So, I thought this would be a fun little exercise in “mob justice” - let’s actually decide how we would vote on these cases! For this week, there are three:
Van Buren v. United States. TBH, I’m not sure why this one even made it all the way to SCOTUS. Basically, a Georgia cop took money to look up someone’s license plate from his patrol car. It was clearly a violation of department policy, but apparently he was also being stung by the FBI, who hit him on a Computer Fraud and Abuse Act of 1986 violation. Good for them.
Dave Sides With The 7-2 Majority.
Garland v. Ming Dai. I think the court gets its first holding - section (a) - wrong: For starters, IMO the whole immigration court system is bullshit and applies an unjustly different standard to noncitizens. Sorry, but the Preamble and Declaration make it pretty fucking clear that we believe the rights enshrined in the Constitution are universal, so we’d better have a pretty good fucking reason to abridge them for noncitizens, and I’ve never seen such a reason presented in defense of our immigration courts.
Moreover, the majority is relying on some more general bullshit logic about certain presumptions not needing to apply at various levels of appeal. Sorry, but that’s absolutely absurd. Courts should aspire to get things “first time right”, not “first time well-possibly-wrong, MAYBE second time right, and hopefully you don’t need to go past that”.
On those same grounds, I’d likewise use (b)(1) and (b)(2) to declare the relevant portions of the Immigration Nationality Act unconstitutional. Which, again, the majority didn’t do.
Ironically, the entire court agreed on this case 9-0. Looks like Dave is the Lone Radical Progressive.
United States v. Cooley. This one’s tricky. It involves Indian sovereignty kind of working against a member of the Crow PD (yes, those Crow) in a stop where he found a non-Indian on tribal land, but the dude clearly was high on meth, had guns in the truck, and was later found with meth in it as well.
SCOTUS unanimously decided to overturn the 9th Circuit’s technicality. The 9th Circuit said the officer was bound by Indian sovereignty laws to only determine whether the suspect was non-Indian, and could only investigate further if he found more violations in the course of making that determination. But here’s the thing: The Crow PD officer *clearly* already had compelling evidence in the fact that the guy was high.
Look, I’m as suspicious of police powers as anyone else, but let’s not overcomplicate things. The 9th got it wrong, and the Court rightly calls their standard unworkable. It’s absurd to say, “hey let’s figure out if the guy’s Indian or not first, and we can’t investigate him if he’s not”. That basically defangs the entire investigatory power on the basis of race, which is stupid.
3. US v Cooley. Using my expertise from watching Netflix's Longmire (yes, really) Indian Sovereignty cuts both ways. There is a bright line that prevents US law enforcement from going into Indian sovereign land to investigate- unless both LEO's, white and Indian have agreed to cooperate. So even though dude was obviously "high" - also not the most important issue with Cooley, jeez - thus no investigation. However, I didn’t yet read the case and ruling yet...I need substack lessons to argue further. So, I should download the app on my PC so I can open other tabs and read and argue at the same time.
But again, I highly recommend Longmire - it really dives into issues like this, despite the odd fact that a small, reservation town in Wyoming manages to have one murder each week :)
Really loved that show. Kinda went off the rails in the later seasons. But great show.
Here's thing thing: What Montana held was merely that while US LEOs can't violate tribal sovereignty, tribal police can (and ought to) still enforce US law (where relevant). Thus, the "bright line" of tribal sovereignty you mention really is a one-way street: They retain the sovereignty of enforcing law on their own land, and choosing whether to allow federal & state authorities to co-operate with them, but that doesn't mean they have to get federal or state approval to enforce federal or state laws on their own land.
IOW, federal and state law apply just as equally on tribal land as tribal law does, and as federal and state law apply on federal and state land. Federal law applies when one or more states are involved, and also when dealing with the tribal governments, since tribal sovereignty derives from treaties made with the federal government, not states. State law applies throughout any state, and is only abrogated where it conflicts with tribal law, not where it overlaps. And in terms of mere jurisdiction, tribal land is more like a municipality whose sovereignty simply derives from federal treaties, instead of from state sovereignty like other municipalities and county governments do.
