Inextricably Political: Race, Membership, and Tribal Sovereignty

• Jurisdiction: United States,Federal
• Citation: Vol. 87 No. 4
• Publication year: 2021

INEXTRICABLY POLITICAL: RACE, MEMBERSHIP, AND TRIBAL SOVEREIGNTY

Sarah Krakoff (fn*)

Abstract: Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. laws and policies.

First, the Article traces the evolution of tribes from pre-contact independent sovereigns to their current status as "federally recognized tribes." This history reveals that the federal government's objective of minimizing the tribal land base entailed a racial logic that was reflected in decisions about when and how to recognize tribal status. The logic was that of elimination: Indian people had to disappear in order to free territory for non-Indian settlement. The Article then examines two very distinct tribal places, the Colorado River Indian Tribes' (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains. The United States' policies had different effects on the CRIT (where four distinct ethnic and linguistic groups were consolidated into one tribe) and the Sioux (where related ethnic and linguistic groups were scattered apart), but the causal structures were the same. Indian people stood in the way of non-Indian possession of land and resources, and federal policies defined tribes and their land base with the goal of shrinking both. Despite these goals, the CRIT and Sioux Tribes have exercised their powers of self-governance and created homelands that foster cultural survival for their people. Like other federally recognized tribes, they have used the given legal structure to perpetuate their own forms of indigenous governance, notwithstanding the law's darker origins.

The legal histories of CRIT and the Sioux Tribes reveal that unraveling the logic of racism in American Indian law has less to do with tinkering with current equal protection doctrine than it does with recognizing the workings of power, politics, and law in the context of the United States' unique brand of settler colonialism. The way to counter much of the prior racial discrimination against American Indians is to support laws that perpetuate the sovereign political status of tribes, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political.

INTRODUCTION..............................................................................1043

I. LEGAL BACKGROUND OF EQUAL PROTECTION, TRIBAL RECOGNITION, AND TRIBAL MEMBERSHIP..... 1052

A. The Mancari Equal Protection Framework........................ 1054

B. From Independent Sovereigns to Federally Recognized Tribes................................................................................. 1060

1. History of Federal Recognition............................... 1061

a. 1783-1871: Sorting "Friends" from "Enemies" ..1062

b. 1871-1934: Assimilation of the Individual and Racialization of the Tribe.....................................1065

c. 1934-1978: The Indian Reorganization Act and the Formalization of Federal Recognition............1075

d. 1978-Present: Litigation to Prove Tribal Status and the Federal Acknowledgment Process..........1078

2. Meanings and Effects of Tribal Membership.........1083

a. BIA Employment Preferences............................. 1083

b. Statutory Benefits and Services...........................1084

c. Federal Criminal Jurisdiction...............................1085

d. Tribal Criminal Jurisdiction.................................1089

C. Concluding Thoughts About Recognition and Membership....................................................................... 1090

II. LEGAL HISTORIES OF RECOGNITION, MEMBERSHIP, AND RACE................................................................................ 1090

A. The Colorado River Indian Tribes..................................... 1091

1. Establishing the CRIT Reservation: For Whom and How Many?...................................................... 1092

2. Battles over CRIT Membership..............................1097

3. Ordinance Number Five.......................................... 1101

4. CRIT Today............................................................ 1102

B. The Great Dakota Nation (Sioux People of North America)............................................................................1104

1. Sioux Tribes of the Dakotas History....................... 1107

a. Early Dakota Nation, 1500-1800......................... 1107

b. The Sioux Westward Migration, Early Reservation Era, and Dismantling of the Great Sioux Nation, 1800-1900.................................... 1108

i. Eastern Sioux (Dakota Dialect/Santee).........1108

ii. Middle Sioux (Nakota Dialect/Yankton and Yanktonai)..................................................... 1111

iii. Western Sioux (The Seven Lakota or Teton Tribes)............................................................1113

2. The Dakota Today: A Snapshot of the Federally Recognized Tribes in North and South Dakota......1116

III. SETTLER COLONIALISM, THE ELIMINATIONIST AGENDA, AND THE RACIAL FORMATION OF NATIVE PEOPLES.................................................................................... 1118

IV. IMPLICATIONS FOR EQUAL PROTECTION DOCTRINE .. 1122

A. Challenges by Non-Indians to Classifications Conferring Benefits on Indians............................................................. 1124

B. Challenges by Nonmember Indians to Duro-fix Legislation.......................................................................... 1127

CONCLUSION..................................................................................1131

INTRODUCTION

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe), then courts will not subject the classification to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself.

The legal categories "tribe" and "tribal member" reflect the ways that tribes and tribal members have been racialized by U.S. laws and policies. The racialization of American Indians, which served the purposes of justifying expropriation of their lands and imposing policies of forced assimilation, is today embedded in their separate political status. The political and the racial are therefore hopelessly intermingled in current legal definitions of tribes in ways that nonetheless point to the same deferential conclusion that courts currently reach. In general, courts uphold laws and policies that further the separate, and constitutionally based, political status of American Indian tribes. The upshot of this Article is that this is the best that courts can do, and to the extent they are tempted to untangle the racial from the political with respect to the status of American Indian tribes, they tread well beyond their competence and risk perpetuating the very policies that have discriminated against American Indians, and that, in general, the political branches have abandoned. To illustrate and excavate the "racial and political" conclusion, the Article visits two very distinct tribal places, the Colorado River Indian Tribes' (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains.

The CRIT reservation straddles the Colorado River several hours west of Phoenix, Arizona. The CRIT is a single federally recognized American Indian tribe whose members include people of Mojave, Chemehuevi, Navajo, and Hopi descent. Today the CRIT is a successful Indian nation, with established water rights, a model riparian restoration project, and a well-functioning tribal government.(fn1) But at the time of its founding in 1865, the multi-ethnic composition of the CRIT and the idea that it could one day constitute a coherent polity was an afterthought at best. The federal government's intent in establishing the CRIT reservation was to clear the surrounding area for white settlement.(fn2) The government's objective was a political one-to gather the many tribes that called the Colorado River basin home and concentrate them in a single place. Doing so, federal officials hoped, would quiet non-Indian concerns about coming to the region. With the Indian threat removed, the southwest desert, and in particular the areas proximate to the only major water source, could be open for white business.(fn3)

In the Plains, the many bands and groups that once comprised the Great Dakota (Sioux) Nation(fn4) are today concentrated into...