From JOTWELL, here.
Here are the materials in Fontenot v. Hunter (W.D. Okla.):
Although the Court rejects Plaintiff’s challenges under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as those under the dormant Commerce Clause and the First Amendment, the Court finds for the foregoing reasons that Plaintiff has shown that Oklahoma’s American Indian Arts and Crafts Sales Act of 1974, as amended, Okla. Stat. tit. 78, §§ 71-75, violates the United States Constitution’s Supremacy Clause and is therefore unconstitutional, both facially and as applied to her.
Here, on SSRN.
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.
Here is the opinion in Brackeen v. Zinke (N.D. Tex.):
Case page with briefs here.
A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.
Still, there will certainly be an appeal. The case is limited only to the parties involved.
Link: “Debate generated by petition for expanded legal representation” by Caroline Grueskin from the Bismarck Tribune,
Previous posts: N.D. Supreme Court Accepting Comments Until December 30th on Proposed Temporary Rule to Allow Out of State Lawyers Practice, Petitioners Request Out-of-State Lawyers Be Allowed to Represent Protesters
- In the Matter of a Petition to Permit Temporary Provision of Legal Services by Qualified Attorneys from Outside North Dakota
- Affidavit of William L. Tilton In Support of Petition to Permit Temporary Provision of Legal Services by Qualified Attorneys from Outside North Dakota
The unprecedented arrests at Standing Rock overextended available defense attorneys. Defendants are worried their civil rights are at risk and are asking the courts to allow out-of-state attorneys to defend them.
Excerpts of Tilton’s testimony, by topic:
On the reluctance of in-state attorneys:
[M]any licensed North Dakota criminal defense attorneys feel conflicted in taking these cases, either because the attorneys have close relations with law enforcement folk who are undertaking the arrests, or because the attorneys have personal interests in the pipeline construction industry, some of them directly with the DAPL. Other licensed North Dakota criminal defense attorneys have been reticent to take anti-DAPL protesters as clients because they live far distant from the South Central District courts where the cases will be tried. Some criminal defense attorneys have already maxed out their public defender contract allotments. Others have undertaken representation of one or a few DAPL protesters and are not interested in taking on more…
I have also personally talked with multiple persons charged as defendants in these anti-pipeline protests who have expressed extreme dissatisfaction with assigned attorneys given to them through the Indigent Defense Commission. Multiple defendants have complained that some public defender-assigned attorneys have been unwilling to take their phone calls, have not called them back, and have seemed uninterested in doing a thorough investigation of the factual circumstances of the arrests.
On the current caseload:
… I count 113 defendants as having requested an appointed attorney from the Indigent Defense office, but having been turned down.
… I count 40 individuals who are listed in the column “Returned Mail,” meaning that letters to them have been returned to the clerk’s office for some reason. All but 9 of these defendants also have “None” entered in the “Attorney” column, meaning that some of all of the remaining 31 people will not be getting notices from the court of from counsel.
[A]s of December 2, 2016, 264 defendants will be appearing pro se unless means are developed to provide them access to counsel.
On the cost:
In those discussions [with the North Dakota Commission on Legal Counsel for Indigents (CLCI)] I have learned that none of the $17 million in emergency funding sought by the governor has been attributed to the increased need for legal defense resources to guarantee the right to counsel for indigent defendants. Similarly, it appears none of the additional funds has been attributed to supplementing the already-stressed court personnel.
Plaintiffs argue the 2015 Guidelines violate the APA, due process of birth parents and children, equal protection of birth parents and children, the 10th amendment, and manage a quick sideswipe at ICWA itself on page 38 (exceeds Congress’s authority under the Indian Commerce Clause).
Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.
Here is the abstract:
There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”
American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.