excerpted from: Carole Goldberg, American Indians and "Preferential" Treatment, 49 University of California at Los Angeles Law Review 943-989, 955-974 (April, 2002)(274 Footnotes)
Are the opponents of affirmative action correct in treating special Indian laws as necessary targets in their crusade against racial preferences? There are several possible responses that Indian nations and individual Indians might make to the attacks on these laws, apart from a general defense of affirmative action. I will discuss three such responses, and the problems with each.
A. The Strict Scrutiny Survival Response
One response, which I will label strict scrutiny survival, suggests that special Indian laws can survive strict scrutiny analysis under the equal protection provision of the Due Process Clause. Such a defense is sketched in a footnote to Judge Kozinski's opinion in Williams v. Babbitt, in which he replies to the Indians' argument that "subjecting laws favoring Indians to strict scrutiny 'would effectively gut Title 25 of the U.S. Code." ' Judge Kozinski observes,
Such a dire prediction, however, is unwarranted. We have little doubt that the government has compelling interests when it comes to dealing with Indians. In fact, Mancari's lenient standard may reflect the Court's instinct that most laws favoring Indians serve compelling interests. If so, Title 25 will only be stripped of those laws that are not narrowly tailored.
Judge Kozinski's alternate prognostication is partly borne out by the federal trial court opinion in American Federation of Government Employees v. United States, which upheld the defense-contracting preference for Native American-owned businesses, discussed above, based on a strict scrutiny analysis. The court there found that "the preference furthers the federal govern-ment's compelling interest in fulfilling its trust obligations to the Alaska Native-American tribes--an interest and obligation which arises from the unique guardian-ward relationship which exists between the government and the tribes."
Surviving strict scrutiny requires a finding that the legislation advances a compelling government interest and does so in a manner that is narrowly tailored to achieve that purpose. The legal test has been described as "fatal in fact" to legislation subjected to such review. The fate of race-based affirmative action in admissions for higher education suggests that it is difficult to run this particular gauntlet, even for modest measures that are associated with noble goals (eliminating the effects of past discrimination or achieving diversity of perspectives in the classroom). Courts have substituted their own judgments about the importance of particular government objectives and the best means to achieve them for the judgment of legislatures and other public agencies. Assuming that the Supreme Court would treat the federal govern-ment's relationship with Indian nations as the source of a compelling government interest for purposes of strict scrutiny under the Equal Protection Clause, the problems associated with determinations of narrow tailoring would be quite serious. A case in point is the decision in Williams itself. Judge Kozinski seemed to assume that unless reindeer hunting was a traditional subsistence activity of the Alaska Natives, a preference directed at such hunting could not be sufficiently narrow in its tailoring. But why should fulfill-ment of the United States' trust responsibility and government-to-government relationship require adherence to tribal cultural practices suited to times past? If the United States figures out a workable substitute for prior subsistence practices that may enable Alaska Natives to remain on their traditional land base while simultaneously enabling them to participate in the new cash economy, why should courts interfere? Can the courts know better than government administrators the extent to which Alaska Natives have been driven from their homelands by government policies and the extent to which an all-Native preference would work effectively to restore Native communal life? How could judges know enough to intervene intelligently? In fact, the government-to-government relationship between Indian nations and the United States suggests that preferential measures should be the outgrowth of a negotiation process or, at the very least, consultation. For courts to intervene uni-laterally, as Judge Kozinski did in Williams, is to negate the results of such neg-otiations or consultations, and to contradict the very government purpose that is described as compelling. Hence, it seems unmanageable and unpredictable to rely on strict scrutiny survival as the basis for a response to the current chal-lenge to federal Indian law.
An even more fundamental difficulty with the strict scrutiny survival response is that it presupposes that Indians are merely a racial group rather than nations with some degree of sovereignty. The proper characterization is not obvious, given that family and ancestry categories that lie close to race and nationality play a role in most tribal criteria for membership, as well as federal criteria for special legislative treatment. Yet nationhood (rather than nationality) is arguably the more appropriate label. Indian nationhood is the lens through which Indian people understand themselves; it is also the source of special federal relationships and obligations, which may extend not only to presently existing Indian nations and their citizens, but also to individuals with close connections to Indian nations that have suffered disruption at the hands of the federal government. Plunging into the strict scrutiny survival mode presumes rather than interrogates the characterization of Indian communities as racial versus national.
