They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum

By Krakoff, Sarah | Stanford Law Review, February 2017 | Go to article overview

They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum


Krakoff, Sarah, Stanford Law Review


C. Equal Protection, Colorblind Constitutionalism, and American Indian Law

Classifications are everywhere in the law, which is why courts sweep away most equal protection challenges by consigning them to rational basis review. (193) The equal protection claims that warrant higher levels of judicial scrutiny are those that include allegations of discrimination on the basis of race, ethnicity, or gender, as well as those that allege discriminatory allocation of other fundamental rights. (194) In the era of constitutional colorblindness and opposition to affirmative action, courts have extended their heightened scrutiny to classifications that aim to increase minority representation in work and educational settings. (195) As Reva Siegel has described, the equal protection framework has shifted from considering whether a classification subordinates a minority group unable to overcome majoritarian politics to whether the classification includes race, gender, or ethnicity, in which case heightened scrutiny is automatic. (196) This has opened the door to searching judicial scrutiny of any and all programs using race or ethnicity, even those designed to overcome discrimination against disadvantaged groups. (197)

There are some signs that the Court's approach to equal protection doctrine is shifting subtly, reviving a more nuanced and contextualized understanding of barriers to equality. First, the Court struck down bans on same-sex marriage, in part based on equal protection concerns. (198) Second, the Court's recent decision in Fisher v. University of Texas at Austin, while preserving strict scrutiny of affirmative action programs, nonetheless upheld the university's admissions policies, which used race as "a 'factor of a factor of a factor' in the holistic-review" of applicants' files. (199) It is possible that these cases reflect a rejection of the highly formalist approach that colorblind constitutionalism entails in favor of at least some recognition of the importance of context for rooting out inequality.

If so, the Court can continue to do the least harm in the American Indian law and equal protection contexts simply by following, rather than overturning, precedent or legislative enactments. In the Native nation context, the Court need only exercise restraint. If laws or policies further the federal government's unique obligations to Indian tribes, then the Court should hew to Mancari and stay its hand. (200)

Laws that perpetuate tribal survival (like ICWA) and safeguard tribal economic powers (like IGRA and complementary state laws) fall squarely within the government's unique relationship with tribes. Yet these laws, which assist tribal efforts to emerge from their racialized and subordinated status, are the target of today's equal protection challenges. (201) If courts do not adhere to the Mancari approach, equal protection as anticlassification will become a tool to resurrect the very forms of racial discrimination that subjugated Native peoples and brought them nearly to the brink of elimination. (202) One such form of discrimination is the assignment of inferior characteristics, such as "savageness," to tribes collectively to justify taking their land and destroying their familial and tribal structures. (203) Another is the imposition of biological (as opposed to territorial or affiliation-based) membership requirements and forced-assimilation policies designed to make Indians eventually disappear. (204) The pernicious stereotypes that accompanied these policies--what Renee Ann Cramer has described as the "common sense" of anti-Indian racism (205)--lurk not far beneath the surface of the ICWA and gaming cases described above. In the ICWA context, tribes and tribal members are deemed unfit to judge what is best for their individual children, and tribal affiliation is described disparagingly as nothing more than a remote blood tie rather than as a political and cultural connection to a Native nation. …

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