Supreme Court decisions (6/29/22) - 2 decisions (Indian country jurisdiction, State sovereign immunity)

The Supreme Court did not issue decisions on Tuesday and only issued two today.


Held: By ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private damages suits against nonconsenting States, as in USERRA. Pp. 3–16.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAGAN, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which ALITO, GORSUCH, and BARRETT, JJ., joined.

Below is the “plan of the convention” doctrine:

Plan of the convention doctrine refers to a principle that each state in the U.S. by ratifying the U.S. Constitution has consented to the possibility of being sued by each of the other states, and therefore has no immunity from such a suit under the 11th Amendment. If the Constitution itself contemplated the abrogation of sovereign immunity in a particular area, the Eleventh Amendment does not act to restore the states to their pre-ratification sovereign status. A state’s ratification of the Constitution or admission into the Union on an “equal footing” with the other states resulted in a surrender by the states of certain pre-existing rights.


Held: The Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. Pp. 4–25.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and BARRETT, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

The Supreme Court declines to extend McGirt.

Two more decisions remaining. The Court issued a press release announcing that Thursday, June 30th will be the final day of the term.

Breyer’s last hurrah.


interesting… what does this mean for double jeopardy? the state can (not must) prosecute a non tribal person who commits a crime on a reservation or against a tribal citizen on said reservation… this person may or may not serve time for the state… does the tribe have the ability to prosecute that criminal again? does the tribe lose it’s jurisdiction completely?

this feels like non tribal citizens are being given a form of diplomatic immunity on the reservation…

In the short term at least, this is just going to further weaken the already pathetically weak concept of double jeopardy in this country.

Congress can fix this by enacting a statute creating a procedure for the Federal Government to expressly preempt prosecution in such concurrent jurisdiction cases and would be required to notify the State Government if they are going to take jurisdiction of a particular case or decline it and leave it to the State. The statute would be written so that if the Federal Government declines a case and the State prosecutes, the Federal Government can not later prosecute the case.

In the long run, the Federal Government can solve this by dissolving the apartheid system of Indian Reservations, but that is something for another thread. :smile:

Here is a link to a post I made in 2018 on the subject of Indian Reservations.

thank you for the information…

I agree that it is time to end the federal rule, but I don’t think tribal rule needs to be dissolved…

assimilation is erasure…

Why not now? We are both here.:slightly_smiling_face:

Do you think the reservation system should be eliminated? OR do you think that reservations should be fully considered separate nations? Or something else?

they should be considered conquered nations magnanimously granted autonomy in their internal affairs by their conquerors. If a reservation wants to dissolve itself and become a part of the state it’s within, they should be allowed to do so, but it should not be imposed on them. hell, if its big enough by population, and comprises land in more than one state, and they so chose, they should be able to apply for statehood.

Texas was the only nation that decided to become a state… (it was broken into pieces as well)

I don’t think that autonomous tribes after being freed from federal control would willingly submit to federal control via statehood…

The reservation system should be eliminated, though not in the heavy handed way that was pursued from the 1920’s through the 1950’s. But beyond that, the whole relationship between the Indians and the government has to change. Indians will NEVER prosper under the current system.

In fact, if somebody WANTED to deliberately ■■■■ over Indians, the current system is an excellent method of accomplishing that goal.

The above article points out how the government is keeping Indians in poverty. ALL those things have to change if there is to be any real improvement in the economic status of the tribes.

Ultimately, I support full integration into society. Black people, Hispanic people, Irish, Scottish, Italian, Japanese, etc., etc., etc. have been encouraged to INTEGRATE. With Indians however, the policy has been segregation and in many cases isolation. It is an apartheid system and it shows.

Now for those that do want to stay where they are, the reservation system should be replaced by normal state government. If they wish to form a municipality under State law, the State should grant them their municipality and they should have the opportunity to have their own licensed attorneys considered for State judicial positions.

But the reservation system is clearly a sad failure that just harms Indians and has no chance to help them.


likely not, but if it makes sense land wise and they wanted to, it should be at least considered as an option. to do so they would have to have contiguous land in more than one state, otherwise they could just meld into the state they’re within. i think however none would choose either.

I agree. And thanks!