American Indians as Political Status
The United States recognizes Indian tribes as political entities with regards to Indian law and policy based on the political status of Indian tribes. Indian law is not based on a constitutional race law paradigm.
Morton v. Mancari – footnote 24 describes the federal legislation and rules relating to Indian tribes as a political classification. The implementation of the rule of Johnson v. M’Intosh, Indian treaties, and Acts of the First Congress offers significant evidence that the original understanding of the Founders was that Indian tribes and the federal government enjoy a political relationship, not racial.
Legal opinions of Justice Blackmun,
[1] Justice Stevens,
[2] and Judge Kozinski,
[3] have been among the federal and state court judges confronted with the question of whether Indian law is a question of race law or politics. It is a rare occasion when federal courts are presented with the argument that statutes and regulations that create, for example, federal program preferences for Indian tribes or individual Indians are unconstitutional under the Fifth or Fourteenth Amendments,
[4] Title 25 of the United States Code
[5] relates to Indian Law. This area of Constitutional and Indian law is superficially theorized using judicial authority.
The First Congress’s statement of Indian policy in the 1790 Trade and Intercourse Act
[6] is the first major Indian law decision from the Supreme Court, Johnson v. M’Intosh.
[7] Johnson. It constitutionalized the rule that only the federal government could clear title to Indian land – or in the Court’s phrasing, “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.”
[8] Congress had already exercised its Indian Commerce Clause
[9] power to ban the states from purchasing or acquiring Indian lands in the Trade and Intercourse Act.
[10]Indian law’s general perception is one of the race law paradigm created by the Constitution and recreated by the Fourteenth Amendment. Justice Blackmun’s footnote in Morton v. Mancari, describes federal legislation related to Indian tribes as a political classification
[11] but offered insufficient guidance for lower courts.
American Indian law and policy can be researched back to the Johnson v. M’Intosh
[12] and the Fourteenth Amendment and the treatment of Indian people under both the political and racial classifications. The rule of Johnson v. M’Intosh offers significant proof of this political relationship.
In order for Indian Law to be judged as race law they would be governed by the Fifth and Fourteenth Amendments. The main focus is that overwhelming political, legal, and historical evidence that the foundations of American Indian law are political, not racial.
While federal Indian law and policy has been on a track parallel to race law and appears to retain many of the same elements, courts and commentators misunderstand this relationship. As a result, they attempt to place Indian law into a cubbyhole in which it doesn’t fit – race law. As a result, courts and commentators continue to discuss whether certain statutes that apply only to American Indians should be analyzed under the rubric of Caroline Products’ footnote 4,
[13] debating whether or not to apply strict scrutiny.
Next time, How International law can be used to view racial discrimination regarding the Virginia Indian tribe’s journey for sovereignty.
[1] Morton v. Mancari, 417 U.S. 535, 552-53 (1974) (“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.”) (citing Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 814 n. 13 (E.D. Wash. 1965), aff’d, 384 U.S. 209 (1966)).
[2] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 244-45 (1995) (Stevens, J., dissenting) (“We should reject a concept of ‘consistency’ that would view the special preferences that the National Government has provided to Native Americans since 1834 as comparable to the official discrimination against African-Americans that was prevalent for much of our history.”) (citing Mancari, 417 U.S. at 541).
[3] Williams v. Babbitt, 115 F.3d 657, 665 (9th Cir. 1997) (“If Justice Stevens is right about the logical implications of Adarand, Mancari’s days are numbered.”) (citing Adarand, 515 U.S. at 225-27, 244; Mancari, 415 U.S. 535; Stuart Major Benjamin, Equal Protection and the Special Relationship: The Case of the Native Hawaiians, 106 Yale L. J. 537, 567 (1996)).
[4] E.g., United States v. Antelope, 430 U.S. 641 (1977) (Fifth Amendment); Flynt v. California Gambling Control Commission, 129 Cal. Rptr. 2d 157 (Cal. App. 2002) (Fourteenth Amendment); cf. Rice v. Cayetano, 528 U.S. 495 (2000) (Thirteenth Amendment).
[5] See, e.g., Mancari, 417 U.S. at 552-53.
[6] Act of July 22, 1790, ch. 33, 1 Stat. 137.
[7] 21 U.S. 543 (1823).
[8] Johnson, 21 U.S. at 587.
[9] Const. art. I, § 8, cl. 3.
[10] See Act of July 22, 1790, ch. 33, 1 Stat. 137; Akhil Reed Amar, America’s Constitution, A Biography 108 n. (2005).
[11] Morton v. Mancari, 417 U.S. 535, 553 n. 24 (1974) (“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.”).
[12] 21 U.S. 543 (1823).
[13] United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).
