“ Today's other big SCOTUS case: The Supreme Court ruled Thursday that a large chunk of eastern Oklahoma remains an American Indian reservation, a decision that state and federal officials have warned could throw Oklahoma into chaos. The court's 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma that include most of Tulsa, the second-largest city."
July 9, 2020, 9:01 AM MDT / Source: Associated Press
By Associated Press
“WASHINGTON — The Supreme Court ruled Thursday that a large chunk of eastern Oklahoma remains an American Indian reservation, a decision that state and federal officials have warned could throw Oklahoma into chaos.
The court's 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma that include most of Tulsa, the second-largest city.
The court's ruling casts doubt on hundreds of convictions won by local prosecutors. The case, argued by telephone in May because of the coronavirus pandemic, revolved around an appeal by an American Indian who claimed state courts had no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation.”
In the excitement over the ruling on Trump’s resistance to subpoenas for his records, I missed another challenge to the Rule of Law that is quite different. The Supreme Court voted to uphold laws governing the sovereign status of tribes in Oklahoma. These laws were written generations ago without any grasp of how the world would change and in the blind faith that they would go on being relevant. Or possibly be solved by time, that Indians would simply dissolve. (Where have we heard that idea?)
We’ve drifted far away from the world the way it was at the time treaties were written and don’t much like what the Rule of Law requires today. If we literally do as we declared we would, half of Canada would belong to the indigenous people, right? A big part of Seattle would be indigenously owned. No one can define “Indians” without dispute and it’s a misnomer anyway.
Media were reluctant to point out the origin of the lawsuit because it is incendiary given our cultural attitudes toward “pedophilia.”
“The case the justices decided Thursday involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case does not belong in Oklahoma courts and that federal prosecutors should instead handle his case.
“McGirt could potentially be retried in federal court, as could Patrick Murphy, who was convicted of killing a fellow tribe member in 1999 and sentenced to death. But Murphy would not face the death penalty in federal court for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road about 80 miles southeast of Tulsa.”
One problem with the Rule of Law is tied to its purpose in the first place, to try to escape cultural emotion about offenses as they originate. People are like the puppy who doesn’t look at either a treat or a danger to which you are pointing, but devotes all his interest to the finger. A written law is meant to be consistent and dependable. But even college educated people (for what that’s worth) give their basic attention and reaction to the offense itself. It’s a human response of empathy, which is the source of compassion. Why would we want to discourage that?
In considering indigenous people’s responses, a complication is millennia of oral discussion as a group, which pulls in the people of the specific persons concerned. This gets complicated again when anthropologists try to defend cultural wholes that are indeed disappearing over time. In my half-century of contact with the Blackfeet I have seen the People change. The larger national culture has also changed radically with the “old people” just dying out now.
But we hate change. We’re uneasy with laws, esp. the written ones. They can be unevenly enforced, not enforced at all by friends of the government, or reinterpreted. We’re in too much of a hurry to hash out things like definitions. They say that if one looks at how people survive, more people are in slavery today than when it was the law to be owned.
Which is another problem with the Rule of Law, which is the definition and recording of boundaries. How can murdering a child by sexual mutilation be prosecuted on one side of a line and not on the other side? Why isn’t there a universal human law, a commandment for everyone? An unforgivable atrocity? And yet a thing happens again and again, regardless of location or culture, because the structure and capacity of the human mind and emotions have recurrent dynamics that go back to mammals — tomcats and lions killing cubs and kittens. Can a Rule of Law even be understood by all humans? Is incarceration meant to be a punishment or a zoo for dangerous animals?
Reservations were not originally meant to be anything very clearly defined — mostly a political solution going back to the original idea of defining lines between kingdoms so they wouldn’t be always at war — just when the boundary was challenged. But how can there be rival kingdoms when Lewis and Clark traveled through the continent where the people had no idea that France had just sold them to the United States.
There were some idealists who believed that if we “bought” the land, then we owed the indigenous people the kind of support we would give citizens. Treaties were meant to define a mercantile relationship. Over time the pre-existing dwellers became more and more citizens, but their tribal citizenship began to compete with US Rule of Law in a lot of careless or ignorant ways — mostly on the Euro-defined side.
The truth is that we have very little idea what we’re doing. Merely writing down sales and product definition is not enough. So where’s the next thing?