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U.S. Supreme Court deems half of Oklahoma a Native American reservation (reuters.com)
1489 points by threatofrain 29 days ago | hide | past | favorite | 1224 comments



I found the conclusion compelling. I haven't yet had enough time this morning to read the dissent thoughtfully.

https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf

"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 But Congress has never withdrawn the promised reservation.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.

The judgment of the Court of Criminal Appeals of Oklahoma is Reversed."


I do applaud that thinking; I hope it sets a precedent that can be used more widely. I hope they apply it more widely to things they don't necessarily ideologically agree with. Civil society needs more honesty and dedication to keeping your word, even when that is painful. That might lead to people thinking more carefully about where they stand and what they say as well.


Amen. This isn't a nonsequitor, I swear: why can't freedom of religion be used to legalize drugs? And, why can't Indian reservations, especially, sell what they please?


I think use of regulated drugs is legal during a religious service https://www.pewforum.org/2006/02/21/supreme-court-rules-that...

And, again I think, reservations are exempt from state laws/taxes and to certain extent able to make/enforce their own laws/taxes but they still need to follow federal laws.


The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason. In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix - euthanasia will become something of a nuclear option that they'll want available as a last resort. An amendment that guarantees the right to consume any plant/drug/chemical/etc. will have a chance if it's bundled with a 'right to die with dignity', allowing elderly individuals a euthanasia option.


Good idea. How about:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

That would keep the pesky federal government out of our personal affairs.


The interstate commerce clause made for a fine end run around the spirit of that bit in the end.

If we do ever manage to address the interstate commerce clause, we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).


> we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).

The simplest way to deal with that would be to have those bodies continue to exist and publish "suggested" rules, which all the states could then adopt wholesale if they don't want to be bothered to do anything different.

Or a state could do something different, if they wanted to, which is kind of the point.


That doesn't solve interagency problems. What do you do when someone is drugrunning on two sides of a border? Just run two completely independent investigations and hope that California agents aren't worried about Oklahoma agents getting the credit?


This is how the state health and labor departments work right now.

When the CDC recommends action for workplace safety in light of a strain E. Coli found in a crop grown in one state and sold in many, state health departments and state labor departments have full autonomy on how to handle the issue in their respective states.


I don’t really think that a lot of day to day functioning depends on FDA. FDA definitely has a lot to say about a lot of things, and, arguably, without it, some undesirable things would happen more often, but all in all, we would be mostly fine.


I don't have the time or energy to synthesize an exhaustive list of concerning examples on the spot. If the prospect of an under regulated food supply doesn't concern you I would strongly suggest reading "The Jungle" by Upton Sinclair. (Or for a lighthearted example, see: https://www.cbsnews.com/news/chemical-infused-watermelons-ex...)


Yeah, imagine having to negotiate the EULA of every single grocery item to check for “fitness for consumption” clauses, what a Libertarian dream would that be! Of course the Market will eventually average out the bad players, thanks to the compound effect of billions of Rational Choices... eventually we’ll also be dead as that John Maynard guy once said. Perhaps sooner rather than later in this scenario ;)


There are few rational choices given the lack of current transparency and future information that hasn't happened yet. There is no Market without immediate consequences. Dole Foods often has salad recalls due to ppl getting sick with e coli... Are they really a bad actor? Or just a poor one that can do better? Do you have time to make your own rating of which company, manufacturing plant, farm it was supplied from? What's a credible dinner alternative given your context and available time and guests? A bad actor can last a long time.


Sure, but then federal support of state projects gets tied to whatever the federal government wants the state to do. The state isn’t bound, but it’s political suicide to turn down money.

This is a powerful weapon that can be used for both good and bad.


This is why direct taxation (16th Amendment) was a mistake. It allows the federal government to take away the citizens' money first, and then give it back to the states, with conditions.

If the federal government had to collect from the states, then there would be more oversight and power for states to say "wait a minute, why are we giving you money and then begging to get it back".

In theory, the result could be the same. Congress could still pass spending bills and give the money over with conditions. But in practice I think states would be in a more powerful negotiating position.


Though I'm not necessarily disagreeing, eliminating direct taxation is more complex than just giving oversight to states. If a state can say, "no, not giving you money unless we get it back", it becomes a lot harder for the country to function. Money from Connecticut helps pay for numerous programs in other states. At a high-level, we like to say that states would make the right decisions, but would they? Or would Connecticut say they'd rather have the money to sustain their state better? Of course, is the federal government making the right decisions?


Think about it this way: collecting taxes from states was a two-party relationship. The states were compelled to pay in this transaction, but it's still two parties on opposite sides of the table, and their are other topics to negotiate later. If the federal government were to play an obvious game of taking money and then giving it back with conditions, then states would have exerted their power in other transactions. For instance, with senators who were chosen by the state legislature (the same body paying the taxes). Additionally, the state is a stronger entity to fight back against this kind of abuse than an individual citizen.

Now, let's change the picture to directly-elected senators and direct taxation. Now, the money is collected directly from the citizens first, and then the government's relationship with the state is entirely different. Now, the state and the federal government are cooperating, and the sucker is the one not in the room: the citizen whose money is being passed around. The state just becomes a node in a hierarchy, rather than a formidable agent with its own powers and responsibilities.

It's actually very similar to negotiations with a public employees' union. The government and the union are "negotiating", but they are really on the same side of the table. The sucker is the citizen who's paying for it all, but isn't even in the room.


I don't think the alternative is voluntary donations by states to the federal government vs direct taxation of individuals, but compulsory contributions from the states to the federal government.

The reason it would have a different outcome is because in a debate between 51 people, the chair doesn't have that much more power than the individuals. The federal government might be agree to set contributions according to fixed dollar values that the states can watch inflate down to a more palatable value, or they might agree to ignore certain sources of wealth in their calculations.

Discussions and disagreements will take on a very different flavor compared to the discussions and disagreements between a third of a billion players.

It is not apparent to me why this should result in an end to regulation of drugs as this subthread seems to imply it should. States can be just as interested in preventing drug use as the federal government - even more interested.


The drug regulation question isn't theoretical. There's currently a difference of opinion between more than half of the states, compared to the Federal government, on whether or not to consider cannabis a illicit substance with no legitimate use.

I don't know that an end to regulation of all drugs is in order, but if a majority of states (which make up the Federal government) believe cannabis has legitimate use, why then, is it still Federally illegal?


Is there actually a difference between asking politely for money from the states and "requiring" it?

When a state doesn't pay up, what's the union government going to do?


> At a high-level, we like to say that states would make the right decisions, but would they?

What magic method does the Federal government have to only make the right decision? The Federal government is just as likely to make the wrong decision as a given State. Probably more so, if a big government makes a mistake it is harder to correct than when a small government makes the mistake. And the effects are more far-reaching.


The Federal Government just makes decisions slower, that is by design. Sort of a brake effect. Look at Prohibition for example, some states enacted laws. Eventually the movement gained national ground and the amendment was passed. It took 13 years for it to be repealed.

I would posit that America has less of a pot culture then it did a drinking culture. The history reads similar. First states took up the banner of morality. >In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]

Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21] -Wikipedia https://en.wikipedia.org/wiki/Legal_history_of_marijuana_in_...

Now states are removing their laws and with an eventual push the Federal government will change their laws as well.


The real mistake was to make Senators elected rather than appointed by the states as they originally were. Representation of the general population is the purpose of the House, the Senate was meant to represent the states in the federal government.


I’m glad on HN people have opinions like “the direct election of senators was a mistake.” I mean, I agree, but I’m usually the only one in the room.


The biggest flaw when reasoning about government is overestimating how well democracy works as a method of solving problems.

If everyone agrees about the major stuff, and you just need to finally make a decision on what color to paint the bike shed, democracy is great. A decision gets made, enough people are happy, and you move on.

But when you have real differences, you need a way to protect minorities against large coalitions of voters. Even if you aren't in a minority today, shifting politics (and divide-and-conquer politicians) will ensure that you are in a minority soon enough.

And it's even worse when society is polarized, because the coalitions form too quickly and too strongly.

But limiting the power of the majority is hard. The Constituion is genius because they recognized that and divded the power so many different ways. The protection of political minorities is much more important than the small amount of additional abstract fairness you get with direct elections.


Have y'all forgotten the entire reason the 16th amendment was passed? It wasn't because of fairness, it was because the state legislatures couldn't agree on people to elect. And when they could there were concerns about corruption and seats being sold.


