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For the Children: Indian Status Is a Political Classification

By Austin R. Vance

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The Indian Child Welfare Act (ICWA) made headlines again in 2019. It was under attack, as usual, by those who have never been to Indian country, much less a tribal court proceeding. The primary culprit was not among the usual talking heads or lobbyists. Instead, Judge Reed O’Connor of the Northern District of Texas made national news by declaring ICWA unconstitutional in Brackeen v. Bernhart.1 That controversial decision is now subject to en banc review before the 5th Circuit Court of Appeals, which will decide whether Indian status under ICWA is an “impermissible racial classification.”2

It remains unclear, however, if Judge O’Connor knew or cared that Indian status is the backbone of federal Indian law writ-large;3 after all, unlike Oklahoma, Texas is not exactly a hotbed for Native American issues.4 In fact, it is hardly a comparison at all:5 Oklahoma could not exist without its tribal community. Aside from its Choctaw name and the thousands of tribal members that make Oklahoma whole, 38 tribes and nations provide substantial economic power to the state.6 For those reasons, and many others, Judge O’Connor’s ignorance cannot be allowed to fester here. Oklahoma attorneys have an inherent and practical responsibility to learn a few basic tenants of Indian law, such as: Indian status is a political classification, not a racial one.

It is admittedly simpler to think of Indian status in racial terms alone. Growing-up, children often learn about Native Americans through stereotypes taught in school, perhaps even playing cowboys and Indians at recess. Likewise, TV and movies regularly portray indigenous people as a homogenized group with essentialized cultural features, like war bonnets and teepees. Those stereotypes harden with time. As adults, that image of “Indian” as a single race often exists at the expense of particular tribes, such that there are distinctions in name without notable difference. While a current and prominent challenge to institutional ignorance may become a trend – such as denouncing “Redskin” mascots and trading Columbus Day in for Indigenous Peoples’ Day – overcoming the collective knowledge of hundreds of years will take time. Whatever one believes about Native Americans as a racial archetype, however, is not relevant to an adequate understanding of Indian status as a legal phenomenon. Judge O’Connor and others fail to grasp that concept.

Nonetheless, a careful examination of the two competing schools of thought on Indian status should reveal the latent racism within the Brackeen decision. For comparative purposes, the first camp understands Indian status as a political classification that derives from a government-to-government relationship between federally recognized tribes and the United States. Any benefits an individual receives from being an “Indian” is due to their membership in a sovereign polity that the United States is obligated to care for as a result of treaty making and a guardian-ward relationship. The second camp, however, incorrectly equates Indian status with biological race. That view is shared with a series of ill-advised judicial opinions following the Civil War. In the wake of those opinions, Congress began shifting Indian status toward a political classification during the Great Depression. In reality, this issue should have ended in the 1970s, when the Supreme Court formally purged racial classification and declared Indian status a political classification.7 Yet, Brackeen demonstrates a review is in order.

THE LEGAL HISTORY OF INDIAN STATUS
While contemplating Indian status as a political category may be new to some, the idea spawned from the Constitution itself. More specifically, the Indian Commerce Clause of Article I Section 8 Clause 3 provides Congress with the power to regulate commerce with Indian tribes. Like the general Commerce Clause, the Indian Commerce Clause does not say much in a literal sense, but it “singles Indians out as a proper subject for separate legislation.”8 Likewise, the use of the Treaty Clause in Article II affirmed the existence of a government-to-government relationship between the federal government and tribes.9 Taken together, these provisions identify Indians as special, but – like most of the Constitution – they do not provide much clarity beyond that conclusion. Indian status came with growing pains as a result.

After acquiring independence, an adolescent Congress quickly began regulating trade with tribes. In fact, one of its first pieces of legislation was the Intercourse and Trade Act, which prohibited purchasing land from Indian tribes absent federal approval.10 An issue arose, however, as the act did not define “Indian” for purposes of its implementation. For almost half a century, the issue was largely ignored as settlers were simply allowed to determine who should be considered Indian for themselves. For that reason, the Supreme Court did not analyze Indian status until after the Civil War in U.S. v. Joseph.11

In Joseph, the court had to determine whether Taos Pueblo Indians were “Indian” within the meaning of the Intercourse and Trade Act. Rather than relying on membership or citizenship, SCOTUS utilized racial characteristics and stereotypes that would make Roger Taney blush.12 For purposes of the test, the court considered characteristics like intelligence, criminality and inebriation. The court determined the people of the Taos Pueblo were “Indians only in feature, complexion, and a few of their habits,” and found them to be too civilized to be Indian. Approximately 40 years later, the court took up the issue again in U.S. v. Sandoval. Astonishingly, the court kept the racial characteristics test in Joseph but reached an opposite result. The people of the Santa Clara Pueblo were defined by “primitive modes of life, largely influenced by superstition and fetichism, and chiefly governed according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed, and inferior people.”13 With that pseudo-scientific analysis, the Santa Clara Pueblo people were cast as “Indian.” From there, the issue remained dormant until Congress passed the Indian Reorganization Act (IRA) in 1934.

