Sarah Krakoff has published “They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum” in the Stanford Law Review. Here is the abstract:
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.
The argument advanced in this Article might be seen as a form of American Indian law exceptionalism. Yet it is consistent with racial formation theory’s project of understanding race as a construction that serves, creates, and perpetuates legalized subordination and shapes daily social conceptions and interactions. Racial formation theory calls for multiple accounts of racialization depending on the social and economic purposes served by each group’s subordination. On the remedial side, racial formation theory therefore necessarily anticipates what we might think of as multiple exceptionalisms. Put more simply, racism takes different forms for each group to which inferior characteristics have been ascribed. Undoing the effects of racism therefore requires customization. Reversing policies that aimed to eliminate Native people, and the racialized understanding of Indians that drove those policies, requires maintaining the political status of tribes as separate sovereigns, not destroying it in the name of an ahistorical conception of “race” neutrality. This Article untangles the legitimate constitutional basis for tribal recognition—that tribes can trace their ancestry to a time before nonindigenous arrival—from the racial logic that nearly eliminated tribes from the continent despite their unique constitutional status.