Several years ago I wrote an article that examined how the debate over Native American rights, especially the Cherokee Removal, influenced the framers of the Fourteenth Amendment. The paper also explained there that this component of the original understanding should alter the way that we think about equal protection by introducing the possibility that the regulation of cultural choices, not just immutable traits, could be subjected to heightened scrutiny. I must admit that I’m disappointed that nobody really picked up on this idea, but I thought I’d talk about one intriguing case that fleshes out the concept somewhat.
In United States v. Joseph, 94 U.S. 614 (1876), the Supreme Court held that the Pueblo Indians of New Mexico were not an Indian Tribe under federal law. An 1834 statute prohibited anyone, under penalty of a fine, from settling on land secured to a Tribe by a treaty with the Federal Government. The United States brought an action seeking to fine somebody who took a homestead on Pueblo land. The New Mexico Territorial Supreme Court rejected this action, on the grounds that the Pueblos were civilized and not an Indian Tribe. That court pointed out that the Pueblos lived in villages, were farmers, spoke Spanish, and were Christian. By contrast, “[w]hen the term Indian is used in our acts of Congress, it means that savage and roaming race of red men given to war and the chase for a living, and wholly ignorant of the pursuits of civilized men.” Though the Court conceded that the Pueblos could be racially defined as Indians, it explained that this was irrelevant. Culture was what mattered.
The U.S. Supreme Court unanimously affirmed in an opinion by Justice Miller. He distinguished the Pueblos from other tribes in the territory acquired during the Mexican-American War, who were incapable of self-government and therefore required “guardian care.” Although the Pueblos held their land in common rather than in fee simple, “they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes . . .”.