Anyways, the 9th Circuit essentially just misapplied the basic principle that feds and staties have to get tribal approval by reversing it - that being, that tribals have to get fed and statie approval as well. They didn't really need to reverse the principle, because tribal sovereignty is only there to protect the tribes from non-tribe, not to protect the feds from the tribes.
Ok, it was easy to find. So the decision was about Cooley being stopped on a highway going through the res- and the courts cited precedence in US v Montana, so Cooley's highosity affected his driving, presumably, leading to what is a probable cause search...and US v Montana a similar case where tribal welfare, health and safety made the stop- non Indian or not- Trump sovereign issues. And of course, unreasonable to try to determine whether or not a violator is somehow legally Indian in an ongoing traffic stop. You're correct. Kind of easy. But in Longmire we would have to determine if Jacob Nighthorse were involved in drug and gun trafficking on the res...
Question on Garland v Ming dai - it is generally agreed upon that the equal protection clause apply to everyone in the US regardless of citizenship status? Seems like that isn’t settled law.
3. US v Cooley. Using my expertise from watching Netflix's Longmire (yes, really) Indian Sovereignty cuts both ways. There is a bright line that prevents US law enforcement from going into Indian sovereign land to investigate- unless both LEO's, white and Indian have agreed to cooperate. So even though dude was obviously "high" - also not the most important issue with Cooley, jeez - thus no investigation. However, I didn’t yet read the case and ruling yet...I need substack lessons to argue further. So, I should download the app on my PC so I can open other tabs and read and argue at the same time.
But again, I highly recommend Longmire - it really dives into issues like this, despite the odd fact that a small, reservation town in Wyoming manages to have one murder each week :)
Really loved that show. Kinda went off the rails in the later seasons. But great show.
Here's thing thing: What Montana held was merely that while US LEOs can't violate tribal sovereignty, tribal police can (and ought to) still enforce US law (where relevant). Thus, the "bright line" of tribal sovereignty you mention really is a one-way street: They retain the sovereignty of enforcing law on their own land, and choosing whether to allow federal & state authorities to co-operate with them, but that doesn't mean they have to get federal or state approval to enforce federal or state laws on their own land.
IOW, federal and state law apply just as equally on tribal land as tribal law does, and as federal and state law apply on federal and state land. Federal law applies when one or more states are involved, and also when dealing with the tribal governments, since tribal sovereignty derives from treaties made with the federal government, not states. State law applies throughout any state, and is only abrogated where it conflicts with tribal law, not where it overlaps. And in terms of mere jurisdiction, tribal land is more like a municipality whose sovereignty simply derives from federal treaties, instead of from state sovereignty like other municipalities and county governments do.
Anyways, the 9th Circuit essentially just misapplied the basic principle that feds and staties have to get tribal approval by reversing it - that being, that tribals have to get fed and statie approval as well. They didn't really need to reverse the principle, because tribal sovereignty is only there to protect the tribes from non-tribe, not to protect the feds from the tribes.
Ok, it was easy to find. So the decision was about Cooley being stopped on a highway going through the res- and the courts cited precedence in US v Montana, so Cooley's highosity affected his driving, presumably, leading to what is a probable cause search...and US v Montana a similar case where tribal welfare, health and safety made the stop- non Indian or not- Trump sovereign issues. And of course, unreasonable to try to determine whether or not a violator is somehow legally Indian in an ongoing traffic stop. You're correct. Kind of easy. But in Longmire we would have to determine if Jacob Nighthorse were involved in drug and gun trafficking on the res...
Question on Garland v Ming dai - it is generally agreed upon that the equal protection clause apply to everyone in the US regardless of citizenship status? Seems like that isn’t settled law.
Not sure, TBH. I'd have to research it.