IDSC Opinion - Homeland Determination

The Idaho Supreme Court reversed the district court’s decisions as follows: first, the district court improperly applied New Mexico’s primary-secondary distinction and instead should have analyzed the claims from the perspective of what the Tribe needed to establish a homeland. Under that framework, the district court should have allowed aboriginal purposes of plant gathering and cultural uses; second, the priority date associated with nonconsumptive water rights on lands reacquired by the tribe was found to be time immemorial. The Court affirmed the remainder of the district court’s decisions and remanded for proceedings consistent with the opinio

IDSC Opinion - Homeland Determination

The Idaho Supreme Court reversed the district court’s decisions as follows: first, the district court improperly applied New Mexico’s primary-secondary distinction and instead should have analyzed the claims from the perspective of what the Tribe needed to establish a homeland. Under that framework, the district court should have allowed aboriginal purposes of plant gathering and cultural uses; second, the priority date associated with nonconsumptive water rights on lands reacquired by the tribe was found to be time immemorial. The Court affirmed the remainder of the district court’s decisions and remanded for proceedings consistent with the opinio

Originalism and History

The notion that a jurisprudence of original intent will constrain the discretion of judges who seek to impose their own policy preferences on the law has often been attributed to a speech delivered by Edwin Meese, then-Attorney General of the United States, to an American Bar Association audience on July 9, 1985. In that speech the Attorney General was particularly critical of Supreme Court opinions relying on the Due Process Clause of the Fourteenth Amendment as a basis for requiring the states to adhere to specific provisions of the Bill of Rights. [N]owhere else [he said,] has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation. \u27 He endorsed then-Justice Rehnquist\u27s dissenting statement in Wallace v. Jaffree that it is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history. It was after criticizing what he regarded as the Court\u27s misuse of history that Meese announced that it would be the policy of the Reagan Administration to press for a Jurisprudence of Original Intention : Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was. This is not a shockingly new theory; nor is it arcane or archaic