Supreme Court

New Challenge to Kamehameha Schools Admissions Policy Filed

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

The six-year running battle over the admissions policy of a highly regarded trio of private schools in Hawaii — the Kamehameha Schools — is back in the courts, with one side specifically aiming for an ultimate test in the Supreme Court.   An earlier case, testing whether an 1866 civil rights law still bars the use of race in private school admissions, reached the Court last year, but was settled before the Justices took final action on it.

A new lawsuit, raising the same challenge, was filed Wednesday in U.S. District Court in Hawaii — with the same name (Doe v. Kamemameha Schools), but with new individuals suing (docket 08-359).  Also on Wednesday, the Schools filed a separate lawsuit in state court in Hawaii, claiming a violation of the 2007 settlement agreement because one of the attorneys involved had disclosed the confidential terms of the deal, including, the attorney said, a payment of $7 million to the youth who had sued.  The Schools’ trustees are seeking return of the money, and other money damages.  (The Feb. 8, 2008, Honolulu Advertiser news story revealing the settlement terms can be read here.)

The new Doe lawsuit in federal court notes that the earlier challenge to the admissions policy, preferring students of “Hawaiian ancestry,” had failed in both the District Court and in the en banc Ninth Circuit Court. The two lawsuits, it says, are “virtually identical,” but it indicates that the four youths and their parents who sued “intend by this action to have that [Ninth Circuit] ruling overturned in the Supreme Court of the United States.”

The first lawsuit against the Schools’ admission policy was filed by a youth identified only as “John Doe”, who sued in June 2003 after being denied admission four times. He is a lifelong resident of Hawaii, but is not “Native Hawaiian” in a racial sense, his challenge noted.  As a minor, he was joined in the lawsuit by his mother, identified only as “Jane Doe.”  The Kamehameha Schools are three kindergarten-through-twelfth-grade private schools on three of Hawaii’s islands.

A press release describing the new civil rights claim can be found here (it includes a link to the text of the complaint).  A press release by Kamehameha Schools announcing its state court lawsuit over the settlement disclosure is here.   The text of the school trustees’ complaint can be found here.

City of Pocatello v. Idaho Cert Petition

Matthew L.M. Fletcher1 Comment

The City of Pocatello is petitioning for certiorari in this subproceeding in the Snake River General Stream Adjudication.

Here is the Idaho Supreme Court decision.

city-of-pocatello-cert-petition

Gary Simson on Native American Religious Freedom & State Law

Matthew L.M. Fletcher

Gary Stimson has posted “Reflections on Religious Freedom: Revisiting ‘Rourke v. Department of Correctional Services,'” published in the Albany Law Review. Here is the abstract:

This contribution to a symposium on religious liberty looks closely at a New York case that illustrates both the inadequacy of federal free exercise law and the importance of state constitutional law. The claimant in the case, a Native American prison guard, had been fired for refusing on religious grounds to abide by a state-wide directive governing prison guards’ hair length. Contrasting the serious burden that the directive placed on the claimant’s religious liberty with the weak justifications that the state offered for requiring the claimant’s adherence to the directive, the article argues the implausibility of the narrow interpretation of the federal Free Exercise Clause that the Supreme Court adopted in 1990 in Employment Division v. Smith. The article then uses the New York case to demonstrate the potential for circumventing the shortcomings of Smith by attention to, and development of, state constitutional law.

Matheson v. Gregoire Brief in Opposition to Cert Petition

Matthew L.M. Fletcher

matheson-v-gregoire-cert-opp

Here is the cert petition and the lower court decision.

South Fork Band v. United States Cert Petition

Matthew L.M. Fletcher

This case concerns an attempt by the Western Shoshone bands to secure a remedy against to the United States denied in the U.S. v. Dann case.

Here is the brief — south-fork-band-v-us-cert-petition

And here are the Federal Circuit materials.

Ho-Chunk Nation Reply Brief in HCN v. Wisconsin Cert Petition

Matthew L.M. Fletcher

Here is it: hcn-reply-brief

And here is the cert opposition: wisconsin-cert-opposition

Earlier materials are here.

Jacob Levy — “Three Perversities of Indian Law”

Matthew L.M. Fletcher

Jacob Levy has published his “Three Perversities of Indian Law” in the Texas Review of Law and Politics.

Kickapoo v. Texas — State’s Opposition to Cert Petition

Matthew L.M. Fletcher

The State of Texas filed its opposition to the cert petition filed by the Kickapoo Tribe way back in February. Here is the brief — texas-cert-opp

And here is our previous post on the lower court portion of this case (with briefs), as well as a link to the Supreme Court Project’s site.

If you’ll recall, despite a USSG recommendation to deny the petition, the Court still asked for a response from the State.

Rose Villazor on Blood Quantum Laws and Equal Protection

Matthew L.M. Fletcher

Rose Cuison Villazor (SMU) has published “Blood Quantum Land Laws and the Race Versus Political Identity Dilemma” in the California Law Review. This is a great paper. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent  [*802] challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws – what I collectively refer to as blood quantum land laws – as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law’s interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

John Yoo on Andrew Jackson

Matthew L.M. Fletcher

John Yoo, author of some of the notorious torture papers, just published “Andrew Jackson and Presidential Power” in the Charleston Law Review. I guess it’s not surprising that a scholar with a such robust view of  Executive power would try to resurrect Jackson. Here’s an excerpt concerning Worcester v. Georgia:

Although Jackson did nothing to support the Court’s constitutional powers, he acted to defuse the political crisis. Rather than defy the Supreme Court outright, the Georgia courts simply refused to acknowledge the Supreme Court’s decision. Without any formal acceptance or rejection of Worcester by the state courts, the Supreme Court had no formal legal authority to order Georgia to obey the decision.  Even if Georgia had openly refused to obey Worcester, the Supreme Court recessed for nine months and was unable to reverse the State’s decisions. Jackson commented that “the decision of the supreme court has fell still born, and they find they cannot coerce Georgia to yield to its mandate.” The confrontation, however, generated political trouble for the Administration. Newspapers widely reprinted Worcester, which served as ammunition to attack Jackson in his soon-approaching re-election campaign. Jackson and Van Buren worked through the party machinery to convince the Governor of Georgia to commute the sentences in exchange for the missionaries’ agreement not to seek further Court review. Indian issues would figure in the election of 1832, and Jackson would take his overwhelming re-election as a validation of his Indian removal policy.

Even though this paragraph seems internally inconsistent, it appears to be a more nuanced view of the Worcester crisis for Jackson.