Author: Matthew L.M. Fletcher – Page 167

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2019.html
First Interstate Bancsystem, INC. v. First Interstate Bank (Official Tribal Government)
Swinomish Indian Tribal Community v. Army Corps of Engineers (Clean Water Act)

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2019.html

No Ordinary Lawsuit: The Public Trust and the Duty to Confront Climate Disruption—Commentary on Blumm and Wood.
Climate change and the Arctic: Ideas for how the United States and Canada can protect their Arctic Indigenous peoples.

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
In the Environment and Energy section, we feature an article about the Green New Deal and what it might mean for tribes.

U.S. Legislation Bulletin
https://www.narf.org/nill/bulletins/legislation/116_uslegislation.html
The following bills were introduced:

H.R.1151: To allow veterans to use, possess, or transport medical marijuana and to discuss the use of medical marijuana with a physician of the Department of Veterans Affairs as authorized by a State or Indian Tribe, and for other purposes.
H.R.1191: To amend section 520E of the Public Health Service Act to require States and their designees receiving grants for development and implementation of statewide suicide early intervention and prevention strategies to collaborate with each Federally recognized Indian tribe, tribal organization, urban Indian organization, and Native Hawaiian health care system in the state.

Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2019.html
The update includes two Department of the Interior, Bureau of Indian Affairs, notices of land acquisitions for tribes.

Federal Court Dismisses Dakota Access Pipeline-Related RICO Suit Brought by Pipeline Co. against Greenpeace and Individual Indians

February 15, 2019Matthew L.M. Fletcher

Here are the materials in Energy Transfer Equity LP v. Greenpeace International (D.N.D.):

95 Amended Complaint

102 Greenpeace Fund MTD

103-1 Greenpeace Intl MTD

Texas Prevails in Suit against Ysleta del Sur Pueblo over Bingo

February 15, 2019Matthew L.M. Fletcher

Here is the order granting Texas’ motion for summary judgment in State of Texas v. Ysleta del Sur Pueblo (W.D. Tex.):

183 DCT Order

Briefs are here.

Federal Court Dismisses Bank Suit in Crow Nation Leadership Dispute

February 15, 2019Matthew L.M. Fletcher

Here is the order in First Interstate BancSystem Inc. v. Not Afraid (D. Mont.):

20 DCT Order

Briefs are here.

Fletcher: “Law, Politics, and the Constitution”

February 14, 2019February 14, 2019Matthew L.M. Fletcher

Here, on SSRN.

The abstract:

The question whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is now 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. Textually, I argue, 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 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 to which judges have no special institutional capacity to assess.