Amusement of the Day (concl.): BIA Phoenix Area Enrollment Manual

And today we conclude with a few leftover illustrations (I particularly like the one that illustrates Indian lawyering). Hope you enjoyed the previous posts here and here.

Amusement of the Day (cont.) — 1977 BIA Phoenix Area Office Enrollment Manual Illustrations

Yesterday, we covered tribal constitutions. Today, the political and bureaucratic complexity of enrollment decisions in cartoon form (we will conclude tomorrow):

Amusement of the Day — 1977 BIA Phoenix Area Office Enrollment Manual Illustrations

Apparently, in 1977 or so, the Phoenix Area Office decided to write a lengthy manual for tribal governments, instructing them on how to make enrollment decisions that met tribal constitutional muster. Suffice it to say the text is TL:DR, but the illustrations are awesome — and by awesome, I mean crazy — and by crazy, I mean Indian country crazy.

Tomorrow, how tribal governments make membership decisions….

Update in San Pasqual Band Membership Suits

Here are the materials in Alegre v. United States (S.D. Cal.):

44 second Amended Complaint

46-1 US Motion to Dismiss

48 Response

49 Reply

50-1 Individual Defendants MTD

53 Response

59 DCT Order Dismissing SAC

62 Third Amended Complaint

68-1 US Motion to Dismiss

79 Response

83 Individual Defendants Reply

85 US Reply

98 DCT Order Dismissing Third Amended Complaint

Muscogee Freedmen Descendants Forced to Exhaust Tribal Remedies

Here is the order in Muscogee Creek Indian Freedmen Band v. Bernhardt (D.D.C.):

29 DCT Order

Briefs here.

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. 

Federal Court Dismisses Pro Se Action against Interior and Stockbridge-Munsee

Here are the materials in Bruette v. Secretary of the Interior (E.D. Wis.):

10 Motion to Dismiss

13 Amended Motion to Dismiss

15 Opposition

16 Reply

17 DCT Order

Federal Court Dismisses San Pasqual Band Membership Suits

Here are the materials in Alegre v. Zinke (S.D.Cal.):

20-1 Motion to Dismiss

28-1 Response

33 Reply

43 DCT Order

And here are the materials in the companion case Alegre v. United States (S.D. Cal.):

6 Motion for TRO

16-1 Motion to Dismiss

23 Response

25 Reply

29 DCT Order