Reconciling Equal Protection and Federal Indian Law

34 Pages Posted: 20 Sep 2009 Last revised: 23 Oct 2010

See all articles by Bethany Berger

Bethany Berger

University of Connecticut School of Law

Date Written: September 19, 2009


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.

Keywords: Federal Indian Law, Equal Protection, Constitutional Law, Civil Rights, Race

Suggested Citation

Berger, Bethany, Reconciling Equal Protection and Federal Indian Law (September 19, 2009). California Law Review, Vol. 98, p. 1165, 2010, Available at SSRN:

Bethany Berger (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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