Saturday, September 21, 2019

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Sarah Krakoff

Abstracted from: Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 Washington Law Review 1041 (December, 2012) (543 Footnotes).


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 the classification 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” reflect the ways that tribes and tribal members have been racialized by U.S. laws and policies. The racialization of American Indians, which served the purposes of justifying expropriation of their lands and imposing policies of forced assimilation, is today embedded in their separate political status. The political and the racial are therefore hopelessly intermingled in current legal definitions of tribes in ways that nonetheless point to the same deferential conclusion that courts currently reach. In general, courts uphold laws and policies that further the separate, and constitutionally based, political status of American Indian tribes. The upshot of this Article is that this is the best that courts can do, and to the extent they are tempted to untangle the racial from the political with respect to the status of American Indian tribes, they tread well beyond their competence and risk perpetuating the very policies that have discriminated against American Indians, and that, in general, the political branches have abandoned. To illustrate and excavate the “racial and political” conclusion, the Article visits two very distinct tribal places, the Colorado River Indian Tribes' (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains.

      The CRIT reservation straddles the Colorado River several hours west of Phoenix, Arizona. The CRIT is a single federally recognized American Indian tribe whose members include people of Mojave, Chemehuevi, Navajo, and Hopi descent. Today the CRIT is a successful Indian nation, with established water rights, a model riparian restoration project, and a well-functioning tribal government. But at the time of its founding in 1865, the multi-ethnic composition of the CRIT and the idea that it could one day constitute a coherent polity was an afterthought at best. The federal government's intent in establishing the CRIT reservation was to clear the surrounding area for white settlement. The government's objective was a political one--to gather the many tribes that called the Colorado River basin home and concentrate them in a single place. Doing so, federal officials hoped, would quiet non-Indian concerns about coming to the region. With the Indian threat removed, the southwest desert, and in particular the areas proximate to the only major water source, could be open for white business.

      In the Plains, the many bands and groups that once comprised the Great Dakota (Sioux) are today concentrated into ten federally recognized tribes in North and South Dakota. Unlike the CRIT, who were forced together despite their distinct linguistic and ethnic backgrounds, the Dakota share a common linguistic and ethnic heritage and were, in some instances, scattered apart and in others mixed together. Today, an individual Sioux Indian is likely to simultaneously identify with the greater Dakota Nation; with one of the three subdivisions of the nation (Santee, Yankton, or Teton); with one of the language dialects associated with each subdivision (Dakota, Lakota, or Nakota); with one of the seven “Council Fires” (bands) under those subdivisions; with the geography and culture of her band; and, finally, with her tribe. This self-identification occurs regardless of the federally recognized tribe in which the Dakota/Sioux Indian happens to be enrolled.

      The United States' laws and policies with respect to establishing reservations and designating which Indian peoples would reside on them had different effects on the CRIT (consolidating) and the Sioux (scattering and concentrating), but the causal structures were the same. Indian people stood in the way of non-Indian settlement, and U.S. policies constructed tribes themselves, as well as their rights to land, consistent with the political objectives of minimizing tribal presence and claims. The laws with respect to the treatment of Native peoples in these two regions, and throughout the country, followed what Patrick Wolfe has termed “the logic of elimination.” Understanding this logic, and the legal forms it generated, is necessary for a clear assessment of contemporary legal doctrines affecting American Indians, in particular equal protection analysis as applied to tribes and Indian people. An important body of scholarship on racism and American Indian law makes the point that the racialization of American Indians has taken different forms, and sometimes requires different remedies, than the racialization of African-Americans, Latinos, and other subordinated groups. This Article furthers the project by examining how federal Indian policies constructed the federally recognized tribe consistent with the government's eliminationist agenda (including its racial logic) and thereby entangled the racial and the political within tribal communities in ways that defy ahistorical formulations, like color-blindness, as a means of redress.

      The eliminationist construction of the Indian “race” has crucial, yet poorly understood, implications for equal protection doctrine in particular. In Morton v. Mancari, the U.S. Supreme Court held that federal classifications singling out American Indians for “particular and special” treatment should be upheld so long as “the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians . . . The Court's adoption of a modified form of rational basis review rests, at least in part, on the justification that tribal membership is a political category rather than an ethnic or racial one. While this ruling has so far stood the test of time, questions have arisen about Mancari's underpinnings and its future. The Court has indicated that the incorporation of blood quantum and lineage into tribal membership criteria makes the “political versus racial distinction” less than convincing, and scholars have suggested that the dichotomy unnecessarily entrenches a racially exceptionalist understanding of American Indians. In terms of Mancari's future, the Court has hinted that legislation treating tribal members as a class in ways that are distinct from non-tribal members could raise at least colorable equal protection concerns, even when the congressional action furthers tribal self-government.