B. The Citizenship Response
Another possible response to the characterization of Indian law as a system of unconstitutional preferences, which I will label the citizenship response, is that Indian classifications are political, not racial, so long as they turn on tribal citizenship rather than on ancestry. Under this theory, Indian classifications are no different from permissible classifications based on U.S. or foreign citizenship and should be tested by the same relaxed equal protection standard. This position has best been articulated by my colleague Professor Eugene Volokh, who has written,
Because an Indian tribe is not just an ethnic group but a political one, the Court has viewed "preference[s]" for "members of federally recognized tribes" as "political rather than racial in nature" [citing Mancari]. This makes sense. The government sorts us by political allegiance in various ways: it sometimes distinguishes U.S. citizens from aliens, and Californians from out-of-state citizens. An Indian tribe is likewise a different sovereign. Tribal Indians . . . belong to a political group that's specifically recognized by federal law and the U.S. Constitution, not merely to an ethnic group that has no independent legal standing.
[Anti-affirmative action legislation] is aimed at hastening the day when people's race or ethnicity will be irrelevant to their civic lives. But a person's membership in an Indian tribe will necessarily (and properly) remain relevant in at least some ways, just as a person's being a Californian or an American will remain relevant. The state may therefore legitimately want to consider a prospective employee's, stu-dent's, or contractor's Indian-tribe affiliation in seeking to better serve the needs of this separate political community.
. . . .
. . . Classifications based only on being an Indian,however, are racial; discrimination against or preference for nontribal Indians--or even for tribal Indians if the justification is their race and not their tribal status-- would thus violate [anti-affirmative action and nondiscrimin-ation laws].
The citizenship response has much to commend it, as it recognizes the special governmental status of Indian nations and simultaneously seeks to protect against discriminatory laws targeting Indians as a racial or ethnic group. By separating tribal classifications from those resting on race or ethnicity, it quells concerns about impermissible preferential treatment. This response to the antipreference rhetoric encounters some difficulties, however.
First, it presupposes that one can determine with ease who is a tribal citi- zen and who is not. In fact, in 1990, Secretary of the U.S. Department of the Interior Manuel Lujan noted that "nearly 40% of the Indian tribal entities we deal with do not have any formally approved governing document or, indeed, any written governing document at all which would define tribal membership."
Second, it may allow some classifications that are not permissible under the Supreme Court's equal protection doctrine in Mancari. If a focus on tribal citizenship renders classifications nonracial and nonethnic in nature, then presumably Congress and the states are free to make any such classifications that are rationally related to a permissible government end. This is the most relaxed standard of judicial review that courts apply in equal protection cases. However, under Mancari, classifications affecting Indians must be "tied ration-ally to the unique obligation" that the federal government has to the Indian tribes, meaning that states are not free to make classifications that lack support in federal policy. Accordingly, a federal classification that is rationally based on some policy unrelated to the federal government's unique obligation would presumably not pass judicial muster. Thus, for example, a state statute giving citizens of Indian nations a preference in access to display space at a state museum would pass the citizenship equal protection standard, but would encounter difficulty under Mancari because of the arguable absence of any link to federal policy. Or the type of broad federal contracting monopoly for Space Shuttle contracts hypothesized in Judge Kozinski's Williams opinion would survive challenge under the citizenship rational basis test but not under Judge Kozinski's application of the "tied rationally to the unique obligation" requirement. Admittedly, Mancari's tied rationally test is not the most exacting. No federal law has ever been invalidated for failing to meet it. Out of antipathy to Mancari's lax standard, Judge Kozinski may be attempting to introduce more bite into it than the Supreme Court ever intended. However, even if federal laws can satisfy Mancari and the citizenship rational basis test with equal ease, state laws that have been struck down for failing to meet the Mancari standard would fare better under Professor Volokh's proposed analysis of these classifications as not being racial or ethnic in nature. Of course, a proponent of the citizenship response to antipreference rhetoric may be willing to jettison Mancari on grounds that it is underinclusive. But there may be costs to abandoning the tied rationally requirement.
