Sarah Krakoff has posted her new paper, “Inextricably Political: Race, Membership and Tribal Sovereignty,” forthcoming from the Washington Law Review, on SSRN. Here is the abstract:
Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e. based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. laws and policies.
First, the article traces the evolution of tribes from pre-contact independent sovereigns to their current status as “federally recognized tribes.” This history reveals that the federal government’s objective of minimizing the tribal land base entailed a racial logic that was reflected in decisions about when and how to recognize tribal status. The logic was that of elimination: Indian people had to disappear in order to free territory for non-Indian settlement. The Article then examines two very distinct tribal places, the Colorado River Indian Tribes’ (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains. The United States’ policies had different effects on the CRIT (where four distinct ethnic and linguistic groups were consolidated into one tribe) and the Sioux (where related ethnic and linguistic groups were scattered apart), but the causal structures were the same. Indian people stood in the way of non-Indian settlement, and federal policies defined tribes and their land base with the goal of shrinking both. Despite these goals, the CRIT and Sioux Tribes have exercised their powers of self-governance and created homelands that foster cultural survival for their people. Like other federally recognized tribes, they have used the given legal structure to perpetuate their own forms of indigenous governance, notwithstanding the law’s darker origins.
The legal histories of CRIT and the Sioux Tribes reveal that unraveling the logic of racism in American Indian law has less to do with tinkering with current equal protection doctrine than it does with recognizing the workings of power, politics, and law in the context of the United States’ unique brand of settler colonialism. The way to counter much of the prior racial discrimination against American Indians is to support laws that perpetuate the sovereign political status of tribes, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political.