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U.S. Supreme Court deems half of Oklahoma a Native American reservation

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Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#591
post #534

Earlier quoted context omitted.

Congress isn't the same Congress that passed the bills.

That's a good point. I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Like would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?

> I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity.

Congress as an institution is one continuously operating entity. But the important question legally is not what Congress is, but what the actual text of the statute passed by Congress and signed by the President is. That is the law. In other words, the Constitution does not say "whatever Congress says is the law". It lays out a specific process by which laws get passed, and says what the limitations of that process are (no ex post facto laws, which means Congress can't pass a law that says some previous law meant something different, and have that retroactively apply).

> would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?

No, but they could pass a new statute repealing the old one, or replacing it with new language, which would limit the time the old statute was in effect.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#592
post #534

Earlier quoted context omitted.

Congress isn't the same Congress that passed the bills.

That's a good point. I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Like would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?

Congress has no ability to do this, period. If they screw up and pass something ambiguous that gets interpreted contrary to their desires, their only remedy is to pass a new law to fix the problems. That will only -- by design -- cover new cases, as they are constitutionally barred from passing legislation that takes retroactive effect.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#593
post #573

Earlier quoted context omitted.

>I guess I trust the Supreme Court more than I trust Congress It's quite a damning indictment of US-style democracy that people trust a small cabal of unelected lifetime appointees without any meaningful oversight, over a larger pool of democratically elected officials.

Not just US-style. The House of Lords in the UK, a cabal of unelected lifetime appointees without any meaningful oversight, is consistently saner than its elected counterpart. Political parties, and being constantly afraid for one's job, seemingly have quite the detrimental effect.

The House of Lords sane? I admit I don't really follow it in any detail, but my impression from various reports was that it was a mess of scandals and corruption. Though I admit that being saner than the House of Commons sounds like a fairly low bar.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#594
post #548

Earlier quoted context omitted.

The entire city of Tulsa is there - literally millions of non-native Americans live in this area. Congress will have no choice but to make a law breaking the promise and repatriating the land out of Native American hands.

> Congress will have no choice but to make a law breaking the promise and repatriating the land out of Native American hands. Oklahoma seems to have only five US Representatives (and two senators of course). It would be ridiculous if seven Congress members can hold a nation hostage. I don't understand the full implications of this ruling but I don't see how I can support breaking more promises because of political ga…

What do you mean? One senator has been holding the nation hostage for years. One.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#595
post #519

Earlier quoted context omitted.

That's a good question. I'm not a lawyer, but I think it would be problematic if Congress could make those decisions. That would allow them to de facto create ex post facto laws by contriving "interpretations" of past laws. It might incentivize intentionally ambiguous laws that allow them flexibility in the future. At that point, the Supreme Court would be in the very odd position of deciding whether something is a p…

Yeah, I agree. That could definitely get into some really sticky territory. I guess the other side is that a malevolent court could contrive those interpretations, and Congress would be only be able rectify the situation going forward. I don't know what the best solution is, but I guess I trust the Supreme Court more than I trust Congress. Still, it seems weird that Congress wouldn't get a say in determining what the…

> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.

Ah yes, rule by Humpty Dumpty, where you don't know what the words they used mean until they tell you, and words mean what they choose them to mean, neither more nor less.

If it were a law passed by the current congress, then maybe they would have some insight into their own intentions. But I don't see that the congress of 2020 is any better informed about what the congress of 1909 intended than you or I.

And even under the same congress the idea a law could have a secret meaning, passed by congress but defined only in their minds and unknowable to those under their rule, seems completely contrary to the idea of the rule of law.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#596
post #587
post #502

One thing I'm unclear about is this: "If Congress wishes to withdraw its promises, it must say so." The question in the case, as I understand it, was whether previous acts of Congress had in fact dissolved the reservation. Could Congress, if they wanted to, pass a resolution saying, "Actually, such-and-such bill from 100-some years ago dissolved the reservation." Or can they only say, "Starting today, the reservation…

> Is Congress empowered to clarify the meaning of its own past statements? I don't think so. The statute is the actual text that is passed by both houses of Congress and signed by the President. Congress does not have the power to "interpret". It only has the power to pass a new statute, which can only be in effect as of the date of its passage (when the President signs it). Anything Congress says or does that does n…

But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? You need to consider this as something less brazen could be used to undermine congress' authority.

The judicial branch de facto has the most power of any branch in the US. The positions are not elected.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#597

Earlier quoted context omitted.

> 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 official…

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…

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.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#598
post #393

Earlier quoted context omitted.

The filibuster doesn't help the situation and seems like a mechanism designed to encourage obstruction. Until we do away with it, I fear we'll be stuck with the status quo.

The filibuster forces consensus. It's hard to get a ten vote majority if you're arguing strictly along party lines.

The real problem is that there are just two parties that hate each other to the core. In a multi-party system, parties would be forced to compromise and find agreement with other parties, and this would become normal.

So get rid of congressional districts and instead fill the House according to proportional representation.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#599
post #49

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…

> 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 official…

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.

Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation

#600
post #583

Earlier quoted context omitted.

>I guess I trust the Supreme Court more than I trust Congress It's quite a damning indictment of US-style democracy that people trust a small cabal of unelected lifetime appointees without any meaningful oversight, over a larger pool of democratically elected officials.

The root of the problem (and this isn't unique to US-style democracy) is that any body that has to deal with re-election every few years is going to focus more on things that get them re-elected, not necessarily things that are good or sustainable for the state as a whole. That's just human nature, and I don't think there's a way to fix that problem without fundamentally changing how with think of elections and terms…

Very interesting points regarding enforcement mechanism.

> I'm not sure what that would look like.

Just iterating a few possibilities:

1) Lifetime terms (like Roman senate or SCOTUS)

2) Term limits (like US Pres)

Honestly really naive about political theory and I wonder what the case is for each and what the process for changing would look like (guessing it is something congress would have to do, so hard to do).

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