A third difficulty with the citizenship response is that it overlooks the fact that tribal citizenship or membership requirements frequently incorporate elements of ancestry,often characterized as "blood quantum." Furthermore, for some Indian nations, part of this blood quantum requirement can be sat-isfied by ancestry from other tribes. In two recent cases, California appellate courts have invalidated a federal statute on equal protection grounds, despite its application only to tribal members, because tribal membership turned on ancestry or blood quantum.
Formal, inflexible ancestry requirements of either type are not part of the historic practices of tribes. These historic practices generally made member- ship turn on such matters as acceptance into a family or a clan, and participation in community rituals and practices. Ancestry was the usual gateway to satisfying these requirements, but not the only one. However, under the influence of the federal government, which was concerned with restricting eli-gibility for federal benefits and special Indian status, blood quantum require-ments entered the citizenship provisions of most tribes. Sometimes ancestry requirements referring to other tribes are limited to tribes from the same cultural group or geographic area, reflecting the fact that the federal govern-ment has recognized as separate governments different bands from the same cultural group. For these tribes, membership in another band is not treated as being a true outsider. For other tribes, however, the provisions for non-member Indians reflect a realistic acceptance of past federal policies that have promoted intermarriage among tribes, such as the federal boarding school policy of the nineteenth and twentieth centuries. In any event, federal or state classifications that turn on tribal citizenship could be characterized as race or ancestry plus classifications, which would return us to the challenges from anti-affirmative action forces. Perhaps this concern is overdrawn. Federal classifications based on foreign citizenship give effect to foreign citizenship requirements based on ethnicity or descent, and that feature of such classifications has not raised the specter of strict scrutiny under equal protection. For example, as Professor Thomas Pogge has noted, "ethnic Germans from Russia who speak no German are eligible to become citizens of Germany while ethnic Turks who have lived there all their lives are not." Yet, although ethnicity is a component of German citizenship, no one has argued that it would be an impermissible racial or ethnic preference for the government to give special treatment to German citizens. Should classifications based on tribal citizenship be any different?
One could argue that the federal government's involvement in establish-ing tribal citizenship requirements substantially distinguishes preferences for Indians and preferences for foreign citizens. While the Department of Interior and the federal courts today keep respectful distance from tribal membership determinations, deferring to tribal control over such matters, federal practice has not always been so deferential. Notably, the Interior Department actively influenced the design of tribal membership requirements in many tribal constitutions, subject to secretarial approval under the Indian Reorganization Act of 1934. In general, the Interior Department sought to maintain racialized membership requirements with higher blood quantum thresholds in order to limit those eligible for federal benefits. Tribes are now free to amend their constitutions to eliminate these federally influenced membership criteria, so long as the amended language does not violate federal law. Nonetheless, political inertia in many Indian nations has stymied such initiatives. Such federal involvement in determining tribal citizenship requirements may make hostile courts more willing to attack the nature of these classifications as based on race or ancestry.
A further concern with the citizenship response is that it leaves no room for the initial act of federal recognition of tribal governments. The govern- ment's decision to recognize one group of individuals as a government, and not others, based in whole or part on ancestry, would be subject to strict scrutiny under the citizenship approach, because there would be no prior citizenship to trigger application of the more relaxed standard of review. Consider, for example, the Indian Reorganization Act of 1934, which allowed "half-blood Indians" (of any tribe) residing on a single reservation to organize as a federally recognized tribe, largely to assist in the reinstatement of tribal governance structures that had been torn apart by demographic and economic forces result-ing from non-Indian entry into tribal territories. Many of these Indians were from tribal groups that had been chased from their homelands or hunted to death by non-Indians, with the survivors rounded up onto reservation lands. Once these Indians organized and received federal recognition under the Indian Reorganization Act, the citizenship response would deem federal bene-fits for their members constitutional, even though membership might be limited based on race or ancestry. Yet this approach would view the very act of recognition as outside its terms and hence subject to strict scrutiny. The fact that opponents of federal recognition today are challenging administrative and legislative recognition decisions on just such equal protection grounds makes this concern genuine rather than hypothetical.
