1025 Volume 70 April 2018 Stanford Law Review ARTICLE “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings Gregory Ablavsky* Abstract. Under black-letter law declared in the U.S. Supreme Court’s decision 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 Court recently questioned this longstanding 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 Article uses legal, intellectual, and cultural history to close that perceived gap and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. This Article finds not a single original meaning but 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 nonwhite, and in jurisdictional terms, as noncitizens. 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 hierarchies of sovereignty among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution * Assistant Professor of Law, Stanford Law School; J.D., Ph.D. (History), University of Pennsylvania. Thanks to Rick Banks, Bethany Berger, Sam Erman, Doug Kiel, Sarah Krakoff, Maggie McKinley, and Addie Rolnick for feedback and conversations on the draft in progress. Thanks also to Aaron Forbath, Caroline Schechinger, and the staff of Stanford’s Robert Crown Law Library for excellent research assistance.
“With the Indian Tribes�: Race, Citizenship, and Original Constitutional Meanings
Jul 05, 2023
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