So let the seats be empty. That will make the constituents mad and they'll vote out the incumbents and replace them with somebody who will appoint Senators. Or they won't. People get the government they deserve.

And if there are "concerns about corruption" then investigate the corruption and put the perpetrators (if any) in prison.


> People get the government they deserve.

It's strange to say this when you are proposing to take away their direct vote on the matter. If anything, the current system is what gives people the government they deserve, by having voted on it.


Moreso, people deserve the government that they have, thus, there's no reason to make this change


And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation? (Both of those actually happened, hence the immense popular support by the states for adopting the 17th amendment)

Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.


> And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation?

But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.

The voters can vote for representatives who are willing to compromise and appoint a moderate, or they can vote for representatives who are willing to engage in brinkmanship and then get nothing, and either way they got what they voted for.

> Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.

...who then went to prison. Play stupid games, win stupid prizes.


> But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.

We see federal representatives rewarded for brinkmanship. What makes you think state level electorates would act differently? (And in fact I expect there's lots of examples of brinkmanship in state electorates as well, I just don't follow them closely).

A representation system that fails to represent is dysfunctional and should be changed. When the same system consistently fails to represent its constituency, for the same reason, across various constituencies at various times, you can no longer fault the people. The constituents should not be punished for being born into a dysfunctional system.

Don't place the founders on a pedestal. They made tons of mistakes. The 3/5ths compromise was terrible, but it was encoded into the constitution. We learned from it and improved. State managed senators, while less overtly awful, were still quite problematic. Celebrate that the constitution can be changed.


> We see federal representatives rewarded for brinkmanship. What makes you think state level electorates would act differently?

So what if they do? It's what their constituents voted for. Who's to say brinkmanship is never an optimal strategy?

> A representation system that fails to represent is dysfunctional and should be changed.

So change it by voting for different state legislators.

> Celebrate that the constitution can be changed.

Just because something can be done doesn't make it a good idea.


> So what if they do? It's what their constituents voted for. Who's to say brinkmanship is never an optimal strategy?

If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.

> So change it by voting for different state legislators.

They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.

> Just because something can be done doesn't make it a good idea.

This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.


> If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.

It's two different questions -- does the system do what the constituents want (possibly yes), and what do we as the present day constituents want? The answer to which is not, from what I can gather, the status quo.

> They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.

Technically they didn't. It was the then-appointed Senate who approved the amendment (and by and large without having been replaced with different people), and they only did so out of fear of rising populist sentiment and what would happen if there was a constitutional convention in that climate. So they were basically doing their job and moderating populist sentiment, but apparently the anti-populist safeguards weren't strong enough to constrain populist sentiment from weakening them even further in that way.

> This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.

Your argument was "celebrate that the constitution can be changed" as if any change is inherently good. But change can make things worse too. Before there was slavery there was not slavery.

Your main criticism also seems to be that the seats were going vacant, so the solution I would offer would be to hold a popular election but only if there has been no appointment within six months. Then the seat can't go vacant long but you're not, in the common case, taking away the seat of the states in the federal government.


> > They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.

> Technically they didn't.

Yes, technically—and in every other way—they did.

> It was the then-appointed Senate who approved the amendment

No, it wasn’t. The Senate doesn't approve Constitutional Amendments, state legislatures do.

The Houses of Congress, together, can propose Amendments, but they aren't needed for that, either.


Or just have the legislatures vote. The two candidates with the higher number of votes get to represent that state. With some luck, every state will be represented by one Republican and one Democratic senator. That should help to remove some of the party politics out of the senate.


Don't even get me started on voting systems.

TL;DR: Just use range voting and put in the candidate with the highest rating. (Note that Senators' terms are staggered so there aren't two up from the same state at the same time, but if there were you could easily send the two with the highest ratings instead of the one.)


Pssst: 17th.

The 16th is the income tax one.


Whoops. And to think that I went and checked and corrected myself and then still managed to do it wrong :/


I'm not American, but if the Senate is meant to represent the states, then it makes sense to have them appointed by the states, or elected by the state legislatures (this is for example how the Dutch senate (Eerste Kamer) is elected, though it's still proportional to the population of the provinces, unlike the two per state no matter how big or small).

But if you want your country to be democratic and representing the people, then the people's representation (the House) should hold most of the power, and the representation of the states (the Senate) should only really be involved in states-related issues. For example, not being able to create laws, but only deciding whether an issue is a federal issue or a states issue.

Merely making senators appointed by states isn't going to fix all of the problems with the senate.


Used to be that way until the 17th amendment.


You missed the nuance of GP. If senators represent states, they should not be given the power to create laws about people, but instead only about the interactions between states, leaving laws about people up to the House.

This would make the Senate more akin to the Supreme Court, though empowered to craft legislation instead of just rule on existing issues.


For example, nothing the Senate legislated would apply to D.C. or Puerto Rico


Wow, this is the first time I have ever seen anyone other than me express this opinion.

I understand some of the reasons changes were made, look forward to reading the this thread!

My quick thoughts on the matter is that since the changes, people have stopped paying as much attention to local(State politics) and focus more on Federal politics.

Edit to add information to support my thoughts: Look at the disapproval rating for congress, around 64%. But a large majority are incumbents. The feeling I get when talking to people is that the Senator from state X is the worst but my Senator from state Y is perfect/has flaws but brings value to my state.


I am completely incapable of understanding this argument.

The only interests states have are the interests of their constituents. States don't need representation, their people do - because states don't have interests, people who live in them have interests.

It should be noted that the original ideal, at the time the national framework was drafted, was for the Senate to represent the interests of oligarchs, couched in the language of it serving as a representative of the interests of the states. In that respect, it's still doing a rather swell job.


> The only interests states have are the interests of their constituents.

So then it shouldn't matter, right? The constituents elect the state legislatures who represent their interests, one of those interests is having US Senators who represent their interests, so their elected representatives appoint those US Senators. If your theory is correct then this should have the exact same result as directly elected Senators, because the states don't have interests separate from those of their constituents.

But it isn't, because elected officials do have their own interests. So then the question is, which process produces Senators that represent their constituents better?

US Senators have a personal conflict of interest in expanding the scope of the federal government in excess of what's in the interest of their constituents, because the federal government is subject to their control, and they personally want to control more stuff. State legislatures have the opposite conflict -- they want more state control, for the same reasons.

If you have directly elected Senators, there is no check on that conflict of interest and federal scope expands without bound. If you have Senators appointed by the state legislatures, these conflicts more or less cancel out. The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest, and the result is closer to the true interest of the constituents.

Meanwhile the House is still directly elected, which is a countervailing check on the power of "oligarchs" or what have you, because a federal law has to pass both.


Thank you for explaining this point. I disagree with it, but I see your motivation for it.

> The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest

State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want, much like how the States Rights party only cares about states rights when those rights concern themselves with what their base wants.

So, I don't think you're going to get that kind of check and balance. What you're probably going to get is similar to my original thesis - that it shouldn't matter...

Except that it does.

If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused. The office would become:

1. A perfect reward for connected party insiders, who, compared to the status quo, don't even have to win an election.

2. That would not be accountable to the public.

3. And where the people the public can hold accountable (The people making the appointments) are two steps removed from their behaviour.

Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, what kind of blowback would the senators who made the appointment be subjected to?

They wouldn't be any. Just like how there's currently no blowback against Senate Republicans for the crazy train ride that Mitch McConnell takes them on. Everyone can shrug their shoulders, shirk responsibility, and blame the rest of the collective (preferably the guys holding safe seats) for the disastrous appointment.

Consider, also, all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power than executive bureaucrats currently do - where they couldn't even be overruled by the legislature - because they are the legislature.

That idea is frankly, terrifying.


> State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want.

Which is to say that they are interested in it at all other times, which is more than there is otherwise.

Meanwhile, what is it that you expect them to want from them? The federal government taxes their citizens (which they can do themselves) and then sends the money back with strings attached. What value to the state of the strings?

> If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused.

The vote should be public so there would be blowback against everyone voting in favor of it.

> Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, how will the careers of the senators that approved the appointment would be impacted by such an appointment?

This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.

> You've surely heard all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power, and you won't even have anyone to task for their behaviour.

They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem), and if they're really so bad then most state legislatures are elected every two years rather than every four for the POTUS so the backlash comes quicker, and the problems you're describing don't even sound that serious or different from ordinary politics:

> 1. A perfect reward for connected party inspiders.

Sounds a lot like getting to be the party's candidate in a safe district, and doesn't inherently imply anything good or bad about what kind of Senator they'll be.

