Indigenous Subjects.

AuthorRolnick, Addie C.
PositionSpecial Issue on the Law of the Territories

ARTICLE CONTENTS INTRODUCTION 2654 I. CLASSIFICATIONS IN U.S. AND INTERNATIONAL LAW 2665 A. Indigeneity 2672 B. Indianness 2675 C. Colonized 2678 D. Race 2681 E. Ancestry 2685 II. BLURRED CATEGORIES 2688 A. Collapse: Rice v. Cayetano 2691 B. Borrow: Equal Protection, Race, Voting, and Intent 2696 C. Expand: The Pacific Island Cases 2702 D. Import: Civil-Rights Statutes 2714 E. Full Circle: Indian Law 2717 III. RECONSTRUCTION AMENDMENTS AS COLONIZING AGENTS 2721 A. Erasure and Colonization 2722 B. Individuality, Immutability, and Racial Domination 2727 IV. DOCTRINAL INTERVENTIONS 2731 A. Accept and Distinguish 2733 B. Repurpose the Insular Cases 2736 C. Import International Law 2746 D. Replace Indianness with Indigeneity 2749 E. Acknowledge that Race Is Political 2753 CONCLUSION 2757 INTRODUCTION

American law protects the rights of subordinated people through different legal categories. Legislatures define the categories and courts shape them. But the categories also operate outside of the courtroom to shape identities and structure political movements. This Article considers the evolution of five such categories: Indigenous, Indian, colonized peoples, race, and ancestry. "Indigenous" and "Indian" are used interchangeably in popular discourse, but they are treated very differently by courts. "Race" and "ancestry" are also used interchangeably, a slippage that reflects popular confusion about the idea of race, a confusion shaped by and reflected in law. Colonization (the process and the category of colonized peoples) is rarely part of popular or legal discourse. In each instance, the legal meaning of the category has become progressively detached from the way it operates in people's lives. This has led to absurd results that can dramatically threaten the fates of people who exist between or across the categories. This Article aims to bring clarity by tracing the historical and legal legacies of these categories and exposing a campaign to use the categorical distinctions to further subordinate the people affected by them.

This category confusion is especially dangerous for Indigenous peoples, as evidenced by recent lawsuits that have used the Reconstruction Amendments and civil-rights laws to attack Indigenous land, self-governance, and self-determination rights. These lawsuits argue that laws protecting such rights are actually illegal racial classifications. For example, in 2017, the U.S. Department of Justice sued Guam, alleging that a longstanding lease program implemented to protect the land rights of colonized Indigenous peoples violated federal civil-rights laws.' The same year, a Texas couple sued to invalidate the Indian Child Welfare Act (ICWA), leading a federal district court to strike down the law as a violation of the Equal Protection Clause in Brackeen v. Zinke. (2) These suits are the most recent in a series of cases that "highlight[] a conflict between an individual's right to be free from race discrimination and the [IJndigenous group's claim for the protection of their lands and cultural rights." (3) Both plaintiffs argued that the laws in question were illegal because they singled out Indigenous people based on race. The law challenged in Guam applies to "native Chamorros," defined as "those persons who became U.S. citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons." (4) In Brackeen, the plaintiffs challenged two classifications: "Indian famil[y]" and "Indian child[ren]," the latter defined as unmarried people under eighteen who are either "a member of an Indian tribe" or "eligible for membership in an Indian tribe and... the biological child of a member of an Indian tribe." (5) The plaintiffs in both cases characterized the laws as illegal racial classifications--illegal under the Fair Housing Act in Guam (6) and illegal under the Fifth Amendment in Brackeen. (7)

The Guam suit ultimately settled, (8) and the Court of Appeals for the Fifth Circuit reversed most of the district court's Brackeen decision in panel and en banc decisions. (9) However, the legacy of these cases lives on. The Supreme Court has agreed to review the decision in Brackeen, (10) and the Guam government is working to rewrite a law authorizing a self-determination plebiscite after another classification in that law was struck down on similar grounds. (11) These lawsuits are just the most recent examples of race-based challenges to Indigenous rights. In such cases, plaintiffs argue that laws that apply only to a subset of people identified as Indigenous (or Indian) are illegal because indigeneity (or Indianness) itself is a racial category or because the laws use descent or ancestry as a criterion, and ancestry-based classifications are a stand-in for racial ones. Although the equal-protection guarantee in the Fifth and Fourteenth Amendments is the most common basis for such suits, (12) some allege violations of the Fifteenth Amendment (13) or federal civil-rights laws. (14)

