Stanford Law Review
Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491 (2017), available at https://scholar.law.colorado.edu/articles/191.
In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators are questioning the distinction between tribes’ political and racial statuses and are calling for the invalidation of child welfare and gaming laws that further tribes’ unique sovereign status.
The parties urging strict scrutiny of laws that benefit tribes contend that tribal membership rules, which often include elements of lineage or ancestry, are the same as racial classifications. In their view, tribes are therefore nothing other than collections of people connected by race. Yet federal law requires tribes (as collectives) to trace their heritage to peoples who preceded European/American settlement in order to establish a political relationship with the federal government. Descent and ancestry (not the sociolegal category of “race”) make the difference between legitimate federal recognition of tribal status and unauthorized, unconstitutional acts by Congress. Congress, in other words, cannot establish a government-to-government relationship with just any group of people. Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America. These ties comprise a constitutional minimum requirement for federal tribal recognition. This constitutional understanding of tribes derives from the international law origins of the federal-tribal relationship and is reflected in contemporary case law and federal regulations.
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