equal protection

Download(PDF):

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.

Complaint in National Council for Adoption v. Jewell–Litigation Challenging the 2015 ICWA Guidelines

May 28, 2015Kate Fort2 Comments

Here.

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).

Alex Skibine on Indian Law and the New Equal Protection

November 3, 2014Matthew L.M. Fletcher

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.”

Highly recommended!

New Scholarship on Tribal Membership and Race by Sarah Krakoff

April 7, 2014April 5, 2014Matthew L.M. Fletcher

Sarah Krakoff posted “Constitutional Concern, Membership, and Race” on SSRN. It is forthcoming in the Florida International Law Review.

The abstract:

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.

Ninth Circuit Rejects Another Matheson Objection to Tribal-State Tax Compact

December 27, 2013Matthew L.M. Fletcher

Here are the materials in Matheson v. Smith:

CA9 Unpublished Memorandum

Matheson Opening Brief

Washington Brief

Matheson Reply Brief

Lower court materials here.

First Circuit Remands Equal Protection Challenge to Mass. Gaming Law; Remands for Trial on Merits (and Carcieri)

August 2, 2012August 2, 2012Matthew L.M. Fletcher1 Comment

The opinion is here.

Excerpts:

Given this situation, the lack of clear answers on questions of both state and federal law, the shifting of the nature of the injury to KG, and the apparent attempt to allow some time for the IGRA process to work (including any Carcieri fix), we cannot say there was an abuse of discretion in the denial of preliminary injunctive relief. “An injunction is an exercise of a court’s equitable authority, to be ordered only after taking into account all of the circumstances that bear on the need for prospective relief.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010). “Equitable relief is not granted as a matter of course, and a court should be particularly cautious when contemplating relief that implicates public interests.” Id. (citations omitted).

And:

The district court’s dismissal of the complaint is another matter. We simply cannot say that KG’s equal protection claim as to § 91 fails to state a claim on which relief may be granted, or that the issuance of equitable relief may not be appropriate at some future date.
We also affirm the dismissal with prejudice of KG’s claims as to the $5 million appropriation, the advisory committee seat, and the preemption challenge to § 91. We dismiss KG’s state-law claims without prejudice. We remand the case for further proceedings consistent with this opinion.