> 2. That would not be accountable to the public

This is a feature. It gives a veto to a body that isn't directly subject to populist fervor.

> 3. And where the people the public can hold accountable are a step removed from that behaviour.

In other words they are still ultimately accountable to the public.


> Which is to say that they are interested in it at all other times, which is more than there is otherwise.

Politicians have agendas. Those agendas consist of things they want done. Nobody's agenda, (as we've seen from how the States Rights party actually behaves, when push comes to shove) actually consists of 'reduce federal power'. That's because 'reduce federal power' doesn't accomplish anything in particular. Nobody gets re-elected because they reduced federal power. People get re-elected for getting stuff done. 'Reduced federal power' does not actually tie into getting anything in particular done.

As such, it's occasionally a tool that you can use, for some particular goal, but is not an end in itself. (It may be an end in itself for you, but your viewpoint is not one that politicians do anything but pay lip service to, to get your vote.)

> The vote should be public so there would be blowback against everyone voting in favor of it.

Name one embarrassing senatorial appointment that resulted in serious blowback to the people voting for the appointment.

Just one.

You won't be able to - because political parties aren't ran by fools. They've made laundering unpopular blowback for group failures onto safe-district candidates into an art form.

> This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.

In practice, it has happened to cabinet appointments. And again, in practice, nobody who votes for an appointment actually gets blamed for a disastrous one, for three reasons.

1. The appointee is their own person - the people voted for him can't predict the future, and aren't actually micromanaging his behaviour. When he does something awful, it's not directly their fault.

2. The appointee is everyone's responsibility, which is to say, he's no-one's responsibility.

3. Blowback laundering, see above. Safe-district candidates actively take credit for controversial, or unpopular decisions, to shield the rest of their party.

> They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem),

The House has just as much way to control the bureaucrats, if it chose to. By doing their job - legislating. If they are shirking this responsibility, considering that, perhaps, it may actually be happy with the job the bureaucrats are doing?

It is mind-boggling that you recognize that the power of appointed, unelected individuals is a problem, but think that the solution is to increase the number of, and power of appointees, and also giving them legislative power.


Note that the best contemporary example of a functioning federal democracy with state-appointed federal legislators is Germany. There, the state premiers and some members of cabinet are members of the Bundesrat, the upper house of federal parliament.

As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.

Consequently, the very clear direction of power shift in Germany has been - much more so than in the English speaking federations - an increase in federal power. (Also, a more recent prohibition on state deficits even accelerated that trend. State governments became enthusiastic about trading a little power for some extra money.)

When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing. I think it would be better to redraw the map and then for the states to have powers that make sense. But I think that is about as likely as a Democrat and a Republican to agree on the color of the sky on a clear day.


> As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.

You already explained the reason this happens in Germany:

> the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house.

Solution: Don't put the same person in both houses.

> When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing.

State lines that run through the middle of metropolitan areas are the best kind, because they give people the greatest choice. If you don't like your state government and voting hasn't gone your way you don't even have to move across the country to change jurisdictions, only across the street.

Moving things to the federal level does the opposite. Things haven't gone your way? Too bad, there's nowhere to run.


The Premier of a German state is also the head of majority-party in the state legistlature. Also, they are sitting members of the state legistlature.

That being the case, state prime ministers have a huge amount of power and influence, directly through mandates and indirectly through party politics. And usually, they want to to retain the maximum amount independence for their states.

And as far as federal legislation is concerned, one state prime minister is not enough to pass, or trigger, anything by himself. For state legislation, they don't have to pass through the federal goernment anyway, holding the parliamentary majority anyway (minority governments are extremely rare in Germany).


"Democracy" and "the will of the people" are abstractions, and pretty crude ones, at that.

I'm not saying that we shouldn't have democracy, but we should acknowledge that it is far from perfect. As Churchill said, "Democ­ra­cy is the worst form of gov­ern­ment, except for all the oth­ers."

Democracy is also not a scale-free process. Very different dynamics play out in a democracy the size of a city versus a state versus the size of a nation.

It's hard to explain briefly, but basically all of these separations of powers are designed to avoid some of the worst aspects of democracy. They happen to look less "fair" in an abstract sense, but it's more important to have some practical safeguards than abstract fairness.

A lot of our most heated political battles are playing out at the federal level (and have been for a long time), and I think that's a consequence of the 16th and 17th Amendments. If some of these battles were playing out in the states, I think our society would be a lot less polarized.


I think that was the inevitable consequence of terms for Senators. It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later. State-appointed senators with fixed terms have little natural legitimacy; it is not a sustainable model.

If you want the senate to represent the states, you need the German system - there, the Bundesrat (Federal Council) has as its members the premier of the state (and, depending on the state's size, some number of ministers). Its members and balance can change whenever there is a state election (which are not tied, US style, to federal elections).

Now, while they will represent the interests of the state governments quite well, be aware of this - the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house. They can use their federal role to create an obligation for themselves as state ministers, and then tell state parliament "Oh, we have no choice; the federal government has said so. Please fall in line with this policy that I want and you do not want."

The paliamentary system is repugnant to the American sense of the separation of powers. But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant. This would multiply the problems above.

Perhaps having a recallable delegate who is effectively a member of the state cabinet without portfolio would be palatable; but still, such a delegate would be entirely at the mercy of the state governor (or it would work), and we then would still see the benefits to the state governor of creating legislative obligations that state congress still has to fulfil.

To me, it seems that the Australian senate does a good job of representing the people of each State. Since the interests of States can be said to be the interests of the people of each State (rather than the interests of the State governments) it therefore discharges its responsibilities adequately. The key here is in having many five or members per state elected at once using a proportional method like STV optimised for small electorate magnitudes. Since the majority of any state will be made up of a roughly equal number of blues and reds it encourages them to work together at the expense of the small number of extremists or against each other with centrists and sometimes fringe members. Constantly changing coalitions (per bill) mean negotiation skills become important. But how adaptable it is to a federation of 50 states - I don't know.


> It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later.

The purpose of the Senate isn't to represent the existing representatives in a state, it's to represent the interests of the state in the abstract. Having a red US Senator in a state with a blue Governor is no more a problem than having a red state legislature in a state with a blue Governor.

> But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant.

This is largely only true at the federal level and for a very specific reason. The federal government was not structured for the level of responsibility it has taken on as a result of the direct election of Senators removing the state veto on increasing federal scope.

In state governments you have an elected governor and legislature, but also elected school boards, treasurers, sheriffs etc. There are no elected positions in the Federal Department of Education, nor the Federal Reserve, nor the FBI. The constitution didn't contemplate that the federal government would grow to cover so many things, so they all fall under executive control. But the source of the problem isn't pushing too many things to the executive, it's pushing too many things to the federal government to begin with.


Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof...".


The only case where elections aren't accurate for this is if the state government is non democratic. The state is just a bunch of people -- representation of the state is covered by how many representatives are sent per state. To my knowledge, the general population of the colonies and so on don't get representation in the Senate, only people that live in states


> The real mistake was to make Senators elected rather than appointed by the states as they originally were.

This sentence can be corrected by deleting every word after “Senators”.


If you didn't have a fairly strong federal government, the US would become like the EU, basically unable to enact change in any even slightly controversial topic.


This was one of the original anti-federalist arguments that has somehow hundreds of years later become adopted by leftists in the United States.


I didn't know that. I live in the EU and frequently get upset because some country or other vetoes important change.


I'm pretty sure you missed the unwritten /s in the previous post.


Apparently not, OP followed up.


Ultimately the flaw with this clause is the flexibility and amenability of the Constitution.


Federal drug laws were upheld on the grounds that they are regulating interstate commerce ("regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;").

The idea that growing plants on your own land for your own consumption would some how fall under this legislative power is ridiculous. It's not "flexibility", it's fraud.

See: https://en.m.wikipedia.org/wiki/Gonzales_v._Raich


Within reason right? I'm hoping that 'the right to consume anything they want for any reason' wouldn't include those things that cause sudden violent behavior and inability to feel fear and pain.

I forget which particular drug does this, but a search brought me to meth and I found this article which says people feel 'invincible' and 'paranoid' and can't be stopped with non-lethal means.

https://www.cpr.org/2020/02/05/suspects-on-meth-are-hard-to-...


Let's start by eliminating federal drug laws, and leave it up to the states whether they want to pass laws against it.

Then, have a hard conversation about what freedom means, and whether restrictions on it really lead to better outcomes. Usually not.


