William Perry Pendley

Back in Montana, the federal district court asked the United States, which had filed a friend of the court brief earlier, to join the lawsuit now as a party, which it did; however, the United States argued, not in favor of the civil rights of Morris, but in favor of the jurisdiction over him by the Flathead Tribal Court. Then, the State of Montana jumped into the case with a friend of the court brief in favor of the Flathead Tribal Court.

Morris’s attorney claimed that Congress had violated Adarand Constructors, Inc. v. Peña, a landmark 1995 ruling in which the Supreme Court held that the Constitution’s equal protection guarantee applied to Congress. The federal district, however, ruled that Adarand did not apply to American Indians because theirs was a political designation, not one based on race. In so ruling, the district court relied on a 1974 decision by the Supreme Court that legal experts believe was overruled by Adarand. Plus, as Morris could attest, tribal membership, unlike membership in other political entities, is based on blood quantum. The district court did have a solution for Morris; he could escape Flathead Tribal Court jurisdiction by giving up membership in his father’s tribe. Instead, Morris appealed to the Ninth Circuit.

After the Ninth Circuit ruled against him, Morris, early last month, asked the U.S. Supreme Court to hear his case to decide whether its Adarand ruling and its bar against unconstitutional acts by Congress applies to American Indians. Morris hopes the Supreme Court cares about such matters. It is obvious that no one else does—not Congress, not the U.S. Department of Justice, and not the State of Montana.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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