Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.
Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response.
The key, according to the U.S. Supreme Court, is that Indian tribes are sovereign entities and thus (at least) the federal government’s relationship with tribes is essentially of a political nature, based on government-to-government dealings, and conversely is not based on race. As the Court unanimously said in Morton v. Mancari, 417 U.S. 535 (1974), which involved a strong hiring preference for Indians at the federal Bureau of Indian Affairs, “this preference does not constitute ‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference.” Id. at 553. “The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.” Id. at 553 n.24
The Court’s reasoning in Mancari is not especially persuasive as a matter of strict legal doctrine, particularly that of the law of equal protection. For one thing, several of the Court’s prior cases, as well as many congressional and executive documents, have described Indian tribes or tribal members using the language of race or similar terms. See, e.g., United States v. Sandoval, 231 U.S. 28, 39 (1913); Montoya v. United States, 180 U.S. 261, 266 (1901). Second, even if many of these cases can be discounted due to their issuance prior to modern equal protection doctrine, it is well known that membership in a federally recognized tribe is always or almost always based on demonstration of ancestry in satisfaction of tribal enrollment requirements. Tribes generally require, among other things, proof of a certain “blood quantum” minimum, such as ¼ or ½, thus linking the applicant genetically or ancestrally to the tribe. Not only is the federal government (including the Supreme Court) well aware of such membership requirements but typically, through the Secretary of the Interior, plays an active role in approving or disapproving tribal membership requirements, blood quantum and all, particularly when they are embodied, as they often are, in tribal constitutions.
Interestingly, the Mancari Court all but conceded that its ruling fundamentally reflected not a deep reading of the equal protection guarantee, but rather pragmatic and historically-informed concerns about the past and present of Indian affairs in the United States. To quote the Justices: “Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.” Mancari, 417 U.S. at 552. That, of course, is not an appeal to established constitutional law doctrine but instead implies a refusal to apply that doctrine to Federal Indian Law in light of the historical context and the practical consequences at stake. Whether that is “good” or “bad” constitutional interpretation can be a matter of some debate, but it is clearly not contemporary constitutional interpretation in its most conventional form.
Having explained the formal basis for effectively exempting federal Indian classifications from the rigors of equal protection analysis, two caveats must be noted. First, the Mancari litigation factually presented the strongest case for the Court’s equal protection holding. At issue was a hiring preference limited to enrolled members of federally recognized tribes with the Bureau of Indian Affairs, the federal agency specifically charged with implementing a majority of federal Indian policies, having both the most contact with tribes and a relative awareness of tribal concerns. To be sure, the Court noted these particular aspects of the case in support of its holding, suggesting that scenarios lacking such characteristics might pose more difficult questions. Of particular uncertainty is the extent to which state governments, rather than the federal government, may similarly discriminate between Indians and non-Indians and not trigger heightened equal protection scrutiny. After all, it is a fundamental and longstanding principle that authority over Indian affairs is the exclusive province of the federal government absent delegation to the states.
Second, regardless of the formal legal explanation justifying the differential treatment of Indians, it is quite improbable that the public-at-large is aware of the Mancari Court’s reasoning, much less persuaded by it. Instead, the person-on-the-street perception is likely that Indians, individually and collectively through tribes, have an indelible racial character, a perceived reality that is little altered by considerations of sovereignty and history. In turn, any differential treatment—particularly in an age of lucrative and seemingly oligopolistic casino operations—can all-too-easily be seen as racial favoritism or discrimination in the absence of any clear, defensible rationale. The fact that Indian interests are at times intermingled with the interests of bona fide ethnic or racial minorities, perfunctorily grouped together under an expansive umbrella of multiculturalism, only furthers this racial conceptualization of tribes and tribal members.
This problem of public perception is not something that can easily be changed, yet it exerts a powerful influence within the culture and no doubt shapes some important governmental decision making. Education on a variety of fronts is obviously one approach to the problem, but such efforts must emphasize, or at least take serious account of, the unique legal status of tribes throughout American history and today and further must explain the differences between tribes and other groups in society that pursue claims of justice. At the same time, it might behoove the judiciary to rethink its general reluctance to develop more thoroughly and candidly the relationship between the status and treatment of Indians and the nation’s commitment to equality and the rule of law.