This week, Frank Star Comes Out, president of the Oglala Sioux Tribe, announced that the South Dakota tribe had banished Gov. Kristi Noem (R) from its reservation over her remarks on the U.S.-Mexico border last week, including calling the influx of undocumented migrants “an invasion.” There is likely little practical recourse for the governor. However, the decision runs counter to the tribe’s constitution, which includes the protection of free speech. For those of us who view free speech as a human right, the tribe’s decision is fundamentally wrong regardless of how one feels about Gov. Noem’s support for the state of Texas.
Star Comes Out says that banishing the governor is needed for “the safety of the Oyate.” However, he primarily identifies her speech as the basis for saying that her presence on the reservation would endanger members. He stresses “calling the United States’ southern border in Texas an ‘invasion’ by illegal immigrants and criminal groups to justify sending S.D. National Guard troops there is a red herring that the Oglala Sioux Tribe doesn’t support.” He also cites the governor’s pledge to send razor wire to help Texas secure its border.
He also accuses Noem of trying to “create a bogus border crisis just to help Trump get re-elected as President and Governor Noem his running mate as Vice-President.”
Tribal status should not insulate the decision from criticism. Once again, this has nothing to do with the merits of Gov. Noem’s comments or policies. There are good faith reasons to oppose those actions for those who are against more stringent efforts to secure the border. Indeed, the tribal president makes that case. The question is why the tribe feels the need to ban those who hold opposing views.
The Oglala Sioux Tribe expressly protects free speech under Article XII, Section b.
If Noem is violating state law by sending razor wire (which is unlikely), she can be sued. However, the thrust of the letter seems to be her view of the border crisis and calls for greater protections against the influx of migrants. If that is the standard for the tribe, the list of the banished would have to include not only thousands of elected officials but a majority of the country, according to polls.
I have written that I do not believe that this is an “invasion” under Article I, Section 10, Clause 3 of the Constitution. In that sense, I disagree with Gov. Noem. However, many refer to this massive migration as an invasion in the colloquial sense. I can understand why some find that offensive, but it is part of this debate and should be treated as protected not just under the federal but the tribal constitution.
Notably, in 1972, the United States Commission of Civil Rights addressed free speech rights among the tribes in a handbook on civil rights and noted:
“The inclusion of free speech, press, and assembly in the Indian Bill of Rights has caused many tribal spokesmen to complain that these principles are not part of traditional Indian culture and should not be applied to Indian society. They have argued that tribes are not ordinary governments, but are close-knit, family-like groups, and that the exercise of free speech in this atmosphere would lead to the disruption of discipline and the breakdown of tribal life.”
To its credit, the Oglala Sioux Tribe embraced free speech as a core right. Conversely, the ACLU and other groups have supported Sioux tribes in asserting their own free speech rights to protest over the years. Indeed, the Tribe opposed Noem’s push for a “riot boosting” provision to enhance civil and criminal penalties for individuals who supported any “incitement to riot” in the midst of the pipeline protests. I shared those concerns over free speech. Ultimately, tribal advocates celebrated the watering down of that language as a free speech victory.
The letter of Star Comes Out is part of this tradition by speaking out strongly against statements that the tribe finds offensive. It was only the effort to bar Noem for expressing her opposing views on the reservation that is so problematic. For many of us, this is not a federal or tribal right but a human right. As such, the Oglala Sioux Tribe should reverse its decision to banish Gov. Noem.
I think Gov. Noem should Sioux them. I mean really, Sioux them, as in point out how hypocritical they are being. They will not let anyone onto their reservation that they do not want there. Can you imagine the hullabaloo that would occur if say a thousand Mexicans crossed into reservation land and set up tents? Here comes the war drums, the war paint, and the tomahawks. It would be the Night of 1000 Scalps.
Was the chief’s declaration preceded by a fire dance and ritual mutilation or simply approved by the Biden administration?
Just shooting from the hip here, but why doesn’t, Frank Star Comes Out, president of the Oglala Sioux Tribe, virtue signal his commitment to open borders by making the Oglala Sioux Nation’s territorial holdings a “sanctuary tribal area.”
Let the Oglala Sioux sponsor the migrants’ travel to their nation and provide them with housing, education, sustenance and medical care.
Problem solved and virtue demonstrated.
