Way out my league here, but Justice Thomas, perhaps, might think so. His reference today in McDonald v. City of Chicago to two Indian treaties from 1862 and 1868 [slip op. at 20 n. 7 (Thomas, J., concurring)] suggests that he could be thinking along those lines … or he was really struggling to find references to that language somewhere in treaty language circa 1860s.
Fourteenth Amendment
Sixth Circuit Oral Argument on Michigan Affirmative Action Ban
From the LSJ:
LANSING — A federal appeals court
is about to consider a lawsuit challenging Michigan’s ban against racial preferences in public university admissions and government hiring.
Civil rights groups and University of Michigan students, faculty and applicants say the 2006 ballot measure approved by voters is unconstitutional.
Critics say the constitutional amendment has created an unfair process where universities give weight to geographical diversity and legacy status but not racial identity.
Supporters say the law reflects the will of the people.
Arguments will be held Tuesday morning at the 6th U.S. Circuit Court of Appeals in Cincinnati. A district judge dismissed a challenge to the law last year.
Dodging a Bullet — Roberts v. Hagener
The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).
This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.
Anyway, dodged a bullet.
Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land
In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).
In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.
We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.
Political Status of Indian Tribes Article in St. John’s Law Review
My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.
Here’s the introduction:
Fletcher: On Black Freedmen
My newly revised paper, now titled “On Black Freedmen,” should be up on SSRN in the next few days. The paper will be part of Justice Unveiled: African American Culture and Legal Discourse (Lovalerie King & Richard Schur, eds.).
From the Abstract:
In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap – and conflict – with those of African Americans. The recent Cherokee Nation of Oklahoma’s vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships – the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law—all established as a reaction to Black-White racism –– expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.
Turtle Talk 