States’ rights get inappropriately strengthened in another attack by a RW SCOTUS on protections from the arbitrary authority of states and the vestiges of hostile settler colonialism. Giving states more power with such a specious reading of the 10th Amendment moves the needle closer to a Civil War 2.0 that could start in the already planned second Trump term in 2025.
That’s why the court affirmed in Kagama, like it has for nearly two centuries, that Indian country sat apart from states and was instead subject to congressional and federal authority. Put simply, states had no business in tribal affairs.
That decision and others like it – however imperfect and drenched in conquest they were – supposedly shielded Native people and their reservations from the arbitrary authority of states and hostile white settlers.
Last month, the supreme court tore up that decision and centuries of legal precedent with it. The 5-4 decision in Oklahoma v Castro-Huerta found that state governments have the right to prosecute non-Natives for crimes committed against tribal members on reservation lands. The decision weakens the effects of McGirt v Oklahoma, which found that most of eastern Oklahoma was still legally Indian Country, where many crimes were beyond the grasp of state law. But the court applied Castro-Huerta far beyond Oklahoma.
“A state has jurisdiction over all of its territory, including Indian country,” Brett Kavanaugh wrote, resting his argument on a false 10th amendment claim, which doesn’t authorize states to intervene in tribal affairs.
His words could have come from the most ardent anti-Indian racist of a bygone era. Asserting state criminal jurisdiction over Native lands has been a primary tactic of legally eliminating Native people. Chief Justice John Roberts’ court draws from a long tradition of violent conquest, going back to Cherokee removal in the 19th century and to the termination policies of the 20th.
The theory of state supremacy, supposedly enshrined in the final amendment of the Bill of Rights, has a sordid history of white supremacy and reactionary politics. The same reasoning found its way into the Dredd Scott decision in 1859 to keep Black people as white property in slave states. More recently, Kavanaugh cited the 10th amendment in his concurring opinion overturning Roe v Wade.
States, according to this extremist – and now dominant – view in the court, possess the authority to abolish and criminalize abortions, potentially curb voting rights and now abrogate treaties and redefine federal relations with Native nations.
Neil Gorsuch – who, like Kavanaugh, is a Trump-appointee and a proponent of the revanchist legal theory known as “originalism” – wrote the dissenting opinion for Castro-Huerta. “Unknown to anyone until today,” Gorsuch sarcastically wrote, “state law applied all along” to Indian country. While scathing in his rebuke, Gorsuch strangely didn’t touch Kavanaugh’s shaky 10th amendment claim.
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Written by conservative Justice Brett Kavanaugh, the language of the majority opinion is almost as concerning as the decision itself. For the first time, the Supreme Court framed Native American land as being territory within the boundaries of states, rather than sovereign nations. This perspective is an extreme departure from existing legal precedent. By regarding native land as subsections of states, the Supreme Court has undermined tribal sovereignty, therefore threatening Native Americans’ rights, safety and security.
The Castro-Huerta decision came as a shock to many tribes and Native American rights advocates, leaving many feeling both deeply disappointed and frightened for the future. Native American activists claim that this ruling was not only a blatant failure of the nation to honor its promises of sovereignty to tribes, but a lawless disregard of Native Americans’ essential rights altogether.
Without a treaty, congressional delegation or tribal input, the Supreme Court fundamentally altered the balance of power between states and tribes. To make matters worse, this decision is not only pertinent to Oklahoma. In fact, over
20 other states may soon seek to extend state authority and gain criminal jurisdiction in tribal lands.
Historically, Native American tribes have been promised to be spared from state interference, especially in the context of criminal law. Oklahoma v. Castro-Huerta demonstrates that this promise had an expiration date. The Castro-Huerta decision proves that the future of self-governing tribes lies in the lands of the Supreme Court; based on this decision, the outlook for Native American rights is grim.
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The impact could go well beyond typical conservative targets such as the Environmental Protection Agency and the Internal Revenue Service. Trump allies are working on plans that would potentially strip layers at the Justice Department — including the FBI, and reaching into national security, intelligence, the State Department and the Pentagon, sources close to the former president say.
