that oppose us have not and are not.”

Nojay, who was embroiled in legal troubles, was facing trial in Cambodia on fraud charges and was reportedly under FBI scrutiny.

In July it was announced that Nojay and three other American businessmen including Sichan Siv, a George W. Bush-appointed envoy to the United Nations, would be tried in absentia for an alleged fraud scheme in Cambodia, accused of running a rice-importing grift, allegedly swindling a prominent Cambodian dentist for $1 million.

Nojay denied fraud was committed.

“All the people I’ve worked with have been honorable people, but again, some of them have done well, and some of them have stumbled. That’s just the nature of small business work,” Nojay told Rochester’s WHAM radio the day before he died.

Nojay’s legal woes were growing stateside, as well. One of his New York-based companies was the subject of a federal investigation for a questionable contract with Rochester schools. Then, two weeks ago, FBI officials told Nojay’s business partner that the assemblyman was under investigation for allegedly embezzling from a fund that held $1.8 million, the Democrat and Chronicle reported.

A strong NRA supporter, Nojay was a foe of Democrat Gov. Andrew Cuomo, who had pushed stricter gun control laws through the legislature after the Sandy Hook massacre. He was also a big fan of Republican nominee Donald Trump.

Why the hell did the party establishment continue to support this guy, particularly after he shot himself?

This buggers the mind.


After swearing out an arrest warrant for Green Party Presidential candidate Jill Stein, they have followed up by issued an arrest warrant for radio host Amy Goodman for filming the protests and the ensuing brutality of the pipeline’s Pinkertons:

So much for the First Amendment to the Constitution of the United States.

Despite well-established freedom of the press protections that outline and guarantee the rights of reporters who cover breaking news stories—including confrontations between demonstrators and authorities—North Dakota officials have charged Democracy Now! host Amy Goodman with criminal trespassing after she documented private security personnel’s use of dogs to attack Native American foes of the Dakota Access Pipeline project.

Video footage obtained by Goodman, an internationally respected and frequently honored independent journalist, helped to alert Americans to the tactics being used to stop demonstrations against the pipeline by the Standing Rock Sioux Tribe and their allies. On Friday, the Obama administration halted work on key portions of the $3.8 billion pipeline project—recognizing concerns raised by the tribe and environmental activists.

To quote Tallyrand,* it is worse than a crime, it is a mistake.

The behavior of the pipeline company, as well as the behavior of local and state law enforcement has been abhorrent, and their natural response is to go after the reporter.

I think that contaminants in North Dakota from fracking have melted their so-called minds.

 *Again, this is probably not an actually a quote from Tallyrand. It was likely said by Joseph Fouché, but, “C’est pire qu’un crime, c’est une faute,” is all too frequently credited to Talleyrand.

This is Not a Gaffe, This is Walking the Walk

I am not a fan of the Green Party, I think that they play politics to lose, as a way to assauge liberal white guilty.

I am also not a fan of their current Presidential candidate, Jill Stein, who is winking and nodding at some of the more unsavory aspects of her base, most notably anti-vaxxers.

That being said, the fact that Stein has been charged as a result of her role in the protest against the Dakota access pipeline, which is demolishing holy Indian burial sites, is a plus in my book:

Jill Stein, the Green Party presidential candidate, is facing misdemeanor criminal charges in North Dakota after she spray-painted a bulldozer at a rally protesting the construction of the Dakota Access Pipeline, law enforcement officials said on Wednesday.

Warrants charging Ms. Stein, 66, and her running mate, Ajamu Baraka, with criminal trespass and criminal mischief were issued after several Caterpillar bulldozers were found to have been defaced at the protest, which was held on Tuesday, according to an affidavit prepared by the Morton County Sheriff’s Department.

“Officers were alerted to video that displayed presidential candidate Jill Stein painting the front of one of the Caterpillars with the message ‘I approve this message,’ ” the affidavit said.

The warrants are valid only in North Dakota, said Rob Keller, a spokesman for the Sheriff’s Department, adding that Ms. Stein and Mr. Baraka would be arrested only if they returned to the state.


The pipeline project has met with resistance from many who say that it will destroy sacred Native American sites and potentially threaten the quality of the drinking water at a nearby reservation.

I still ain’t gonna vote for her, but my disdain for her, and her campaign, is no longer complete.