After two weeks of surprisingly good results, including one prohibiting (obvious) racial gerrymandering and another upholding the Indian Child Welfare Act, the Supreme Court returned to its regularly scheduled injustice yesterday.
Innocent but in prison
The first case, Jones v. Hendrix, revolves around a very technical legal issue that essentially boils down to when people held in federal prison can challenge their conviction and/or sentence.
Marcus DeAngelo Jones was convicted of being a felon in possession of a firearm in 2000 and given a 27-year prison sentence. However, 19 years later, the Supreme Court held that the government must prove that a person knew they had a felony conviction at the time they possessed the gun (Rehaif v. United States). The decision applied retroactively, which should have allowed Jones to challenge his conviction because he believed that his previous felony conviction had been expunged when he purchased the firearm. According to Rehaif, Jones was innocent.
The method for challenging a federal conviction or sentence, after one exhausts all of their appeals, is called a Section 2255 motion. In most cases, incarcerated people can only bring one Section 2255 motion. However, Section 2255 contains several exceptions that allow some federal prisoners to bring a second challenge — one of which allows for a second challenge if Section 2255’s usual process “is inadequate or ineffective to test the legality of detention.”
The Supreme Court on Thursday cut off this route of proving one’s innocence. For Jones, this means that he cannot challenge his conviction. According to the 6-3 majority, he used his one Section 2255 challenge before Rehaif and is not entitled to another one, even though he could not have known before Rehaif was decided that he had a potentially valid claim that he is innocent.
To see how this applies to all federal cases, consider that Rehaif corrected a mistake of federal courts, which had been convicting people of a crime (felon in possession of a firearm) without proving an essential element of that crime (knowledge of the previous felony charge). A person who is incarcerated illegally, due to a mistake by the federal courts, now has fewer options to correct the mistake and prove their innocence.
As Justices Sonia Sotomayor and Elena Kagan wrote in dissent, “A prisoner who is actually innocent, imprisoned for conduct that Congress did not criminalize, is forever barred…from raising that claim, merely because he previously sought postconviction relief. It does not matter that an intervening decision of this Court confirms his innocence. By challenging his conviction once before, he forfeited his freedom.”
Justice Ketanji Brown Jackson, also writing in dissent, took aim at the conservative majority’s continued hostility to the imprisonment (and execution) of potentially innocent people:
Today, the Court holds that an incarcerated individual who has already filed one postconviction petition cannot file another one to assert a previously unavailable claim of statutory innocence. The majority says that result follows from a “straightforward” reading of 28 U. S. C. §2255. But the majority reaches this preclusion decision by “negative inference.” And it is far from obvious that §2255(h)’s bar on filing second or successive postconviction petitions (with certain notable exceptions) prevents a prisoner who has previously sought postconviction relief from bringing a newly available legal innocence claim in court…
I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents. Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads §2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.
I conclude with an observation. Today’s ruling follows a recent series of troubling AEDPA interpretations. All of these opinions have now collectively managed to transform a statute that Congress designed to provide for a rational and orderly process of federal postconviction judicial review into an aimless and chaotic exercise in futility. The route to obtaining collateral relief is presently replete with imagined artificial barriers, arbitrary dead ends, and traps for the unwary. And today’s turn makes the journey palpably absurd: It begins with the Supreme Court’s (rare) announcement that a certain claim for release exists and is retroactively available to incarcerated individuals on collateral review, and ends with the realization that only an arbitrarily determined sliver of eligible prisoners (those who have not had the temerity to file a prior motion) are actually in a position to even ask a court to consider whether any such relief might be provided.
Further reading: For a more in-depth discussion of the legal mechanisms behind this case, see Leah Litman’s piece in Slate.
Navajo water rights
The second case, Arizona v. Navajo Nation, involves the water rights of the 170,000 people who live on the Navajo Nation reservation in the southwest U.S.
The Navajo went to the federal courts in 2003 seeking an assessment of the tribe’s water needs and a plan to meet them. Roughly one-third of people who live on the reservation do not have running water in their homes. Part of the problem is infrastructure, but a significant factor is who has a right to the region’s dwindling water supply in the first place. The 27,000 square miles of reservation land in Arizona, Utah, and New Mexico is arid and plagued by drought, in part caused by the overconsumption of Colorado River basin water (used mostly for agriculture) and exacerbated by climate change.
According to the Navajo, the 1868 Treaty of Bosque Redondo—named after the reservation that the Navajo were forcibly relocated to—established the area as the tribe’s permanent home and guaranteed the Nation enough water to maintain its land. This isn’t a radical interpretation; according to the Winters doctrine (Winters v. United States (1908)), when Congress reserves land (i.e. for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation. The question at hand, though, is what “reserving water” for the Nation entails.
A conservative majority of the Supreme Court, made up of Justices John Roberts, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, and Samuel Alito, ruled that the Navajo have a right to “access” water, but the federal government does not need to take active steps to secure that access for the Navajo.
Justice Kavanaugh, writing for the majority:
The Navajos’ claim is not that the United States has interfered with their water access. Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the Tribe’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure— either to facilitate better access to water on the reservation or to transport off-reservation water onto the reservation. In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps. And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty…
In the Tribe’s view, the 1868 treaty imposed a duty on the United States to take affirmative steps to secure water for the Navajos. With respect, the Tribe is incorrect. The 1868 treaty “set apart” a reservation for the “use and occupation of the Navajo tribe.” But it contained no “rights-creating or duty-imposing” language that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.
Justice Neil Gorsuch, joined by Justices Sonya Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented, writing that the Supreme Court should have stood aside and let the case play out:
Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed…
Where do the Navajo go from here? To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe. Instead, the government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first…As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end.