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
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 Amended Complaint
News coverage here.
The Indian preference part is still there.
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.
Addie Rolnick, newly of UNLV law, has posted her paper, “The Promise of Mancari: Indian Political Rights as Racial Remedy,” on SSRN. It is forthcoming in the N.Y.U. Law Review. [This will be the first time NYU Law Review has published an article on Indian law, as opposed to a student note or comment, in decades, if ever (as far as I know).]
Here is the abstract:
In 1974, the Supreme Court declared that an Indian employment preference was based on a “political rather than racial” classification. The Court’s framing of Indianness as a political matter and its positioning of “political” as oppositional to “racial” has defined the trajectory of federal Indian law and influenced common sense ideas about what it means to be Indian ever since. This oppositional framing has had specific practical consequences, including obscuring the continuing significance of racialization for Indians and concealing the mutually constitutive relationship between racialization and Indian political status. This Article explores the legal roots of the political classification doctrine, its ongoing significance, and the descriptive limits and normative consequences of the ideas that it contains. Specifically, this Article argues that the political classification doctrine constructs race as an irrelevant matter of ancestry and Indianness as a simple matter of civic participation. This Article suggests a new framework for considering Indian issues and federal Indian law that draws on a more robust and realistic understanding of both race and Indianness to acknowledge the cyclical relationship between Indian racialization and Indian political status.