Yet another concern with the citizenship approach is that it would sweep away many long-standing federal laws, both legislative and judge-made, that have established classifications based on Indian ancestry and community membership apart from enrolled tribal membership or citizenship. These laws accommodated the disruption of tribes as governments and the federally promoted constriction of tribal membership based on ancestry. Federal inter- vention in tribal sociopolitical organization has made it quite difficult to fit every Indian into a citizenship category with some tribe. Moreover, the very concept of enrollment and maintenance of citizenship lists is largely an artifact of the allotment era, when the federal government divided tribal lands into individual parcels and determined eligibility for such distributions. For these reasons, the federal government has long resisted limiting its trust responsibility to enrolled tribal members. For example, the federal criminal laws applicable to Indian country that displace state criminal law apply to Indians, defined not by enrolled tribal membership but by ancestry and involvement in an Indian tribal community. Furthermore, some federal benefits for Indians, especially those related to education and to Indian cultures, designate eligibility for a group defined by ancestry, self-identification, or tribal designation apart from enrollment because they seek to promote distinct features of tribal cultures or to enhance tribal leadership. The claimants of these benefits (benefits such as scholarships or participation in specific Indian programs within public schools) must identify sufficiently with Indian communities to seek them out. Under some statutes, claimants must also be certified by a tribe as entitled to the benefits of the law. A response that focuses on formal tribal citizenship threatens all of these programs. And indeed, federal regulations increasingly confine benefits to enrolled members of federally recognized tribes, even though the statutes lack such limitations, out of concern that the statutes will otherwise be found unconstitutional.
Tribes could, of course, adjust to the citizenship response to antipreference rhetoric by broadening their membership requirements to encompass all those with any ancestry from their group. There are some tribes which have such expansive membership provisions, most notably the Oklahoma Cherokees, which allow membership to anyone who can trace ancestry to a membership list or roll that was created by the federal government in the 1890s. For many tribes, however, this possibility poses the threat of a takeover by individuals who do not live near or participate in the reservation and who have no stake in the continued development of the local community. It would represent yet another inappropriate federal intervention in tribal membership criteria if fear of lost benefits to Indians pressed tribes to expand formal membership beyond what they deem correct. As Sam Deloria has written,
Tribal membership is a political definition by the tribe that serves a fixed tribal purpose and it is not usually fit for other purposes. In some tribes, many people are included in such a definition who would not meet the ordinary meaning of the word "Indian." And vice versa . . . . [T]here are very few issues for which tribal membership is the correct working definition.
A final concern with the citizenship response is that it leaves tribal mem- bers vulnerable to disadvantageous measures just as it enables them to receive preferences. For example, a state could impose higher off-reservation sales taxes on tribal members who live on reservations to compensate for the sales tax exemption that tribal members enjoy for on-reservation purchases. Assuming that federal preemption did not nullify such a law, it would be difficult to challenge it under the citizenship approach. That approach seems to entail treating federal or state laws that target Indians as a racial group as racial or ethnic classifications, therefore subjecting such laws to strict scru-tiny. But if a state made the classification on the basis of enrolled tribal mem-bership, it would be difficult to prove racial motivation. Presumably, Congress could adopt the same sorts of measures directed at citizens of particular states, and equal protection would not stand in the way. However, unlike states, which have a political role within the federal government that affords them some protection against disadvantageous treatment directed at their citizens, tribes have no such role within either state or federal government. No matter how irritated the rest of the country might get at the citizens of some state, it is difficult to imagine a punitive measure passing Congress. In contrast, states have been described as the Indians' "deadliest enemies" because of "local ill feeling," arising from competition over resources and sovereignty that have persisted across time. Even with the tribes' newfound political influence from gaming, one can imagine a state law singling out tribal citizens for special tax obligations.
