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

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

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”

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. 

D.C. District Court Transfers MHA Nation Suit against BLM Drilling Permit Approvals to North Dakota

Here are the materials in Mandan Hidatsa and Arikara Nation v. Dept. of Interior (D.D.C.):

1 Complaint

10 Slawson Motion to Intervene

17 DCT Order Granting 10

18 Slawson Motion to Transfer Case to DND

23 DOI Joinder to 18

27 MHA Nation Opposition to 18

30 Reply in Support of 18

31 DOI Reply in Support of 18

33 DCT Order Granting Motion to Transfer

GAO Report: “Interior Should Address Factors Hindering Tribal Administration of Federal Programs”

Here.

Steven Pevar: “The Shutdown Is Disproportionally Hurting Native Americans”

Here.

NYTs: “Shutdown Leaves Food, Medicine and Pay in Doubt in Indian Country”

Here, featuring the Sault Ste. Marie Tribe of Chippewa Indians.

New Paper on Defending Morton v. Mancari

Andrew Huff and Tim Coulter have released “Defending Morton v. Mancari and the Constitutionality of Legislation Supporting Indians and Tribes”.

Quote from the article

Supporting and defending the Mancari decision and the rule that it stands for – that laws benefiting tribes are not unconstitutional racial classifications – is a very high priority, perhaps the most urgent and important Indian law issue of our time. This paper reviews the decision in Mancari and the law leading up to and following it. We then turn to a discussion of the present challenges to the Mancari rule. In Part V, we suggest possible ways to support the decision and its rationale, and we discuss some additional legal arguments and approaches for defending the constitutionality of legislation benefiting tribes.

PDF of paper below and paper is available for download here 

Mancari 11-19

 

2017 DOJ Report on Indian Country Criminal Investigations and Prosecutions

Here.

Federal Court Dismisses Trust Breach Action over Phoenix Indian School Land Exchange

Here are the materials in Inter-Tribal Council of Arizona Inc. v. United States (Fed. Cl.):

58 Second Amended Complaint

59 US Motion to Dismiss

62 Response

63 Reply

69 DCT Order