D. Treating Indians as Minorities on the Basis of Race, Ethnicity, or National Origin

Within the framework of being considered American citizens, a further question arises whether Indians constitute a minority group subject to the prohibitions against discriminatory treatment on the basis of race, ethnicity or national origin.

Regarding race, the Supreme Court has determined that Indians shall not be considered as a racial class and thus, acts of Congress in relation to Indian affairs will not be subject to strict scrutiny. In Morton v. Mancari, non-Indian employees of the Bureau of Indian Affairs challenged the BIA's Indian preference hiring and promotion policy on the grounds that it constituted “invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment.” The Court recounted the unique history and treatment of Indians under the Constitution, federal laws, and court decisions and concluded that the preference at issue was “not even a æracialÆ preference” but rather “an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups.” In doing so, the Court stated: “The preference, as applied is granted to Indians not as a discrete racial group, but, rather as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”

In construing Indians as a “political” class of persons, rather than a “racial” class, the Court did not disrupt the Congressional power to take action that, in some cases, might be construed as beneficial to Indians vis-a-vis other groups, but that, in other cases, clearly would be discriminatory and detrimental. For example, under federal law it is clear that Congress could grant a hiring preference in federal employment to Indians that it could not grant to racial minorities solely on the basis of race. At the same time, however, Congress could deny recognition of one's status as an Indian in a way that it could not deny to someone else solely on the basis of his or her race.

In contrast to being classified as members of a political class, Indians are acknowledged as racial and ethnic minorities when dealt with by the government outside of the context of the unique federal-tribal relationship. The Equal Protection Clause of the Fourteenth Amendment prohibits state officials from discriminating against a person based on race, color, creed, or religion. Individual Indians have challenged various discriminatory state measures and have succeeded in ensuring equal protection of the laws in a manner similar to other racial minorities.

Not only have Indians been treated as a political class and as a racial minority, Indians have also been classified on the basis of national origin. In Dawavendewa v. Salt River Project Agricultural Improvement and Power Districti, the plaintiff, a Hopi Indian, alleged that he was discriminated against because the private employer defendant hired a Navajo in accordance with Navajo Nation preference law and its lease with the Navajo Nation. He claimed that granting the preference constituted “national origin” discrimination on the basis of Title VII of the Civil Rights Act of 1964. The court determined that “national origin” discrimination occurs when “discriminatory practices are based on the place in which one's ancestors lived.” Thus,

Because the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a “national origin” claim under Title VII. The fact that “new political structures and boundaries” now exist has no significance.
The court then held in plaintiff's favor because Congress had not intended to favor some Indians over other Indians when it enacted the “Indian Preferences exemption” to Title VII.

Looking at the overall treatment of Indians as members of a minority class, it is possible, depending upon the circumstances, for an Indian to fall into a number of different classes. If the circumstances relate to the uniqueness of the federal-tribal relationship, then the political classification will govern and Congress can do whatever it desires. If the circumstances relate to treatment by a non-federal authority, or a federal authority outside the context of the unique federal-tribal relationship, then a racial, ethnic, or national origin classification may apply.