Turley got his MAGA world triggered big time. And there’s two things MAGA world doesn’t like, being called racist, and people of color.
Turley, have you forgotten Texas is ignoring the SCOTUS and federal law? Of course you did, you have to generate rage and deflect for the MAGA cult.
It is ignoring neither. No law requires it to allow the feds into the park, nor has SCOTUS ordered it to do so. It is your president* who is deliberately ignoring federal law and his duty to defend the border. Texas is simply not allowing him to do so on its turf.
So the Oglala are entitled to secure their borders and exclude Noem, but TX can not ?
“N.Y. COPS BEATEN BY INVADING ILLEGAL ALIENS”
“WELFARE SYSTEM OVERWHELMED BY INVADING ILLEGAL ALIENS”
“AMERICAN TAXPAYERS PLUNDERED BY INVADING ILLEGAL ALIENS”
“ASYLUM” CONCEPT PERVERTED AND ABUSED INVADING ILLEGAL ALIENS
“ASYLUM FRAUD” THE BATTLE CRY OF INVADING ILLEGAL ALIENS
________________________________________________________________________
Merriam-Webster
invade
verb
in·vade in-ˈvād
invaded; invading
transitive verb
1: to enter for conquest or plunder
2: to encroach upon : infringe
3a: to spread over or into as if invading : permeate – doubts invade his mind
3b: to affect injuriously and progressively – gangrene invades healthy tissue
invader noun
Jonathan Turley, arguing against himself, wrote: To its credit, the Oglala Sioux Tribe embraced free speech as a core right.
Jonathan writes an entire column circling around the part he won’t speak out loud: Except when they don’t in order to support Biden’s reelection campaign, when free speech is NOT a core right
With a little work, Jonathan, you’ll eventually come to a point where your inner loyal Democrat may be comfortable saying the unspoken parts out loud. But you’ll still vote for The Big Guy and his record over the last four years and the police state fascism he and the Soviet Democrats have engaged in on election day. So much for fealty to civil rights, eh Jonathan?
American Spring
Send them to Martha’s Vineyard where illegal aliens can be deported with virtuous indignation. Send them to New York city, to Chicago, to Atlanta, … where Black Lives Matter less. That said, emigration reform to mitigate progress: DEI, labor arbitrage, rape… rape-rape, Democratic gerrymandering, citizen… civil rights violations, human trafficking, abortion of “burdens” of evidence in sanctuary States, redistributive change, etc., at both ends of the bridge and throughout.
American Spring
American Revolution Redux
Lexington and Concord 2.0
Maybe Abbott should send some of the illegals to the Oglala.
Or vice versa!
Jonathan: I have visited tribal lands many times. Many Native-American tribes welcome visitors. Others are closed to visitors except by permission. Tribal lands are like a private residence. If you want to come into my home you have to ask for permission. There are a lot of people who would not be welcome in my home–like DJT, Govs. Noem and Abbott. That’s my right and it’s not a “free speech” or “human right” issue.
Now if the Ogala Sioux Pine Ridge Reservation president doesn’t want Gov. Noem on tribal lands that is his right. But you seem to think the OS decision has “nothing to do with the merits of Gov. Noem’s comments or policies”. Yes it does. It has everything to do with her politics. President Frank Star Comes Out said in a statement: “Thus, calling the United States’ southern border in Texas an ‘invasion’ by illegal immigrants and criminal groups to justify sending SD National Guard troops there is a red herring that the Ogala Sioux Tribe doesn’t support”. He added that migrants “don’t deserve to be dehumanized and mistreated. They don’t need to be put in cages, separated from their children like during the Trump administration, or be cut by razor wire furnished by, of all places, South Dakota”.
In her speech to the SD legislature Noem tried to justify sending SD National guard troops and razor wire to help Gov. Abbott by making the unproven claim that a group on the OS reservation is affiliated with border-crossing cartels and spreading drugs throughout the Midwest. So Gov. Noem is all about politics. She is using the border issue to help DJT get re-elected and enhance her chances of being DJT’s running mate. That’s POLITICS capitalized and why Noem is not welcome on the OS reservation!
