Nooksack Update

Here are the papers in State v. Rabang (Whatcom Sup. Ct.), where, in companion cases, four Nooksack 306 disenrollees successfully asserted Treaty fishing rights under U.S. v. Washington:

Here are the latest papers in Doucette v. Bernhardt (W.D. Wash.), where the federal court denied Plaintiffs’ Rule 62.1 post-judgment motion; Plaintiffs have appealed to the Ninth Circuit:

Here are the latest papers in Adams v. Dodge (W.D. Wash.), where a Lummi citizen who relinquished her Nooksack membership is seeking a federal writ of habeas corpus in challenge to her detention by the Nooksack Tribal Court:

New Fletcher Paper: “The Rise and Fall of the Ogemakaan”

Please check out my new paper, “The Rise and Fall of the Ogemakaan,” now available on SSRN. Here is the abstract:

Anishinaabe (Odawa, Bodewadmi, and Ojibwe) legal and political philosophy is buried under the infrastructure of modern self-determination law and policy. Modern Anishinaabe tribes are rough copies of American governments. The Anishinaabeg (people) usually choose their ogemaag (leaders) through an at-large election process that infects tribal politics with individualized self-interest. Those elected leaders, what I call ogemaakaan (artificial leaders) preside over modern governments that encourage hierarchy, political opportunism, and tyranny of the majority. While modern tribal governments are extraordinary successes compared to the era of total federal control, a significant number of tribes face intractable political disputes that can traced to the philosophical disconnect from culture and tradition.

Anishinaabe philosophy prioritizes ogemaag who are deferential and serve as leaders only for limited purposes and times. Ogemaag are true representatives who act only when and how instructed to do so by their constituents. Their decisions are rooted in cultural and traditional philosophies, including for example Mino-Bimaadiziwin (the act of living a good life), Inawendewin (relational accountability), Niizhwaaswii Mishomis/Nokomis Kinoomaagewinawaan (the Seven Gifts the Grandfathers or Grandmothers), and the Dodemaag (clans). I offer suggestions on how modern tribal government structures can be lightly modified to restore much of this philosophy.

Nooksack Update [Updated 2/17/20]

Here is “A woman took a stand against tribal disenrollment and paid for it” in High Country News.

Updates in pending litigation….

Doucette v. Bernhardt (W.D. Wash.):

Doucette v. Bernhardt 45. 1-29-20 Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Doucette v. Bernhardt 46-1. 1-29-20 Exhibit A

Doucette v. Bernhardt 46-2. 1-29-20 Exhibit B

Doucette v. Bernhardt 46-3. 1-29-20 Exhibit C

Doucette v. Bernhardt 46-4. 1-29-20 Exhibit D

Doucette v. Bernhardt Ninth Circuit 8. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Rabang v. Kelly (W.D. Wash.):

Rabang v. Kelly 175. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Rabang v. Kelly Ninth Circuit 42. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions


Tribe Response to Motion

U.S. Response

Nooksack Federal/State Litigation Update

Tageant v. Ashby (state court tort suit removed to federal court)







Adams v. Elfo (federal court habeas corpus suit)


Adams v. Dodge (state court tort suit)


Doucette v. Zinke (federal APA suit)


Update in San Pasqual Band Membership Suits

Here are the materials in Alegre v. United States (S.D. Cal.):

44 second Amended Complaint

46-1 US Motion to Dismiss

48 Response

49 Reply

50-1 Individual Defendants MTD

53 Response

59 DCT Order Dismissing SAC

62 Third Amended Complaint

68-1 US Motion to Dismiss

79 Response

83 Individual Defendants Reply

85 US Reply

98 DCT Order Dismissing Third Amended Complaint

Nooksack Update: Rabang v. Kelly II (9th Cir.); Doucette v. Bernhardt (W.D. Wash))

District court materials (prior post here):

28 Doucette v. Bernhardt 3-7-19 Plaintiffs’ Motion for Summary Judgment

32 Doucette v. Bernhardt 4-18-19 Defendants’ Consolidated Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ Cross-Motion for Summary Judgment

33 Doucette v. Bernhardt 5-10-19 Plaintiffs’ Consolidated Reply in Support of Motion for Summary Judgment and in Opposition to Defendants’ Cross-Motion for Summary Judgment

34 Doucette v. Bernhardt 5-31-19 Reply re Defendants’ Cross-Motion for Summary Judgment

Ninth Circuit materials:

35 Rabang v. Kelly II 6-13-19 Stay Order

Muscogee Freedmen Descendants Forced to Exhaust Tribal Remedies

Here is the order in Muscogee Creek Indian Freedmen Band v. Bernhardt (D.D.C.):

29 DCT Order

Briefs here.

Fletcher: “Law, Politics, and the Constitution”

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.