Indian Children and the Fifth Amendment

Abstract

The Fifth Amendment’s political origins remain incredibly meaningful in Indian affairs. The Fifth Amendment, like much of the Constitution, shifted in character away from its political origins initially following the Reconstruction Amendments, and then again after the mid-twentieth century civil rights era. But in the text of the amended Constitution, Indians and Indian tribes were not immediately and automatically included in that shift. In particular, the Due Process Clause of the Fifth Amendment remains primarily a political protection provision, rather than an equal protection or an individual protection provision. For Indians and Indian tribes, the Fifth Amendment remains political.

Keywords: Morton v. Mancari, Fifth Amendment, Due Process Clause, Federal-Tribal Relationship, Indian Tribes, Reconstruction Amendments, Fourteenth Amendment