"With the Indian Tribes": Race, Citizenship, and Original Constitutional Meanings.

Author:Ablavsky, Gregory

Table of Contents Introduction I. "Tribes" A. Nation B. Tribe C. Legacy D. The Constitutional Meaning of "Tribes" II. "Indian" A. "Indian" as Nonwhite B. "Indian" as Noncitizen C. Whiteness and Citizenship in the Early United States D. Legacy E. The Constitutional Meaning of "Indian" Conclusion Introduction

Does federal legal classification of individuals as "Indian" (1) constitute a racial category? Since the U.S. Supreme Court's 1974 decision in Morton v. Mancari, (2) the doctrinal answer has been no. In Mancari, the Court rejected an equal protection challenge to a Bureau of Indian Affairs employment preference for "Indians." (3) Although the Court gestured toward several possible rationales, (4) subsequent interpreters have compressed the holding to a single footnote in which the Court reasoned that because Indian status required membership in a '"federally recognized' tribe[], ... the preference [was] political rather than racial in nature." (5) The Court invoked this distinction in later cases to reject most challenges arguing that Indian legal status amounts to a racial classification subject to strict scrutiny. (6)

Yet the proposition for which Mancari has come to stand--that legal classification as "Indian" is political, not racial--has always rested on a tenuous foundation. Indian status has long been bound up with requirements of descent that, often crudely expressed in terms of "blood," seem to hearken to the worst aspects of American racial history. (7) Even the classification at issue in Mancari required "one-fourth or more degree Indian blood" in addition to tribal membership, a fact the Court mentioned and then ignored. (8) Bureau of Indian Affairs regulations governing federal recognition of Indian tribes require that tribes "consist[] of individuals who descend from a historical Indian tribe." (9) This tension has produced an important and thoughtful literature among Indian law scholars demonstrating the artificiality of the political-racial dichotomy. (10) In light of the long, complicated history of Native peoples within the United States, they argue, "the political and racial elements of Indianness are inseparable" and "hopelessly intertwined." (11)

Lately, this critique of Mancari has moved from the academy into doctrine and litigation. In the process, it has transformed: Instead of scholars' call for greater awareness of the complexities of history, a group of conservative and libertarian thinkers whom I call collectively Indian law's critics now advance the claim that Indian status is an impermissible racial classification, even when defined solely by eligibility for membership in a federally recognized tribe. (12) As the Court warned in Mancari, this approach would likely undermine nearly the entire body of federal law concerning Native peoples. (13) Practically every federal statute and rule in Indian law--including recent federal laws protecting tribal autonomy, jurisdiction, and property--relies on classifying individuals as Indian.

Nonetheless, the legal position that "Indian" classifications are constitutionally suspect has gained ground, particularly in litigation around the Indian Child Welfare Act (ICWA) of 1978, (14) a federal statute enacted to staunch an epidemic of Indian children being taken from their homes and placed with non-Native families. (15) In the Supreme Court's recent decision in Adoptive Couple v. Baby Girl, Justice Alito's opinion for the Court suggested that ICWA's provisions protecting the children of enrolled tribal members "would raise equal protection concerns" if applied to a child with a "remote" Indian "ancestor." (16) In dissent, Justice Sotomayor noted that ICWA defines Indian status based on eligibility for membership, not ancestry, and suggested that the majority's phrasing was a subtle attack on Mancari. (17)

Subsequent litigation has borne out Justice Sotomayor's concerns. A host of lawsuits have seized on Justice Alito's words as an invitation to attack ICWA and other statutes by pointing toward the role of descent in tribal citizenship, wrapping themselves in the language of constitutional colorblindness and that principle's repudiation of racial classifications. (18) "By honoring the moral imperatives enshrined in our Constitution, this nation has successfully shed much of its history of legally sanctioned discrimination on the basis of race or ethnicity," one representative complaint reads. (19) "Children with Indian ancestry, however, are still living in the era of Plessy v. Ferguson." (20)

Yet whatever its moral imperatives, "our Constitution" contains something this argument elides: the term "Indian." The original text excludes "Indians not taxed" from representation and grants Congress the power to regulate "Commerce ... with the Indian Tribes," (21) while the Fourteenth Amendment, far from repudiating or altering these provisions, repeats the "Indians not taxed" phrase verbatim. (22) As the Court noted in Mancari, the Constitution itself "singles Indians out as a proper subject for separate legislation." (23) This reality presents something of a challenge for Indian law's critics, who are arguing that it is unconstitutional to use a classification used in the Constitution itself.