Shortlist for $27 billion ‘Green Fund’ handouts rife with former Obama, Biden staff and Dem ties
https://justthenews.com/government/federal-agencies/shortlist-27-billion-green-fund-handouts-rife-former-obama-biden-staff
Florida bills could expand school choice, help with reading, math and create tutoring programs
https://justthenews.com/nation/states/center-square/florida-bills-could-expand-school-choice-help-students-reading-math
See how long his statement will last, if he pledges to make the reservation a sanctuary for the millions. “Come, share our land and resources.” They’ll be kicked out faster than Noem, and he made a pariah, quicker than they were deported from the wealthy elite enclave of Martha’s Vineyard. Political posturing from the sidelines by hypocrites.
Dennis McIntyre, Biden’s Baghdad Bob assigned to deflect from Turley’s writings, wrote to his “very close friend” Jonathan Turley: Jonathan: There are a lot of people who would not be welcome in my home–like DJT, Govs. Noem and Abbott.
And normal Americans would never let police state fascist Soviet Democrats like Dennis McIntyre, Bribery Biden, Commissar Pelosi, or Bolshevik Barack into their homes. Add Governor Newsom and the rest of the governors of the Open Borders For Illegal Aliens And Drugs states. They’re all in the same category as incestuous parents, child molesters and kiddy fondlers: in fact some of them are – or happily allow child molesters and rapists in their homes. Would anybody allow Harvey Weinstein in their homes as Bolshevik Barack and The Clinton Crime Cartel did into the White House? How about somebody who had “inappropriate showers” with their teenage daughter?
Normal Americans wouldn’t welcome them.
Just like Dennis McIntyre/Baghdad Bob would recoil in horror and outrage at any of the Guest Democrat Voters aka Illegal Aliens, just setting up camp in his rental apartment. He’d scream to have them thrown out just as fast as the Rich Not Paying Their Fair Share Soviet Democrat denizens of Martha’s Vineyard recoiled in horror at a couple of dozen Illegal Aliens appearing on their hallowed grounds.
So Gov. Noem is all about politics. She is using the border issue to help DJT get re-elected
The tell that exposes Dennis/Baghdad Bob’s pathological and pathetic dishonesty is that he doesn’t mention all the Soviet Democrat governors and mayors screaming for relief from the economic burden of the Illegal Aliens that Bribery Biden invited here as Guest Democrat Voters. It is telling that Dennis/Baghdad Bob doesn’t claim they’re screaming for help with those Illegal Aliens simply because they’re all about politics.
Dennis/Baghdad Bob keeps running with The Big Soviet Democrat Lie: no state and it’s residents are suffering any damage from Bribery Biden inviting Illegal Aliens to come to America and refusing to enforce existing immigration law. Right out of Joseph Goebbels playbook: repeat a lie often enough and hopefully it will become accepted as the truth.
These government-dependent illegal alien grifters are the only path forward for Soviet Democrat political success. The crime wave that follows them, the taxpayer spending to support them, the drugs and drug deaths that accompany them… Dennis repeats The Big Soviet Democrat Lie – “this does not put an economic burden on American taxpayers, there’s no increases in crime coming with them, and the tens of thousands of Americans killed by these drugs every year… well, they had it coming”.
Every time, every post from this pathological Soviet Democrat liar: one set of standards leveled at those that stand in the way of the Obama/Biden Soviet Democrat agenda… a completely different set of standards applied to the police state fascist Soviet Democrats promoting their agenda.
Dennis McIntyre/Baghdad Bob and this Indian chief are pathetic Soviet Democrat political apparatchiks – while accusing those who are concerned about Biden’s deliberate destruction of border security as being only concerned with politics.
There was a day when destructive Marxists/Communists like you weren’t welcome in America, Dennis McIntyre/Baghdad Bob.
Tribal lands are like a private residence. If you want to come into my home you have to ask for permission.
Guess what, so’s the USA. And the invaders are trespassing. If I were Noem I would deliberately enter the reservation and hold a press conference there, openly defying this jumped up “president” and daring him to do anything about it. Because if he thinks it’s OK for criminals from all over the world to break into Texas then he has no right to object to the governor of his state, who is not a criminal and poses no threat to anyone, entering the reservation without his permission.
Oh, and nobody is being cut by razor wire, whether supplied by South Dakota or not, unless they deliberately throw themselves at it with the intent of harming themselves, and that is their business. Unless they’re suicidal the razor wire’s only function is to prevent them from doing something they have no right to do in the first place.