You need to have federal drug laws because the one thing the federal government is supposed to do is manage the borders and relationships with other countries. If you don't have federal drug laws then bringing drugs across the border stops being a crime and we could end up with the fiasco of drug lords that Mexico has where journalists get beheaded for even reporting on it.


Mexico only has drug lords because US drug laws fuel their black market.

If you are skeptical of this, there are academic papers on the topic. You could also examine the history books regarding the rise of organized crime there. (For that matter, the rise of organized crime in the US was largely fueled by the prohibition of alcohol as far as I understand it.)


I am confused about what you mean. First, the federal government clearly has authority over international commerce. Second, the price of drugs in legal markets would be much lower, which would likely reduce revenue for criminal gangs in foreign lands. Third, the U.S.-Mexico border is long and it's hard to enforce smuggling laws, anyway. And fourth, Americans are quite capable of producing drugs on their own, and even more so if they were legal.


Cigarette smuggling is a thing because regulated cigarettes are more expensive than unregulated cigarettes. Why would that be any different for other drugs?


The revenue of bootleggers is sharply down since the 21st Amendment, because many people still choose to buy legal alcohol rather than moonshine.


Fortunately there is no drug that has any such innate effect. Care has to be taken when extrapolating meaning from crime statistics, especially when it comes to police. They lie and rely on bad science, like the idea of excited delirium: https://en.m.wikipedia.org/wiki/Excited_delirium


As a long time on-and-off meth addict and dealer, I'll tell you one thing:

Helluva drug!

Not convinced I'd want society to have unrestricted access to that one.


It's been the standard military "go pill" for several decades. Maybe now superseded by modafinil. Modafinil is by no means as dramatic, but it's still great fun, and far easier on your teeth ;)

Edit: Actually, the progression in the US military was amphetamine to dextroamphetamine, and now also modafinil.


As someone who has had a modafinil prescription since 2002, you're greatly overselling it. Hardly that fun. It's positively mild in comparison to meth or pretty much all other recreational drugs. Modafinil and recreational drugs aren't even in the same boat.


Yeah, I am. But maybe if one took enough modafinil?


It's doesn't get more fun with higher dosages. You're just going to end up more on edge. Modafinil works by blocking the neurotransmitter that promotes sleepiness. Most stimulants work by causing your brain to dump tons of the neurotransmitters that promote alertfulness. Different mechanisms.


Thanks, I didn't realize that.

Higher doses do further reduce the need for sleep, however. And while they don't put me on edge, they do increase the risk of saying and doing risky things. But maybe that's because I'm bipolar.


Don't try this at home without a blood pressure monitor.


Are you sure? Modafinil isn't much fun. I mean, it's fun the same way antidepressants are if you're depressed, but it's the opposite of habit-forming and if you mix with alcohol or caffeine you only get the bad parts.


Huh? I always mix with caffeine, and have no problems. Also, it is "habit-forming". If I increase the dose to stay alert longer, and then taper down too abruptly, I get dazed. However, I suspect that you're right about alcohol. But that doesn't matter to me, because I've never been much into it. And THC is just fine with modafinil :)


Meth is used to tread ADHD under the trade name Desoxyn. Alternatives include other amphetamines which exhibit substantially similar effects.

A significant portion of the population consumes amphetamines on a daily basis and manages not to go on crime sprees. Perhaps it isn't the drugs which are the problem?


You're right to some extend, or even reinforcing my point:

A significant portion of the population is on restricted / controlled / monitored dosage / supply.

Compare my point about unrestricted access.


And yet that significant portion of the population somehow manages not to descend into a life of lawlessness even though meth is incredibly easy to come by almost anywhere in the country.

I'm pointing out that it's absurd to attribute problematic behaviors to the mere consumption of drugs. We severely restrict freedoms in the name of a battle against symptoms rather than address underlying causes. Worse is that our waging of the battle itself is a vicious cycle, serving only to worsen the very same symptoms that it supposedly seeks to address.


Dosage is a major factor. Smoking meth is way different from eating Desoxyn. Even lots of Desoxyn.

Edit: Dosage and route both matter a lot.


Agreed regarding route - I didn't mean to imply that all patterns of use were equivalent. I was trying to illustrate that it isn't some bogeyman that will swallow you whole. The drug alone simply cannot explain the issues that are often attributed to it.

My point here is that many drugs have been demonized to a wholly unscientific degree and I often witness otherwise well educated and thoughtful people zealously perpetuating such myths without stopping to really think them through. IMO blaming bad behavior and even addiction on drugs is an easy out which avoids addressing the much more complicated underlying issues. Overdoses, abuse, addiction, and crime seem to me to be largely to blame on other systemic societal problems. As always, correlation does not imply causality.


Yes, I entirely agree about drugs being demonized. And I believe that people get to choose what drugs to use, and how to use them. But that also means that they're responsible for consequences.

Indeed, some drugs are so demonized that many who use them do get swallowed whole. Because it's what they expect, and part of the motivation.


Pretty sure you are thinking of PCP, which was advertised as causing these behaviors in the 70s and 80s: https://en.wikipedia.org/wiki/Phencyclidine


PCP, dippers(cigarettes dipped in PCP liquid solution), loveboat (powdered PCP sprinkled on a weed blunt) is still a huge issue in urban US city's.

The effects vary per individual but the higher the dosage the more psychoactive effects are felt. I've seen a naked guy take on 8 DC cops....yes 8 police officers, and after being tased 3 times the guy finally went down.(first two attempts didn't take) But he was tossing grown 200-300lbs adult men like they were paper weights. The amount of force it took those officers to over come this one person on PCP was insane. Definitely not something you want to run into.


You must be thinking of the devil weed: https://www.youtube.com/watch?v=zhQlcMHhF3w


Seems like you can just require a license or prescription that can be taken away


do you want to ban alcohol ?


I don't understand how we don't already have this, in the form of Roe v Wade. That decision revolves around the idea that a medical treatment is a private matter between a woman and her doctor. And if that's the case, I don't understand how the government can interfere with a doctor advising a patient to use, say, marijuana, or any given drug.


It's never made sense to my how the War on Drugs isn't unconstitutional. And your point about Roe v Wade is a good one. Indeed, Roe v Wade is fundamentally about the right to choose what to do with ones body.


We’ve really reached quite the low point if mind altering substances and suicide are considered the way to improve things...


My body, my choice. It's not about whether or not the substances are mind altering, or whether or not I am suicidal for a legitimate reason (unbearable pain, lack of quality of existence).

What needs to be done is to de criminalize these things. One of the primary causes of the expansion of police power has been the "War on Drugs".

"War on Nouns" is a stupid way to run a society. Using law enforcement as your first line intervention for mental health, substance use and other such problems is a stupid way to use your resources to provide for the common welfare.


Would you rather be on life support, incoherent, for years, because of the lack of a right to choose... Or be able to choose what quality of life below which you prefer to pass on and not endure constant indignity?


That seems to be a different problem from legalizing personal use of all drugs. Assisted suicide is a thing in countries with much stricter drug policies than "anything goes".


There's a world of difference between dying because your body can't sustain itself and euthanasia. Please don't unify the two.


The parent wasn’t advocating for the use of drugs, they were saying we shouldn’t lock people up for doing drugs. Do you think we should lock up drug addicts?


> The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason.

I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs, the hard drugs (e.g. heroin) are dangerous and destroy people and should not be freely accessible to anyone, anywhere.

What some countries do instead is provide heroin (or methadone) to people but only in specific locations, where they're provided with a safe and clean environment and equipment to do their thing, and where they can get help with their addiction if they want.

What I'm saying is that a lot of drugs are genuinely dangerous and should not become generally available.


> I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs,

What harmless drugs? No drugs, not even the ones that are currently legal (well, especially not some of them, really) are harmless. Prohibition isn't a bad idea because the prohibited substances are harmless, but because prohibition isn't an efficient mechanism of mitigating the harms (in fact, it aggravates them.)


Hahahahahahaha!

"The constitutional right for every American to eat anything they want for any reason"

Come on that's funny because of, you know, that other epidemic that'll be waiting if you come out of this one. The obesity one.


If methamphetamine is widely available, obesity wouldn't be an issue.


What a coincidence - on 19th September 2020 there will two referenda in New Zealand:

- 2020 New Zealand cannabis referendum [1]

- 2020 New Zealand euthanasia referendum [2]

- [1]: https://en.wikipedia.org/wiki/2020_New_Zealand_cannabis_refe...

- [2]: https://en.wikipedia.org/wiki/2020_New_Zealand_euthanasia_re...


