Fletcher: “Law, Politics, and the Constitution”

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

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

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 Reply Brief in First Circuit Appeal


KG Urban Reply Brief

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


Massachusetts Brief

Suffolk Indian Law Clinic Amicus Brief

Prior materials here.

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


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.

Federal Court Affirms Mass. Gaming Law Granting Preference to Tribes

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 on the Promise of Mancari

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.