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

• Author: Krakoff, Sarah
• Position: I. American Indians and Equal Protection C. Equal Protection, Colorblind Constitutionalism, and American Indian Law through Conclusion, with footnotes, p. 522-548

3. 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. (206) In the gaming and economic contexts, tribes--described as "quasi-racial" collections of individuals rather than as governments--are viewed as standing in the way of non-Indian economic progress. (207) These are the same tropes that drove America's worst and most racialized treatment of tribes, and they should not be resurrected in the name of a supposedly race-neutral equal protection agenda. Moreover, as discussed in Part II below, the trigger for this ill-advised foray into second-guessing laws that benefit tribes--tribes' supposed "racial" status--is in fact the basis for tribes' distinct constitutional standing. Ancestry and lineage tie tribes to their precontact existence and justify their unique place in our constitutional order.

   2. Tribes and the Constitutional Minimum

   The parties bringing equal protection challenges against federal programs and legislation benefitting American Indians do not accept the Mancari approach of deferring to classifications that further the government-to-government relationship with Native nations. To the contrary, they question the very basis for tribes' distinct treatment under the Constitution by conflating lineal descent from an ancestral group with the invidious sociopolitical category of "race." In Adoptive Couple, for example, the non-Indian parties urged the Court to view the child whose custody was in dispute as someone with a fractional racial identity rather than as a potential citizen of the Cherokee Nation of Oklahoma. (208) And in KG Urban, the non-Indian development company argued that tribal governments should be viewed no differently from collections of racially connected people because they have membership criteria that rely on ancestry. (209) These challenges equate tribal status and membership with race and use that as the basis for urging courts to overthrow statutory protections for tribes and their members.

   Yet Mancari makes an unassailable descriptive point about tribes: they are governments, and membership in a tribe is therefore a political status. (210) Native nations are political entities, and each of these nations therefore has powers that nonstate entities lack. (211) Mancari's approach appropriately accounts for this legal-political landscape, noting that empowering courts to strike down laws affecting tribes could put myriad statutes and regulations in jeopardy. (212)

   This legal-political landscape nonetheless raises an important question at the heart of the equal protection challenges: What distinguishes "tribes" from other groups that have no constitutional basis for this distinctive political recognition? Since the Founding, the United States has recognized the indigenous peoples of North America as entities with powers of self-governance and property rights. (213) While the precise source and scope of the federal government's power in Indian affairs has been the subject of significant debate, (214) the very fact of a government-to-government relationship is beyond question. (215) It is also clear that what justifies this relationship is that American Indians were on the continent first. (216) As William Quinn has described, this fact was so obvious to the Founders that formal definitions for the term "tribe" were lacking in the early years of the republic. (217) Nonetheless, "[t]he inescapable conclusion ... is that all the colonial powers recognized at least those tribes with which they treated as separate, autonomous political entities.... The new Republic was legatee of a heritage that recognized, albeit sometimes grudgingly, the sovereignty of Indian tribes native to the continent." (218) Tribes--as political sovereigns recognized by the federal government and denominated as such--therefore have ties to precontact peoples and indeed must have such ties to be acknowledged as governments outside of the state-based federalism framework. (219) Without those connections, a group of people getting together to form a government within the United States would be an entirely different matter. In the more benign version, it could be an attempt to form a new state; otherwise, it is something closer to secession. (220) Indigenous peoples' claims to self-government are exceptional in this sense, but in the U.S. context, they are an exception enshrined in the Constitution. (221)

   To be a tribe, and therefore subject to Mancaris approach to equal protection analysis, requires connection to an ancestral group. (222) This aspect of federally recognized Indian tribes is reflected in the history and structure of the Constitution, the common law definitions of "tribe" that evolved after the Founding, federal regulations governing tribal recognition today, and definitions of indigenous peoples under international law. Each of these sources is discussed in turn below.

1. Constitutional Text and Context

   Tribes' political status is woven into the text and structure of our Constitution, and yet that document provides no guidance regarding how to define "tribe.'' In terms of constitutional text, the Indian Commerce Clause recognizes tribes as distinct entities. (223) The other textual source for the federal government's relationship with tribes is the Treaty Clause, (224) which indisputably includes the power to enter into treaties with tribes even though it does not mention them specifically. (225) The Constitution includes these powers because addressing the presence and territorial claims of indigenous peoples was central to the country's formation. (226) As many scholars and jurists have noted, all of federal Indian law, and by extension much of American law itself, is grounded in this initial point of origin: indigenous peoples occupied the continent, and their presence and claims had to be addressed. (227) But what was the definition of indigenous peoples--labeled American "Indian tribes" in the Constitution--for the purpose of this unique treatment and recognition?

   Textual guidance is lacking, but the historical context points to some...