California Law Review Publishes “Politics, Indian Law, and the Constitution”

The article is here. PDF.

The abstract:

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. I argue that, textually, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons as to why the judiciary should refrain from applying strict scrutiny review of congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question that judges have no special institutional capacity to assess.

Federal Court Enjoins Treasury from Disbursing CARES Act Funds to ANCs (for now)

Here is the order in Confederated Tribes of the Chehalis Reservation v. Mnuchin (D.D.C.):

36 DCT Order

Case tag here.

Chehalis v. Mnuchin Press Release issued by the Tulalip Tribes and the Confederated Tribes of Chehalis Reservation_

Tribal Suit over Paycheck Protection Program of CARES Act

Here are the materials (so far) in Flandreau Santee Sioux Tribe v. Carranza (D.S.D.):

4 Motion for TRO

9 First Amended Complaint

Taylorsville Rancheria Federal Recognition Suit Allowed to Proceed

Here are the materials in Tsi Akim Maidu of Taylorsville Rancheria v. Dept. of the Interior (E.D. Cal.):

1 Complaint

12 US Motion to Dismiss

13 Response

17 Reply

33 DCT Order

34 First Amended Complaint

35 US Motion to Dismiss

36 Opposition

39 Reply

41 DCT Order

New Research on COVID-19 Infection Rates in Indian Country

American Indian Reservations and COVID-19: Correlates of Early Infection Rates in the Pandemic

April 25, 2020 

The SARS-CoV-2 virus is causing widespread devastation as rates of coronavirus disease 2019 (COVID-19) grow across the world. The United States is experiencing one of the largest outbreaks with over half a million confirmed cases as of mid-April 2020. However, outbreaks on tribal lands are largely ignored by the federal government, mainstream media, and case tracking web sites. To reverse this erasure, Indian Country Today has collected cases for the Indian health system. As of April 10, the ICT database contained 861 COVID-19 cases in 287 tribal communities. Infections are growing across Indian Country, but very little is known about the relationship betweencommunity and household characteristics and the rate of COVID-19 spread on tribal lands. This is the question that ateam of Indigenous researchers at UCLA and the University of Arizona are actively working to answer.

This interdisciplinary team includes social demographer Desi Rodriguez-Lonebear, health services researcher Nicolás E.Barceló, economist Randall Akee, and public health researcher Stephanie R. Carroll. Merging the ICT data with the 2018 American Community Survey 5-Year records, they conducted multivariate analyses to identify relationships between the rates of COVID-19 cases per 1000 population and average reservation (or homelands) characteristics. 

The results show that by April 10, 2020, the rate of COVID-19 cases per 1000 people was more than four times higher for the populations residing on reservations than for the U.S. as a whole. COVID-19 cases were more likely to occur in tribal communities with a higher proportion of homes lacking indoor plumbing. COVID-19 cases were less likely to occur in tribal communities where households spoke English-only.

This research finds that failure to account for the lack of complete indoor plumbing and access to running water in a pandemic may be an important determinant of increased incidence of COVID-19 cases in tribal communities. Access to relevant information in Indigenous languages may play a key role in the spread of COVID-19 in some tribal communities. Previous studies have identified household plumbing, overcrowding, and language barriers as potential pandemic and disease infection risk factors. These risk factors persist. Specific actions must be taken now to provide potable water, and culturally-relevant information via community preferred media.Urgent funding to strengthen tribal public health and household infrastructure, as delineated in treaties and other agreements, isnecessary to protect American Indian communities from COVID-19 and future pandemics. This research has been accepted for publication at the Journal of Public Health Management and Practice.

Media Contact Information – Dr. Randall Akee (rakee@ucla.edu)

Updated Briefs in Chehalis v. Mnuchin [updated again]

Here are updated materials in Confederated Tribes of the Chehalis Reservation v. Mnuchin (D.D.C.)::

21 US Brief

23 Ahtna Amicus Brief

25 Gila River Amicus Brief

30 Chehalis Reply

Case tag here.

UPDATES–

Here is the complaint in Ute Tribe of the Uintah and Ouray Reservation v. Mnuchin (D.D.C.):

1 Complaint

5 Motion for TRO

Here are the materials in Cheyenne River Sioux Tribe v. Mnuchin (D.D.C.):

3 Complaint

4 Motion for TRO

 

Federal Reserve Bank (Minneapolis): “COVID-19 and Indian Country: Early snapshot reveals disproportionate economic exposure and uncertainty”

Here.

New Book: “The Cherokee Supreme Court 1823–1835”

From Carolina Academic Press, here (h/t Legal History Blog):

The Cherokee Supreme Court

1823–1835

by J. Matthew Martin

Forthcoming April 2020 • paper

ISBN 978-1-5310-1841-2
e-ISBN 978-1-5310-1842-9

Tags: Indian and Indigenous Peoples LawLegal HistoryRegional Interest


The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change. Extensive case studies document the Cherokee Nation’s exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now

Amicus Briefs in CARES Act/ANC Matter [Chehalis]

Here are updated materials in Confederated Tribes of the Chehalis Reservation v. Mnuchin (D.D.C.):

18 Alaska Native Village Corporation Association Amicus Brief Motion

18-1 Amicus Brief

20 NCAI Amicus Brief

Prior posts here.

Spring Pandemic Update in Williams & Cochrane v. Quechan & Rosette Litigation [updated]

Here are new materials in in Williams & Cochrane LLP v. Quechan Tribe of the Fort Yuma Reservation (S.D. Cal.):

235-1 W&C Amended Motion for Judgment on Pleadings

248 Quechan Response to W&C Motion for Judgment on Pleadings

254-1 Rosette Motion for Sanctions

258 W&C Reply in Support of Motion for Judgment on Pleadings

267 W&C Response to Motion for Sanctions

268 Rosette Reply in Support of Motion for Sanctions

285 DCT Order

Update (6/24/20):

292-1 W&C Motion for Reconsideration

311 Quechan Response to 292

313 DCT Order Denying Motion for Reconsideration

Case tag here.