During his presidency, Trump often complained about what he called “the deep state.”
The heart of the plan is derived from an executive order known as “Schedule F,” developed and refined in secret over most of the second half of Trump’s term and launched 13 days before the 2020 election.
The reporting for this series draws on extensive interviews over a period of more than three months with more than two dozen people close to the former president, and others who have firsthand knowledge of the work underway to prepare for a potential second term. Most spoke on condition of anonymity to describe sensitive planning and avoid Trump’s ire.
They intend to stack thousands of mid-level staff jobs. Well-funded groups are already developing lists of candidates selected often for their animus against the system — in line with Trump’s long-running obsession with draining “the swamp.” This includes building extensive databases of people vetted as being committed to Trump and his agenda.
The preparations are far more advanced and ambitious than previously reported. What is happening now is an inversion of the slapdash and virtually non-existent infrastructure surrounding Trump ahead of his 2017 presidential transition.
These groups are operating on multiple fronts: shaping policies, identifying top lieutenants, curating an alternative labor force of unprecedented scale, and preparing for legal challenges and defenses that might go before Trump-friendly judges, all the way to a 6-3 Supreme Court.
Trump signed an executive order, “Creating Schedule F in the Excepted Service,” in October 2020, which established a new employment category for federal employees. It received wide media coverage for a short period, then was largely forgotten in the mayhem and aftermath of Jan. 6 — and quickly was rescinded by President Biden.
Sources close to Trump say that if he were elected to a second term, he would immediately reimpose it.
Tens of thousands of civil servants who serve in roles deemed to have some influence over policy would be reassigned as “Schedule F” employees. Upon reassignment, they would lose their employment protections.
New presidents typically get to replace more than 4,000 so-called “political” appointees to oversee the running of their administrations. But below this rotating layer of political appointees sits a mass of government workers who enjoy strong employment protections — and typically continue their service from one administration to the next, regardless of the president’s party affiliation.
An initial estimate by the Trump official who came up with Schedule F found it could apply to as many as 50,000 federal workers — a fraction of a workforce of more than 2 million, but a segment with a profound role in shaping American life.
Trump, in theory, could fire tens of thousands of career government officials with no recourse for appeals. He could replace them with people he believes are more loyal to him and to his “America First” agenda.
Even if Trump did not deploy Schedule F to this extent, the very fact that such power exists could create a significant chilling effect on government employees.
It would effectively upend the modern civil service, triggering a shock wave across the bureaucracy. The next president might then move to gut those pro-Trump ranks — and face the question of whether to replace them with her or his own loyalists, or revert to a traditional bureaucracy.
Such pendulum swings and politicization could threaten the continuity and quality of service to taxpayers, the regulatory protections, the checks on executive power, and other aspects of American democracy.
Trump’s allies claim such pendulum swings will not happen because they will not have to fire anything close to 50,000 federal workers to achieve the result, as one source put it, of “behavior change.” Firing a smaller segment of “bad apples” among the career officials at each agency would have the desired chilling effect on others tempted to obstruct Trump’s orders.
They say Schedule F will finally end the “farce” of a nonpartisan civil service that they say has been filled with activist liberals who have been undermining GOP presidents for decades.
Unions and Democrats would be expected to immediately fight a Schedule F order. But Trump’s advisers like their chances in a judicial system now dominated at its highest levels by conservatives.
Rep. Gerry Connolly (D-Va.), who chairs the subcommittee that oversees the federal civil service, is among a small group of lawmakers who never stopped worrying about Schedule F, even after Biden rescinded the order. Connolly has been so alarmed that he attached an amendment to this year’s defense bill to prevent a future president from resurrecting Schedule F. The House passed Connolly’s amendment but Republicans hope to block it in the Senate.
Machine-in-waiting
No operation of this scale is possible without the machinery to implement it. To that end, Trump has blessed a string of conservative organizations linked to advisers he currently trusts and calls on. Most of these conservative groups host senior figures from the Trump administration on their payroll, including former chief of staff Mark Meadows.
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