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Carole Goldberg
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.
[1]. Professor of Law, UCLA School of Law; Director, UCLA Joint
Degree Program in Law and American Indian Studies. |
