On Judge Kozinski’s Dissent in U.S. v. Cruz

United States v. Cruz (our post here, with briefs) has been getting a fair bit of attention these days in the news (LA Times; How Appealing here and here; Indianz collects articles), probably because Judge Kozinski dissented so strongly.

It is very interesting to see the Ninth Circuit struggle over who is an Indian for purposes of federal criminal jurisdiction, esp. given how Indian tribes struggle over it. But, unfortunately, cases like this will give United States Attorney’s Offices with Indian Country jurisdiction all the more reason to decline to prosecute Indian Country crimes.

The majority’s opinion, in sort of a backwards way, is heading in the right direction. Eventually, I suspect, the federal courts will abandon the common law free-for-all and adopt a bright-line rule based on tribal citizenship, a standard more in line with the political status test used in Morton v. Mancari.

Right now, in the Ninth Circuit, the test is, according to the Cruz majority:

The Bruce test requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal or federal government recognition as an Indian.” Id. at 1223, 1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

The first part, “sufficient degree of Indian blood” apparently can be something less than 25 percent (in Cruz, it was about 22 percent). Some tribes have minimal Indian blood quantum requirements, resorting to lineal descendancy (e.g., Cherokee Nation of Oklahoma, Sault Ste. Marie Tribe of Chippewa Indians).

It’s the second part where the Cruz majority and Judge Kozinski parted. Judge Kozinski’s dissent is a defense of the second prong (but more so a dramatic attack on the majority’s reasoning). He’s right in many respects. Cruz should be considered an Indian and definitely is, at least by his tribal community. But just because his community subjectively views him as one their own, that’s sufficient to invoke the awesome power of the federal criminal laws? The majority wants something more. And what the majority should do — and perhaps the Ninth Circuit will eventually do — is adopt a bright-line rule on what “tribal or federal government recognition as an Indian means.”

In other words, citizenship in a federally recognized tribe should be the rule. It’s simple and easy, and objective. It’s consistent with the political status test of Mancari, and seems less like an arbitrary application of a race-based law. Plus, if A.U.S.A.’s only have to provide evidence that a criminal defendant is a tribal citizen, there is less effort expended in proving the factual predicates to federal criminal jurisdiction.

Ironically, Judge Kozinski’s dissent defending the broader application of the Bruce test is both a defense of a balancing test he decries, and a defense of a race-based standard. It’s ironic because Judge Kozinski once predicted the end of race-based rules in federal Indian law in Williams v. Babbitt, in which he wrote for a majority that struck down laws designed to protect the Alaskan Native reindeer industry on the grounds that they were race-based.

One might argue that there’s a pretty good reason for the definition of Indian to include persons who aren’t members of federally recognized members of Indian tribes, but who are plainly Indian. I’d like to be persuaded that there are good reasons.

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.

Greene v. Commissioner — Minn. Supreme Court Decision on Political Status Test

In an interesting decision, Greene v. Commissioner of the Minnesota Dept. of Social Services (opinion), and a 4-3 split, the Minnesota Supreme Court upheld a state law under Morton v. Mancari‘s political status classification. Justice Alan Page dissented, appearing to be shocked that Indians would be treated differently (both positively and negatively) under the political status test.

Here is the court’s syllabus:

1.     Minnesota Statutes § 256J.645, subd. 4 (2006), requires that a tribal member residing in the service area of a federally recognized tribe, which provides employment services under an agreement with the State of Minnesota, receive employment services through the tribe and is subject to sanction for refusing to participate in those services.  Under Minn. Stat. § 256J.57, subd. 1 (2006), a tribal member has the right to show good cause for failing to participate in the employment services through the tribe.
2.     Because Minn. Stat. § 256J.645, subd. 4, neither burdens a fundamental right nor involves a suspect classification, rational basis review is the appropriate level of scrutiny to apply to an equal protection challenge under the United States and Minnesota Constitutions.
3.     Minnesota Statutes § 256J.645, subd. 4, satisfies rational basis review under the United States and Minnesota Constitutions.

Rose Villazor on Blood Quantum Laws and Equal Protection

Rose Cuison Villazor (SMU) has published “Blood Quantum Land Laws and the Race Versus Political Identity Dilemma” in the California Law Review. This is a great paper. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent  [*802] challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws – what I collectively refer to as blood quantum land laws – as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law’s interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

Rose Villazor on Indian Blood Quantum and Equal Protection

Rose Cuison Villazr (SMU) has posted her wonderful paper, “Blood Quantum Land Laws and the Race Versus Political Dilemma,” forthcoming in the California Law Review, on SSRN. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

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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:

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Constitutional Challenge to State Hunting & Fishing Regs in Montana in CA9

The conservative property rights litigation machine Mountain States Legal Foundation sued the State of Montana for its reservation-based hunting and fishing regs. The lower court dismissed the claim, applying the rational basis test (ala Morton v. Mancari). The Ninth Circuit has yet to rule. Here are the materials.

Roberts v. Hagener District Court Opinion

Roberts Appellant Brief

State of Montana Brief

Roberts Reply Brief