Tribal lands are part of the United States. The Soiux are no more or less entitled to determine who may or may not cross its borders as Texas.
If you want to come into the US you must have permission – that is the Actual US law.
You are correct that your home is not the same as a national border, it is also not the same as a tribal border or a state border.
I find it amusing that left wing nuts attempt to prove the error of Republicans by doing exactly what republicans are doing.
The Oglala have banned Noem.
Maybe she should just come anyway.
See if they put up razor wire or send tribal police to remove her.
You say that the Sioux do not want Noem on Tribal land – how do they have any more right to exclude Noem than Abbott has to exclude illegal border crossers ? Noem has not violated any US laws. These border crossers have violated US law.
If as you claim Star’s remarks are correct – then he too can not exclude Noem.
This argument of your is absurd.
You seem to beleive we CAN exclude people over free speech, but we CAN NOT exclude them for violating US law.
Of course Noem and other Republicans are using the refusal of Biden to enforce US immigration law as an issue to get Trump re-elected.
An issue that Biden could have denied Republicans in 2021 by continuing to enforce immigration law as Trump did.
Absolutely this is politics – this is precisely what elections are about.
Voters have a choice – Trump enforcing US immigration law, or Biden refusing to. Thats POLITICS capitalized.
Nor is there any reason for any republicans to save Biden and the democratic party from the consequences of their own mistakes.
Obama said elections have consequences.
The policies of a party also have consequences.
Democrats have failed on the economy.
They have failed on the border
they have failed on energy policy
they have failed on inflation
They have failed on foreign policy
They have failed to contain hostile foreign powers.
On issue after issue they have FAILED.
Republicans have ZERO obligation to help them evade the consequences of their own FAILURE.
most good parents understand that there children do not learn if they are protected from the consequences of their actions.
Biden has been the worst president in US history, and he and democrats must suffer the consequences of that, or we can not expect democrats to do better in the future.
“Tribal lands are like a private residence.”
No they’re not.
There is no such thing as “private” in a tribalistic culture. That includes property.
One thing that jumped out at me when reading this column was when Professor Turley, who I agree with 90-95% of the time, stated, “there are good faith reasons to oppose those actions for those who are against more stringent efforts to secure the border”. Excuse me? What are “good faith efforts” to oppose a secure border? What reason could there ever be to not have a secure border? What self-destructive reasoning could you have for allowing your own country to be invaded by 10 million illegal foreigners?
Were there good faith efforts to having terrorists learn to fly without learning to land? Were there good faith efforts to having the BLM and ANTIFA burn down our cities? Are there good faith efforts being made to allow Hamas simps close our highways?
A nation needs a border. CLinton was for a border, Obama was for a border, the Bushes were for a border, all of a sudden the Overton WIndow has been opened so wide that it is now a legitimate thought to not have a border?
We are doomed thanks to the left.
hullbobby:
“One thing that jumped out at me when reading this column was when Professor Turley, who I agree with 90-95% of the time, stated, “there are good faith reasons to oppose those actions for those who are against more stringent efforts to secure the border”. Excuse me? What are “good faith efforts” to oppose a secure border? What reason could there ever be to not have a secure border? What self-destructive reasoning could you have for allowing your own country to be invaded by 10 million illegal foreigners?”
************************
Statements like the one you cite are “thrown bone” concessions to the igorant, radical peers you have to work around all day. Oh, they won’t appreciate it or give you credit for it but some folks just want to be nice in the hopes of avoiding and/or surviving the inevitable storm of condemnation. That’s never been one of my intuitive qualities but I can appreciate it in others.
“there are absolutely ignorant, good faith reasons to oppose those actions for those who are against more stringent efforts to secure the border”. And then there are purely evil reasons the Democratic party opposes actions to secure our border. The fact the outcome pursued by both motivations is equally destructive, is not lost on the majority of people recognizing that while the Republican party may not be the solution to all of our problems, but that the Democratic party is absolutely the root cause of them. (Bongino)
Be kind to Turley, the process of coming to grips with the fact that his party is nuts and the values of a lifetime fail is pretty hard.
He is learning, small steps.
Well The Governor could always sue in tribal or federal court. Also I think that the state controls the roads to the reservation. It would be really difficult to get supplies onto the reservation if the state started work on all state roads leading to the reservation. Might have to come overland, like the old ways.