If the federal government merely abided by the constitution and ended all of its activity in relation to the use and trade of drugs, that would go a long way in reducing the intensity of the War on Drugs and giving states space to legalize it.

Each state can decide its own approach, which I think is the appropriate principle for governance.


That will also require removing seat belt and motorcycle helmet laws and probably many others meant to protect ourselves. The problem is few decisions ever affect only the one making the decision when families and society are involved.


> the right to consume anything they want for any reason

How about human flesh? Nuclear waste? Bombs? Bags of dangerous quantities of hard drugs [a la drug mule]? Endangered species?

Just like with free speech, "do anything you want for any reason" has the potential for abuse (both by a person to themselves and by other persons to other entities), and the majority of society is not comfortable with that. Sometimes we can be indoctrinated into tacitly accepting it after intense special interest lobbying, such as with handguns and cars. But there's probably no "greater good" aspect of being able to eat literally anything.


Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding. Endangered species may not harm others, but we've agreed as a people that we care about the lives of other species at least enough to stop killing them before we've made them extinct.

In terms of being a drug mule, if drugs were decriminalized, drug mules wouldn't exist, and most drug cartel activity wouldn't either.

People are advocating to decriminalize and allow people to harm themselves if they want, because it's their body and their choice. It's sad that people want to harm themselves, but ultimately, we do a poor job of stopping people, and by attempting to stop them, we've done considerable harm to our society (war on drugs, propping up cartels, etc.)


> Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding

Which would also eliminate euthanasia as an option. If the law currently forbids euthanasia, then an "eat anything you want" law would still be invalidated when it's used for euthanasia, just like it would be invalidated for the other examples.

> if drugs were decriminalized, drug mules wouldn't exist

Cigarettes are not inherently criminalized, yet illegally selling cigarettes in bulk across state lines continues to be a problem. Illegal gun running also exists here, even for guns that aren't outlawed in any state. If there are cigarette mules and gun mules, there will probably be drug mules.


do you seriously think it makes any sense to make laws that forbid eating nuclear waste or bombs? Thats ridiculous.


What do you think about the right to "Cognitive Liberty?" Freedom of thought, specifically made legal.


Elderly Americans already have Medicare. This scenario doesn’t seem likely.


How is universal healthcare for older people somehow relevant to whether or not they are entitled to consume substances or decide that they have reached a point where they no longer wish to live?


I was responding to this:

> In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix


Amen to that


Indian Reservations still have to abide by Federal Law (which the ruling today affirmed) and selling of 'drugs' is illegal at the Federal level. They can use them in a religious service, but they can't sell them.


This hasn't stopped states from permitting the sale of cannabis.


> why can't freedom of religion be used to legalize drugs?

It can, and has been - this is the origin of the so-called "Religious Freedom Restoration Acts".

https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_...


There are churches that "sell" marajuana and sometime other drugs this way. It really depends on the location how much it is tolerated. In California before recreational it was mostly tolerated. In states without even medical I think it is usually busted quickly, but you know, results in a court case, maybe they are busted a few times, things are kinda ambiguous, and they sometimes hang around for a while. They often have a connection to Native Americans, often just like, a few people who are Native American involved in the organization spreading what may or may not actually be traditional beliefs.


> why can't freedom of religion be used to legalize drugs

This is exactly the sort of thing that the Satanic Temple (not to be confused with the Church of Satan, etc.) investigates and does activism about. Well worth donating to IMO!


They do seem to apply it selectively. Scalia was like "It maybe a good idea but it's against the consitution. If the people want it, elect congress to make an amendment/pass a new law".

Now it's like "Well, it's not strictly in the constitution, but we like the idea, so if we squint a bit we can probably make a tenous case for it."


>I hope they apply it more widely to things they don't necessarily ideologically agree with.

You mean like Roe v Wade? Under this ruling, if precedent doesn't matter, only correcting past injustices, Roe v Wade should be overturned immediately.


I'm not following your logic


> Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law

And yet "adverse possession" allows my neighbor to keep a slice of my yard, because he build the fence shortly before I bought the house (while it was unoccupied!) and I assumed it was proper after I moved in, and now that I've had a survey done and realized his fence is 5' off target, it's too late because he officially owns it!

I understand the difference, but I feel like it would be more proper to say "Unlawful acts performed long ago, are hardly ever enough to amend the law."


What you're referencing is probably a "prescriptive easement" and is legal (depending on your jurisdiction).

If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)

None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.


> If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it.

My jurisdiction does, of course, which is why I mentioned it.

> None of this has anything, either legally or in spirit, with the sentence you cited

I disagree, strongly.

I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".

Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.

Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.


>I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".

Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.

>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.

This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.

> If you can't see the analogy, I recommend you just shrug and move on.

I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.


Most crimes have a statute of limitations. Why should moving a boundary illegally not have a similar limitation?


That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.

Moreover, he isn't looking for retribution, but restitution. He just wants his land back.


> That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.

“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.

See, e.g., this discussion of California’s civil statutes of limitations: https://statelaws.findlaw.com/california-law/california-civi...


I agree with you on the legal aspects, but the mind-bending bit is that the neighbor's actions -- at the time -- were not legal (because no, it is not legal to build structures on someone else's property without their permission), but because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status. Which, honestly, sounds completely bonkers to me.


Otherwise you could wake up and discover that a structure you built 30 years ago on land you thought was yours now isn't. The adverse possession law exists to prevent surprises like that.


Reasonable, but shouldn't the real owner of the property be entitled to some sort of compensation regardless? That becomes problematic if you don't have the means to retroactively buy the land from your neighbor, but it doesn't seem fair to just acquire it, free of charge.


I can understand this perspective, but that also means someone else's rights have been trampled over, even if long ago. What's needed is something that prevents this from even happening in the first place.


Not everything in life is perfect. The law isn't either, but it's reasonable to attempt to deal with imperfect situations.


As I understand it, there is a similar situation legally with regard to copyrights, trademarks, etc. If you don't enforce them, eventually, they are no longer considered valid. Note that IANAL and I haven't investigated this in depth.

I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.

But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.


True for trademarks since by definition it’s a claim on some unique usage of a word or mark. Not the case (anymore, as of 1976) for copyright, at least in the US.


The lone “Standard Oil” gas station in San Francisco is good example of Chevron holding onto a unique usage of that trademark.

https://www.atlasobscura.com/places/standard-oil-gas-station

EDIT: they have one each in 16 states, so not exactly “lone”


> because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status

Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.


Property boundaries affect home value, though. The parent who brought this up bought a house with the understanding that he would have X square feet of land, but it turns out, due to this weird situation, he only has some Y (< X) square feet. Presumably he might have wanted to pay less for that.


I would go after the realtor. If they sold you a house with X sqft, and you actually get Y sqft, I would say the realtor is liable.


The realtor will blame the title insurance firm and will be out of the picture. The title insurance firm will claim they did nothing wrong, and that it is the landowner's actions (or inactions) that have caused the landowner's losses.


Which in this case, it is; the owner sounds particularly upset, but as he tells it the fence was put up shortly before he bought the property. He has sat there for decades without ever having measured it up. Adverse possession takes a long time to come good. All advice about the purchase of property is always to get it surveyed.


And the owner had a few remedies. The easiest is to quickly grant a revocable right to put a fence there. This makes the possession not adverse (there is no trespass). That makes it temporary.


And, the landowner might have passed away.

I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.


There are statutes of limitations on crimes.


Sure, I'm not saying that it's reasonable to prosecute the neighbor for the prior act of building on someone else's land (though I'm not sure that's a crime; at worst I expect it'd be a form of trespassing, but would otherwise be a civil matter). I'm just noting the weirdness that the legal status of the property was changed through an initially illegal act.

But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.

But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.

However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.


That's again not accurate at all. If you buy stolen property & the original owner makes a claim to it within the statute of limitations, that property is returned to the original owner.

Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.


I think it's interesting that a debate about the impact of adverse possession upon the original land owner has resulted from a SCOTUS decision about a Treaty between the United States and an Indian nation.

On what basis was the rest of Oklahoma not "adversely possessed"?


Reservations aren't property of the tribe or nation, they are areas of federal jurisdiction under a Constitutional reserved power within which the tribe and federal government has certain jurisdictional rights concerning members of the tribe, and where the state is excluded from certain jurisdictional rights it would otherwise have over territory within the state.


I understand statutes of limitations are about blocking prosecution of past infringement, not granting a legal right to continuous infringement.


