Articles Posted in Constitution

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The amount of land the federal government officially recognized as Native American land under tribal jurisdiction changed in the blink of an eye from 55 million acres (just 2% of all land in the United States) to 75 million acres. On July 9, 2020, the Supreme Court of the United States issued an incredible win in McGirt v. Oklahoma to Native Americans whose land has been continuously diminished over the last two hundred years.

As Justice Gorsuch recognized, this case quickly became two-fold. The issue of the case centered around a man named Jimcy McGirt; the case appeared before the Court as Mr. McGirt appealed a criminal conviction from the Oklahoma state courts. The case quickly transformed into something much greater: Who owns the large portion of land in northeastern Oklahoma? The United States or the Creek Nation? As the Court decided, the land belongs (and has belonged) to the Creek Nation since 1832.

This issue first appeared in Murphy v. Royal in 2017. 876 F.3d 896 (10th Cir. 2017). There, a man named Murphy was accused of killing another man in Oklahoma. He was tried and convicted in the Oklahoma state courts and was sentenced to death. Id. at 904-05. Though it proceeded through a complicated appeal, it ended up in the Tenth Circuit Court of Appeals discussing one issue: did the Oklahoma state courts have jurisdiction over the case? Id. at 911. Mr. Murphy’s argument was, essentially, that because the crime occurred on land that belonged to Creek Nation (as a part of the Creek Reservation), only federal courts maintained jurisdiction over the case; the state courts never had jurisdiction over his case at all. Though the Tenth Circuit agreed with Mr. Murphy, the case was then appealed up to the Supreme Court of the United States where it remained without an opinion for two years.

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I read numerous judicial opinions. I’ve read thousands (really, thousands). But sometimes an opinion stops me in my tracks, and I have to read it over again because I know it’s a ripple in the sea of judicial restraint. These ripples are few and far between. These ripples are a little blip. But they are a blip that is meant to grow and catch a wave, turning into or joining a tsunami of change. And that is what I found in Estate of Jones v. The City of Martinsburg, et al., Cause No. 18-2142 (4th Cir. Jun. 10, 2020).

In 2013, Mr. Wayne Jones, a black man experiencing homelessness was walking on the sidewalk when he was stopped by law enforcement. Immediately, the encounter escalated and never stopped. By the end of this encounter, Mr. Jones would be dead: “Armed only with a knife tucked into his sleeve, [Mr. Jones] was tased four times, hit in the brachial plexus, kicked, and placed in a choke hold. In his final moments, he lay on the ground between a stone wall and a wall of five police officers, who collectively fired 22 bullets.” A police officer asked him whether had a weapon. Jones asked what a weapon was. He was told, by the officer, a list of examples (knife, gun, etc.). Mr. Jones answered he might have “something.” He did. A small blade tucked in his right sleeve.

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Black Lives Matter Protestor, December 2014 — photo by Robert Stribley

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The Supreme Court's LGBTQ ruling, explained in 5 sentences - Vox

LGBTQ advocates gathered in front of the Supreme Court on October 8, 2019. Erik McGregor/LightRocket via Getty Images

Just days after the Trump administration formally rolled back policies that protected LGBTQ+ patients from discrimination,[1] the Supreme Court issued an opinion clearly stating that Title VII protects homosexual or transgender people from discrimination in the workplace. In a 6-3 opinion in Bostock v. Clayton County, the Court announced, “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.”

Bostock considered three different cases stemming from discriminatory terminations. The first plaintiff, Gerald Bostock, was fired from his job after he participated in a gay recreational softball league. Donald Zarda, who worked as a skydiving instructor, was fired just days after mentioning he was gay. Finally, Aimee Stephens was fired from her position at a funeral home after informing her employers she would live and work full-time as a woman.

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While prisons are designed to further purposes of deterrence and retribution, do those aims come with an unfettered right to abuse incarcerated individuals? 

In 2015, the nation was shocked to hear the story of Kalief Browder, a 16-year old wrongfully arrested for robbery who served two years in solitary confinement prior to trial.  After his release, Browder committed suicide.  A documentary entitled Time: The Kalief Browder Story, produced by iconic hip-hop rapper Jay-Z recounts Browder’s experience in Rikers and the psychological tortures of solitary confinement.[1]  In that same year, Terry Poole, a North Carolina inmate, committed suicide after serving time in solitary confinement.[2]  A recent article found that there are nearly 300 inmate suicide attempts in American jails and prisons every year.[3]  The statistical prevalence of suicide and suicide attempts increases for inmates in solitary confinement.[4] The deleterious physical and psychological effects of solitary confinement has wide-spread social science support[5], but is the repudiation of solitary confinement progressing rapidly enough?

Ultimately, Americans—by and through the casting of theiJuvenile-in-Cell-300x248r ballots—must decide whether the conviction of a crime, putting aside the heinousness of felony offenses generally, warrants an extraneous, additional punishment to include prolonged physical and psychological suffering.  Does the Eighth Amendment allow for carte blanche treatment of inmates?  Because of an adjudication of guilt, are prisoners properly cast into dark holes without recourse from our Constitution? I think not.

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Buffalo_Hunt-300x209On July 10, 1890, Wyoming’s statehood was granted and it became the 44th state of the U.S.Decades and decades later, in January 2014, Clayvin Herrera of the Crow Tribe of Indians pursued a pack of elk outside his tribe’s reservation in Montana , and was led into Wyoming’s Bighorn National Forest. This hunt led to him being fined, receiving a suspended jail sentence, and having his hunting privileges suspended for three years.

When the decision was upheld by a state appellate court and then passed over by the Wyoming Supreme Court, Herrera asked the Supreme Court for review. The question at issue was, when Wyoming became a state, did the Crow Tribe members’ right to hunt outside the bounds of their state lines cease to exist? Herrera contended that his rights under an 1868 treaty between the tribe and federal government weren’t cut off when Wyoming achieved statehood, because, as the court came to find, the Wyoming Statehood Act did not negate the Crow Tribe’s hunting rights nor did the 1868 treaty expire at that time. Herrera also argued that the creation of the Bighorn National Forest actually reinforced the Tribe’s hunting rights by prohibiting settlement on that land. Understandably, Herrera expressed concern that his tribe was not the only one affected by the Wyoming court’s ruling.

The State of Wyoming argued that Herrera’s conviction should stand because Wyoming becoming a state abolished his tribe’s off-reservation hunting rights.

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