Future Cases Involving Native American Tribal Rights?
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  Future Cases Involving Native American Tribal Rights?
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Author Topic: Future Cases Involving Native American Tribal Rights?  (Read 557 times)
Skill and Chance
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« on: December 01, 2020, 02:27:58 PM »
« edited: December 01, 2020, 02:49:53 PM by Skill and Chance »

Thus far these cases have been decided in favor of the tribe since Gorsuch was seated, but usually by 5/4 votes with Ginsburg in the majority.  The "left/right" order in these cases was very unusual and looked something like this, with Gorsuch being at least the 2nd most likely to favor the tribe's claim:

Left/Expansive view of tribal rights

Sotomayor/Gorsuch
.
.
.
Kagan/Ginsburg
.
.
.
Breyer
.
.
.
Thomas
.
.
.
Roberts/Kavanaugh/Alito

Right/Enforce existing state law

Thomas has shown some interest in enforcing various 19th century treaties, but he usually votes for the status quo anyway and the other 3 conservatives have shown no interest at all in swinging on these issues.
With Barrett replacing Ginsburg and seemingly belonging somewhere in the Roberts/Kavanaugh/Alito camp of legal conservatism, do the tribes have any hope of winning these cases anymore? 

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Nathan
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« Reply #1 on: December 01, 2020, 02:44:05 PM »

McGirt was almost certainly the last major tribal rights expansion through the judiciary for the next several decades unless court-packing somehow ends up happening or Thomas or Alito dies abruptly. I don't see Thomas evolving on this issue area unless Gorsuch makes an active priority of grooming him into doing so (which I guess he conceivably might).
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Skill and Chance
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« Reply #2 on: December 02, 2020, 11:07:36 AM »

McGirt was almost certainly the last major tribal rights expansion through the judiciary for the next several decades unless court-packing somehow ends up happening or Thomas or Alito dies abruptly. I don't see Thomas evolving on this issue area unless Gorsuch makes an active priority of grooming him into doing so (which I guess he conceivably might).

Occurs to me that criminal defendants will now also need Thomas to win on originalist arguments.  The libertarian/restore ancient rights path to liberalish decisions has been completely short-circuited.  The institutional stability/don't rock the boat path is still there as Roberts has been effective leaning on Kavanaugh (PA/NC absentee cases, new ACA case oral arguments) and Barrett shows some of the same inclination (census case oral arguments).
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Kingpoleon
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« Reply #3 on: December 04, 2020, 11:46:13 PM »

McGirt was almost certainly the last major tribal rights expansion through the judiciary for the next several decades unless court-packing somehow ends up happening or Thomas or Alito dies abruptly. I don't see Thomas evolving on this issue area unless Gorsuch makes an active priority of grooming him into doing so (which I guess he conceivably might).
I think Gorsuch is going to kind of groom Kavanaugh and Barrett - as the most senior of three very young Justices, he has an easy opportunity to reshape the Court permanently and make it the Gorsuch Court.
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