The Equal-Protection Challenge to Federal Indian Law

University of Pennsylvania Journal of Law & Public Affairs, vol. 6 (2020)

88 Pages Posted: 15 Nov 2020

See all articles by Michael Doran

Michael Doran

University of Virginia School of Law

Date Written: September 29, 2020

Abstract

This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between Indians and non-Indians and thus uses the suspect classification of race, triggering strict scrutiny under the equal-protection component of the Due Process Clause. If the challenge to the Indian Child Welfare Act succeeds, the entirety of federal Indian law, which makes hundreds or even thousands of distinctions based on Indian descent, may be unconstitutional. This article defends the constitutionality of federal Indian law with a novel argument grounded in existing Supreme Court case law. Specifically, this article shows that the congressional plenary power over Indians and Indian tribes, which the Supreme Court has recognized for nearly a century and a half and which inevitably requires Congress to make classifications involving Indians and Indian tribes, compels the application of a rational-basis standard of review to federal Indian law.

Keywords: federal Indian law, constitutional law, equal protection

JEL Classification: K10

Suggested Citation

Doran, Michael, The Equal-Protection Challenge to Federal Indian Law (September 29, 2020). University of Pennsylvania Journal of Law & Public Affairs, vol. 6 (2020), Available at SSRN: https://ssrn.com/abstract=3701565

Michael Doran (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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