Ground Breaking Legal Work May Turn the Tide

Lana Marcussen, Esq. Albuquerque, NM

Lana Marcussen, Attorney at Law, has taken on several cases (including some which involve CERA members) which promise to break new ground in placing curbs on the powers of the federal government.

The cornerstone case, JAMES SCOTT BOYD, et. al. v. THE UNITED STATES OF AMERICA,utilizes the Equal Protection Clause of the 14th Amendment, and the pretext behind the 9th, 10th, and 11th Amendments to bolster State and Individual Rights. The theory of Popular Sovereignty, dormant since the 1857 Dred Scott decision, will be resurrected.

The Political Accountability test will be utilized to bind the federal government to its constitutional responsibilities and redistribute the tremendous power it has accumulated over the past 130 years.

The Boyd case will isolate Article 1, Sec. 8, Federal Commerce Clause authority from Article IV. Sec. 3. Property Clause authority. The federal government's Property Clause authority over territories is supposed to end upon statehood. However, the federal government has crossed this authority with its Commerce Clause authority to keep western states in perpetual "territorial" status. If this case wins, the very foundation of the "Winters Doctrine" and the inferred Federal Reserved Rights doctrine will be broken. This will set a tremendous precedent for "states rights" and individual citizen's rights.

The U.S. Supreme Court is now restoring the rights of citizenship to individual rights and private property. Significant cases which have been favorably ruled on within the past 14 months include the following (unless otherwise noted, the cases were decided by the U.S. Supreme Court.):

· In its 1995 term, the Court clarified the sovereign territorial powers of the U.S. in United States v Lopez and Adarand Constructors, Inc. v. Federico Pena, Secretary of Transportation, et. al.

· In United States v Lopez, the Court declared that the U. S. Government has no jurisdiction under the Commerce Clause to assert general police powers to preempt state law. Using this line of reasoning, the U.S. Government had no jurisdiction to preempt the prior appropriation powers of the Territory of New Mexico in the Rio Grande River once the rights of way were properly granted to the Dam & Irrigation Co., regardless of whether the river was navigable.

· Adarand is a direct holding against the Central Federal Lands Highway Division which concludes that the federal government's Property Clause territorial powers are not unlimited. The decision incorporates the 14th Amendment constraints of equal protection of the laws through the 5th Amendment and applies it to the U.S. Government using the same "compelling interest" test which applies to the State Governments. This decision implicates the "war powers" of embargo and administrative transfers of the right of way withdrawals which are the subjects of the Boyd claim.

· Oklahoma Tax Commission v. Chickasaw Nation ("Tribe") - This Indian tax case implicates the legal status of reservations and holds that the Treaty of Dancing Rabbit Creek had no effect on the jurisdiction of the state over the territorial reserved lands.

· These changes represent a new standard of judicial review, Zell Miller, et. al. v. Davida Johnson, et. al. by enforcing the Constitutional limitations upon the U.S. Government.

· Seminole Tribe of Florida v. Florida, et. al. (1996) ruled that Congress, using its Article I powers (including Commerce), cannot interfere with the Article III powers of the Courts to review Constitutional questions. It protects both individuals and states from Congressional interference.

· State of South Dakota v. U.S. Dept. of Interior. BIA Lower Brule Agency (8th Circuit Ct of Appeals, Nov. 1995) struck down 25 USC 465 as an unconstitutional delegation of power which bestowed upon the Secretary of Interior the power to acquire lands and place them in trust status for the benefit of Indian tribes. Indian Trust status actually removes lands from State jurisdiction and places them in "territorial" status. The ruling is based on the non-delegation doctrine of Schecter Poultry (1935).

· State of New Mexico. ex.rel. v. Gary Johnson (District Court, 1995), based on New York v. U.S., which overruled Governor Johnson's ability to sign gaming compacts without legislative approval.

· Roy Romer, Governor, et.al v. Richard G. Evans, et. al. (1996) expands the 14th Amendment Equal Protection clause to prevent the government from making discriminatory classifications of persons even against Territorial classifications.

CERA's Note: Lana has been very involved in legal issues important to CERA. The work she is doing could ultimately expose "tribal sovereignty" for the myth it is. She can use any moral and financial support you can offer. We will gladly forward any contributions directly to her.

Citizens Equal Rights Alliance
PO Box 23205
Santa Fe, NM 87502-3205