The presence of "Indian Tribes" within the constitutional text raises the Mancari question again, albeit with constitutional import: Are "Indian" and "tribe" as used in the Constitution racial terms? One way to answer this question would be to unpack the terms' meanings at the time of the Constitution's adoption. Yet notwithstanding the large and thoughtful literature on Indians and race, there have been few efforts to do so--a surprising omission given the recent scholarly vogue for such textual investigations. (24) The problem is generally perceived to be lack of evidence. In her compelling recent article exploring the role of descent in constitutional definitions of Indianness, for instance, Sarah Krakoff, drawing on the scarce extant literature, describes a "gap" in the late eighteenth century. (25) "[D]espite the ... distinct treatment of Indian tribes in the Constitution," she observes, "there was virtually no ... discussion about how to define" them. (26)

This Article seeks to close this perceived gap by reconstructing late eighteenth century meanings of "tribe" and "Indian." The seeming silence on these terms reflects the methodological myopia of many explorations of original constitutional meanings: As I have argued elsewhere, well-known sources like the Federalist Papers or state ratifying conventions often had little to say about Indian affairs, even as Anglo-Americans of the era hotly debated these questions in other fora. (27) An interdisciplinary perspective helps move beyond this source challenge and capture that debate. In recent years, intellectual, cultural, and legal historians of early America, though seemingly unfamiliar with current doctrinal battles, have developed a growing literature on the racialization of Native peoples, one that portrays the mid-to-late eighteenth century as the moment when Anglo-Americans increasingly conceived of themselves as "white" and Indians as "red." Pairing the insights of this work with a reexamination of the era's legal and administrative documents counters claims of a gap: Despite the absence of tidy statutory definitions, Anglo-Americans of the late eighteenth century thought a lot about how to classify Natives and sometimes codified those thoughts into law.

The portrait that emerges is one of dualities rather than consensus. Anglo-Americans of the late eighteenth century defined "Indians" by what they were not. Sometimes, they spoke of Indians as nonwhites, "red" people defined by racial difference. Other times, especially in diplomacy and law, they classified Indians as noncitizens marked by their allegiance to another sovereign. Anglo-Americans also split on how to classify Native polities. Often, they used the term "nation," which implied separateness and participation in the international community on equal footing. But at other moments, they used the word "tribe," a quasi-anthropological term that carried connotations of primitiveness.

Although exploring textual meanings at the time of the Constitution's adoption has become associated with original public meaning originalism, this Article does not argue that the original meaning of the text dictates current law. (28) Rather than advance a particular mode of constitutional interpretation, my goal is to provide a helpful starting point for inquiries about Indians, race, and the Constitution, given that nearly all theories of constitutional interpretation acknowledge a role for text and history. (29) If anything, the multiple historical meanings of "nation," "tribe," and "Indian" conflict with the project to identify a sole, legally binding original public meaning. The tension and overlap between these multiple textual meanings at the time of the Constitution's adoption later produced significant challenges for the document's early interpreters, who legitimately drew sharply different conclusions based on the same text. In this sense, this history bolsters the argument of Indian law scholars who have contended that race and political status are inextricably entangled in defining Indian status. The confusion and interconnection between the two categories they observe in the present traces back to the Constitution's creation.

Both "tribe" and "Indian" are central terms of art in Indian law and, depending on how the past is translated into law, their history has important doctrinal implications. For instance, although many Anglo-Americans used "tribe" and "nation" interchangeably to describe Indian communities, only "tribe" appears in the Constitution. The history of this term helps clarify the current law on the relationship between "tribes" and individual "Indians," as well as the role of courts in parsing tribal status. (30) The...

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