Recent claims cite the U.S. Supreme Court's 2000 opinion in Rice v. Cayetano (15) to argue that that ancestry-based laws that project Indigenous rights are illegal because they classify people on the basis of race. In Rice, the Court relied on a thin conception of race as a static biological fact and a narrow construction of indigeneity as dependent on Federal Indian tribal status. These definitions fail to reflect the historical significance and material realities of race and indigeneity. They are also generally out of sync with how these concepts are understood in social and political movements.

The Court in Rice invalidated a voting rule that allowed only Indigenous Hawaiians to vote for the trustees responsible for land and assets held by the state in trust to benefit Indigenous Hawaiians. Rice rested on a shaky precedential foundation. The Court effectively invented a new rule about ancestry-based classifications in voting. (16) For Indigenous peoples, this rule now threatens to limit all legal recognition of indigeneity to the framework of federal acknowledgement and tribal citizenship, (17) leaving unrecognized tribes, Indigenous Hawaiians, Indigenous peoples in the U.S. territories, and anyone who is not a tribal citizen unprotected. As evidenced by Brackeen, it also occasionally threatens long-established federal laws that apply to Indian tribes and their citizens. These threats are not abstract: weakened legal protections for tribes and other Indigenous peoples can mean a loss of land and housing, loss of children, weakened political and judicial institutions, poorer health, greater poverty, language loss, and damage to cultural and religious practices.

The jurisprudential story of Rice exemplifies the legacy of historical blindness in the Court's interpretation of the Reconstruction Amendments. As such, the case was an important step in a series of juridical moves to articulate a theory of race as diametrically opposed to group political consciousness. It is one of many cases remaking the Reconstruction Amendments, which addressed group harms, into individual dignitary protections and then conscripting those protections in the service of White people as a weapon against non-White group identity. It was also an important milestone in the Court's effort to connect century-old cases about anti-Black discrimination to modern attempts to amplify the political power of minority groups through voting, flattening any distinctions between the two by ignoring their historical context. This historical blindness is part of what Ian F. Haney Lopez labels "reactionary colorblindness," and it is exemplified in the Court's treatment of race-conscious remedies as morally and legally equivalent to laws intended to subjugate racial minorities. (18) Neil Gotanda has similarly pointed to a sense of "unconnectedness" that distinguishes "formal race" as used by the Court from "historical race." (19) Indeed, the foundation of the Rice holding is almost entirely theoretical. The case reaches back more than a century for its primary precedent, and it connects present to past with the thinnest of factual and doctrinal threads. It is, at bottom, a triumph of the Court's insistence that race is reducible to biological labels and devoid of political content or historical meaning.

It is striking that a case standing on such shaky doctrinal ground has not been more effectively cabined, or even overturned. If it threatens the self-determination rights, political identity, and material conditions of so many people, why hasn't it been limited to its facts? (20) Instead, Rice has been honed into a doctrinal weapon in the cultural and geographic shadows of American law through a series of Fifteenth Amendment challenges to Indigenous rights in the Pacific territories. Because these cases involved Indigenous Pacific Islanders, who are not recognized as Indians, they are not Federal Indian law cases. Because they involved disputes over land rights and self-determination, they are also not typical civil-rights cases. Off the radar of Indigenous-rights (21) and racial-justice lawyers, non-Native people and conservative voting-rights groups have successfully used Rice to undermine the rights of Indigenous peoples in the U.S. territories. (22) To fully comprehend the significance of these attacks on Indigenous rights in the U.S. territories, this Article engages directly with three areas of law that are not typically in conversation: Federal Indian law, constitutional race law, and the law of the territories. It is the first article to consider all three areas together, and one of only a few to consider any two of them together. The Article identifies the doctrinal framework that has discouraged such conversations and traces its effect on litigation and scholarship. In Indian law, this framework manifests in a failure to identify commonalities between Indigenous rights on the mainland and in the U.S...

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