If the statute of limitations for conversion has expired, you will no longer be able to recover either the chattel or its value from the converter. The analogy to adverse possession or easement by prescription in real property should be fairly obvious.


> What you're referencing is probably a "prescriptive easement" and is legal

No, what he is describing is adverse possession, which is different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)

> and is legal (depending on your jurisdiction).

No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.


> In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal.

After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.


IANAL, and other disclaimers.

Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.

I don't think that principle would apply in GP's case.

Adverse possession, however, may apply.


Several lawyers picked up on that on Twitter. It's definitely not a correct statement about every kind of "law." But it's right about statutes, sometimes called "positive law."

English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."


Adverse possession generally doesn’t apply to land owned by a sovereign. You cannot claim adverse possession against the United States, or against the state of Oklahoma, not even after squatting for many years. The Creek nations could be considered sovereign in this case, since they were party to a treaty with the United States.


Here's a case where it took 15 years of court action to get someone off of a parcel of land in Tempe, AZ that was part AZ State land and part City of Tempe. The man claimed his family had been occupying the land since at least 1877 and claimed ownership via adverse possession. If you hit a paywall just search on "tempe squatter".

https://www.azcentral.com/story/news/local/tempe/2020/03/10/...


The article says that the court found in favor of the state and the man had to vacate the land. That sounds like adverse possession wasn't enough to fight off the state when they wanted the land back.


That's odd. My neighbor built his house on the side of his property and inadvertently built it 5 feet over onto the neighbor's property. The way they worked it out was that my neighbor had to buy that portion of his neighbor's property. The alternative was to move (ie, destroy) the building.


this particular law varies wildly by jurisdiction


Also by how quickly it is discovered/brought to court


Are there conditions on the effort made to revert back to normal? Example moving a fence is not the same as tearing down a 30 year old building crossing a property line.


> it's too late because he officially owns it!

On what basis does he "officially own" it? Presumably there is a plat on file with your deed of title to your house and its lot that gives the boundaries of your lot, and another plat on file with your neighbor's deed of title to his house and its lot that shows the boundaries of his lot. Presumably both of those plats say the fence is on your property.


Adverse possession is a specific thing in some jurisdictions where if you visibly and openly occupy a piece of land for long enough without a challenge from the original owner, it becomes your property and the original owner loses it. https://en.m.wikipedia.org/wiki/Adverse_possession


> Adverse possession is a specific thing

I know what adverse possession is. But there are specific conditions attached to it, which will depend on the particular statute in effect in the particular jurisdiction. For example, if the poster I responded to were to tell in court the exact story he told here--"I didn't realize the fence was on my property until I had a survey done, now I realize it and I'm bringing a challenge"--would the statute in effect in his jurisdiction bar him from seeking any relief?


I think the court would be very favorable to the poster. If only because adverse possession is not the sort of law that doesn't scan well with modern times. I know that's not how all law works but if that didnt work I'd go slip in his driveway during winter and bury him in frivolous lawsuits until the end of time.


It’s unclear, but it sounds like you’re saying that Texas law expressly allows this. Isn’t this the opposite of what happened in Oklahoma, i.e. there never was a law that reduced the government’s treaty obligations, so the law as written still stands?

In other words, in both cases the laws, as written, were followed.


The dissent says that the 'reservation' was disestablished over time with the effect of many laws. So those 'unlawful' acts were, in fact not unlawful.

The whole thing is an interesting read.


Maybe it's different with a "nation". If a Frech national comes and builds some fences in Maine that stay for 10 years, can he claim they've moved the border of France?

A little absurd, yes, but I'm not sure adverse possession applies so cleanly to state boundaries as people seem to be implying in a few HN threads...


That one is a puzzler, and I encountered it with a neighborhood issue recently. Why are there some rights that are required to be periodically exercised in order not to be withdrawn? Didn't make sense to me.


Perhaps because they're not "rights"; they're legally-granted privileges.

I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society.

[0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide between those who did and did not own land at the time, and considered landowners to be more deserving of participation in government.


The source of the possession being law is understandable.

I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused.

Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law?

I'm guessing it comes from some old British reason.


> I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded

AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.

More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.

[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.


Well, it is definitely true that active in-person sitting on a property could be beneficial to those who have more time than lawyers.

Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known.

I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs.

In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.


Adverse possession was never really about squatters' rights. It effectively acts as a statute of limitation that cuts off the period in which someone can make a claim to property based on defects in the possessor's title. It's not about protecting the ability of a poor farmer or poor shop owner to take over some abandoned land. That's the exception, not the rule, and it usually would have happened umpteenth transfers in the past if it happened at all. Usually such people buy the property in relatively informal deals--at least, informal by the standards of the Civil Law, but often sufficiently formal to meet Common Law requirements. But because the risk of title defects is much more ominous in Civil Law countries, banks and other formal sectors of the economy heavily discount the value of that property as collateral, if they even value it at all. So it makes it more difficult for the poor to build wealth. Even in the U.S., many small business owners will get their start by mortgaging their homes. The ability to use property as security is a critical mechanism for the poor and working classes to bootstrap themselves into the capitalist economy.

At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market.

De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent.

In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers.

On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.


Wow, how complex and fascinating. I am further confused (although not surprised) that the states are all over the map (hah) in terms of duration of adverse possession taking effect: https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf

Are you in real estate law?


I went to law school mid career and really enjoyed property law, but returned to being a code monkey after graduation.

Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.)

* Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing".

* Itzchak Tzachi Raz, Use It or Lose It: Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)


That's a really good question, and I wonder as well.

I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good.

Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot.

So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers?

But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want.

The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter.

(And thus we have the philosophical basis for housing crises.)


I think the other important angle is that land is often the foundation of other property (structures, improvements, etc.) You own land, but care so little about that land that someone else builds some other property on it. Then 20 years later you notice, and try to claim it back, what do you do about the structure and improvements? The adverse possession laws give an incentive to actual owners to exercise their ownership now, rather than incentivizing them to stay silent, so as to later claim the land and all improvements for free.


“The great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.” https://law.stackexchange.com/questions/1942/what-distinguis...


Perhaps a right-of-way issue. Two parcels adjoin but access to one is via a road across the other. Courts would probably uphold the right-of-way access by the back parcel but if not used for some period of time the front lot owner could argue the right-of-way was abandoned and fence the road off.


Wow. That is just so damn amazing!

Also, TFA notes:

> In a joint statement, the state, the Creek Nation and the other four of what is known as the “Five Tribes” of Oklahoma said they were making “substantial progress” toward an agreement on shared jurisdiction that they would present to the federal government. The other tribes are the Cherokee, Chickasaw, Choctaw and Seminole.

So I wonder whether more of Oklahoma could be affected.

And what about other states? I vaguely recall that the Mohawk have claimed a large chunk of New York.


> the Mohawk have claimed a large chunk of New York

Anyone can claim anything they want.

What is relevant here, and why this case was decided the way it was, is that the federal government and the tribe entered into a legally binding, clear contract.

Lands east of the Mississippi in exchange for a large piece of what is now Oklahoma, in perpetuity.

And Congress never explicitly reneged on that contract. Ergo, it still stands.

Should the Mohawk produce a similarly ironclad agreement regarding New York, they would then have a claim.


I found this:[0]

> In February 2005, the Mohawk Nation Council of Chiefs (a traditional Haudenosaunee government), the St. Regis Mohawk Tribe , and the Mohawk Council of Akwesasne signed an agreement with Governor George Pataki to resolve their historic claim to lands in Northern New York.

> Represented by the Indian Law Resource Center, the Mohawk Nation Council of Chiefs approved the agreement only after years of vigorous advocacy to ensure that the deal adequately protected the interests of their community and of future generations of Mohawks. “Through a lot of hard work at home and at the negotiating table, the Council of Chiefs has forged an agreement they can be very proud of,” said Indian Law Resource Center attorney Alex Page.

> The settlement agreement resolves legal claims first filed in federal court nearly twenty-five years ago. Those claims site repeated violations of a federal treaty confirming Mohawk land rights. Under the settlement, the Mohawks will receive lands and monetary compensation, as well as the opportunity to further expand their territory through purchases from willing sellers. The agreement does not include casinos or taxation, two issues the Mohawks successfully fought to keep separate from the land claim.

But near the end, I see this:

> Although legislation implementing the settlement passed the New York Assembly in 2005, the State Senate was not able to vote on the measure. We hope to see such legislation passed in the near future.

So maybe it's still in limbo.

