trust relationship – Page 17

Worth a look, most especially for Dylan Minor’s excellent artistic rendering of the treaty cessions by Michigan Indian nations (skip ahead to page 15); available on SSRN here.

It was cherry blossom time, too!

And on the way over, we happened by the Japanese Internment Memorial, noting that the federal government placed many of the concentration camps on Indian reservations: Continue reading →

Narragansett NHPA Consultation Suit

April 2, 2019Matthew L.M. Fletcher

Here is the complaint Narragansett Indian Tribe v. Federal Highway Administration (D.R.I.):

1-complaint-2.pdf

An excerpt:

The Tribe brings this action to challenge the termination of a programmatic agreement(“PA”) entered into pursuant to the regulations of the National Historic Preservation Act (“NHPA”). The termination of the PA occurred after substantial construction had taken place on the project for which the PA was meant to address and resolve the adverse effects of the project on historic properties to the signatories’ satisfaction. The termination of the PA after substantial work had been performed on the project, and the subsequent final decision of the Federal Highway Association (“FHWA”) was arbitrary and capricious.

Tribal Amicus Brief in Texas v. United States [ACA Appeal in Fifth Circuit]

April 2, 2019Matthew L.M. Fletcher

Here:

texas-tribal-amicus-final-4-1-19-as-filed-1.pdf

4-1-2019-letter-to-doj-re-texas-v-us-and-ihcia-impacts-final.pdf

Cross-Motions for Summary Judgment Denied in Seminole/IHS Dispute

March 27, 2019Matthew L.M. Fletcher

Here are the materials in Seminole Tribe of Florida v. Azar (D.D.C.):

9 Seminole MSJ

14 US Response + Cross Motion

15 Seminole Reply

17 US Reply

20 DCT Order

Complaint here.

SCOTUS Decides Sturgeon v. Frost II

March 26, 2019March 26, 2019Matthew L.M. Fletcher

Here is the opinion.

Materials here.

Update — footnote 2 of the majority:

As noted earlier, the Ninth Circuit has held in three cases—the so called Katie John trilogy—that the term “public lands,” when used in ANILCA’s subsistence-fishing provisions, encompasses navigable waters like the Nation River. See Alaska v. Babbitt, 72 F. 3d 698 (1995); John v. United States, 247 F. 3d 1032 (2001) (en banc); John v. United States, 720 F. 3d 1214 (2013); supra, at 12. Those provisions are not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters. See generally Brief for State of Alaska as Amicus Curiae 29–35 (arguing that this case does not implicate those decisions); Brief for Ahtna, Inc., as Amicus Curiae 30–36 (same).

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.