The IRA restructured the foundation of federal Indian law by providing support for tribal governments and individual Indians. It ultimately sought to undo the mass destruction and attempted genocide of Native Americans and their cultures. Unlike the Trade and Intercourse Act, however, Congress explicitly defined “Indian” within the IRA. There, an Indian was considered 1) a tribal member; 2) a descendant of a tribal member residing on a reservation in 1934; or 3) anyone with one-half or more Indian blood.14 Based on that definition, the act also created a hiring preference for Native Americans to work within the Bureau of Indian Affairs (BIA). It would take another 40 years before the Supreme Court addressed whether Indian status under the IRA – more specifically the hiring preference – violated the Constitution as “invidious racial discrimination” in Morton v. Mancari.15

Unlike Joseph and Sandoval, the Morton court analyzed Indian status based on the political association between tribes and the federal government. For instance, the guardian-ward relationship and treaties demonstrated a tangible and special relationship between tribes, Indians and the United States, derived from the Constitution, that is political in nature. As applied to the BIA employment preference, Indian status was likened to the requirement that a senator must live in the state he or she represents. Simply put, it is logical to have stakeholders involved in developing and implementing policies that affect them, even if they are exclusively tribal members.

The court was also concerned that holding Indian status was an impermissible racial classification would void an entire title of United States code. A workable solution became readily apparent to the court, however, as it determined Indians are not “a discrete racial group, but, rather... members of quasi-sovereign tribal entities.” Three years later, the court reaffirmed Morton’s political classifications analysis in United States v. Antelope.16 There, the court determined that Indians can be subject to special federal criminal jurisdiction not “because they are of the Indian race but because they are enrolled members.” The issue remained largely undisturbed until Brackeen.

INDIAN STATUS AND ICWA
In BrackeenJudge Reed O’Connor issued an order that found Indian status under ICWA was an impermissible racial classification. While the order is lengthy, his erroneous Equal Protection analysis is only a few pages long.17 There, Judge O’Connor distinguished the principle case on Indian status, Morton, in favor of a 15th Amendment case about Hawaiian voting rights, Rice v. Cayetano. In Rice, the court determined Hawaii could not create voting rights based on ancestry on the islands traced to 1778. Because Hawaii was dominated by an isolated culture at that time, Justice Kennedy determined that ancestry there was merely a “proxy for race.” Judge O’Connor’s order, however, ignored that the Rice court specifically distinguished Morton for 10 pages of its opinion. For that reason, and others, the Brackeen order was appealed.

On its first review, the 5th Circuit determined Judge O’Connor erroneously distinguished ICWA from Morton, as the act merely extends the political classification based on “the government-to-government relationship between the tribe and the federal government.” There was simply no reason ICWA created racial preference where one did not exist before. Likewise, Rice was inapplicable to ICWA because it focused on the 15th Amendment, voting rights and a group of non-Indians. ICWA, in contrast, is a federal law exclusively concerning Indian children and is not solely based on racial ancestry. For those reasons, the 5th Circuit originally ruled Judge O’Connor should have applied rational basis and found “an Indian child is a political classification that does not violate equal protection.” Although the 5th Circuit unanimously agreed with that aspect of its opinion, Brackeen’s reversal remains uncertain at the moment, as en banc review is set for early 2020.

Beyond the 5th Circuit’s original dissection of Judge O’Connor’s order, however, there are a litany of other reasons Indian status cannot be considered racial classification. First and foremost, the federal government determines who qualifies for Indian status,18 which is inconsistent with jurisprudence describing race as “immutable” and “permanent.”19 Without the federal regulation limiting Indian status to tribal lineal descendants,20 for example, tribes could adopt anyone for membership.21

Second, even though Indian status is based on lineal descendancy it is not inherently racial, as Justice Stevens explained in Rice:

The distinction between ancestry and race is more than simply one of plain language. The ability to trace one’s ancestry to a particular progenitor at a single distant point in time may convey no information about one’s own apparent or acknowledged race today. Neither does it of necessity imply one’s own identification with a particular race, or the exclusion of any others “on account of race.” The terms manifestly carry distinct meanings, and ancestry was not included by the Framers in the Amendment’s prohibitions.22

United States citizenship, for instance, can be based solely on parental lineage.23 Even though children are the same race as their parents and eligible for citizenship based on biological lottery, citizenship is purely understood as political in nature.24 Indian status under ICWA is as tangentially related to the race of the parents as United States citizenship.