Edit: From ciabattabread's comment, I gather that it remains unresolved.[1]

0) https://indianlaw.org/molr/landrights/mohawk

1) https://www.srmt-nsn.gov/resolve-the-boundary


I imagine Congress is going to pass a law the ensures that Tulsa is not on part of the reservation. ...because that would be ludicrous.

The Supreme Court is essentially forcing Congress to take a stance.


This is what Justice Thomas has been doing for a long time now (to a fault), and Gorsuch has also taken up: Congress, do your job rather than make the judicial branch perform extralegal bench activism.


Sure in theory Thomas is doing that, but it feels a lot like cosplay when such a resolution would go against his general views on power in general (see this case).

People might have their legal doctrines, but it’s rarely as clearcut as you lay out and all the justices can only at most be “problematic faves”


I agree on Thomas, hence the "to a fault" part in parens.


“to a fault” means “to an extent verging on excess.”

You seem to be using it to mean “to a point limited sharply by his policy preferences”, which is pretty much the opposite.


Large parts of Tacoma Washington are tribal land owned by non-tribe members and it functions. I would assume a similar arrangement would work in Tulsa.


I don’t recall the exact percentage, but historians found that something like 1/3 of the US mainland territory was never officially ceded from previous treaties (and something close to that likely ceded due to fraud, but that’s obviously more likely to resonate with moral argument than stand up in a court of law in the current legal system).

My city (Seattle) is undisputedly Duwamish territory. The way that’s been dealt with is to deny the Duwamish nation federal recognition of existing at all, so legally they have no claim as a nonexistent nation.


It would be interesting if the long-term outcome will be the revival of https://en.wikipedia.org/wiki/State_of_Sequoyah.


> And what about other states? I vaguely recall that the Mohawk have claimed a large chunk of New York.

https://www.srmt-nsn.gov/resolve-the-boundary


I love reading court judgements, they often make the hairs on the back of the hairs on my neck stand on end.

Such powerful writing by those we've vested great authority.


>"Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law."

Based on this logic, I'm sure that the USA will be paying for all that tea they dumped in the harbor any day now...


"Benjamin Franklin stated that the destroyed tea must be paid for, all ninety thousand pounds[citation needed] (which, at two shillings per pound, came to £9,000, or £1.15 million [2014, approx. $1.7 million US]).[76] Robert Murray, a New York merchant, went to Lord North with three other merchants and offered to pay for the losses, but the offer was turned down.[77]"

https://en.wikipedia.org/wiki/Boston_Tea_Party#Reaction


They are safe on a technicality there as they never try to claim continuity with old laws and new laws. Even if dumping the shipments of foreign merchants is illegal under both sets of laws or indeed copied verbatim it is breaking of the old set of law and not the new law as it wasn't "born" yet.


The Treaty of Paris (https://en.wikipedia.org/wiki/Treaty_of_Paris_(1783)) ending the Revolutionary War, and Jay Treaty (https://en.wikipedia.org/wiki/Jay_Treaty) together settled all such outstanding debts.


You can also listen to the oral arguments here: https://www.supremecourt.gov/oral_arguments/audio/2019/18-95...


Wait, so congress can throw away promises at its whims that was supposed to last until perpetuity? And SC will be fine with that as long as promise was thrown away explicitly?


SCOTUS does not rule on your second question. The first is a well-known flaw in American government, which Gorsuch quashed with his opinion. Effectively, it reads: Congress, this is your problem, not ours.


That's exactly what courts are for: Application of laws created by the legislative.

And yes, the SC should be fine with whatever congress does as long as laws are obeyed in the legislative process itself.


That’s what it means for a legislature to be sovereign — you kind of need the ability for future people to reverse past decisions to have a functioning democracy


We have this principle here in the UK as well. No parliament can ever be constrained in it's actions by any previous parliament.

This came up in the Brexit controversies when the government tried to mandate an exit date as being immutable by future legislation, but the Speaker wouldn't have it. In that case some Brexiteers cried foul that it was overreach by the Speaker, but of course such a weapon could equally be used to make our membership of the EU irrevocable. It's a sound principle.


[flagged]


We never stopped the general concept of contracts being enforced — this is just a case of a majority in power choosing not to enforce them in one specific case.


What Gorsuch's opinion does directly imply is that the "promise" to the Creek can be revoked by Congress at any time, i.e. it's hardly a "promise" at all.


Literally nothing in the legal system is permanent for perpetuity. Even the constitution can be amended in any way. All laws, treaties, etc. can be undone with enough effort.


Not quite. It is, in theory, possible to pass an amendment to the constitution, that would prohibit further amendments to parts of it. Quite a few countries have such "immutable clauses" in their constitutions.


Those countries can just make new constitutions. There is literally nothing stopping them.


Well, yes, but that's just a fact of legislation. There are no "promises"; there are just laws that are easy or hard to change. If we were to amend the constitution to set aside land for native peoples, then that's probably the closest we can get to a promise, as that's probably the hardest kind of law to change -- but it's still not a promise, because it can be changed.

Sure, Congressional legislation could take away that land. That would be a lousy thing for them to do. Unfortunately since I doubt Native American groups are a big enough voting bloc, the only thing that would stop Congress from doing that would be enough negative public opinion from people who are not Native American. Hopefully there are enough people of that sort.


The Russian Duma could revoke the sale of Alaska to the United States and declare that they still own it. What stops them from doing so? The fact that the US military would stop them from trying to repossess the land.

The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement. The US operates with them as it does with every one else, on the principle of "might makes right."


> The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement.

This is patently false, because the Supreme Court has ruled that the promise is enforceable.

> The US operates with them as it does with every one else, on the principle of "might makes right."

This is also completely false. Does the military answer to the President of the US because "might makes right"? Can Trump overpower any enlisted man in the military with a gun? The military obeys the Constitution because they swore an oath to do so, not because the generals have literal guns to their heads.

Culture and rule of law matter. The statement "might makes right" is a gross oversimplification that doesn't reflect our reality at all.


The Supreme Court has merely ruled that Congress must first tear up the paper before violating the promise written on it.


The court is highlighting that congress needs to be consistent. Make a willing refusal to original promise, otherwise keep said promise. The courts job is not to decide on the promise but to identify the congress as responsible for consistency with promises made.


I’m curious if you can give an example of a promise that cannot ever be revoked?


I mean, the only reason that Congress can revoke a promise to the Creek Indians is that they have a stronger military. It's not about justice, it's just about strength.


I expect someday Congress with revoke the promise of a social security check, when the system can no longer stand on its own.


If and when the United States Treasury stops honoring bonds that it sells, then you'll have bigger problems than whether or not you get social security income.


It’s a good question — if anything I’d think that a promise is revocable by definition. If there’s no trust involved it’s not so much a promise as...collateral, or something?


>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.

Interesting logic. Now do Roe v Wade. Are they going to overturn that too because it allows the injustice of the murder of millions of unborn Americans? Probably not. Funny how Stare Decisis goes out the window when it's an issue the justices care about, yet conveniently reapply it when present day utility outweighs historical injustice.


You're using the same word -- Justice -- to mean two things.

The court means justice as a violation of the law.

You mean it as a violation of your opinion of what is right and wrong.

Whether your like it or not, Roe v Wade, and Doe v Bolton are the settled court cases, and legal justice is what flows from that. Calling what is legal "unjust" because you disagree with it further reinforces the need for this decision.


Just a couple notes here from a person of tribal descent (I am Wasq'u, a tribe in the PNW), for those trying to make sense of it.

This ruling, as I understand it, resolves a narrow technicality—but that technicality has potentially enormous implications.

The Court has only decided that the federal [EDIT: state! sorry!] government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK—this is what the press means when it calls this territory "Indian reservations." They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.

Further narrowing the ruling, my understanding is that this only applies when all persons involved in the crime (e.g., the victim) are also tribal citizens.

But, this ruling does open the door to a lot of those types of questions. It is possible we see several cases related to the sovereignty of these nations over the next few years, possibly greatly expanding the scope of the jurisdiction of the tribal governments.


"The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK"

The issue at hand was state government prosecutorial jurisdication, not federal. From the article:

Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.


Yes, that was the question at hand but that doesn’t mean it doesn’t have implications for lots of other things that the courts will have to clarify now.


There actually is very little for the court to clarify; reservations exist in lots of other places and the procedures and handling are well established. The unclear part that has been resolved is whether this century-old agreement for those swaths of Oklahoma is still in force, and apparently it is, so it's a reservation. From there on it's procedural copypasta.