C. The Indian Commerce Clause Response
I will label a third possible response to the antipreference assault on fed- eral Indian law the Indian Commerce Clause response. This response rests on a claim that the equal protection requirements of the Constitution have only limited application to federal Indian legislation, because the Indian Commerce Clause of the Constitution specifically authorizes the exercise of federal power with respect to tribes in particular. I have made this argument more fully in another article, and I believe it does the best job of explaining the Supreme Court's decision in Morton v. Mancari. Fundamentally, this response draws on the language of Article I, Section 8, Clause 3 of the Constitution, the Indian Commerce Clause, which envisions measures addressed specifically to Indian nations. In contrast, the equal protection provisions of the Fifth and Fourteenth Amendments dictate equal treatment in very general terms. Indeed, the Fifth Amendment language, applicable to the federal government, does not mention equal protection, limiting its requirement to due process. Only as the courts have construed due process to encompass equal protection has that legal doctrine become relevant to federal legislation. A long-established principle of legal interpretation directs that more specific pro-visions should control over more general provisions. Hence, the language of the Indian Commerce Clause should allow federal legislation directed at Indian tribes without triggering the strictest form of scrutiny under Fifth Amendment equal protection.
Under this response, state legislation could likewise escape strict scrutiny, but only if that legislation carried forward established federal policies. Furthermore, any limitations that attach to federal power under the Indian Commerce Clause would necessarily limit the scope of legislation that singled out Indians or tribes for special treatment--either favorable, unfavorable, or ambiguous. While those limitations are not exactly severe, they do include the requirement that federal legislation be "tied rationally to the fulfillment of Congress' unique obligation toward the Indians," the Supreme Court's test in Mancari.
This Indian Commerce Clause response squares with Rice v. Cayetano because the Fifteenth Amendment is far more specific in outlawing classi- fications based on race or ancestry than the equal protection provision of the Fifth Amendment. Thus, the targeted language of the Indian Commerce Clause would prevail over the latter but not the former.
The problems associated with a response grounded in the Indian Commerce Clause are threefold. First, a relaxed standard of review for legislation affecting Indians may render Indian people too vulnerable to harmful forms of discrimination. If the standard of review gets too relaxed, it may fall asleep while Congress uses its power to disadvantage Indians and tribes, a problem shared by the citizenship response. However, the Indian Commerce Clause approach has the potential advantage of incorporating the unique obligation requirement, which from the context of Mancari refers to Congress's obligation to further tribal self-government. While Congress could attempt to couch harmful discriminatory legislation in these terms, the burden on Congress would be considerable. It would be difficult, for example, for Congress to justify a law that disqualifies Indians from service in the BIA in terms of furthering tribal self-government.
A second potential problem with the Indian Commerce Clause response is that it may not justify upholding state preferences enacted independent of federal law or policy. State-based preferences, such as preferences for display space outside a state museum or preferences for state employment, may not sufficiently advance federal policy to qualify as authorized under the Indian Commerce Clause. Courts have been unable to establish clear criteria for the requisite link between state and federal policies for purposes of satisfying Mancari. However, so long as Congress may intervene and clarify the situation, this problem should not count against the Indian Commerce Clause response. The unavailability of certain state-based preferences is a necessary and probably desirable consequence of Congress's preemptive power over Indian affairs.
The third and probably the most serious question concerning the Indian Commerce Clause response is whether it supports existing federal classi- fications directed at individual Indians rather than tribes. The language of the clause refers to "Indian tribes," not individual Indians. On one reading of this language, the only federal classifications justified under the Indian Commerce Clause would be those directed at federally recognized tribes and their citizens. Some support for this reading comes from another clause of the Constitution that excludes from federal apportionment "Indians not taxed." In its earliest application, this phrase referred to those few Indians who had severed their tribal relations and individually joined non-Indian communities. Only these Indians were deemed "subject to ordinary laws in a manner that made it appropriate to count them in the apportionment of direct federal taxes or for representation in Congress." It is possible to understand this distinction between Indian tribes and Indians not taxed as meaning that only federal legislation directed at tribal entities or the citizens of such entities enjoys the blessing of the Indian Commerce Clause when an equal protection challenge is raised. Such a reading would lead to invalidation of federal laws that make education benefits available to Indians defined by ancestry rather than by tribal citizenship, or that make federal criminal jurisdiction turn on ancestry and community participation rather than on tribal citizenship.
