Using the New Equal Protection to Challenge Federal Control Over Tribal Lands

45 Pages Posted: 2 Nov 2014

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

University of Utah - S.J. Quinney College of Law

Date Written: October 31, 2014

Abstract

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

Keywords: Indian Tribes, Equal Protection, Federal Indian Law, Constitutional Law, land and natural resources

Suggested Citation

Skibine, Alexander Tallchief, Using the New Equal Protection to Challenge Federal Control Over Tribal Lands (October 31, 2014). University of Utah College of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2517444

Alexander Tallchief Skibine (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
116
Abstract Views
659
rank
248,247
PlumX Metrics