Here is “States and Their American Indian Citizens,” recently published in the American Indian Law Review.
This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.
This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.
Here is the opinion in State v. Snow:
Wisconsin v. Snow
Karen Lynne Snow appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration and an order denying her motion for a new trial. Snow argues that she was denied equal protection under the United States and Wisconsin Constitutions when the prosecutor used a peremptory strike to remove the only Native American prospective juror and referenced that prospective juror’s “Ho-Chunk culture” when explaining the strike. I conclude that the circuit court clearly erred when it ruled that the prosecutor’s peremptory strike of the prospective juror did not violate Snow’s right under the Equal Protection Clause and therefore reverse the conviction and remand the case for a new trial.
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.
Here is the petition in Harvest Freedmen Institute v. United States:
Harvest Inst. Freedmen Cert Petition
Lower court materials here.
Here the opinion in In re KMO.
Several state courts have evaluated the equal protection argument in the context of the ICWA as compared with a state statute with a “clear and convincing” standard of proof. See, In re Application of Angus, 655 P.2d 208 (Ore. App. 1982), Knight v. State (In re MK.), 964 P.2d 241 (Okla. Civ. App. 1998); State v. Sonya L. (In re Phoenix L), 708 N.W.2d 786 (Neb. 2006). Those courts have applied the test articulated in Moe and concluded that there was no equal protection violation under the United States Constitution. See, e.g., Application of Angus, 655 P.2d at 213 (holding “the protection of the integrity of Indian families to be a permissible goal that is rationally tied to the fulfillment of Congress’ unique guardianship obligation toward the Indians.”). Mother provides no legal authority or cogent argument in support of her position that an equal protection violation has occurred. We follow the reasoning of the Oregon court in Application of Angus and hold that the different burdens of proof in the federal ICWA and Wyoming’s termination statute do not violate Mother’s constitutional right to equal protection under the law.
Here is the opinion in what appears to be the first IACA case in the First Circuit, out of the District of Rhode Island: DCT Order Denying Specialties’ Motion to Dismiss
The Eastern District of Michigan rejected a constitutional challenge to Michigan Const. art. IV, section 41, otherwise known as Proposal E, and the Michigan Gaming Control and Revenue Act. Here are the pleadings in Northville Downs v. Granholm.
northville-response-to-motion-to-dismiss [response begins around page 27, the rest is an amended complaint]
In In the Interest of A.W. the Iowa Supreme Court held that the Iowa ICWA‘s definition of “Indian child” violated the Equal Protection Clause. The definition included Indian children who were not eligible for membership in any tribe (“‘Indian child’ or ‘child’ means an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that an Indian tribe identifies as a child of the tribe’s community.“, Iowa Code 223B.3.6), or what the Court referred to as “ethnic Indians.” In doing so, the Court held that the trial court order allowing the intervention of the Winnebago Tribe of Nebraska was invalid.
A video of the oral argument before the Iowa Supreme Court can be viewed here.