However, this restrictive reading of the Indian Commerce Clause defies the understanding and practice at the time it was enacted, and makes no sense in light of current legal circumstances. From the earliest years of its existence, the Indian Commerce Clause enabled Congress to enact federal legislation directed at individual Indians. Because tribes did not follow the practice of formal enrollment at that time, it was pointless for Congress to insist on such enrollment before Indian legislation applied, and in fact the laws extended beyond enrolled members. Typically, Congress maintained a focus on tribal Indians by making Indian legislation applicable within tribal territories. Even that limitation was not universal, however. For example, federal bans on liquor sales have been applied to Indians outside Indian country under some circumstances. Furthermore, federal recognition in the early years of the United States lacked the formal process that it has today. The federal government has long been aware that its disruptive policies of removal, dis-possession, and relocation have produced discontinuities in tribal organization. For example, in California, tribal groups were forced apart, and fragments from different groups reassembled at a few reservations. Federal laws directed at individual Indians or groups of individual Indians have aimed to repair these effects. On other occasions, Congress has taken advantage of these impacts by limiting federal benefits to individuals who possess a high percentage of Indian ancestry. So long as individuals did not actively dis-avow their tribal affiliations, Congress applied special laws under the auspices of the Indian Commerce Clause.
To distinguish "Indians not taxed" from other Indians today is especially futile. In the early years of this country, Indians not taxed were differentiated from tribal Indians by being subject to ordinary state and federal laws. But today, tribal Indians are subject to a wide array of federal laws, most notably federal tax laws. And states covered by the federal law known as Public Law 280 subject tribal Indians to most state criminal laws as well. No one would suggest that Congress has thereby lost the capacity to legislate for such Indians under the Indian Commerce Clause. Thus, there is nothing in the "Indians not taxed" provision of the Constitution that should preclude federal Indian legislation under the Indian Commerce Clause that is directed at individual Indians not formally enrolled as members of tribes. Accordingly, the Indian Commerce Clause response to antipreference concerns should allow for some federal and federally sponsored classifications affecting Indians as a class, so long as the legislation is directed at tribal interests.
Nevertheless, the allowance of classifications favoring individual Indians requires some limits on Congress's power to declare an individual or group "Indian" and to justify special legislation, including preferences or detriments, on this basis. I suggest that the Indian Commerce Clause response requires the application of a criterion for "Indianness," and a nexus between benefiting individual Indians and benefiting a tribe. There is something disturbing about delivering such a task to non- Indian courts. The Supreme Court in particular has not discharged this type of responsibility in a manner that inspires confidence or respect. State courts applying an "existing Indian family" requirement in Indian Child Welfare Act cases have reached heights of absurdity in assessing Indianness--to the point of determining whether the individuals involved subscribe to tribal newspapers or receive tribal newsletters.
Existing federal Indian law suggests two alternative solutions to this quandary of determining the group for whom Indian legislation is permissible under the Indian Commerce Clause. One solution emerges from the Indian country federal criminal laws, which apply to individuals based upon a com-bination of descent and recognition. The descent prong does not require a specific percentage of Indian ancestry. The recognition prong refers not to federal recognition but to recognition as a member of the tribal community by the relevant tribe. This form of recognition does not require formal enroll-ment. These kinds of determinations are made on a case-by-case basis in federal criminal prosecutions and could be considerably more unwieldy as applied to larger-scale benefit programs. A second alternative solution derives from the Indian Arts and Crafts Act of 1990, which penalizes any sale of goods in a manner that falsely suggests that the goods are Indian produced. For purposes of this Act, Indians are enrolled tribal members plus individuals who have been certified by the tribe from which they are descended as Indians. Thus, individuals ineligible for enrollment because of intermarriage or because their parents did not live on the reservation when they were born may still have sufficient connections with the tribe to con-stitute tribal affiliation, at least for limited purposes.