Frank Star Comes Out must think he he is an indigenous 2nd coming of Yasser Arafat. That did not turn out well.
GEB,
I think she has better things to do than concern her self with what Frank Star says.
I had hoped that the Sioux position was the more clever one that they had been “invaded” in the past and didn’t stop it fast enough.
Some folks on our reservation felt the same way. I then asked what if illegals came to the reservation and demanded a share of the benefits and land. That changed the opinion fast. Non members can’t own land or receive services on the reservation. Resources are scarce. It’s exactly why we ended up with nothing but reservations – we were overwhelmed by uncontrolled invasion. Obviously this person has allied himself with the Democratic Party, perhaps a comprador leader betraying his peoples’ own interests for those of outsiders.
Now that the Sanctuaries are beyond capacity, maybe Biden plans to put the influx of migrants on Indian Reservations.
Frank Star will get a kickback for chastising Gov. Noem and opening the door to Migrant Reservations.
A Win-Win for Biden and a Pocket full of money for Star.
I agree…Gov. Abbott should send the migrants” to the reservation too and see how quickly the Indians change their tune!
Absolutely,
Send a half dozen busses of immigrants to the Oglala Sioux and see how they feel about Noem and Abbott then.
I’ll bet they will break out the razor wire fast.
If January 6 can be called an “insurrection,” then the border situation can certainly be called an “invasion.”
You’re comparing a mob that tried to keep a person in power who had just lost the election, the mob that had weapons (yes clubs, flag poles, chemical spray, knives, and a few guns were present), a mob that was chanting to kill Mike Pence and Nancy Pelosi to a bunch of people with nothing but the clothes on their back wanting to get a better life by working in this new country?
The immigrants trying to get into this country are here to do work and support their families.
200 years ago there was an invasion of the United States against virtually every native culture in North America.
Perhaps the Oglala Sioux Tribe knows something about an invasion.
Oh, please. Distinguish between people who come here legally, and people who do not.
Re the “invasion” 200 hundred years ago (whatever that is), the sad, but generally true fact is even had leaders like Tecumseh had been successful in forming coalitions to counter European migration to the “new world,” demography (and being paleolithic cultures) would have defeated them in the end. It did not help that even while various tribes were attempting to fight off the Europeans (from the 16th century forward), they were also engaged in internecine warfare. Give them credit for fighting the good fight, but, like the Etruscans, it was always a doomed effort.
you correctly note they were at war with themselves. At the same time they were mostly NOT at war with colonists. For the most part they alied with various colonists against other indian tribes.
The french and indian wars were not the “Indian wars”. The french and various allied indian tribes fought the english and various indian tribes.
Further as settlers moved west tribes close to settlers drove other tribes west in efforts to isolate those tribes from lucrative relations with colonists.
Bob – there were no guns brought into the Capitol by the Trump supporters (or accompanying FBI agents). Only the Capitol Police had guns.
The PA Supreme court declared that Bedroom slippers and hard boiled eggs were deadly weapons – Every protest that ever occured int he capitol had shoes – so they have all been “armed and dangerous”.
There is no one who has been charged for having guns in the capitol. There was one charge for firearms in a locked car on the mall, and one for firearms in a hotel room. There are identifiable p-hotos of people with Glocks on the capitol grounds but none have ever been charged,
They also have the general physical appearance of FBI agents – which are among the reasons they are suspected FBI agents.
Regardless, hunt them down and prosecute them – and then we will all know.
No one had the things typically found at BLM/Antifa premeditated riots.
No frozen water bottles.,
No molitiov cocktails.
No riot gear.
No tactical sheilds.
No lasers.
You list a bunch of things that were supposedly present.
Yet you provide no details.
I can pretty much guarantee that if you go to the local mall and search 50 people you will find hunting knives and pepper spray.
My guess is that if you search any 5 women you will find pepper spray.
These are all perfectly legal. Posession does not demonstrate any intent to do anything.
You claim there were clubs – provide evidence. I have not yet seen a photo of a club. How many ? One ? 10 ?
500 might mean something.
I can not make sense out of your blurring J6 with those crossing the border illegally.
Absolutely many of those are good people who intend no harm.
