Summary Analysis
R-39
DATE: 2019-05-20
DOCKET: 17-532
NAME: Clayvin Herrera, Petitioner v. Wyoming
WORTHY: True
OPINION: Court
AUTHOR: Sotomayor
JOINING: Ginsburg, Breyer, Kagan, Gorsuch
GOOD: Yes
PAGES: 22
OPINION: Dissenting
AUTHOR: Alito
JOINING: Roberts, Thomas, Kavanaugh
GOOD: No
PAGES: 19
Case Commentary
How about those Crow names?- Medicine Crow
- Black Foot
- Wolf Bow
- Race Horse
- Ten Bear
Issue Preclusion: seems to be very much stare decisi under a different name. Basically, I take it to mean the same issue cannot be re-litigated by the same parties.
But surely, there must be an exemption after the passage of time... however long that might need to be.
The Court (as the Dissent quotes), says this should happen (or can happen) whenever there is a "change in the applicable legal context." Certainly, this must mean it happens whenever their is a new Justice on The Supreme Court (or the appropriate Appellate Court); and thus (by extension), whenever there is any change in Judge, Jury, or the Underlying Social Conditions.
Basically, I come down against issue preclusion as hard as I come down against stare decisi, because the difference between the two is one of application, not intent.
Oh, here's an odd fact. The Crow Tribe's land claim only goes back 300-400 years. I wonder who they stole the land from?
Another odd fact is that Treaty Rights are presumed (or so, I assume, and it is here that I will insert my standard disclaimers and qualifications for the entire page, project, and site; for I am not a Lawyer and care not one wit about The Law, it is what is Right that interests me: anyway, Treaty Rights, as I understand them) are at the pleasure of Congress (or in this context, I believe it is just the Senate). For, there is no Law that Congress can pass that Congress cannot un-pass.
Sure. Sure. Sure. You had a treaty. No one is denying that. The question is whether you will still have one after today's vote.
As I interpret the evidence (blithely and off the cuff), I would hold (as a matter of law) that the Crow Tribe retains their hunting rights to this day.
Um, I would, also, hold (as matter of policy) that the time has come to take those very same hunting rights away. But then, that is a very different thing. And not something that The Court (in theory) is supposed to be taking away... even if that's exactly the effect previous decisions have had... you know, based on my interpretation and very limited reading.
I love it (simply love it) when the Dissent says "I do not claim that this reading of Mille Lacs," a previous case, "is indisputable."
I mean, if there is one single thing I dislike about The Law (beyond its institutionalized overreach), it's this inherent ambiguity.
No one knows what The Law is, because no one knows what any one Legal Decision that makes up that Law really means.
Legal Slips are called Opinions.
And as much as they try to be Logical Proofs, they never come close.
I mean, if you want to know what differentiates me from your typical Supreme Court Justice (you know, in my opinion, especially if we exclude the wearing of fancy robes, as I prefer an evening dress), it's:
- I know that I am floundering in the dark.
- I admit that I care not one wit about precedent.
- And there is not a single court in all the land that cares the slightest about what I have to say about anything.