American Indians and 'Preferential' Treatment

Abstract:     
Preferences and benefits for American Indians predate the American policy of affirmative action, and are grounded in a very different set of rationales. Nonetheless, Indian preferences are the latest targets in the battle against affirmative action. Opponents of Indian preferences and benefits have long deployed the rhetoric of "equal rights" to attack treaty rights and other manifestations of the special legal status that Indians enjoy under federal law. Today, however, the anti-Indian element has joined forces with the anti-affirmative action forces to produce the most intensive challenge yet to Indian rights. The tribes' most effective defense has been to emphasize the grounding of these special rights in their governmental status rather than in race or ethnicity. However, the changing nature of federal benefits, along with the changing demographics and politics of Indian country, has made this strategy difficult for tribes to sustain. This paper offers and assesses three alternative legal theories for tribal responses to the attack on special federal legislation benefiting Indians. Political philosophy and theory are deployed to demonstrate the strengths and weaknesses of each response.

Number of Pages in PDF File: 48

Accepted Paper Series