The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.


Yeah I was wondering what exactly was meant by "reservation".. in my experience you can't, as an outsider (non-native), just go, and live on the reservation. So unless it's unlike any reservations in my state then there must have been something I was missing.


Back in the day, enrolled members of some tribes could sell land to non-members. I think most tribes prevent that now. Land sold to non-members became Fee property that can be owned by non-members or sold to non-members.

Depending on the reservation, you will find plenty of non-members that own property within the reservation.


Up in Canada some of the reservations do 99-years leases with developers.

They retain ownership, but can actually get something for it.


Interesting - that's how the Israel National Fund managed its land in the pre-state period.


It's how China works as far as I know. It's a pretty good system; it makes housing cheap (one of the worst problems in the US) and it's good for farmers because if you go bust, you can return the land to the village who owns it anyway.


What happens after 99 years? Are they expected/obligated to renew for a reasonable fee? What's preventing them from refusing to renew the leases after 99 years, and keeping the property (and whatever improvements on top) for themselves? It might not be an issue for the first or second generation of owners, but you'd expect the uncertainly to hurt the resale value of the property as the 99 years approaches.


you'd be surprised how common this agreement is. A lot of the skyscrapers in manhattan are/were built with this arrangement, where one party owns the land, and leases it to the developer who owns builds and maintains the building. Very interesting issues came up in some condos where the owners decided to spike the ground rent when the term was up. Also, as I understand it, pretty much all of the land in China is managed like this, as well as Singapore.

If you think about it, there isn't much of a difference between a 99 year lease and a 1-3% property tax.


Ground rents are fairly common

https://en.m.wikipedia.org/wiki/Ground_rent

Yes it can hurt resale prospects, the longer into the lease you get. At the same time it can also lower upfront acquisition costs. Something to know when you get into it.


Reminds me of a certain piece of land that Britain has a 99 year lease on. Hard for them to end well without a contractual option to extend under reasonable conditions.


> Britain has a 99 year lease on

If you're referring to the New Territories portion of Hong Kong, that lease was from 1898 to 1997. That lease expired almost 25 years ago.


Also worth noting that basic property in Hong Kong still works the same way; there isn't really non-government owned land and all of it is leased. https://www.legco.gov.hk/research-publications/english/essen...


Except for the church behind my office [0], which is the only freehold in HK.

[0] https://en.wikipedia.org/wiki/St_John%27s_Cathedral_(Hong_Ko...


Does this depend on the reservation? I've heard of reservations where you basically couldn't build a permanent structure or get a building loan due to how the tribal land rules work.

It's kind of fascinating having these micro-nations that aren't quite nations within our borders, I should read more in to this subject.


Reservations are governed by their tribal government, often with side-agreements/compacts with local or State governments.

Real property within reservation borders is either deeded land or trust land. Deeded land can be sold without restriction. Trust land cannot be sold without approval of the US Bureau of Indian Affairs and/or the tribe.

Natural resources in reservations are usually managed by the tribe. Including hunting and fishing. Some let non-Indians or non-members hunt/fish some don't.

Except for a few exceptions, living on Indian reservations is no different than living anywhere else. Tribe made laws/rules do not apply to non-members -- unless the State or Feds says so. These are usually hunting rules. For example, the Colville Reservation in the State of Washington restricts non-members from hunting large game (deer, black bear, etc.) even if the game is on deeded landed. They can do this because there is a state law that says the same thing.

Also, generally tribes or tribal owned businesses cannot be sued in state or federal courts unless they agree to be sued (same/similar as States and the Federal government). Thus, persons have few rights when it comes to contract disputes, personal or workplace injuries, labor issues, and so on, that involve tribes or tribal owned businesses. Something to think about if one is considering employment or otherwise doing business with a tribe or tribal owned business.

"Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies."

https://www.bia.gov/frequently-asked-questions


> The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens

Did I misunderstand what the case was about? I thought the case was that the state government has no jurisdiction and only the federal government has jurisdiction.

Or maybe I'm confused because that's what the previous (4-4 deadlock) case was about and this one is actually bigger.


Ruling found that state government does not have prosecutorial jurisdiction, the federal government does and could still choose to prosecute the individual at the root of this case in federal court.


Do you know if this means that the land on which buildings are built could be taxed by the tribes?

I live in the desert in CA and here most buildings built on Indian reservations pay a yearly leasing fee.

It would be such a huge power shift for the tribal nations. It's one of those things that could ripple through the system or hit some stone wall I'm unaware of. Really interested to know what will happen.


They do not. I address this in my answer:

> They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.


You're 100% right, sorry, I read through your answer too quickly. It was the land for trust thing that really covered my question and I wasn't thinking of fee land in that way. I'm very ignorant about this topic, thanks for setting it straight. :)


Thanks. You helped me understand better.


They're wrong - it's state, not federal.


Does the nature of the crime in this case have any implications on the ongoing precedent?

It's bizarre that the headline could have read: Rape-related SC Decision Returns Land to Native American Tribe.


I don't think so. The rape case really just acts as a vessel to provide standing to litigate the larger question of the reservation.

Without the rape case they wouldn't have had a reason to challenge the questions about the res but now that the Supreme Court has resolved the larger question it's applicable across the board.

It could have just as easily been a case about shoplifting or murder or anything else. In fact, last term there was a case similar to this that was about a murder, where the defendant was sentenced to death by the state and they argued that the state didn't have jurisdiction. Gorsuch heard the appeal in the circuit court so recused himself from the SCOTUS case and the belief it was deadlocked 4-4, so they took this case and made the ruling with a full nine Justices.


Unfortunately there's really no "return" of land. These headlines are siezing on the above technicality mentioned, which simply formalizes Tribal jurisdiction.

The big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.


There's a difference in that now major crimes between tribe members have to be tried in federal rather than state court. Minor ones would be tried by tribal courts, which already exist.


> This ruling, as I understand it, resolves a narrow technicality

That is literally all of the SCOTUS rulings. It's petty listening to bright minds discuss minute details. The fact that technicalities have far reaching effects is a sign that the system is broken.


I don't see that this some sign of systemic dysfunction. Given the significant amount of time and effort that is expended before a legal dispute is considered by SCOTUS, it stands to reason that the arguments would be sufficiently nuanced at that stage.

If the highest court of the land doesn't sweat the details, why would lower courts or any other aspect of our legal system be reasonably expected to do so? In any reasonably complex system (legal or otherwise), it should make sense that the technicalities do matter, and that the supreme decision making body in that system should consider those carefully due to the outsized influence it holds.


I think this a result of survivorship bias by design, not that anything is broken. If a case had little effect, it wouldn't be worth the court's time. If a case were easy to resolve, a lower court would have done so. So that only leaves important yet difficult and complex cases.


> The fact that technicalities have far reaching effects is a sign that the system is broken.

I find that an utterly hilarious thing to say in a forum with a large number of highly technical people, and another large number of people who understand complex, nontechnical systems.


Putting aside the question of what makes a "tecnicality," the fact that technicalities are able to be put forth and argued until a decisionmaker makes a ruling, rather than having a party decide unilaterally how to resolve the technicality, presumably at the peril of their opponent, means the system is working well.


>That is literally all of the SCOTUS rulings.

Korematsu v. United States? Brown v. Board of Education? Loving v. Virginia? Obergefell v. Hodges? Roe v. Wade? Dozens of others?

I have to assume you mean this batch of rulings, otherwise I can’t comprehend this idea.


I almost think they “like” to word things in this way so they can side step the larger ramifications of their decisions to certain people.

It feels frustrating to those outside the law. But that’s always been true of the law, as far as I’ve read.

Also remember that our legal system is a direct inheritance of the English legal system we separated from in the 1700s. There’s actually more history to our laws than to our country. So to some extent the years of buildup contributing to confusion stem back pretty far into the past. We would have a lot of work ahead of us to reinvent the quirkiness out of the system.


It helps if you realize that the English legal system developed as an alternative to trial by combat: https://en.wikipedia.org/wiki/Trial_by_combat. The point isn't to empower judges to make decisions that have the best "ramifications" "to certain people." It's to reach a decision that people who violently disagree about those "ramifications" are nonetheless forced to accept the result because it was reached in accordance with agreed-upon rules.

That's why so many decisions come down to careful parsing of words and "technicalities." A case that reaches the Supreme Court will usually have generated intense controversy about what is the more desirable result. Thus, the focus is on reaching a decision that people can't argue with because of scrupulous adherence to rules and doctrines.


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