Native Americans and Equal Protection
I want to flag this forthcoming article by Bethany Berger entitled “Reconciling Equal Protection and Federal Indian Law.” This is one of the best efforts I’ve seen to take the original understanding of the Fourteenth Amendment seriously with respect to how Native Americans should be treated. My own interest is how the Native American example should inform equal protection doctrine generally, which I think is a major blind spot in antidiscrimination law. While this is not what Berger is talking about, her focus on the interaction of these concepts is well worth reading. The Abstract follows the jump:
In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.