Amicus Curiae Brief — Grutter v. Bollinger

12) [came Com, 88.

No. 02-241 (f ; FILED

Jn The FEB 18 2003

Supreme Court of the Binitey States

OPES OF SRK

o

BARBARA GRUTTER,

Petitioner,

vs.

LEE BOLLINGER, JEFFREY LEHMAN, DENNIS

SHIELDS, and the BOARD OF REGENTS OF THE

UNIVERSITY OF MICHIGAN, et al.,

Respondents,

and

KIMBERLY JAMES, et al.,

Respondents.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

o

BRIEF FOR THE BAY MILLS INDIAN COMMUNITY,

GRAND TRAVERSE BAND OF OTTAWA AND

CHIPPEWA INDIANS, HANNAHVILLE INDIAN

COMMUNITY, KEWEENAW BAY INDIAN

COMMUNITY, LAC VIEUX DESERT BAND OF LAKE

SUPERIOR CHIPPEWA INDIANS, LITTLE RIVER

BAND OF OTTAWA INDIANS, LITTLE TRAVERSE

BAY BANDS OF ODAWA INDIANS, MATCH-E-BE-

NASH-SHE-WISH BAND OF POTTAWATOMI

INDIANS OF MICHIGAN, NOTTAWASEPPI HURON

BAND OF POTAWATOMI, ONEIDA TRIBE OF

INDIANS OF WISCONSIN, SAULT STE. MARIE

TRIBE OF CHIPPEWA INDIANS, AND MICHIGAN

INDIAN LEGAL SERVICES, AS AMICI CURIAE

SUPPORTING RESPONDENTS

sf

VANYA S. HOGEN*

COLETTE ROUTEL

FAEGRE & BENSON, LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

(612) 766-7000

* Counsel of Record

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:

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TABLE OF CONTENTS

Page

CU GEE Gi cxceccevensinetvsenicheniimidsieninnniions 1

GEEPTEE semsrinntinnnasvnnininnsidnnnmmininniens 3

I. THE STATE OF MICHIGAN HAS A COM-

Il.

III.

PELLING INTEREST IN EDUCATING NA-

TIVE AMERICAN STUDENTG...................4..

A. One Of The Original Missions Of The

University Of Michigan Was To Educate

Native American Students ......................

B. The Federal Government Has Promoted

Special Educational Programs For Na-

tive American Students Since This Na-

tion’s Founding, And Responsibility For

Many Of These Programs Has Been

Delegated To The States, Including The

State Of Michigan ....................ccsseceeeeeeees

C. The State Of Michigan Has An Inde-

pendent Interest In Educating Native

American Students So That They Can

Manage Complex Tribal Governmental

And Business Affairs ...................cccceeeeeees

IN ADDITION, THE LAW SCHOOL HAS A

COMPELLING INTEREST IN A DIVERSE

RENEE GUIS cccecenmnessecssessensescennvennnnnsenenes

THE LAW SCHOOL ADMISSIONS POLICY

IS NARROWLY TAILORED TO ACCOM-

PLISH THE STATE’S INTEREST IN EDU-

CATING NATIVE AMERICAN STUDENTS

AND IN PROMOTING EDUCATIONAL DI-

10

17

19

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

Altheimer & Gray v. Sioux Manufacturing Corp.,

983 F.2d 803 (7th Cir. 1998)..............0sscsesssseeesseees

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989) ...........

C & L Enterprises, Inc. v. Citizen Band Potawatomi

Indian Tribes, 532 U.S. 411 (2001) .0.......ccccceeceeeeees

California v. Cabazon Band of Mission Indians, 480

Scie cienienanesyeesesesenmassnssnesassssovscsoscceees

Chickasaw Nation v. United States, 534 U.S. 84

Kerr-McGee Corp. v. Navajo Tribe of Indians, 471

IT TTT ccertsticncsnstesunssensnveceovengnocsesssesssonseeccscees

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

Minnesota v. Mille Lacs Band of Chippewa Indians,

Ea

Montana v. Crow Tribe of Indians, 523 U.S. 696

Morton v. Mancari, 417 U.S. 535 (1974).....00....0.cccc cee

New Mexico v. Mescalero Apache Tribe, 462 U.S.

EL

iii

TABLE OF AUTHORITIES — Continued

Page

Regents of the University of California v. Bakke, 438

ee Se rarcnreseniatennsnmnnssensnntatniemerepeneniamuenes ..5, 24

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ........ 17

Talton v. Mayes, 163 U.S. 376 (1896) 2.0.00... .....ccccceeeeeeeeeeees 17

United States v. Mitchell, 463 U.S. 206 (1983).................. 17

United States v. Wheeler, 435 U.S. 313 (1978).............. 1,17

FEDERAL TREATIES, STATUTES,

REGULATIONS AND LEGISLATIVE MATERIALS

ee en, See, Tn GT cnscpninsnanenmnodaennemienepetemeete 19

Treaty between the Wyandot, Seneca, Delaware,

Shawanese, Potawatomees, Ottawas, and Chip-

peway Nations and the United States, Sept. 29,

ts OEE: IID cccrnnepccsetinnnssenenssnnnminntinntmenategintentl 2,4, 7

Treaty between the Ottawa, Chippewa, and Pot-

tawatamie Nations and the United States, Aug.

RR TT ee er 10

Treaty between the Chippewa Tribe and the United

(Ge 10

Treaty between the Pottawatamie Nations and the

United States, Oct. 16, 1826, art. 3, 7 Stat. 295............ 10

Treaty between the Chippewa, Menomonie and

Winebago Tribes and the United States, Aug. 11,

ESS. re enn ene e 10

Treaty between the Potowatomi Tribe and the

United States, Sept. 20, 1828, 7 Stat. 317..................... 10

Treaty between the Potowatomies and the United

States, Oct. 27, 1832, 7 Stat. 399...............ccccccccecereeeeeees 10

iv

TABLE OF AUTHORITIES - Continued -

Page

~

Treaty between the Chippewa, Ottawa, and Pot-

awatomi Nations and the United States, Sept.

eee 11

Treaty between the Ottawa and Chippewa Nations

and the United States, March 28, 1836, 7 Stat.

Ge canecemncitannatetitteanicsianaapiniansiniiiiaiailadiniiitiaannensneinmiitibiimnnnes 10

Treaty between the Chippewa Nation and the

United States, Jan. 14, 1837, 7 Stat. 528...................... 10

Treaty between the Chippewa Nation and the

United States, Oct. 4, 1842, 7 Stat. 591 ....................ee 10

Treaty between the Ottawa and Chippewa Nations

and the United States, July 31, 1855, 11 Stat.

