California Law Review

Bethany Berger on Equal Protection and Federal Indian Law

Matthew L.M. Fletcher

Bethany Berger has posted “Reconciling Equal Protection and Federal Indian Law” on SSRN. Here is the abstract:

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.

Sarah Krakoff Tribute to Phil Frickey

Matthew L.M. Fletcher

Sarah Krakoff has posted her paper, “The Last Indian Raid in Kansas: Context, Colonialism, and Philip P. Frickey’s Contributions to American Indian Law,” on SSRN. It is forthcoming in the California Law Review. Here is the abstract:

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as the Last Indian Raid in Kansas by some, and the Odyssey of the Northern Cheyenne by others, which touched down in the little town of Oberlin, Kansas, where Phil Frickey grew up, turns out to be all about the centrality of the structural, inter-governmental relationship between tribes and the United States, and the importance of grounded research about the contexts of American Indian law, another theme that Professor Frickey championed in his scholarship. This paper first describes the trajectory of Professor Frickey’s Indian law scholarship, tracking in particular the development of the major themes just described. Next, it delves into the story of Oberlin, Kansas and the Northern Cheyenne Odyssey, a story that cannot be fully comprehended without the contextual backdrop of the United States’ unique brand of colonialism and American Indian nation resistance to it. Finally lessons from the Last Indian Raid are applied to a contemporary Indian law issue – the boundaries of tribal control over Indians who are not members of the governing tribe. Telling a thicker story, whether about the Last Indian Raid or this particular Indian law question, may not push federal Indian law in the direction that Professor Frickey and many other scholars would like to see it go, but there is value nonetheless in peeking behind the arid formulations of Indian law that tend to issue from the judiciary in favor of the more complicated reality about the life of Indian law.

Rose Villazor on Blood Quantum Laws and Equal Protection

Matthew L.M. Fletcher

Rose Cuison Villazor (SMU) has published “Blood Quantum Land Laws and the Race Versus Political Identity Dilemma” in the California Law Review. This is a great paper. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent  [*802] challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws – what I collectively refer to as blood quantum land laws – as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law’s interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.