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Tuesday, June 19, 2007

Assault on separate is not equal?

The Court of Appeals recently added another chapter to the continuing saga of race-based differentials in the law. In this case, the court called it the line drawn a political differential and, as Robert Frost might have said, "that has made all the difference."

Greene v. Commissioner of the Department of Human Services involves a challenge brought by member of the Minnesota Chippewa Tribe who wants to receive employment services from Aitkin County. Under an agreement between the tribe and the county, tribe members are to receive employment services from the tribe in lieu of receiving such services from the county, even though the tribe member would otherwise be entitled to the county services. The plaintiff argued that forcing her to trade county employment services for tribal ones constituted a violation of her equal-protection rights.

The Court of Appeals disagreed, applying a rational basis standard and following the U.S. Supreme Court case of Morton v. Mancari, which said that preferences for American Indians are not racial but political when the preferences apply to members of federally recognized tribes.

Judge Gary Crippen wrote the opinion, joined by Judge Bruce Willis. Judge R.A. "Jim" Randall dissented. I always enjoy reading Randall's dissents, often written in high dudgeon, and this one is no exception.

"The goal of helping tribes help their members cannot subvert the rights of a Minnesota citizen to pass up a race-based preference and simply deal with their county ... on the basis of 'I'm an independent human being and a resident and this service is open to me,'" Randall writes.

The judge then plays his ace: "[The defendants] ... never mention and never come near Brown v. Bd. of Educ. ... You see, what we have here are [defendants] pushing for 'separate but equal' treatment for enrolled members of MCT, and the majority reiterating 'separate but "equal"' under the guise of 'helping' tribes help their members. ... [The defendants'] hydra-headed assault on the doctrine that separate but equal is inherently unconstitutional has to be recognized."

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