      If the federal courts reassess Mancari, they are unlikely to do so consistent with an anti-subordination agenda. To the contrary, the Court's increasingly strong embrace of a colorblind jurisprudence, which views all current racial categorization in the same light irrespective of ongoing and historically distinct structural effects of racial subordination, is likelier to lead to heightened judicial scrutiny of many forms of distinctive treatment of American Indian tribes. Courts might then second-guess even laws and policies rooted in the long-standing, constitutionally based commitment to tribes' separate political existence. Striking down classifications that support tribal self-determination would be very harmful to tribes and their members. There are, therefore, practical reasons to support the current doctrinal formulation, despite its conceptual flaws.

      In addition to the pragmatic benefits of the Mancari doctrine, Mancari was right, even if for reasons not appreciated by the Court. The legal categories “federally recognized tribe” and “tribal member” are inextricably political. The federal government's policies with respect to creating Indian reservations and establishing federally recognized tribes included the following actions: forcing distinct linguistic, ethnic, and political groupings of indigenous peoples onto the same reservation; dispersing cohesive groups apart on separate reservations; and requiring that these politically-assembled groups become a single political entity in order to retain their pre-constitutional, pre-contact sovereignty. Some or all of these practices are evident in the legal histories of the two tribal groups examined here. The histories of the CRIT and the ten federally recognized tribes of the Great Sioux Nation that are now located in the Dakotas reveal the disjunction between pre-contact ethnic, linguistic, cultural, and territorial affiliation on the one hand and legal status as a federally recognized tribe on the other.

      The legal categories of tribe and tribal member are therefore political in both a negative and positive sense. They are products of the politics of subordinating indigenous peoples and accessing their land and resources. Yet they derive from tribes' pre-contact inherent sovereignty, a political status that has been recognized since the founding of the United States. Throughout history, and particularly in recent times, tribes have used their political status as sovereigns to protect their land, livelihood, and culture. Tribal membership gives important legal and political protection for ethnic, cultural, and linguistic affiliation, even if those categories do not track perfectly along the lines of the particular federally recognized tribe. But even if American Indian tribes and tribal members, as agents of their own political and legal fate, have made the best possible use of a legal construct, the darker aspects of its origins remain.

      This Article unearths the inherently political construction of the legal categories “federally recognized tribe” and “tribal member” in the following way. Part I provides legal background in equal protection doctrine and in the history of federal recognition of tribal status, including how federal recognition became a prerequisite for tribes' retention of their political and legal sovereignty. Part II examines the legal history of federal recognition and membership composition of the CRIT and the Sioux tribes of the Dakotas.

      Part III locates these histories in theories about racial formation and colonialism in the American Indian context. Specifically, it examines the social construction of the American Indian “race” according to the approach developed by Michael Omi and Howard Winant. Omi and Winant's racial formation theory “emphasizes the social nature of race, the absence of any essential racial characteristics, the historical flexibility of racial meanings and categories, the conflictual character of race at both the ‘micro-’ and ‘macro-social’ levels, and the irreducible political aspect of racial Patrick Wolfe, applying a similar theoretical approach to the context of indigenous peoples, has documented the ways that racial regimes are deployed to achieve distinctive ends in settler-colonialist societies, like the United States and Australia. The object of settler colonialism is to separate indigenous peoples from their land, rather than to extract labor from them. The racial formation of American Indians was therefore very different from that of African-American slaves. With respect to the former, the racial logic followed the path of elimination: the fewer indigenous peoples standing between settler colonists and claims to land, the better. With respect to the latter, the racial logic was that of proliferation: “one drop” of African blood resulted in blackness, because the more slaves (or, post-slavery, legally disenfranchised blacks), the larger the labor force. As Part III discusses, the legal histories of the CRIT and the Great Sioux Nation support the settler colonialist theory in various uncanny ways, in that tribes were constructed and racialized consistent with the agenda of clearing the territory for non-Indians.

      Part IV applies the insights from the previous sections to contemporary equal protection issues. Federal policies defining tribal status and limiting tribal territory furthered the political goals of fixing tribes in time and space in order to effectuate non-Indian settlement. Each “federally recognized tribe” still reflects that eliminationist policy, even though each tribe also has legitimate pre-contact claims to an inherent sovereignty that was never relinquished. Recently, some federal courts have indicated that they would rethink Mancari's rational basis approach if they were not constrained by precedent. For example, a federal district court in Massachusetts recently upheld a state gaming law against an equal protection challenge, but only because Mancari required that outcome. If the court could have started from scratch, it would have adopted a tiered approach, subjecting classifications “relating to native land, tribal status or Indian culture” to “minimal review,” but subjecting aws granting gratuitous Indian preferences divorced from those interests, [such a law granting tribes a quasi-monopoly on casino gaming . . . to more searching

      Judicial attempts to untangle the racial from the political by deferring to policies that the courts think are consistent with traditional Indian affairs (land, status, culture), but scrutinizing those that the courts deem “gratuitous preferences,” such as regulations of economic activity that treat tribes as sovereign governments (as the gaming laws do), are more likely to perpetuate the racialized agenda of eliminating tribes than to reverse it. Tools already exist for federal courts interested in scrutinizing federal laws and classifications that harm tribes and tribal members by exceeding the bounds of the trust relationship. Dismantling Mancari's rational basis approach to classifications that recognize tribal self-governance and allow tribes to move beyond stereotypical assumptions about Indian status and culture would put the federal courts, to paraphrase Professor Phil Frickey, in the role of modern-day colonizer.

