'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings

46 Pages Posted: 8 Dec 2017  

Gregory Ablavsky

Stanford Law School

Date Written: December 3, 2017

Abstract

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

Keywords: Federal Indian Law, Legal History, Constitutional History, Law and Race, Indian Child Welfare Act, Colorblind Constitutionalism

Suggested Citation

Ablavsky, Gregory, 'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings (December 3, 2017). Stanford Law Review, Forthcoming; Stanford Public Law Working Paper. Available at SSRN: https://ssrn.com/abstract=3082038

Gregory Ablavsky (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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