Flynn judge seeks rehearing by full appeals court after being ordered to dismiss case
(www.washingtonexaminer.com)
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A few details worth clarifying.
First, the federal government has the power to prosecute the crimes. This just places that power with the feds instead of the states. The same laws apply regardless—meaning that the criminal law and punishments conform to the same law—but the federal government brings the prosecution in federal court. I suppose the Indians can prosecute too, but the federal system definitely can.
Second, Congress can fix all this anytime it wants. But of course that will never happen because of Democrats and worthless, weak and lazy Republicans.
Third, it creates a procedural clusterfuck for sure, unless the tribe does something about it. It could, for example, just agree that all criminal prosecutions by Oklahoma are adopted. The tribal law doesn’t have the ex post facto clause to deal with, so they could do what they want. And the tribe doesn’t like McGirt, they only appealed the question of the status of the treaty.
Fourth, it certainly creates a clusterfuck for Oklahoma but also the tribe outside the criminal law. For example, what about all public services provided by Oklahoma? Would the tribe like those to vanish? Do they want to be charged for them? And what exactly happens to private property? This just gives the tribe negotiating leverage to get a big payoff. Think, reparations for Indians.
PS, I think it is bullshit. But that is how this shakes out.
It is a lot more nuanced than that, and its affects could easily extend to a a plethora of other factors, essentially anything that is not covered by federal government, which is most laws that effect people on a day-to-day basis.
Sales tax, state/property taxes, pretty much every traffic/driving related laws, and local ordinance to name a few.
I could not pay my state taxes this year. Who is going to say anything about it? The "state", which has no jurisdiction? Do I want to drive 85 MPH in a zone that the "state" said I am only allowed to drive 35 MPH in? The federal government doesn't set the speed limits, their is no governmental authority to enforce that I must abide that law, and I could site this case in court if anyone said otherwise.
Am I in jail for being found guilty for the case "Oklahoma v. John Doe"? That authority does not exist where I am or where the crime was committed. The case would need to be re-tried under either tribal law or "The United States v. John Doe", but is this not double-jeopardy?
I don't have the definitive answer for any of these scenarios, but all the implications for them now exist, and there is grounds for each of these to be challenged in court. I am not claiming these will all be the case, but Pandora's Box may have just been opened. A decade ago I might have said "that would never happen", but I am well beyond thinking anything is impossible at this point.