They were here first: American Indian tribes, race, and the constitutional minimum.

• Author: Krakoff, Sarah
• Position: Introduction through I. American Indians and Equal Protection B. Gaming and Commercial Interests, p. 491-522 - Author abstract

Table of Contents Introduction I. American Indians and Equal Protection A. Adoption and Foster Care B. Gaming and Commercial Interests C. Equal Protection, Colorblind Constitutionalism, and American Indian Law II. Tribes and the Constitutional Minimum A. Constitutional Text and Context B. Definitions of Indigenous Peoples in Federal Common Law, Federal Regulations, and Contemporary International Law 1. Federal common law definitions 2. Administrative definitions: federal acknowledgment criteria 3. International law definitions III. Being More Discriminate to Eliminate Discrimination Conclusion Introduction

Should children who are eligible for membership in an American Indian tribe be treated differently from other children for purposes of foster care and adoption? (1) Can states treat American Indian tribes differently from non-Indian companies under state gaming laws? (2) As of today, the law's answer to these and similar questions is yes. In American law, Native nations are sovereigns with a direct relationship with the federal government. (3) Native nations' governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government's unique relationship with American Indians are not subject to heightened scrutiny. (4) The Supreme Court held in Morton v. Mancari that such classifications are political distinctions rather than acts of "invidious racial discrimination" (5) and therefore are not subject to the Court's most exacting review. (6) As noted in Mancari, tribes' distinctive status has been recognized since the Founding and is reflected in hundreds of treaties, statutes, and regulations that support tribal rights to self-determination. (7) "If these laws ... were deemed invidious racial discrimination, an entire Title of the United States Code ... would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized." (8)

Yet the Court's deferential approach to classifications that affect tribes and their members has come under attack. (9) Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, courts and some commentators question the distinction between tribes' political and racial statuses. (10) They suggest that the Court's rational basis approach to classifications concerning tribes and tribal members should be modified, if not altogether rejected. (11) These arguments rely on what their proponents claim to be the race-based requirements (including lineal descent or "blood quantum") for membership in many Native nations and therefore the "racial" status of tribes themselves. (12)

One response to these arguments is historical, rooted in how tribes evolved from precontact (13) peoples with their own definitions of membership to today's "federally recognized tribes." Since the arrival of Europeans, American Indian tribal formation has been a distinctly political process, one that also reflects the ways that U.S. laws and policies imposed racial characteristics on American Indian individuals and tribes. (14) To the extent that tribes today have membership requirements that include lineage or blood quantum, they are part and parcel of that process of racial/political formation. (15) The federal government catalogued tribes, defining them and imposing membership requirements at key historical moments, as part of a strategy of control and elimination. (16) The process of bureaucratizing tribes and their members while simultaneously ascribing inferior characteristics to American Indians comprised a racializing project aimed at eventually defining Indians out of existence. (17) That project took the form of violent removals and massacres as well as assimilationist strategies. (18) As I have argued in previous articles, using equal protection doctrine to demand a highly formalized and acontextual race neutrality with respect to tribes and their members today would, ironically, perpetuate the settler/colonial project of elimination. (19) Used in this way, colorblindness could threaten tribes' separate political status just as they are beginning to break free from the historical legacies of tribal racialization. (20)

There is another complementary response that lies deep in the structure of tribes' relationship with the federal government and is at the very heart of the federal power to recognize tribes as sovereigns. It is this: tribes (as collectives) must trace their heritage to peoples who preceded European/American settlement in order to establish a political relationship with the federal government. Tribes, in order to be recognized as such under the Constitution, therefore must, as an initial definitional matter, consist of people tied together by something akin to lineage. Descent and ancestry--distinct from but often conflated with the sociolegal category of "race" (21)--are the difference between legitimate federal recognition of tribal status and unauthorized, unconstitutional acts by Congress. In other words, Congress cannot establish a government-to-government relationship with just any group of people. When nonindigenous groups of people attempt to form a government within the United States, their options are extremely limited, to say the least. (22) Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America. Those ties therefore comprise a constitutional minimum for federal recognition. The federal courts should not use that constitutional distinction against tribes today in a misguided pursuit of colorblind constitutionalism. That is, at least, the argument in this Article, which will proceed as follows.

Part I reviews contemporary equal protection cases as applied to Indians, focusing on challenges to the Indian Child Welfare Act (ICWA) (23) and tribal gaming. These cases either question whether tribal classifications are political rather than racial or argue for a tiered approach to scrutinizing classifications that affect tribes and tribal members. The parties opposing tribes' distinctive treatment urge the courts to adopt a reverse discrimination paradigm, subjecting all classifications (regardless of intent, history, or connections to animus or subordination) to heightened judicial scrutiny.

Part II addresses the constitutional basis for tribal political recognition and discusses definitions of Indian tribes from the time of the Founding through today. The Constitution's structure and text, including the Indian Commerce Clause and the Treaty Clause, provide the federal government with the authority to enter into political and legal relationships with tribes. (24) No other nonstate entity has a similar constitutional relationship with the federal government. (25) Despite the longstanding nature of tribes' distinct legal and political status, there was very little discussion of how tribes should be defined at the time of the Founding and for many decades thereafter. (26) Yet it is clear from the historical context as well as international law doctrines (from which federal Indian law derived) that tribes' singular constitutional status stemmed from their precontact existence as free and independent peoples indigenous to the continent. (27)

Definitions later supplied by federal courts and federal agencies affirm this, either assuming or requiring ties to precontact peoples in order for tribes to be recognized by the federal government. (28) More recently, definitions of indigenous peoples under international law, while careful to emphasize the importance of self-definition, likewise assume precolonial presence and ties to the land. These contemporary international legal definitions are not binding on U.S. law. But the initial principles for treating American Indians distinctly under the Constitution were drawn from the early law of nations. Contemporary international law thus offers a fitting interpretive approach, particularly given its recent embrace of the rights of indigenous peoples. (29) In short, the Constitutions unique treatment of tribes assumes that they are successors to the peoples who occupied the continent before the arrival of European explorers and American settlers. The constitutional distinction between tribes and other groups rests on this historical connection and therefore inscribes ancestry into the definition of "American Indian tribe."

Part III situates American Indians' constitutional status in the larger context of racial formation and American law. Shaken loose from the formalist grip of race neutrality and colorblindness, we might see that (contra Chief Justice Roberts) the only way to stop discriminating on the basis of race is to be more discriminate in our understandings of race, its origins, and its meanings. (30) This is as true for African Americans, Latinos, and other groups as it is for American Indians. (31)

In the American Indian context, tribes' legal status, while crucial to their survival as independent peoples, was also laced from the outset with racialized depictions. Tribes' otherness (as "savage," "uncivilized," and so forth) justified the subordination of tribes and tribal interests to the settler society's demands for land and resources. (32) Examples throughout Indian law and policy abound. (33) In Johnson v. M'Intosh, one of the foundational cases in federal Indian law, Chief Justice Marshall described tribes as "fierce savages" to rationalize federal control over tribal rights to convey property. (34) In Ex parte Crow Dog, the Court affirmed tribal freedom from federal criminal laws but on the basis that Indians needed time to advance from their "condition of a savage tribe to that of a people who, through the discipline of labor ..., it was hoped might become a self-supporting and self-governed society." (35) In the mid-nineteenth century...