Authors: National Council of Urban Indian Health, Geoffrey Roth

Publication Year: 2007

Last Updated: 2010-10-05 14:54:02

Journal: NCUIH

Keywords: DOJ, IHCIA, White Paper, Indian Health Care Improvement Act, No Child Left Behind, federal recognition, federally recognized

Short Abstract:

Department of Justice (DOJ) White Paper Questioning Constitutionality of Urban Indians.

Towards the end of the 109th Congress, the Indian Health Care Improvement Act reauthorization legislation appeared to be well on its way to passage. However, passage was thwarted in the eleventh hour by the release of an undated and unsigned memorandum entitled Department of Justice White Paper that created confusion and led to delays that prevented passage. In the White Paper (and in testimony before this Committee in the 110th Congress), the U.S. Department of Justice argued that the definition of urban Indian in the Indian Health Care Improvement Act reauthorization legislation, 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), argued 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 was 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 Papers reasoning were ever to be adopted by the courts, many longstanding Federal Indian laws would be ruled unconstitutional.

Abstract:

Department of Justice (DOJ) White Paper Questioning Constitutionality of Urban Indians.

Towards the end of the 109th Congress, the Indian Health Care Improvement Act reauthorization legislation appeared to be well on its way to passage. However, passage was thwarted in the eleventh hour by the release of an undated and unsigned memorandum entitled Department of Justice White Paper that created confusion and led to delays that prevented passage. In the White Paper (and in testimony before this Committee in the 110th Congress), the U.S. Department of Justice argued that the definition of urban Indian in the Indian Health Care Improvement Act reauthorization legislation, 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), argued 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 was 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 Papers reasoning were ever to be adopted by the courts, many longstanding Federal Indian laws would be ruled unconstitutional.

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