Legal Anomalies in Federal Indian Law, Part I—Equal Protection

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.

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The American Prison in 1931: High Ideals, Harsh Realities

As part of my ongoing review of the work of the Wickersham Commission, I am reading the body’s 1931 Report on Penal Institutions, Probation, and Parole.  I’m much struck by the Commission’s ringing statement about the purpose of prison:

The function of the penal institutions is protection of society.  To this end all efforts must be bent and all administrative methods be adapted.  All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society.  This raises the question of how penal institutions can best contribute to this objective.  There seems but one answer possible — by the reformation of the criminal.  Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose.  If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community.  Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations.  (6-7)

This passage interests me for two reasons.  First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison’s function.

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When Did Wisconsin’s Vote Really Ever Matter?

Both major party presidential candidates in 2012 seem committed to spending time and money campaigning in Wisconsin, and a few pundits have even speculated that the upcoming election might be decided by the votes of the Badger State.

Local enthusiasm aside, how likely is it that Wisconsin’s electoral votes could actually decide the presidential election? Unfortunately, if history is any guide, not very likely.

Since their state’s admission to the United States on May 29, 1848, Wisconsinites have voted in 41 presidential elections, and the state has supported the winning candidate 32 times.

In ten consecutive elections from 1948 until 1984, the Badger state sided with the winning candidate, and had it not been for the surprising decision to support Dewey over FDR in 1948—after voting for Roosevelt by large margins in the three previous elections—the streak would have been 15 in a row.

However, in only one election—that of 1876—did Wisconsin’s votes actually matter, at least in the sense that in all the other elections, had Wisconsin gone with the losing candidate, the result would still have been the same.

The 1876 election was the closest election in American history, with a final electoral vote count of 185 votes for Republican Rutherford B. Hayes and 184 votes for Democrat Samuel Tilden. (Students of American history know that these totals were established only after the creation of a special electoral commission to sort out conflicting returns from several Southern states.)

Not only was the 1876 presidential election extremely close on a national level, it was extremely close in Wisconsin as well. Wisconsin voters cast 50.57% of their votes for Hayes, a percentage that only slightly exceeded the 48.19% of the votes cast for Tilden. (The remaining 1.24% went to minor party candidates.) Had Wisconsin cast its 10 electoral votes for Tilden instead of Hayes, the New York Governor would have won the election 194 electoral votes to 175.

There is actually little reason to be surprised that In no other election did the Wisconsin vote determine the outcome. While the popular vote in American presidential elections is often fairly close, in terms of the vote in the Electoral College, there have been very few close presidential elections in U.S. history. Given that Wisconsin’s number of electoral votes has never been greater than 13 and has been as few as 5, only a very close election could be decided by Wisconsin’s vote.

In fact, the only two other presidential elections since 1848 that could have been decided by the votes of a state the size of Wisconsin were the elections of 1916 and 2000. In 1916, incumbent president Woodrow Wilson defeated United States Supreme Court Justice Charles Evans Hughes by a margin of 277 to 254, in a year in which Wisconsin had 13 electoral votes. However, because Wisconsin supported Hughes, its votes did not affect the outcome of the election.

The same was true for the 2000 election in which George W. Bush edged Al Gore, 271 to 266, with Wisconsin casting its votes for Gore by a razor thin margin.

Of course it is possible that Wisconsin could make the difference. Were Mitt Romney to carry Indiana, plus all the Southern states except Maryland and Delaware and carry all the states west of the Mississippi River except Minnesota, New Mexico, Nevada, Washington, Oregon, and California, and carry Alaska, and were President Obama to carry all of the other states, the election would be decided by the candidate that carried Wisconsin.

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