Document Type

Paper

Publication Date

2008

Abstract

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial/political paradigm. This dichotomy may be traced to Morton v. Mancari and more recently to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of Native American tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right to self-government of tribes. Rice v. Cayetano crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose.

Close analysis of the legal construction of the dichotomy between the constitutive notion of indigeneity as either a racial and political identity has largely escaped scholarship. Scholars have examined and critiqued equal protection law’s racialized construction of blood quantum laws and to a lesser extent, their political construction. A more robust examination of the equal protection doctrinal approach itself in categorizing one as race and the other as political, however, has been lacking. This Essay aims to fill this void in scholarship by interrogating and critiquing the dichotomy of the racial versus political meaning of indigeneity based on blood quantum. In so doing, I make two interrelated points. First, I argue that the dichotomy obscures the structural inequalities in the current regulatory process that limits the conferral of federal tribal recognition to a select group of indigenous groups. An indigenous group’s acquisition of federal recognition is critical because, as Mancari shows, equal protection law equates such recognition with political status, which immunizes the group from strict scrutiny.

Second, I examine cases in the U.S. territories that have been overlooked in equal protection cases involving blood quantum laws. These cases upheld property ownership restrictions that utilize blood quantum distinctions because they functioned to protect the property and cultures of the indigenous peoples in those territories. Continued marginalization of these territorial cases, I argue, would be a mistake. At minimum, these territorial cases help to advance a broader theory of indigeneity’s political meaning. This more expansive view of the political theory of indigeneity recognizes the relationships among culture, property and autonomy. More broadly, by interjecting these cases in the modern interpretation of blood quantum as a marker for either a racial or political identity, they demonstrate that equal protection law’s current approach sets up a false dichotomy. The implication of law’s recognition of cultural differences in the territories to “mainstream” equal protection law is significant given the doctrine’s resistance to cultural claims. Consequently, these cases facilitate retheorizing the way law views race, political identity, culture and property.

Comments

2008 Law and Humanities Junior Scholar Workshop alternate selection.

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