Moreover, the problem of specifying Indianness becomes less severe when the definition of Indian can vary based on the tribal interest served by the statute. Thus, for example, self-identification may be acceptable if the tribal purpose of the preferential treatment is to cultivate and to sustain Indian culture, such as among urban Indians who left reservations through the federal relocation incentives of the 1950s. Several education programs provided through federal Indian education statutes offer enrichment and pull- out classes to Indian students for just such purposes, and include children and grand-children of enrolled tribal members. Likewise, if the tribal interest in establishing a federal scholarship program for Indian students is to nurture future tribal legal advocates, professionals, and advisors who identify with tribal legal needs and engender trust among tribal members, then the federal Indian country criminal law requirements of descent and recognition, apart from enrolled membership, may be sufficient. Indian nations today are sophisticated about the federal legislative process generally and about the specific issues posed when the term "Indian" must be defined. In the negotiation process that precedes preferential legislation, tribes generally oppose spreading benefits around to those who lack tribal citizenship. Thus, I suggest con-siderable judicial deference to congressional choices about the class of individuals subject to Indian legislation under the Indian Commerce Clause, and assessment of those choices in relation to the tribal interest advanced by the legislation.
The requirement of a tribal interest in legislation directed at individual Indians should be analyzed with tribal governments, cultures, and economies in mind. Like other nations, Indian nations have interests in promoting their self-governing capacity, in sustaining and developing their cultures, and in advancing the economic, spiritual, and physical well-being of their communities. The strategies they deploy to accomplish these ends necessarily change over time, along with the conditions that they confront. Federal con-stitutional law should not require tribes to conform to some outsider's image of Indians from film or literature in order to receive federal benefits, nor should it force tribes to freeze their culture and practices in time. An altogether new endeavor or technology may function as an effective substitute for past methods, with the salutary effect of improving tribal economic self-sufficiency or nourishing tribal cultural practice. The reindeer industry at issue in Babbitt v. Williams and the recent whale hunt conducted by Makah Indians using rifles rather than harpoons both illustrate this point. This criterion is not infinitely elastic, however. For example, an affirmative action admissions program for Indians in higher education justified solely on the basis of enhan-ced diversity of views in the classroom would fail according to the test of tribal interest, because the interest advanced is the interest of non-Indians in the higher education system.
Under the requirement of an articulated tribal interest, a preference for individual Indians could not pass legal muster unless Congress identified the tribal interest that justified the enactment. Merely including Indians in a string of groups entitled to affirmative action would not satisfy that standard. Thus, the employment and contracting preference questioned in City of Richmond v. J.A. Croson Co., which benefited Alaska Natives seeking work or business in Richmond, Virginia, would not survive legal scrutiny under the tribal interest requirement unless Congress could make a plausible finding that job or business opportunities far from home contributed to tribal well-being (as opposed to the welfare of the individual granted the preference).
In sum, there are three plausible responses to the anti-affirmative action challenge to Indian law, each with some limitations. The strict scrutiny survival response suffers from all the difficulty and uncertainty that attend application of strict scrutiny. The citizenship response does not justify some existing law and limits benefits to enrolled tribal members. The Indian Commerce Clause response creates some risk of harmful legislation directed at Indians, fails to uphold some potentially beneficial state preferences, and creates some difficult line-drawing problems regarding the permissible scope of Congress's legislative power under that clause. On balance, I find the Indian Commerce Clause response the most satisfying, because it does the best job of explaining existing law and because it takes best account of tribal histories and social conditions. But for proponents of any of these responses, political theory and philosophy provide valuable support. This theoretical work also raises important questions and challenges that require careful and rigorous con-sideration. Ultimately, I conclude that political theory and philosophy tilt in favor of the Indian Commerce Clause response.
. Professor of Law, UCLA School of Law; Director, UCLA Joint Degree Program in Law and American Indian Studies.