      The legal histories of the CRIT and the Sioux Tribes, analyzed in the context of race, sovereignty, and tribal membership, reveal that unraveling the logic of racism in American Indian law has much less to do with tinkering with the Mancari rule than it does with facing squarely the workings of power, politics, and law in the context of the United States' unique brand of settler colonialism. The way to counter the logic of elimination is to support laws and policies that perpetuate the separate sovereign political status of tribes as peoples, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political.

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CONCLUSION

      Race and politics are deeply entangled by and throughout our history. The construction of racial categories has served distinct political ends for all subordinated groups. In the case of indigenous peoples, that end was their eventual erasure from the continent. The resulting eliminationist policies shaped early conceptions of tribes and have had sticky effects on all aspects of federal Indian law, including the federal government's trust relationship with tribes as well as understandings of tribal political status, tribal membership, and tribal inherent powers. For the past several decades, the federal government's policies with respect to tribes have generally supported tribal self-governance and self-determination. Laws affecting Indian tribes and people no longer overtly embrace the racial logic of elimination. Yet the current laws operate in a context inevitably soaked in the racialized and eliminationist policies of the past. For contemporary federal policies to reach fruition, tribes and their allies must continue to work their way out of that racial and political thicket.

      Untangling the ways in which American Indian tribes have been constructed by the racial and eliminationist logic of our past is no mean feat. The first crucial step, however, is to understand the history in all of its complexity. The legal histories of the Colorado River Indian Tribes and the tribes of the Great Dakota Nation provide two different windows into that larger history. The CRIT story is one of constructing a single tribe out of many distinct peoples. The “race” of the single tribe was subordinate to the larger distinction between Indians and whites. The overriding need to clear the West for non-Indian settlement resulted in a multi-ethnic polity that had no precedence in the governing or social structures of the Mohave, Chemehuevi, Navajo, and Hopi people. The Dakota story, on the other hand, is one of scattering and concentrating peoples of various and overlapping ethnic, social, and political structures onto separate reservations. The result today is a much greater degree of affiliation between and among the Sioux Tribes than is generally appreciated.

      Both of these histories are set in the larger context of the federal government's imposition of static definitions of “tribe” and “membership.” Whatever membership might have meant for tribes in pre-contact times, today it is shaped by the complicated process of having traveled the route from independent people to “domestic dependent nation.” Part of that process entailed a shift from fluid and territorially-based absorptions of new people to bureaucratized accountings that incorporated blood quantum and descent. That shift was imposed on tribes by the federal government's overriding objectives, during different policy periods, of quantifying and ultimately shrinking the number of indigenous people who inconveniently occupied and had legitimate claims to land and resources.

      In terms of current legal doctrine, the Mancari rule--that federal courts should not subject classifications based on tribal political status to heightened scrutiny when those classifications “can be tied rationally to the fulfillment of Congress' unique obligation toward the --is probably the best courts can do. The categories “federally recognized tribe” and “tribal member” are political, even while they also include the racialized history of the federal government's treatment of Native peoples. Given that courts are unlikely to engage in the deep, contextual analysis necessary to untangle the racial from the political in ways that will reverse eliminationist policies, it is better to stick with Mancari's good-enough formulation. If courts move in the direction of scrutinizing tribes' distinctive status in today's color-blind climate, they are more likely to entrench historical discrimination against indigenous peoples than to reverse it. Thus, while courts should continue to subject racial discrimination against Indian people to heightened scrutiny, they should not reassess Mancari's approach toward federal classifications that further the unique government-to-government relationship between tribes and the federal government.

      Despite the dominance of eliminationist policies toward indigenous peoples, there has always been a tensile counter-thread. As a nation, we pulled up short of severing completely the ties that American Indian tribes had to their pre-contact status as independent sovereigns. And American Indian tribes have seized each opportunity to continue as distinct peoples, exercising tribal self-governance in the shadow of the law when necessary, as well as through the convoluted forms made available through law. The legal forms of the federally recognized tribe and tribal member, and the legal doctrines assigning meaning to those forms, are a product of that complicated history of subordination and survival. The ultimate goals of Indian law today should be to overthrow the remnants of elimination in favor of indigenous survival.


 

[]. Professor and Wolf-Nichol Fellow, University of Colorado Law School.

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