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

Federal Court Dismisses Claims by “Historic Ione Band of Miwok Indians Tribe”

Here are the materials in Villa v. Jewell (E.D. Cal.):

16-1 Motion to Dismiss

20 Opposition

23 Reply

26 DCT Order

Federal Court Declines to Stay Enforcement of BIA Ruling in Calif. Miwok Membership/Leadership Dispute

Here are the materials in California Miwok Tribe v. Jewell (E.D. Cal.):

10 Motion to Stay

20 Tribe Opposition

33 Reply to 20

34 US Opposition

35 Reply to 34

37 DCT Order

Grand Ronde Disenrollees Prevail in Tribal Appellate Court

Here are the materials in Alexander v. Confederated Tribes of the Grand Ronde :

Alexander v. Confederated Tribes of Grand Ronde Opinion

Alexander v. Confederated Tribes of Grand Ronde Opening Brief

Alexander v. Confederated Tribes of Grand Ronde Appellees’ Brief

Alexander v. Confederated Tribes of Grand Ronde Petitioners’ Reply Brief

California Supreme Court Case on Active Efforts and Tribal Membership

Here.

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.”