Here are the materials in Alegre v. United States (S.D. Cal.):
Here, on SSRN.
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.
Here are the materials in Alexander v. Confederated Tribes of the Grand Ronde :
The Court held this court rule to be invalid:
The rule provides: “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c), italics added.) We conclude the rule is invalid as a matter of state law.
But this rule to be valid:
Rule 5.484(c)(2) provides: “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. [¶] . . . [¶] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”