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….
Here are the materials in Alegre v. United States (S.D. Cal.):
50-1 Individual Defendants MTD
Here is the order in Muscogee Creek Indian Freedmen Band v. Bernhardt (D.D.C.):
Briefs here.
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.Â
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.Â
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.Â
Here:
Here are the materials in Bruette v. Secretary of the Interior (E.D. Wis.):
Here are the materials in Alegre v. Zinke (S.D.Cal.):
And here are the materials in the companion case Alegre v. United States (S.D. Cal.):
Here are the materials in Villa v. Jewell (E.D. Cal.):
Here are the materials in California Miwok Tribe v. Jewell (E.D. Cal.):
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
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