FR a ERE Fc Oem cee 10

| REESE eee Cree nw Ree 12

43 Stat. 253 (codified as carried forward at 8 U.S.C.

RESIS eererree KA non be arn meee 15

I ins nterestiiciitinicramiiinaiiininiaiiittitliiieaniiiainiitndaas 15

Act of Feb. 14, 1873, ch. 138, § 1, 17 Stat. 437.................. 12

Act of March 3, 1819, ch. 851, § 2, 3 Stat. 516.................. 12

Indian Education Act of 1972, Pub. L. No. 92-318............ 14

The Impact Aid Law of 1950, Act of Sept. 30, 1950,

ES Ss ere 14

The Johnson O’Malley Act of 1934, 48 Stat. 596,

codified as amended at 25 U.S.C. §§ 452-458e........ 13-14

Tribally Controlled School Grants Act of 1988, 25

ee SPECIE cicinesicninsciasiociinsindndinlntnendasentineiaiuaniinauatiais 26

TABLE OF AUTHORITIES — Continued

Indian Entities Recognized and Eligible To Receive

Services From the United States Bureau of In-

dian Affairs, 67 Fed. Reg. 46,328 (July 12, 2002)......1,

H.R. Rep. No. 151, 15th Cong., lst Sess., Jan 22,

1818, in II American State Papers: Indian Affairs

i chiceienidiatestinnasiannecineiemenaietinipbnaipeenpbenpienainebberemepeeapens

Exec. Order No. 13,096 (Aug. 6, 1998) .............cccceceeeeeeeeee

Special Subcommittee on Indian Education of the

Senate Commission on Labor and Public Welfare,

Indian Education: A National Tragedy — A Na-

tional Challenge, S. Rep. No. 501, 9lst Cong.

a Ts shasitsiinstticicdaserinetienaiitabienie eae ieidibamaniaiilindiniedmas

STATE CASES

Children of the Chippewa, Ottawa and Potawatomy

Tribes v. The Regents of the University of Michi-

gan, 305 N.W.2d 522 (Mich. Ct. App. 1981)...........0..... 6,9

OTHER STATE MATERIALS

Executive Directive 2001-2, Policy Statement_on

State-Tribal Affairs (Gov. John Engler, May 22,

Government-to-Government Accord between the

State of Michigan and the Federally Recognized

Indian Tribes in the State of Michigan (Gov. John

REE RCE EEE ne Oe

vi

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

A University Between Two Centuries: The Proceed-

ings of the 1937 Celebration of The University of

Michigan (Wilfred B. Shaw ed., 1937) ..............cccccceeeeeees 8

American Indian Higher Education Consortium,

Tribal Colleges: An Introduction (1999) .................. 26-27

Catherine L. Horn & Stella M. Flores, Percent

Plans in College Admissions: A Comparative

Analysis of Three States Experiences, The Civil

Rights Project, Harvard University (2003) ................... 26

Chalsa M. Loo & Garry Rolison, Alienation of

Ethnic Minority Students at a Predominantly

White University, 57 J. Higher Educ. 58 (1986)............ 24

Cynthia Ford, “Integrating Indian Law Into a

Traditional Civil Procedure Course,” 46 Syracuse

i SUE SEDI ciniattensnctedransenteinnctinnenenenindaienmianintis 19, 20

David Getches, Beyond Indian Law: The Rehnquist

Court’s Pursuit of States’ Rights, Color-Blind

Justice and Mainstream Values, 86 Minn. L. Rev.

I a cccneninctecbinimntiseliititintimiitenmdmaniunnibiiinnaianiedenes 19

David H. DeJong, Promises of the Past: A History of

Indian Education in the United States (1993)............... 13

Devon A. Mihesuah, American Indians: Stereotypes

EG cercicctcinntnntiteadintniattentanninantantininamns 21

Felix S. Cohen, Handbook of Federal Indian Law

(Rennard Strickland et al., eds., 1982).................... 12,13

First Person, First Peoples: Native American Col-

lege Graduates Tell Their Life Stories (Andrew

Garrod & Colleen Larimore eds., 1997).................... 9, 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Frank Pommersheim, “Our Federalism” In the

Context of Federal Courts and Tribal Courts: An

Open Letter to the Federal Courts’ Teaching and

Scholarly Community, 71 U. Colo. L. Rev. 123

Frederick E. Hoxie, A Final Promise: The Campaign

to Assimilate the Indians, 1880-1920 (1984).............00000++ 13

Howard H. Peckham, The Making of the University

of Michigan 1817-1992 (Margaret L. Steneck &

Nicholas H. Steneck eds., 1994).................ccccc000 4,6,7,9

Judith Steeh, Plaque honors land gift from three

Native American tribes, The Univ. Record Online,

Nov. 18, 2002, at httr://www.umich.edu/~urecord/

ATT EE 8,9

Martin J. Reinhardt, Master of Arts Thesis, Central

Michigan University (1998) .........c..cccsscsseseeeeeeeeeens 14, 16

Mary Christina Wood, “Indian Land and the

Promise of Native Sovereignty: The Trust Doc-

trine Revisited,” 1994 Utah L. Rev. 1471 ...................... 12

Vine Deloria, Jr., Legislative Analysis of the Federal

Role in Indian Education (1974) .........cccccccseecseeceeeeeeeenes 10

William Comstock, Letter to Secretary of the

Interior, Honorable Harold L. Ickes (May 28,

1

INTEREST OF AMICI

Amici Bay Mills Indian Community, Grand Traverse

Band of Ottawa and Chippewa Indians, Hannahville

Indian Community, Keweenaw Bay Indian Community,

Lac Vieux Desert Band of Lake Superior Chippewa Indi-

ans, Little River Band of Ottawa Indians, Little Traverse

Bay Bands of Odawa Indians, Match-e-be-nash-she-wish

Band of Pottawatomi Indians of Michigan, Nottawaseppi

Huron Band of Potawatomi, and Sault Ste. Marie Tribe of

Chippewa Indians, are federally recognized Indian tribes

located in the State of Michigan. See Indian Entities

Recognized and Eligible To Receive Services From the

United States Bureau of Indian Affairs, 67 Fed. Reg.

46,328 (July 12, 2002). Amicus Oneida Tribe of Indians is

a federally recognized tribe located in the State of Wiscon-

sin, and Amicus Michigan Indian Legal Services (“MILS”)

is a non-profit organization providing civil legal services to

low-income Indians and tribes in Michigan to further self-

sufficiency, overcome discrimination, and assist tribal

governments. Except for MILS, Amici are “domestic

dependent nations,” possessing all “aspects of sovereignty

not withdrawn by treaty or statute, or by.implication as a

necessary result of their dependent status.” United States

v. Wheeler, 435 U.S. 313, 323 (1978). As a result, they

operate modern governments with complex legal, political

and business interests on reservations within the State of

Michigan.

' No counsel for a party authored this brief in whole or in part, and

no person or entity, other than Amici or their counsel, made a monetary

contribution to the preparation or submission of this brief. All parties

have consented to the filing of this brief.

2

The Amici’s interest in this case is substantial. In

1817, “believing they may wish some of their children

hereafter educated,” several of the Amici provided a land

grant to the University of Michigan (“the University”) in

the Treaty of Fort Meigs. See Treaty between the Wyandot,

Seneca, Delaware, Shawanese, Potawatomees, Ottawas,

and Chippeway Nations and the United States, Sept. 29,

1817, art. 16, 7 Stat. 160, 166. This land grant formed a

significant portion of the University’s original endowment.

The tribal leaders who signed the Fort Meigs Treaty

had the foresight to recognize that educating their chil-

dren and future leaders was essential to coping with the

increasingly complex problems confronting their tribes.

Indeed, today the Amici recruit Native American’ students

at the University of Michigan Law School (“the Law

School”) to draft and enforce tribal laws, staff tribal courts

and law enforcement programs, and defend tribal rights

and resources. If the Law School were forbidden from

considering race’ in its admissions decisions, the number

of Native American students would decrease to token

levels, see JA 7528-32, and the purpose of the Treaty of

Fort Meigs would be frustrated. Furthermore, if other law

schools were similarly prevented from considering race in

admissions decisions, the Amici would be unable to fill

* The terms “Native American” and- “Indian” are used inter-

changeably throughout this brief.

*"As the Law School’s policy is not based on tribal membership per

se, the principles of Morton v. Mancari, 417 U.S. 535 (1974) are not

squarely implicated in this case, and no party has raised or briefed

those principles in this Court or in the courts below.

3

important governmental positions with qualified candi-

dates, therefore impeding the Amici’s ability to exercise

their sovereign authority and undermining the federal

government’s policy of self-determination for all Indian

tribes.

Finally, the Amici believe that if law schools were

prevented from considering race in admissions decisions,

the numbers of Native American students would decline

substantially. Without interaction with Native American

students, the vast majority of law students would gradu-

ate with little or no exposure to Native American culture

or modern tribal governments. This would leave students

ill-equipped to identify legal issues involving Indian tribes

and would stifle cooperation between federal, tribal and

state governments. Accordingly, Amici add their collective

voice in support of the Law School admissions policy.

¢

ARGUMENT

One of the University of Michigan’s founding missions

was the education of Native American students. In 1817,

the Chippewa, Ottawa or Odawa, and Potawatomi Na-

tions‘ gave the recently formed University of Michigania

a land grant of 3,840 acres in the Treaty of Fort Meigs.

* Chippewa or Chippeway, Odawa or Ottawa and Potawatomi,

Potawatomees, or Potawatomy are spelled differently in various written

sources. Since the Indian languages of these three peoples originally

were oral languages, there is no single correct spelling. We use here the

spelling currently preferred by each tribe, rather than the spelling

employed in the Treaty of Fort Meigs.

4

Treaty between the Wyandot, Seneca, Delaware, Shawan-

ese, Potawatomees, Ottawas, and Chippeway Nations and

the United States, Sept. 29, 1817, art. 16, 7 Stat. 160, 166

(hereafter “Treaty of Fort Meigs”); Howard H. Peckham,

The Making of the University of Michigan 1817-ly9z 8

(Margaret L. Steneck & Nicholas H. Steneck eds., 1994).

This land grant was given for the express purpose of

educating Native American children. Jd. The University of

Michigania eventually became the University of Michigan,

and the land grant from the Treaty of Fort Meigs formed a

significant portion of the University’s original endowment.

Peckham, supra, at 12-13.

The University of Michigan first acknowledged the

importance of the Treaty of Fort Meigs by granting five

scholarships to Native American students in 1932, and

then again, in 1936. Peckham, supra, at 13, 21. Beginning

in the 1970s, however, increased Native American activism

encouraged the University to more fully honor the original

purposes for which it was created. Upon becoming reac-

quainted with its unique history, the University of Michi-

gan sought to increase educational opportunities for Native

American students, and did so in part by including Native

American applicants within its affirmative action pro-

gram.’ Even if the consideration of Native American status

were afforded the strictest scrutiny, the Law School’s

program would be constitutional.

* Since the 1970s, the Law School has utilized several different

affirmative action policies. The policy being challenged in this case was

adopted by the Law School faculty on April 24, 1992.

5

I. THE STATE OF MICHIGAN HAS A COMPEL-

LING INTEREST IN EDUCATING NATIVE

AMERICAN STUDENTS

This Court has previously held that “a properly

devised admissions program involving the competitive

consideration of race and ethnic origin” is permitted under

the Fourteenth Amendment. Regents of the University of

California v. Bakke, 438 U.S. 265, 320 (1978). Although

there is disagreement about the level of scrutiny such a

program should receive, and Amici certainly do not con-

cede that the highest level of scrutiny applies, the Law

School’s admissions program is constitutionally permissi-

ble even under the Court’s strictest approach, i.e., that to

be considered “properly devised,” the admissions program

must be supported by a “compelling governmental inter-

est,” City of Richmond v. J. A. Croson Co., 488 U.S. 469,

485 (1989), or an interest that “is both constitutionally

permissible and substantial.” Bakke, 438 U.S. at 305.

The State of Michigan has a compelling interest in

educating Native American students because: (1) one of

the original missions of the University of Michigan was to

educate Native American students, (2) the federal gov-

ernment has delegated much of its responsibility for

Native American education to the states, including the

State of Michigan, and (3) tribal and state governments

share both citizens and neighboring geographic space, and

therefore, Michigan has an interest in assuring effective

governance on Indian reservations, which is greatly

enhanced by an educated tribal citizenry.

6

A. One Of The Original Missions Of The Uni-

versity Of Michigan Was To Educate Na-

tive American Students

The history of the founding of the University of

Michigan demonstrates that it was created in part to

educate Native American students. Prior to the Univer-

sity’s founding, the Chippewa, Ottawa or Odawa, and

Potawatomi Tribes of Michigan (hereafter sometimes

referred to as the “Michigan Indian tribes”) had developed

a productive relationship with a Catholic missionary

named Father Gabriel Richard. Father Richard estab-

lished and began operating an Indian school at Spring Hill

in 1808. Unfortunately, the school encountered financial

difficulties and was forced to close in 1811. The Michigan

Indian tribes, however, were so impressed by Father Rich-

ard’s efforts to start an Indian school, that they, realizing the

importance of education for the future generations of their

tribe decided to assist in the formation of a college in or near

Detroit. See Children of the Chippewa, Ottawa and Potawa-

tomy Tribes v. The Regents of the University of Michigan,

305 N.W.2d 522, 529 (Mich. Ct. App. 1981).

On August 26, 1817, Father Richard, Reverend

Monteith, Lewis Cass and a small group of other leaders

in the Detroit area banded together to form a new college,

the Catholepistemiad or University of Michigania.* Chil-

dren of the Chippewa, Ottawa and Potawatomy Tribe, 305

N.W.2d at 531. Shortly thereafter, the Chippewa, Ottawa

or Odawa and Potawatomi Nations of Michigan entered

* It is believed the University was established at this time for the

purpose of becoming eligible to receive the land grant offered by the

Michigan Indian tribes. Peckham, supra, at 8.

7

into the Treaty of Fort Meigs with the United States,

which contained a specific grant of land to the new college:

Some of the Ottawa, Chippewa, and Potawatomy

tribes ... believing they may wish some of their

children hereafter educated, do grant ... to the

corporation of the college at Detroit, for the use

of the said college, to be retained or sold, as the

... corporation may judge expedient, each, one-

half of three sections of land, to contain six hun-

dred and forty acres, on the river Raisin, at a

place called Macon; and three sections of land not

yet located, which tracts were reserved, for the

use of the said Indians, by the treaty of Detroit,

in one thousand eight hundred and seven; and

the superintendent of Indian affairs, in the terri-

tory of Michigan, is authorized, on the part of

said Indians, to select the said tracts of land.

7 Stat. at 166. From the plain text of the grant, the Michi-

gan Indian tribes offered the land “believing they may

wish some of their children hereafter educated.” Id.

The University of Michigania was soon renamed the

University of Michigan. The lands granted to the Univer-

sity in the Treaty of Fort Meigs were sold, and a portion of

the proceeds were used to purchase the University’s

campus in Ann Arbor, Michigan. Peckham, supra, at 12-13.

The remaining proceeds from the sale provided a signifi-

cant portion of the University of Michigan’s original

endowment. Indeed, Justice Thomas Cooley once stated

that the land grant contained in the Treaty of Fort Meigs

was actually equal in positive value and prospectively

superior to the land gifts of John Harvard and Elihu Yale.

8

A University Between Two Centuries: The Proceedings of

the 1937 Celebration of The University of Michigan 41

(Wilfred B. Shaw ed., 1937).’ :

This history demonstrates that one of the founding

missions of the University of Michigan was education of

Native American students. In this way, the University of

Michigan’s mission is similar to that of Harvard Univer-

sity, whose 1650 Charter called for the “education of

English and Indian youth,” or the missions of Dartmouth

College and the College of William & Mary, which also

specifically mentioned education of Native Americans.’

" The University continues to acknowledge the importance of the

Fort Meigs Treaty today. A bronze plaque commemorating the treaty is

located at the center of the University of Michigan campus and reads:

This plaque commemorates the grant of lands from the

Ojibwe (Chippewa), Odawa (Ottawa), and Bodewadimi (Po-

tawatomi), through the Treaty of Fort Meigs, which states

that “believing they may wish some of their children hereaf-

ter educated, [they] do grant to the rector of the Catholic

church of St. Anne of Detroit ... and to the corporation of

the college at Detroit, for the use of the said college, to be

retained or sold, as the said rector and corporation may

judge expedient....” The rector was Gabriel Richard, a

founder and first vice president of the corporation of the col-

lege, chartered by the territorial legislature as the Univer-

sity of Michigania in 1817. These lands were eventually sold

to the benefit of the University of Michigan, which was relo-

cated to Ann Arbor in 1837.

Judy Steeh, Plaque honors land gift from three Native American tribes,

. The Univ. Record Online, Nov. 18, 2002, at http//www.umich.edu/

~urecord/0102/Nov18_02/16.shtml.

* To discharge its original mission of educating Indians, Harvard

but has founded the Harvard University Native American Program, the

history and description of which can be found at http://www.ksg.

(Continued on following page)

9

Although no one knows when the University of Michigan

admitted its first Native American student, see Steeh,

supra (quoting University historian Margaret Steneck),

the University did grant five scholarships to Native

American students in 1932, and then again in 1936, in

recognition of the Treaty of Fort Meigs. Peckham, supra,

at 13, 21.

In the 1970s, the University of Michigan began to

make its first extensive efforts to facilitate the education

of Native American students by including them in pro-

grams to diversify the student body.’ Today, the Law

School seeks to discharge its founding mission by specifi-

cally including Native Americans in its affirmative action

admissions policies. The University’s unique and historic

interest in honoring the spirit of the Treaty of Fort Meigs

is a sufficiently compelling interest to survive strict

scrutiny under the Fourteenth Amendment.

and admits Indians into its fine Indian studies program. The history of

Dartmouth College is set forth at. http://www.dartmouth.edu/about/

history.html, and in more detail, in First Person, First Peoples: Native

American College Graduates Tell Their Life Stories 7-15 (Andrew

Garrod & Colleen Larimore eds., 1997). The history of the Charter of the

College of William & Mary can be found at http://www.swem.wm.edu/

SpColl/Archives/Charter/charterstory. html.

* On August 5, 1971, Paul Johnson, a Native American graduate

student at the University of Michigan, brought an action against the

University, arguing that the land grant contained in the Treaty of Fort

Meigs created a trust, of which the children of the Chippewa, Ottawa,

and Pottawatomy Tribes were the beneficiaries, and imposed on the

University a duty to ensure their free education. Children of the

Chippewa, Ottawa and Potawatomy Tribe, 305 N.W.2d at 523-24. Even

though the court found no judicially enforceable trust was created by

these land grants, the case prompted the University to take additional

steps to fulfill its original mission.

10

B. The Federal Government Has Promoted

Special Educational Programs For Native

American Students Since This Nation’s

Founding, And Responsibility For Many

Of These Programs Has Been Delegated

To The States, Including The State Of

Michigan

Article 16 of the Treaty of Fort Meigs was unique in

that the Chippewa, Ottawa or Odawa, and Potawatomi

Nations granted land to a specific university to ensure their

children would be educated in the future. It was not at all

unusual, however, for the United States to include general

promises to provide education to Native Americans in

Indian treaties. See Vine Deloria, Jr., Legislative Analysis

of the Federal Role in Indian Education 39-73 (1974)

(collecting treaties). Indeed, in addition to the Treaty of

Fort Meigs, the Chippewa, Ottawa or Odawa, and Potawa-

tomi Nations entered into more than twenty treaties with

educational provisions.” For example, Article 3 of the

* See e.g., Treaty between the Ottawa, Chippewa, and Pottawa-

tamie Nations and the United States, Aug. 29, 1821, art. 4, 7 Stat. 218,

220; Treaty between the Chippewa Tribe and the United States, Aug. 5,

1826, art. 6, 7 Stat. 290, 291; Treaty between the Pottawatamie Nations

and the United States, Oct. 16, 1826, art. 3, 7 Stat. 295, 296; Treaty

between the Chippewa, Menomonie, and Winebago Tribes and the

United States, Aug. 11, 1827, art. 5, 7 Stat. 303, 304; Treaty between

the Potowatomi Tribe and the United States, Sept. 20, 1828, art. 2, 7

Stat. 317, 317-18; Treaty between the Potowatomies and the United

States, Oct. 27, 1832, art. 4, 7 Stat. 399, 401; Treaty between the

Ottawa and Chippewa Nations and the United States, March 28, 1836,

art. 4, 7 Stat. 491, 492; Treaty between the Chippewa Nation and the

United States, Jan. 14, 1837, art. 3, 7 Stat. 528, 529; Treaty between

the Chippewa Nation and the United States, Oct. 4, 1842, art. 4, 7 Stat.

591, 592; Treaty between the Ottawa and Chippewa Nations and the

United States, July 31, 1855, art. 1 & art. 2, 11 Stat. 621, 623.

11

September 26, 1833 Treaty between the Chippewa, Ot-

tawa, and Potawatomi Nations and the United States

provided that:

And in further consideration of the above cession,

it is agreed, that there shall be paid by the

United States ... Seventy thousand dollars for

purposes of education and the encouragement of

the domestic arts, to be applied in such manner,

as the President of the United States may direct

7 Stat. 431, 432-33 (1833).

A Congressional report issued in 1818 demonstrates

that the federal government initiated special Native

American education programs as a means of promoting

more effective intergovernmental relations with Indian

tribes and advancing its own Indian policy objectives:

The committee believes that ... establishing

schools on or near our frontier for the education

of Indian children, would be attended with bene-

ficial efforts both to the United States and the

Indian tribes, and the best possible means of se-

curing the friendship of those nations in amity

with us, and, in time, to bring the hostile tribes

to see that their true interest lies in peace, and

not in war....

H.R. Rep. No. 151, 15th Cong., 1st Sess., Jan. 22, 1818, in

II American State Papers: Indian Affairs 151.” The federal

" Of course, one of these objectives was to “civilize” the Indians by

encouraging them to beccme farmers in the hopes that they would

settle down on small plots of land, thereby freeing up additional areas

for white settlement.

12

trust responsibility to educate Native Americans arose out

of these early treaties and federal policies, and continues

in force today. 20 U.S.C. § 7401 (“It is the policy of the

United States to fulfill the Federal Government’s unique

and continuing trust relationship with and responsibility

to the Indian people for the education of Indian children.”);

Exec. Order No. 13,096 (Aug. 6, 1998) (“The Federal

Government has a special, historic responsibility for the

education of American Indian and Alaska Native stu-

dents”). See generally Mary Christina Wood, “Indian Land

and the Promise of Native Sovereignty: The Trust Doctrine

Revisited,” 1994 Utah L. Rev. 1471, 1495-1508. Over the

past two hundred years, however, the federal government

has chosen to fulfill this trust responsibility through a

variety of different policies.

At first, Native American education remained largely

within the auspices of the church. In 1819, Congress

passed legislation that created a permanent annual

appropriation of ten thousand dollars to support Native

American education. Act of March 3, 1819, ch. 851, § 2, 3

Stat. 516, 517. This “civilization fund” distributed money

to churches and missionary organizations that created

schools for Native American students, see Felix S. Cohen,

Handbook of Federal Indian Law, 680, n.13 (Rennard

Strickland et al., eds., 1982), and annual appropriations

from the fund continued until the act was repealed in

1873. Act of Feb. 14, 1873, ch. 138, § 1, 17 Stat. 437, 461.

Still, the majority of education funding in the first half of

the nineteenth century was provided by the tribes them-

selves, and religious organizations. For example, between

1845 and 1855, the federal government appropriated

$102,000 for Native American education, while the tribes

provided $400,000 and an additional $824,000 from treaty

13

appropriations in consideration for land cessions, and

private sources (e.g., religious organizations) contributed

$830,000. Cohen, supra, at 680 (citing Sen. Exec. Doc. No.

1, 34th Cong., 1st Sess., pt.1, at 561 (1855)).

In the 1880s, perhaps dissatisfied with the rate of

assimilation, congressional funding increased, and the

federal government began building its own boarding

schools to educate Native American youth. Many of these

boarding schools were located off-reservation, because a

key component of this scheme was separating children

from their families and communities so that their way of

life could be changed more rapidly and thoroughly. See

generally Frederick E. Hoxie, A Final Promise: The Cam-

paign to Assimilate the Indians, 1880-1920 41-187, 189-

210 (1984) (discussing the boarding school movement);

David H. DeJong, Promises of the Past: A History of Indian

Education in the United States 107-109, 116 (1993). These

boarding schools were attended by Native American

students from many different tribes, without regard to

specific treaty provisions. Cohen, supra, at 680. Addition-

ally, by the early 1900s, the Bureau of Indian Affairs had

developed several hundred day schools, and a uniform

curriculum for all federal Indian schools was implemented.

Cohen, supra, at 681.

Federal policy shifted once again in the 1930s, when

the government chose to cut back on its direct provision of

educational services to Native Americans and to rely,

instead, primarily on states to discharge its special Indian

education policies. The Johnson O’Malley Act of 1934, 48

Stat. 596, codified as amended at 25 U.S.C. §§ 452-458e,

authorized the Secretary of the Interior to make contracts

with any state “for the education, medical attention,

agricultural assistance and social welfare . . . of Indians.”

14

25 U.S.C. § 452. The law provided statés with federal

money to educate eligible Native American children in

their public school system. In the years that followed,

Congress would enact additional legislation providing

state funding for Native American education. See, e.g., The

Impact Aid Law of 1950, Act of Sept. 30, 1950, ch. 1124, 64

Stat. 1100 (authorizing federal payments to state public

schools serving Native American students residing on

Indian trust lands that are exempt from state property

taxation); Indian Education Act of 1972, Pub. L. No. 92-

318 (providing special federal funding to state schools for

Indian education and greater input by Indian parents into

discretionary programs funded under the legislation).

During this same time period, state involvement in

Native American education was even more pronounced in

Michigan. In the early 1900s, the federal government

operated nine Indian day schools,” and at least one off-

reservation boarding school, the Mount Pleasant Indian

Industrial School, in Michigan. The Mount Pleasant

Indian Industrial School was founded in 1891, when

Congress appropriated $25,000 for the purchase of 200

acres of land to develop an Indian school in Isabella

County, Michigan. The school served approximately 375

students from 1920 to 1933. Reinhardt, supra, at 43, 45-

46. In 1934, however, the federal government shut down

* The Bureau of Indian Affairs operated the following day schools

in Michigan: the Garden Island Day School, the Nawbetung Day

School, the Longwood Day School, the Chippewa Day School, the

Neppessing Day School, the Hannahville Indian Mission Day School,

the L’Anse Indian Mission Day School, and the Sugar Island Indian

Day School. Martin J. Reinhardt, Master of Arts Thesis, Central

Michigan University, 43, 49 (1998).

15

the Mount Pleasant Indian Industrial School and sold the

school property to the State of Michigan for one dollar. In

exchange, Michigan agreed to educate Native Americans

within the State in its public schools, without cost to the

federal government. 48 Stat. 353 (1934); William Com-

stock, Letter to Secretary of the Interior, Honorable

Harold L. Ickes (May 28, 1934).

The federal government believed that this agreement,

commonly known as the Comstock Agreement, constituted

a complete delegation of the federal responsibility to

educate Native American children residing in Michigan to

the State of Michigan.’ Special Subcommittee on Indian

Education of the Senate Commission on Labor and Public

Welfare, Indian Education: A National Tragedy — A Na-

tional Challenge, S. Rep. No. 501, 91st Cong. Sess. XII

(1969) (hereinafter referred to as “National Tragedy”)

(noting that “the education of Indian children in Califor-

nia, Idaho, Michigan, Minnesota, Nebraska, Oregon,

Texas, Washington, and Wisconsin was the total responsi-

bility of the State and not the Federal Government”)

(emphasis added). As a result, by 1952, the Bureau of

Indian Affairs had closed all of the federal Indian schools

in Michigan. Jd. at 14.

Because the Comstock Agreement completely compen-

sated the State of Michigan for its assumption of Native

American education, Michigan was not entitled to funds

“ This belief was based in part on the fact that the State had

already been required to provide equal educational opportunities to

Native American students since at least 1924, when Native Americans

became United States citizens. 43 Stat. 253 (codified as carried forward

at 8 U.S.C. § 1401(b)).

16

under the Johnson O’Malley Act. The State, unwilling to

appropriate money to further the special needs of Native

American children, allowed Native American education to

deteriorate. In 1969, the Michigan Commission on Indian

Affairs determined that illiteracy and drop-out rates were

at alarming levels among Native American students.

Furthermore, there were only twenty-three Native Ameri-

can students attending college in the State of Michigan

during that year.”

Shortly thereafter, the Law School increased its

efforts to fulfill the State’s responsibility to Native Ameri-

can children by including Native American students in the

first programs to achieve a diverse student body. These

programs were precursors to the Law School’s current

affirmative action policy. As the above history demon-

strates, this policy is constitutional because the State of

Michigan has a compelling interest in fulfilling the federal

government’s trust responsibility to provide education to

Native American students, a responsibility that was

delegated over the past century, at least in part, to the

State.

It was not until 1972 that Senator Robert Griffin spearheaded a

successful effort to have the Interior Department order a policy change

making Johnson O’Malley funds available to Michigan schools.

Reinhardt, supra, at 78.

* At the same time, national studies indicated that states across

the country were failing to provide Native American students with the

educational opportunities guaranteed to them through treaties and the

federal trust responsibility. See generally National Tragedy; NAACP

Legal Defense and Educational Fund & Harvard University Center for

ee ee ee eee 1971 Law & Soc.

er 245.

17

C. The State Of Michigan Has An Independ-

ent Interest In Educating Native Ameri-

can Students So That They Can Manage

Complex Tribal Governmental And Busi-

ness Affairs

Today, Indian tribes operate modern governments

with complex legal, political and business interests that

they must further through an educated citizenry, educated

elected officials, and a skilled tribal governmental staff.

Modern tribal governments must protect law and order on

the reservation, Talton v. Mayes, 163 U.S. 376 (1896);

Wheeler, 435 U.S. at 324-25, formulate taxation policies,

see Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S.

195, 201 (1985); Merrion v. Jicarilla Apache Tribe, 455

U.S. 130, 152 (1982), develop membership or citizenship

rules, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58

(1978), maintain zoning and building code policies, Bren-

dale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S: 408 (1989), protect their lands

and natural resources, New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324, 330-33 (1983), and perform all of the

other complex law-making and service tasks required of

any other modern government. On the business and

commercial side, Indian tribes increasingly have become

involved in many modern business enterprises including

commercial property development, C & L Enterprises, Inc.

v. Citizen Band Potawatomi Indian Tribes, 532 U.S. 411

(2001), manufacturing, Altheimer & Gray v. Sioux Mfg.

Corp., 983 F.2d 803 (7th Cir. 1993), mineral, oil, and gas

development, Montana v. Crow Tribe of Indians, 523 U.S.

696 (1998), timber operations, United States v. Mitchell,

463 U.S. 206 (1983), and resort, recreation, and gaming

development. Mescalero Apache Tribe v. Jones, 411 U.S.

18

145 (1973); California v. Cabazon Band of Mission Indi-

ans, 480 U.S. 202 (1987); Chickasaw Nation v. United

States, 534 U.S. 84 (2001). Conducting such modern

governmental and commercial business requires highly

trained lawyers, many employed directly by the Indian

tribes.

There are twelve federally recognized tribes in Michi-

gan. 67 Fed. Reg. 46,328. These tribes provide a host of

governmental services to tribal members, who are also

Michigan citizens. Additionally, as reservation economies

develop, tribal governments are providing more and more

services to non-members. The State has recognized that

“(t]he state of Michigan and tribal governments share a

responsibility to provide for and protect the health, safety

and welfare of our common constituents” and “(t]hrough

cooperation, state and tribal governments can achieve.

more for all of our citizens” Executive Directive 2001-2,

Policy Statement on State-Tribal Affairs (Gov. John Engler,

May 22, 2001). See also Government-to-Government Accord

between the State of Michigan and the Federally Recog-

nized Indian Tribes in the State of Michigan (Gov. John

Engler, October 28, 2002) (“[t]his accord provides a frame-

work for a government-to-government relationship that

recognizes that the parties to this accord share a responsi-

bility to provide for and protect the health, safety and

welfare of their common citizens”). The State of Michigan

therefore has a compelling interest in assuring that the

tribal leadership, staff and citizenry are highly educated.

The Law School’s affirmative action policy is a constitu-

tionally permissible means to achieve this compelling

interest.

19

II. IN ADDITION, THE LAW SCHOOL HAS A

COMPELLING INTEREST IN A DIVERSE

STUDENT BODY

The Amici fully support the argument in the Respon-

dent’s principal brief that the pursuit of diversity in higher

education is a compelling state interest. Therefore, the

Amici seek only to supplement this discussion by identify-

ing the specific tribal interests in a diverse student body.

Because Native American students are far more likely

than non-Indian students to have interacted with tribal

governments, they bring a unique perspective to law

school classrooms that often is sorely lacking. Even though

tribal governments are expressly referenced in the Com-

merce Clause of the United States Constitution, U.S.

Const., Art. I, Sec. 8 Cl. 3, and federal Indian law cases are

routinely heard in this Court,” tribal governments are

rarely mentioned in the law school classrooms throughout

the country, particularly in large mainstream first-year or

other courses taken by most law students. The Amici

simply invite the members of this Court to reflect on the

number of times Indian tribes, tribal law, or tribal courts

were ever mentioned during the course of their own legal

education and the point becomes obvious. A recent survey

of Civil Procedure professors further illustrates this point,

as 87% of the respondents indicated that they did not even

mention tribal courts in their class. Cynthia Ford, “Inte-

grating Indian Law Into a Traditional Civil Procedure

Course,” 46 Syracuse L. Rev. 1243, 1252-53 (1996). Indian

* From 1986-2001, this Court has decided forty Indian law cases.

David Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of

States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L.

Rev. 267, 280 n.56 (2001).

20

law issues are also typically ignored in other classes such

as Constitutional Law, Property, and Federal Courts. See,

e.g., Frank Pommersheim, “Our Federalism” In the Con-

text of Federal Courts and Tribal Courts: An Open Letter

to the Federal Courts’ Teaching and Scholarly Community,

71 U. Colo. L. Rev. 123, 129 (2000) (noting that a review of

federal courts’ text and casebooks “reveals the complete

lack of any discussion of tribal courts within the federal

system”).

While a growing number of law schools, inciuding the

University of Michigan Law School, have begun to make_

up for this historic deficiency in legal education by offering

(sometimes regularly and sometimes, like the University

of Michigan Law School, occasionally) specialized courses

in Indian law, many students who fail to enroll in such a

course may get no inkling of the existence of Indian tribal

governments, tribal law or tribal courts from the tradi-

tional law school curriculum.” Yet, as tribal business and

governmental operations increase, more and more lawyers

trained at the University of Michigan Law School and

other public law schools find their clients dealing with

Indian tribes. 7

The admission of Native American students to the

University of Michigan Law School or any other law

” Forty-two law schools, or 23.8% of 176 accredited law schools in

this country offer one or more courses on Indian law at least occasion-

ally. Relatively few law students take advantage of these courses,

however. Indian law courses are always elective; no law school requires

a course in Indian law for graduation. 46 Syracuse L. Rev. at 1252-53.

Without formal instruction, law students tend to have very limited

knowledge about Indian people and Indian issues, much less Indian

law. 46 Syracuse L. Rev. at 1256.

21

school, public or private, helps remedy this deficiency.

Including Native American students within the Law

School assures that many classes beyond any basic Indian

law course will contain Native American students, many of

whom will be familiar with and ready to raise the applica-

bility of legal concepts discussed in the course to Indian

tribes, tribal law, or tribal courts. This cross-pollination of

ideas improves the quality of legal education for the entire

school, not merely for Native American students in the

class. Additionally, the presence of Native American

students in law classes should encourage law professors to

broaden the coverage of their courses to at least acknowl-

edge, and, it is hoped, to teach about the existence of

Indian tribal governments in many mainstream legal

courses.

Additionally, although the Petitioner argues that the

Law School’s preferences for certain minority groups “rest

on crude stereotypes,” Petitioner’s Br. at 16, the presence

of meaningful numbers of Native American students in the

classrooms and on campus actually create an opportunity

to challenge the distorted images of Native American

culture found in movies, literature, and other mediums,

images that are most non-Indian students’ only exposure

to Native American culture. See generally Devon A. Mihe-

suah, American Indians: Stereotypes & Realities (1996)

(discussing common Native American stereotypes); First

Person, First Peoples (collecting narratives from Native

American graduates of Dartmouth College, the majority of

whom discuss their attempts to dispel the stereotypes

attributed to them by their non-Indian peers). Native

American student groups at the University of Michigan

organize numerous events that are open to the campus

22

community and provide an invaluable opportunity for non-

Indian students to learn about contemporary Native

American culture. For example, the annual University of

Michigan Dance for Mother Eérth Pow Wow is a three-day

campus event attended by thousands of students and

community members each year.” Additionally, Native

American students have brought attention to instances of

stereotyping and misappropriation of Native American

culture on the University campus by speaking out both

inside and outside of the classto9ms.”

Thus, in addition to fulfijjing State interests in pro-

moting Indian education, the admission of Native Ameri-

can students to the Law Schoo] under the University’s

affirmative action policies broadens and enriches the legal

education of all students and may serve to enlighten the

faculty, as well. This type of free exchange of ideas forms

the very basis for any university,

i Other events organized by Native American students include

daily activities and concerts during Native American Heritage Month

each November, and “American [ndian Law Day,” a symposium

sponsored by the Native American L,w Students Association.

" For example, in 2000, Native American students organized a si

in in the student union to protest a student group that had a long

history of “playing Indian.” In adjition to several months of daily

the protest garnered national medig attention. See, e.g., David Good-

man, University of Michigan students end 37-day sit-in, Associated

Press, March 14, 2000; Robyn Meredith, Michigan Students Protest

23

Ill. THE LAW SCHOOL ADMISSIONS POLICY IS

NARROWLY TAILORED TO ACCOMPLISH THE

STATE’S INTEREST IN EDUCATING NATIVE

AMERICAN STUDENTS AND IN PROMOTING

EDUCATIONAL DIVERSITY

Although the Amici do not concede that strict scrutiny

is the proper test to be applied in this case, the Law

School’s admissions policy is constitutionally permissible

even under this approach, because it is narrowly tailored

to accomplish the compelling interests set forth above.

Obviously, to accomplish the University’s and the State’s

interests in providing educational opportunities to Native

American children, the Law School must consider Native

American status in its admissions decisions.” The Law

School’s affirmative action policy is narrowly tailored

because it considers an applicant’s race as only one of

* Although the University of Michigan could satisfy its compelling

interest in honoring the Treaty of Fort Meigs by limiting its special

admissions program specifically to descendants of the treaty tribes,

accomplishing both the University’s and the State’s broader interests in

an educated Native American citizenry and a diverse student body

cannot be satisfied by a more narrowly tailored program. First, the

federal government's responsibility for educating Native American

youth is a general one not limit. i to specific treaty tribes. It is for this

reason that the federal government has always chosen to discharge its

responsibilities under a pan-Indian umbrella through federal Indian

education programs. The State’s interest is, in part, derived from the

federal government's interest, and therefore can only be fulfilled by

including all Native Americans in the Law School's special admissions

programs. Second, achieving a truly diverse student body requires an

admissions program that recognizes the amount of diversity within the

Native American community. Native Americans live in all fifty states,

speak over three hundred different languages, and the roughly 560

federally-recognized Indian tribes have vastly different tribal laws,

governing structures, court systems and customs.

24

many factors (including grade point average, standardized

test scores, geography, and life experiences) in its admis-

sions decisions. Indeed, approximately two-thirds of

African-American, Hispanic, and Native American stu-

dents that apply are denied admission each year. Fur-

thermore, the Law School’s desire to enroll a “critical

mass” of Native American students results in the matricu-

lation of only a handful of Native American students each

year.” If enrollment were to decrease below this amount,

Native American students would feel completely isolated,

and retention and recruitment would be impossible.

Chalsa M. Loo & Garry Rolison, Alienation of Ethnic

Minority Students at a Predominantly White University,

57 J. Higher Educ. 58 (1986). As such, the Law School’s

policy is sufficiently tailored to satisfy the strictest of

scrutiny.

” The Petitioner argues that the Law School's focus on enrolling a

“critical mass” of African-American, Hispanic, and Native American

minimum of 10-12% of the enrolled class would consist of African-

American, Hispanic, and Native American students.” Petitioner Br. at

41. Evidence introduced at trial, however, demonstrated that in 1994,

19.2% of entering University of Michigan law students were African-

American, Hispanic, and Native American, while those same minority

groups comprised just 5.4% of the entering class in 1998. These widely

divergent figures are not the result of a quota system. Furthermore, “a

25

The Petitioner argues, however, that the Law School’s

policy is not narrowly tailored because: (1) it has no time™

limits on its us2 of racial preferences; and (2) race-neutral

alternatives can achieve the State’s goals. These conten-

tions are easily refuted.

First, the Petitioner asserts that Law School’s policy is

not narrowly tailored because there are no time limits on

its use of race in admissions decisions, as required by

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Petitioner’s Br. at 42. Although Adarand did state that a

race-conscious program designed to remedy past discrimi-

nation must be limited so that it “will not last longer than

the discriminatory effects it is designed to eliminate,” this

directive does not apply to an admissions program de-

signed to facilitate Native American education. 515 U.S. at

238. Congress has leng abandoned its poiicy of terminat-

ing federal-tribal relationships and has recognized that

treaty rights and rights arising from the trust responsibil-

ity are continuing obligations. See Minnesota v. Mille Lacs

Band of Chippewa Indians, 526 U.S. 172 (1999) (Chippewa

treaty-guaranteed off-reservation fishing rights survived

later changes in federal policy). Therefore, in the context

of Native American preferences, time limits are unneces-

sary.

Second, both the Petitioner and the United States, as

amicus curiae, contend that the Law School’s affirmative

action policy is not narrowly tailored because race-neutral

alternatives exist that could result in the enrollment of

meaningful numbers of African-American, Hispanic and

Native American students. Petitioner’s Brief at 44. In

particular, the United States dedicates nearly its entire

amicus brief to the contention that the University of

Michigan could obtain a diverse student body by simply

26

offering admission to the top 10% of graduating students

at each high school. The accuracy of the United States’

initial premise is questionable at best, see Catherine L.

Horn & Stella M. Flores, Percent Plans in College Admis-

sions: A Comparative Analysis of Three States’ Experi-

ences, The Civil Rights Project, Harvard University

(2003), but even if one accepts this premise, the argument

is easily dismissed.

To work at the graduate level, the United States’

approach would require offering admissions to some

percentage of college graduates at each undergraduate

institution. This approach is unworkable because the Law

School (which is actually one of the larger law schools in

the country) only offers admission to approximately 1000

applicants each year. There is simply no way the Law

School could maintain a student body of this size and still

guarantee admissions to a particular percentage of gradu-

ates at each undergraduate institution.

Furthermore, even if there were some way to guaran-

tee acceptance to a particular percentage of graduates at

certain undergraduate institutions, this would not result

in the admission of a critical mass of Native American

students to the Law School. Although there may be pre-

dominately African-American or Hispanic colleges, Native

American students are not concentrated in large enough

numbers in undergraduate institutions so that meaningful

numbers could be offered admission through any percent-

age plan. While 32 Tribal Colleges have been founded in

the United States with the assistance of the Tribally

Controlled School Grants Act of 1988, 25 U.S.C. §§ 2501-

2511, only four of those offer a bachelors degree, and few

students obtain such a degree. See generally, American

Indian Higher Education Consortium, Tribal Colleges: An

27

=

Introduction (1999).” Therefore, the Petitioner’s conten-

tions are without merit and the Law School’s affirmative

action program should be upheld.

+

* At present, no Tribal College offers a law degree. Thus, the

federal government and the tribes must rely primarily on state and

private institutions of higher learning to satisfy the important federal

and tribal interests identified here. All too frequently, private institu-

tions of higher learning are beyond the means of Native Americans,

who must rely out of financial necessity primarily on state schools.

28

’ CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be affirmed.

Date: February 18, 2003

Respectfully submitte.),

Vanya S. HOGEN*

COLETTE ROUTEL

FAEGRE & BENSON LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402-3901

(612) 766-7000

*Counsel of Record

Attorneys for Amici Bay Mills

Indian Community, Grand

Traverse Band of Ottawa and

Chippewa Indians, Hannahville

Indian Community, Keweenaw

Bay Indian Community, Lac

Vieux Desert Band of Lake

Superior Chippewa Indians,

Little River Band of Ottawa

Indians, Little Traverse Bay

Bands of Odawa Indians,

Match-e-be-nash-she-wish

Band of Potawatomi Indians

of Michigan, Nottawaseppi

Huron Band of Potawatomi,

Oneida Tribe of Wisconsin, Sault

Ste. Marie Tribe of Chippewa

Indians, and Michigan Indian

Legal Services.