Many of them are also troops for Cartells who are headed to our cities where they will sell drugs and commit crimes – including murder.
Arguably some of these are just people looking for a better life too. They have a really $hitty life where they are at, and being a street thug in LA or Chicaog is a dramatic improvement. Their $hitty life, and their desire for a better one does not create a right to enter.
Accross the world there are atleast 375M people who would come to the US if they could. Each and every one of those is no more or no less entitled to come here.
We do not have to conclude that these people are bad people to say “No, We are not allowing every person throughout the world who wants to come to the US to enter”
Grow up. Life is not fair.
You were fortunate enough to be born into the wealthiest country with the highest standard of living of every country with a population over 20M people, and the top ten of all countries in the world. You were fortunate enough to be born into the least racist country int he world at the least racist moment in time.
You were born into a country were the 4th Quintile has a higher standard of living than the people of Germany or France or the EU.
You left wing nuts rant about “white privilidge” – If you were born Black and Poor in the US you are still in the top 1% of the world.
You are still among the most priviledged in the world. The median income in China is 11,000/yr – way up from 300/yr in 1974 when Mao died.
In india it is 6000/yr. That is over 3B people right there
You live in one of few countries in the world where being gay is legal, much less being Trans.
With respect to those illegally crossing our Border right now.
I would in a heart beat give 10 of those escaping from Socialism in Venezuela citizenship – if I could just deport one of those like you who are clueless as to how good you have it
Life is not fair, but you are free to give up your priviledge and go live where these illegal immigrants come from.
Your right most of these are not bad people. Nor are the russian soldiers fighting in Ukraine,
Nor were most Japanese or German soldiers in WWII
The fact that someone is not a bad person. The fact that they are just looking for a better life for themselves and their family does not magically fix the fact that the entitlement state that YOU created can not work if you allow millions to flood in. When Emma Lazurus
wrote
“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
she offered them Freedom. Not free things,
I will happily agree to the open immigration of the 19th century,
if we also revert to the limited government of the 19th century.
Regardless, the problem is not the millions who want to come here.
It is the idiots like you who are already here
Who have created a system that requires that we deny them entry if we wish to keep the government programs you created from failing disastrously.
You are not very intelligent, and you are not very moral either.
“200 years ago there was an invasion of the United States against virtually every native culture in North America.”
200 years ago was 1820. Europeans had already been here for over 300 years by then. You clearly have no clue about history.
As to the rest, limiting our selves to north america. Europeans arrived in a sparsely populated continent of stone age semi nomadic tribes, that were constantly warring with each other. One of the reasons that early white settlers survived was that some tribes sought out aliance with settlers against their enemies in other tribes.
Through almost to the American revolution had “native americans” i.e. the people who killed off or drove out those who had preceeded them, who had killed off or driven out those who preceded them, who ….., “native americans could have defeated colonists and driven them to the sea for most of the first 300 years that whites came to north america – had those native americans spent less time fighting each other and seeking to tip the balance in their wars with each other through their aliances with whites.
“The immigrants trying to get into this country are here to do work and support their families.”
If life were fair we would be able to keep them and send you and the rest of those infected with the Woke Mind Virus to Venezuela or whatever $hithole countries these people came from.
I would pick them over you any-day.
But life is NOT fair, and you are a US citizen and they are not. And you have the right to the benefits of citizenship and no matter how deserving they might be neither they nor the rest of the 8B people in the world have those rights.
The Sioux originaly were the west banks of lake superior. They were forced south and west into the plains by tribes from Canada moving south.
TheTribes and the State have a symbiotic relationship. Each derive a benefit from the other. The Chief best understand which sacrifices the most if that relationship is at odds.
See Disney
Perhaps when an incompetent president invites illegals to enter w/out vetting it’s not technically an invasion. When the US spends millions of our tax dollars on behalf of illegals [even though most citizens don’t want it], it’s not an ‘invasion. When diseases not seen here in decades are brought in, it’s not an invasion; when state welfare systems are strained due to our stupid Anchor Baby policy, it’s not an invasion…guess I had an error in judgment.
Stop his criticism quickly by relocating several busloads of illegals to the Rez, sucking up his valuable resources
Wonder if the chief would call that an invasion of his territory? That would be an interesting test. I think that is what Alan Dershowitz calls the shoe on the other foot test.