Savage Equalities

63 Pages Posted: 22 Mar 2019 Last revised: 18 Nov 2019

See all articles by Bethany Berger

Bethany Berger

University of Connecticut School of Law

Date Written: June 1, 2019

Abstract

Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. In 2018, these efforts won a potentially devastating victory when a federal district court held the Indian Child Welfare Act unconstitutional in Brackeen v. Zinke. Such attacks align with a modern movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, these arguments have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination — all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified as equalizing the savage, are now recognized as savage themselves, impoverishing Native people and denying them fundamental rights.

Many, including some tribal advocates, respond to equality-based attacks by arguing that sovereignty, cultural difference, or some other value trumps the value of equality in Indian law and policy. This Article, in contrast, reveals the egalitarian roots of demands for tribal rights. It argues that such rights are in fact demands to recognize the equality of tribes as governments, so the proper comparison is to rights of other sovereign groups. This governmental equality yardstick, moreover, has an even older historical pedigree and has repeatedly triumphed when U.S. policy bent toward justice.

The governmental rubric does not lead to an easy metric for equality claims — tribal nations and their people are far too entwined with non-Native governments and communities for that. Additional principles, including individual equality, the history and context of modern disputes, and the impact of particular measures on the most vulnerable, are relevant as well. To show how these principles apply, I conclude by examining modern conflicts, including those over the Indian Child Welfare Act, Cherokee freedmen citizenship, and off-reservation fishing rights.

Keywords: American Indians, Equality, Equal Protection, Indian Child Welfare Act, Racism

JEL Classification: K10

Suggested Citation

Berger, Bethany, Savage Equalities (June 1, 2019). 94 Washington Law Review 583 (2019), Available at SSRN: https://ssrn.com/abstract=3344576 or http://dx.doi.org/10.2139/ssrn.3344576

Bethany Berger (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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