Morton v. Mancari

Fletcher Draft Paper: “Federal Indian Law as Method”

Matthew L.M. Fletcher

Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:

This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.

Fletcher: “Law, Politics, and the Constitution”

Matthew 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. 

New Paper on Defending Morton v. Mancari

Victoria Sweet

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

 

Federal Court Dismisses Challenge to Indian Preference in Employment at Office of Special Trustee

Matthew L.M. Fletcher1 Comment

Here are the materials in Hester v. Salazar (D. Utah):

3 Hester Complaint

7 MJ R&R

8 Hester Objection

9 DCT Order Adopting R&R

An excerpt from the R&R:

Because the Supreme Court has ruled in Mancari that Indian preference “does not constitute ‘racial discrimination,’ “ Mancari, 471 U.S. at 553, Mr. Hester’s claims that he was subjected to racial discrimination and that his civil rights have been violated are not valid. Therefore, because Mr. Hester has not stated a claim upon which relief can be granted, and it would be futile to amend his complaint, his complaint should be dismissed under the authority of 28 U.S.C. § 1915(e)(2)(B)(ii). Based on that conclusion, Mr. Hester’s motion to appoint counsel and motion for service of process should be deemed moot.

KG Urban Amends Complaint

Matthew L.M. Fletcher2 Comments

Here:

KG Urban Amended Complaint

News coverage here.

The Indian preference part is still there.

KG Urban Reply Brief in First Circuit Appeal

Matthew L.M. Fletcher

Here:

KG Urban Reply Brief

State of Massachusetts Brief (and Supporting Amicus) in KG Urban v. Patrick (1st Circuit)

Matthew L.M. Fletcher

Here:

Massachusetts Brief

Suffolk Indian Law Clinic Amicus Brief

Prior materials here.

Opening Brief in KG Urban v. Patrick (Mass. State Gaming Case)

Matthew L.M. Fletcher1 Comment

Here:

KG Urban Motion to Expedite CA1 Appeal

Mass Response to Motion to Expedite

KG Urban Opening CA1 Brief

Lower court materials are here and here and here.

News coverage here, h/t Pechanga.

More Materials in KG Urban v. Patrick

Matthew L.M. Fletcher1 Comment

Here:

KG Urban Complaint

15 KG v Patrick answer

Our previous post is here.

Federal Court Affirms Mass. Gaming Law Granting Preference to Tribes

Matthew L.M. Fletcher6 Comments

Here is the lengthy opinion.

No bones about it. This is a scary opinion delving at length into the constitutional infirmities of the political status classification doctrine first articulated in Morton v. Mancari. This judge would apply strict scrutiny but for the Mancari precedent (one he finds weak at best).

A case to watch to be sure, since KG Urban no doubt smells blood in the water. And Massachusetts will no doubt defend this law diligently.

Update: Paul Clement represents the plaintiffs.

News coverage here, via Pechanga.

Briefs and other materials are here.