Authors: National Council of Urban Indian Health

Publication Year: 2006

Last Updated: 2010-09-30 14:54:59

Journal: NCUIH

Keywords: DOJ, White Paper, IHCIA, Indian Health Care Improvement Act, S.1057, No Child Left Behind, recognition, Department of Justice, NCUIH, National Council of Urban Indian Health

Short Abstract:

Introduction. In an undated and unsigned memorandum entitled “Department of Justice White Paper,” somebody at the U.S. Department of Justice has argued that the definition of “urban Indian” in the Indian Health Care Improvement Act reauthorization (S. 1057), which closely tracks current law ( 25 U.S.C. Section 1603), as well as the definition used in the No Child Left Behind Act (Section 7151), runs a significant risk of being ruled unconstitutional by a Federal court since it encompasses more than just members of federally recognized tribes. In a two-paragraph analysis, the “White Paper,” relying principally on two Supreme Court cases (Adarand Constructors, Inc. v Pena; Rice v. Cayetano), argues that where Congress has authorized services for Indians who are not members of Federally recognized tribes, such services would likely be regarded as a racial classification, rather than a political classification, and would not meet the constitutional “strict scrutiny” standard applied to racial classifications. In making this argument, the “White Paper” is arguing for a sharp curtailment of Congress’ authority to legislate in the area of Indian affairs, an authority which has long been deemed by the Supreme Court as “broad,” “plenary and exclusive.” United States v. Lara, 124 S. Ct. 1628, 1633 (2004). In the unlikely event that the “White Paper’s” reasoning was ever adopted by the courts, many longstanding Federal Indian laws would be ruled unconstitutional.

Abstract:

Introduction. In an undated and unsigned memorandum entitled “Department of Justice White Paper,” somebody at the U.S. Department of Justice has argued that the definition of “urban Indian” in the Indian Health Care Improvement Act reauthorization (S. 1057), which closely tracks current law ( 25 U.S.C. Section 1603), as well as the definition used in the No Child Left Behind Act (Section 7151), runs a significant risk of being ruled unconstitutional by a Federal court since it encompasses more than just members of federally recognized tribes. In a two-paragraph analysis, the “White Paper,” relying principally on two Supreme Court cases (Adarand Constructors, Inc. v Pena; Rice v. Cayetano), argues that where Congress has authorized services for Indians who are not members of Federally recognized tribes, such services would likely be regarded as a racial classification, rather than a political classification, and would not meet the constitutional “strict scrutiny” standard applied to racial classifications. In making this argument, the “White Paper” is arguing for a sharp curtailment of Congress’ authority to legislate in the area of Indian affairs, an authority which has long been deemed by the Supreme Court as “broad,” “plenary and exclusive.” United States v. Lara, 124 S. Ct. 1628, 1633 (2004). In the unlikely event that the “White Paper’s” reasoning was ever adopted by the courts, many longstanding Federal Indian laws would be ruled unconstitutional.

Source: Link to Original Article.

Funding:

Code: 0

Source: