Repeal of DOMA and immigration

By ruling Defense of Marriage Act (DOMA) unconstitutional in  United States v. Windsor, the Supreme Court has opened the door to the recognition of Gay marriage for the purposes of immigration.  The Huffington Post is reporting that the decision has enabled Bulgarian, Traian Povov, to get a greencard for being married to Julian March.  Meanwhile, a New York City judge halted the deportation of a gay Colombian man married to a U.S. citizen.  So, while state governments are not required to recognize gay marriages, for Federal law purposes, if you are gay and have a same sex marriage anywhere in the world, it seems the Federal government will recognize your marriage.  

The scandal that wasn't and the unproductive Congress ...

If you recall, there was a substantial amount of hullabaloo about the reported targeting of Tea Party groups by the IRS.  There were several GOP Congressmen and various media personalities who suggested that this was an impeachable offense by the White House.  Well, with much less fanfare, more information has surfaced, and it turns out that the "Be On the Look Out" (BOLO) lists the IRS used to target groups included descriptors such as “progressive,” “health care legislation,” “medical marijuana,” “paying national debt” and “green energy.”  Huh?  That doesn't sound very conservative.  Now, the Hill newspaper has quoted a spokesman for Treasury’s inspector general, Russell George as saying that the group was asked by Congressman Darrell Issa “to narrowly focus on tea party organizations.” The inspectors knew there were other terms, but “that was outside the scope of our audit.”  Hmmm ... so much of the outrage, it turns out, was manufactured.

Darrell Issa, as Dana Milbank explains here, has been on a crusade to prove that the Obama administration has done something criminal.  Unfortunately, nearly every investigation they have launched has fallen flat.  Dana's article has a long list of investigations.  Still, the House GOP seems obsessed with doing nothing but investigate Obama.  To see how little Congress has been doing, consider that as of June 29, 2013, the 113th Congress has passed 13 laws (averaging roughly 2 a month).  By contrast, in its two years, the 112th Congress, widely considered one of the most unproductive in history, passed 283 public laws (just under 12 a month).  As former GOP Congressman Ray LaHood laments, there are some 30-40 GOP Congressman who have been elected vowing to do nothing and they have successfully ensured that the Congress does practically nothing, except it seems vent over manufactured scandals.

In hilarious legal responses ...

I recently read an article citing one of the funniest legal responses I have ever read.

Jake Freivald of West Orange Count, New Jersey apparently started a very rudimentary site called westorange.info.  For reasons explained is this article, he got served with a cease and desist notice from the county which I have reproduced below:

Dear Mr. Freivald:

I am the Township Attorney for the Township of West Orange (“Township”). It has come to our attention that, on or about May 13, 2013, you registered and began to use the domain name “westorange.info” (the “Info Domain”). The Township interprets this action as an effort by you to confuse and conflate the Township’s official domain name and Web site with the Info Domain that you maintain.

The use of the Township’s name is unauthorized and is likely to cause confustion [sic], mistake or to deceive the public and may be a violation of the Township’s federally protected rights. The Info Domain falsely creates the impression that the Township is associated or affiliated with the Info Domain. At a minimum, this action has been taken with constructive knowledge of the Township’s name and Web site, and constitutes bad faith use of the Info Domain.

Accordingly, the Township demands that you cease and desist from use, ownership and maintenance of the Info Domain. The Township further demands that, within ten (10) days, the Info Domain be withdrawn from the current registrar, and that you cease all current and future use of the Info Domain, or anything else confusingly similar thereto.

The Township reserves all rights and remedies.

Please be guided accordingly.

Very truly yours,

Richard D. Trenk, Township Attorney

The response his lawyer, Stephen Kaplitt, gave has to be one of the most amusing responses I have ever read.

Stephen Kaplitt: Cease and Desist Response Letter

The local government overreach underlying this case reminded me of another incident in the late 1990s, where the State of Michigan reportedly threatened someone with a $10,000 fine per day because of unauthorized dam building on his property.  Unfortunately for the State of Michigan, the said dams were built not by the owner but by a pair of beavers.  The property owner's humorous reply that made the rounds on the internet was probably a bit of revisionist history, but as this story explains, the basic facts of the story are generally true.

Momentous decisions by the Supreme Court

This week, the Supreme Court handed out four very momentous decisions.

• Shelby County v Holder:  Section 4 of the Voting Rights Act on 1965 was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures.  In a 5-4 decision, the Supreme Court revoked section 4.

There is a lot of hand wringing about this decision.  The liberal consternation is because according to the 15th Amendment of the Constitution:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation."

So, liberals suggest that this law, which passed with near unanimous support in Congress derives its legitimacy from section 2 of the 15th amendment.

The decision is best explained at this post.   

To understand the decision we need to understand that just a week before in the Pyrrhic 7-2 victory for liberals in Arizona v. The Inter Tribal Council of Arizona, Justice Antonin Scalia takes pains to explain that the right to decide who can vote rests with the states.  It's part of states' sovereignty.   

In this decision, what Justice Roberts seems to be arguing is that: (a) its extraordinary to override states' prerogative in a discriminatory manner, (b) the law was justified when passed because of extraordinary circumstances, (c) circumstances have changed to a point where the states being discriminated against can't actually be shown to be materially worse than many not under such scrutiny.   

So, in this analysis its irrelevant whether racial discrimination still exists, whether racial discrimination in voting still exists or even whether racial discrimination in voting more common in Section 5-covered jurisdictions than elsewhere.  Instead, to override state sovereignty, what needs to be shown is that the original rationale for section 4 still exists.

The way the decision is worded, it appears to leave preclearance as constitutional and restricts its challenge the formula.  One view, proffered by the Conservatives, suggests that the opinion dooms Section 5 as well, as it suggests that any form of preclearance is wrong.  My own reading is that it might not be exactly right.  If the standard being applied was uniform, based on recent data, and clearly designed to enforce the 15th Amendment it may not fall foul of the Conservatives.  So, arguably, if Congress passes a law that subjects any jurisdiction which breaches a certain threshold of discrimination to a preclearance standard may be constitutional.

• In a 5-4 decision in United States v Windsor, the Supreme Court ruled DOMA unconstitutional.  Under this ruling, wherever the words, husband, wife, spouse or marriage appears in Federal law, the Federal government must defer to the states' definition, i.e. if the states recognize gay marriage, so must the Federal government.  This does not, however, necessitate states which currently ban gay marriage to recognize gay marriage.

• In yet another 5-4 decision in Hollingsworth v Perry, Chief Justice Roberts was joined by Justices Breyer, Ginsburg, Scalia and Kagan in ruling that the proponents did not have standing to appeal the California Supreme Court's decision to rule the California's Proposition 8 banning gay marriage unconstitutional.  With this decision, as of August 1, 2013 gay marriage will be permitted in the District of Columbia and thirteen states: California, Connecticut, Delaware (where a new law takes effect July 1), Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island (also Aug. 1), Vermont, and Washington.

• In a 5-4 decision on Adoptive couple vs Baby girl the Supreme Court essentially ruled that the law in question, the Indian Child Welfare Act, was designed to protect existing families and not to protect the rights of absentee fathers.  In this case, since the father had not shown any interest in the child until much later, he had essentially relinquished his rights and there was no familial relationship to protect and so it wasn't covered by the Indian Child Welfare Act.  Justice Sotomayer, Ginsburg and Kagan dissented, pointing out the the court's ruling was too broad and would set unwanted precedents for exclusion. Justice Scalia also dissented pointing out that this was a case where there was a biological father who wanted to have a relationship with his daughter.  Now the drama continues as the father claims that the ruling means that others in the Cherokee nation have rights while the adoptive parents want the girl immediately.

It is fascinating to see the conservative justices try to explain their opposition to repeal of DOMA.  After all, DOMA infringes on state rights and is discriminatory.  On the liberal side, while I understand their consternation with the Shelby County v Holder, their argument would suggest that the 15th amendment gives the Federal government unfettered right to intervene in a discriminatory manner in voting, despite the fact that they unanimously agree in  Arizona v. The Inter Tribal Council of Arizona that its a state right.  Surely, that can't be right!  Remember Shelby County v Holder does not rule that the Voting Rights Act is unconstitutional. It does not even, as yet, rule the preclearance requirement in section 5 unconstitutional.  It merely suggests that using a formula for intervention based on the realities in 1960s is unconstitutional as it can't be sufficient justification for overriding state rights.

Immigration bill approved by the Senate

In a 68-32 decision, the Senate approved the immigration bill today.  However, prospects of passage through the House look bleak.  While 100% of Democrats voted for the bill, fewer than 1/3 of Republicans voted for it.  In fact, all five of the senior leadership on the GOP side voted against it.  Here is a list of who voted for and against the bill.

This is a summary of key provisions of the immigration bill.

If the bill is allowed to come to the floor of the House, there is a chance it might pass if the Dems are joined by sufficient GOP members.  The question is whether Boehner will allow the bill to come to the floor for a vote.

Immigration bill changes the nature of immigration

I know, I know ... if you pass a bill on immigration, you should expect it to change the nature of immigration. However, this bears repeating as the current Senate Bill is a dramatic change in immigration to the US.  Wonkblog has a super analysis of this.  Here are some highlights:

• Under the immigration bill, over the next two decades, the US would be adding around ~36M immigrants.  To put that in perspective, that's roughly the size of Canada.
• The US would add ~5MM people over the next five years.
• Over time, employment based programs would grow faster than family based.
• Most of the increase does not come from high skilled labor.  Due to caps, high skilled labor does not increase all that fast.  A large part of the growth is from low skilled farm labor.
• Illegal immigrant levels as a percentage of the population is expected to decline to the 1980s levels.

The Washington Post has another excellent infographic that shows how the composition of immigration has evolved over time.

The point is that the bill, if passed would massive expand immigration and change the nature of immigration.

The right to vote ...

The most talked about decision by the Supreme Court today is likely to be the case of Arizona v. Inter Tribal Council of Arizona.  Here's what the case was about as summarized by scotusblog.com:

"As part of an effort to increase voter registration and turnout, in 1993 Congress passed the National Voter Registration Act.  The Act requires states to “accept and use” a specific federal form for voter registration; that form asks, among other things, whether the would-be voter is a citizen of the United States and over the age of eighteen.  In 2004, Arizona voters approved a law that requires election officials in that state to refuse to register any would-be voter who cannot prove that he is in fact a citizen.  Arizona residents, along with voting and civil rights groups, challenged the state law, arguing that it could not stand because it conflicted with, and was trumped by, the NVRA.  The challengers won in the lower court, and the Supreme Court granted review last fall to consider not only whether the state law can survive, but also whether the lower court used the right test in making its decision"

The court struck down the Arizona law in a 7-2 with Justice Scalia’s opinion being joined in full support by the  Chief Justice John G. Roberts, Jr. and Justices Stephen G. Breyer, Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor.   Justice Kennedy joined the opinion except one small part.

The decision suggests that if Congress passes a law that prescribes the voter registration form, then that form preempts any State forms.  So, states cannot now require voters to show proof that they are U.S. citizens. 

At first glance seems like a huge win for Congress.  A closer reading, however, suggests that the ruling massively restricts Congress' power.  In the second half of the opinion, the decision gives states very wide authority to define who gets to vote, in both state and federal elections.  What this effectively means is that the while Congress how federal elections are run procedurally, this decision suggests that  Constitution grants the power of who gets to vote to the States and not to Congress.  This may in fact curtail the ability of Congress to create a national standard for the right to vote.

Fascinating Supreme Court Alliance

Alleyne v United States was an interesting case that raised the question the method of proof that the Sixth Amendment requires to impose a mandatory minimum sentence.   The court essentially held that if a statute makes it illegal to sell a drug and authorizes a ten-year maximum sentence for such an offense, but provides for a twenty-year maximum sentence for a sale of a larger quantity of the same drug, the jury rather than the judge must make a finding about the quantity before the twenty-year maximum may be imposed.

What caught my attention was who voted for and against the decision.  Justice Thomas wrote a primary opinion.  Justice Breyer wrote a separate opinion concurring in part.  Justices Sotomayer wrote yet another concurrence and was joined by Justices Kagan and Ginsburg.  Justices Roberts, Kennedy, Alito and Scalia dissented.

It isn't often that a case is decided by Thomas joining with the liberal block.  This is yet another example that outside the more incendiary politically charged questions, the court can be quite unpredictable.

You must expressly invoke the fifth amendment

In a fascinating decision by the Supreme Court this week, the Supreme Court ruled that you need to expressly invoke the fifth amendment to enjoy its protections before you are under arrest.  

The case is Salinas v Texas which I had summarized in an an earlier post here.  Here's a recap of what happened:

The case goes back to the murders in December 1992 of the Garza brothers in the Houston apartment where one of them lived.  At the scene, officers found discarded shotgun casings.  A neighbor told police that he had heard shots, and saw a dark auto leaving the scene.  Others told the police that there had been a party at the apartment the night before the shooting, and that Genovevo Salinas might have been there. 

Police went to Salinas’s house, and they discovered that his mother had a car that may have matched the one seen leaving the night of the shooting.   The police told of the shootings, and received permission to search.  Salinas’s father gave the officers a shotgun. 

The police asked Salinas to go with them to the police station, so they could get fingerprints that would eliminate him as a suspect.  He went along voluntarily, and at no time was under arrest.  During an interview that lasted for about an hour, the officers questioned Salinas about others at the party, and he answered those questions. 

One officer then asked him if the shotgun given them by his father would match the shell casings found at the scene.  Salinas looked down, but did not answer.  He was then put under arrest for an outstanding traffic ticket, as a way to ensure that he stayed at the police station.  They got a ballistics report showing that the shell casings matched the shotgun.   At that point, however, police opted not to press any charges, and actually told Salinas he was free to leave.Later, a friend of Salinas went to the police station, and told the officer that Salinas had told him he did the killing.  Salinas was charged with two counts of murder.  But he was not taken into custody at that time and, in fact, was not arrested until some fourteen years later, when he was located elsewhere in Texas, living under a new name. 

At the trial, prosecutors offered the testimony of the friend who implicated Salinas in the crimes, the potential link of the mother’s car to the crime, and the ballistic test results.  In a closing argument, a prosecutor made a brief mention of Salinas’s refusal to answer the question about what the ballistics test would show.  Salinas did not take the stand at the trial.  The trial ended in a mistrial; the jury could not agree on a verdict. 

Put on trial a second time, the same evidence was offered by prosecutors.  The defense objected to the police statement that Salinas had remained silent when asked about the shell casings and the gun.  A defense lawyer said Salinas had a right to remain silent at that time, and had no duty even to talk to the police.  The judge rejected the protest.  Salinas did not testify.In closing argument, a prosecutor stressed again to the jury that Salinas had remained silent when asked about the shell casings and the gun.  He told the jurors that an innocent person would have protested that the gun was not his, and that he was not at the scene.   The jury convicted Salinas, and he was sentenced to twenty years in prison.

The controlling opinion in the case was by Justice Alito, who was joined by Justices Kennedy and Roberts.  In his opinion, Justice Alito pointed out that: "A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim".  He goes on to conclude:

"Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is “insolubly ambiguous.”  To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” But the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing."

...  

"Before petitioner could rely on the privilege against self incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.  

Justices Thomas and Scalia in a separate opinion suggested that even is the petitioner had invoked the fifth amendment right, it did not preclude the prosecutors from suggesting that the petitioner's silence was evidence of guilt, since the constitution protects against being forced to give self incriminating evidence whereas the prosecutor’s comments regarding precustodial silence did not compel him to give self-incriminating testimony. 

It seems though that Justices Alito, Roberts and Kennedy were unwilling to go that far.

In summary, if you want to invoke the fifth even before arrest, you need to expressly invoke that right. 

Immigration voting patterns

There is a lot of speculation about how Senators in Congress will vote on the Immigration bill currently being debated in the Senate.  So, I thought it might be useful to reflect on what happened the last time such a measure was debated in the Senate, i.e. 2006.

In 2006, the comprehensive immigration bill then proposed was strongly supported by Senator Kennedy (D) and President Bush (R) and passed the Senate 62-48.  It failed in the House despite strong support from President Bush.

What is more interesting is an analysis of the Senate vote itself.  I'll caveat this analysis by pointing out that there are just 100 Senators and a lot of their voting must have been based on personal convictions, so its rather a small sample.  Also, with support from President Bush, the bill presented very different risks for both parties, so this may not be representative of attitudes in general.

Also, let me acknowledge the data sourced.  To analyze the vote, I used the data posted here.  Further, the Hispanic percentage in each state was obtained from Wikipedia.

So, what does the data tell us?

• Not surprisingly, the single most important predictor of whether someone would vote for the bill seemed to have been political party, with the Democrats being significantly more likely to vote for the bill than Republicans.

• What's more, as expected, when the percentage of Hispanic exceeded 5% of the state's population, the probability that the Senator voted for the bill increased in both parties.

• In looking at the data, I noticed a pattern  To the naked eye, it seemed that most of the States where people seemed to be voting against immigration were slave states at the time of the Civil War.  So, I checked the data.  According to the data, it appears that whether a state is a former Slave state or not makes little difference to Democratic voting patterns, but slave state GOP voters seem substantially less likely to vote for immigration. 

• However, this isn't really conclusive.  After all the proportion of Hispanics in former slave states may be substantially different than in non slave states.  So, I looked at both together. 

As the last chart shows, in general Hispanic proportion does cause the propensity to vote for the bill increase in both parties and in both slave and non slave states.  However, while for Democrats, the Hispanic proportion crossing 5% completely overwhelms any impact slave states have, among the GOP Senators, the increase in probability to vote for immigration as Hispanic proportion increased failed to offset the impact of being a slave state.  In fact, the probability of voting for immigration among GOP Senators hailing from high Hispanic population in slave states is still less than corresponding probability among GOP Senators hailing from low Hispanic non slave states.

In the May 3, 2013 episode of Backstory they discussed how wars end and one of the wars they discussed was the US Civil War.  They point out that the Confederates and the Union had very different conceptions of what actually happened.  The Union believed they won the war and the South capitulated.  The Confederates however saw it as a ceasefire in which the Union agreed to not interfere in exchange for the Confederates stopping the violence and returning to the fold.  

This data suggests that atleast when it comes to immigration, some in the GOP are still suffering from a hangover from that war.

Isolated genes are not patentable

In an earlier post I had mentioned that the Supreme Court was considering the case of Association for Molecular Pathology v. Myriad Genetics which deals with the question of whether an isolated gene is patentable.  Now we have a decision in the case.  In a unanimous decision, the Supreme Court has ruled that an isolated gene is not patentable.  Here is Scotusblog's discussion of the case.  The decision is purposely narrow.  Here is how Scotusblog summarizes the decision:

"The scientific and legal key to the Court’s denial of patent protection to isolated, natural forms of DNA were these sentences: “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them.  Nor did Myriad create or alter the genetic structure of DNA.” 

While that was not disputed, because the legal controversy focused rather on what Myriad claimed it did to locate and then isolate the forms of genetic DNA, those agreed-upon factors were enough to convince the Court that “Myriad did not create anything.”   As Justice Thomas commented further: “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.  Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the [patent law] inquiry.” 

The opinion conceded that Myriad probably did create something when it synthesized DNA, in a form that it called “complementary DNA,” or cDNA.  The challengers to Myriad on cDNA had contended that the sequence in that form had also been dictated by nature.  That may be so, Thomas said in reaction, “but the lab technician unquestionably creates something new when cDNA is made.” 

The opinion said in a footnote, however, that the Court was not actually ruling that cDNA is specifically entitled to a composition patent, and noted that the federal government had raised other objections under patent law to that phenomenon. 

The Thomas opinion went out of its way to make the ruling seem narrow, indeed — that is, virtually confined to the scientific specifics of what Myriad had done on natural genes and on synthetic versions.  The opinion said that the Court was not ruling on any right to a patent on methods of manipulating the genes, and was not ruling on any applications of what Myriad had learned about the two cancer-suggesting genes, BRCA1 and BRCA2.   Further, the Court had not passed upon the patentability of altering the genetic code in specific DNA forms."

The decision opens the way for much cheaper genetic tests for these cancer causing genes which should enable millions of people to have access to the tests.  

How clean is the Tesla?

The common view is that electric cars are zero emissions and therefore significantly cleaner than the standard gasoline vehicles.

Recently an analyst called Nathan Weiss has claimed that the Tesla model S is actually a highly polluting vehicle.

His point is that to really understand how clean an electric car is, you can't really just look at the car but at the entire value chain that supports it.  So, we should compare the pollution from the production, distribution and operation of gasoline cars and its fuel and then compare it to the pollution from the and operation of electric cars and its fuel.

I am not really qualified to evaluate this.  However, fortunately there are others who have looked at this question. This article at www.popsci.com by David Nolan does an excellent job of analyzing Nathan Weiss' analysis.  

David Noland ultimately concludes that the carbon emissions for the Tesla model S is likely around 293 g/mi roughly comparable to the Scion and less than the ~312 g/mi for a Toyota Highlander.

The good news is that net net the Tesla, for the type of performance stats it has, is still very clean.  However, in terms of carbon footprint the zero emissions claim is misleading.  The current electric car technology is not materially better than the hybrid gasoline cars.  If you include Sulphur Dioxide, it's likely that the Tesla S would fail most emissions tests as coal powered electric plants are many orders of magnitude more polluting than cars.

As David Nolan points out, electric technologies are improving and over time, electric cars could be much cleaner.  Until that happens, it seems a good hybrid car may outperform an electric car.

Adoptive couple vs Baby girl (take 2)

I had written about this Supreme Court case a few weeks ago.  The case involves the custody of little girl.

The mother's side:  The girl's mother, a Hispanic, already has other children.  She wanted to give her daughter up from adoption.  She met with and selected the adoptive parents who became very close.  In fact, the adoptive parents were in the delivery room with her and the adoptive father cut the umbilical cord.  Months before the baby's birth, the the mother texted the birth father, who agreed to hand her sole custody.  He never paid alimony.  He didn't go for the birth.  And, after the birth, he signed away his rights.  Then, when he realized that the baby was being given for adoption, he invoked his Cherokee heritage and demanded custody.  After two years of court battles, the baby was yanked from the adoptive parents and handed to a father she had never met.  The father is only 2% Cherokee and because of that, he got custody in a case where no other father could have got custody.\ 

The father's side:  He had dated the mother of his daughter on and off since they were in their teens.  He finally proposed to her and a few months later was overjoyed to discover she was pregnant.  However, soon after their relationship soured and his fiancee broke off the relationship, wouldn't return his calls and would not respond to his texts.  Then out of the blue she texted him one day asking him to sign over his rights.  She did so not just once but several times.  He had learned by this time that he was being deployed to Iraq and so he decided that its better the girl is with the mother and that they could patch up when he got back.  He texted back saying OK, under the impression that he was merely handing her the custody.  Six days before he was deployed, he gets served the papers for handing over his rights and after he signs the papers he discovers that he has not actually signed his rights to the mother but effectively assented to the adoption.  He's horrified.  He gets a lawyer and fights tooth and nail for his daughter.

What's at stake.  In the worst case for Indians, if being Indian is seen as a racial issue, then a ruling in this case could invalidate every Indian law on the books.

Here's a wonderful summary of the case.  A decision by the supreme court is expected later this month.