There are two examples to solidify that point. First, individuals that are not racially Native American can qualify for Indian status under ICWA. For example, following the Civil War, some Oklahoma tribes were required to adopt former slaves as members, commonly referred to as “freedman.” In those tribes, freedman may have no Native American ancestry at all but are still members, or have children eligible for membership, for ICWA purposes. Second, some Native Americans do not qualify as Indian under ICWA. Many tribes require a parental enrollment with the tribe for a child to be eligible for membership. If neither parent is enrolled, for whatever reason, a child may not be considered Indian. In fact, only 60% of racially identified Native Americans are enrolled tribal members.25

Further still, if courts can declare Indian status an impermissible racial classification it is unclear how Congress could fulfill its Constitutional role of regulating Indian affairs. As applied to ICWA, for example, there is simply no way to sever Indian status and preserve the act’s purpose or functionality. As Mathew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, recently observed: “Babies don’t get born and run down to the citizenship office and file a petition…. To say that somehow this kid hasn’t been enrolled yet and therefore doesn’t have a political relationship is really quite disingenuous.”26 Even if the Fifth Circuit does ultimately reverse the Brackeen decision, Judge O’Connor’s logic should still be regarded as dangerous as other courts may model his argument elsewhere. In fact, the Brackeen decision itself is merely the perversion of dicta from a recent Supreme Court decision.

In 2013, Justice Alito wrote the majority opinion in Adoptive Couple v. Baby Girl, which begins: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”27 That was a dog whistle. Baby Girl’s blood quantum has nothing to do with the court’s holding; nonetheless, it is repeated three times throughout the opinion. That emphasis on blood quantum reveals that Justice Alito’s understanding of Indian status is in line with the racial characteristics test found in Joseph and Sandoval. While Joseph and Sandoval openly reduce Indian status to barbaric racial characteristics, Justice Alito employs a cloak-and-dagger approach to note Baby Girl is minutely Cherokee. He specifically places undue emphasis on her fractionated blood quantum – a classification system reserved for show dogs, racehorses, and Indians.28 While he would not admit as much, Justice Alito felt compelled to call attention to his intuitive ability to identify an Indian, just like the settlers did prior to Joseph.29 Fortunately, Justice Sotomayor took the issue to task.

In her Baby Girl dissent, she posits that the reference to the Baby Girl’s blood quantum is at odds with the court’s precedent that “squarely hold[s] that classifications based on Indian tribal membership are not impermissible racial classifications.”30 Further still, Justice Alito’s “analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal Protection Clause as applied here.” In the end, the reference to Baby Girl’s blood quantum did nothing more than “create a lingering mood of disapprobation” without actually addressing any issue of racial discrimination. Sotomayor correctly predicted that Alito’s characterization would fester into a façade of Equal Protection used to undermine ICWA – exactly as seen in Judge O’Connor’s order. Justice Alito’s dicta and Judge O’Connor’s order summarily demonstrate the danger of a judiciary that cannot identify the distinction between Native Americans as ethnic groups and Indian as a political status.

CONCLUSION: THERE ARE TWO CAMPS
Children are often taught that you can judge an individual by the company they keep and ICWA is no different. There are only two camps of thought regarding Indian status: 1) those that believe it is a political classification; and 2) those that believe it is racial. In the former, there is constitutional originalism, tribal self-determination and modern federal Indian law. The opinions in Morton and Antelope, as well as Sotomayor’s dissent in Baby Girl, represent this school of thought. In the latter, there is Judge O’Connor’s Brackeen decision, Justice Alito’s Baby Girl dicta and the racial characteristic test found in Joseph and Sandoval.

ABOUT THE AUTHOR
Austin R. Vance is an attorney at Whitten Burrage and an officer of the Indian Law Section. He formerly taught Indian water law and Indian estate law at the OU College of Law and previously served as editor-in-chief of the American Indian Law Review.

1. Judge Reed O’Connor “has become a go-to judge for Republicans over certain heated national social issues such as health care and transgender rights.... Some legal experts have denounced O’Connor’s ruling, calling it ‘badly flawed’ and ‘an exercise of raw judicial power.’” Kevin Krause, “A Look at the Low-Key Texas Judge Who Tossed Obamacare Shows a History of Notable Conservative Cases”, Dallas News (Dec. 18, 2018), www.dallasnews.com/news/courts/2018/12/18/associates-say-judge-tossed-obamacare-fair-no-agenda.
2. Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
3. See United States v. Wilgus, 638 F.3d 1274, 1287 (10th Cir. 2011) (Indian status as a political category is the foundation for the Indian Reorganization Act, the Major Crimes Act and tribal court jurisdiction.).
4. Texas is only home to three federally recognized tribes. Contra, Alabama-Coushatta Tribe of Texas v. Texas, 918 F.3d 440 (5th Cir. March 14, 2019), pending cert.
5. It was tempting to fill this article with comparisons to the University of Texas’s lackluster football season, such as “racial classification, like Texas football, is not back.” Ultimately, the better editorial angels of legal writing prevailed, but Horns Down nonetheless.
6. Kyle D. Dean, “The Economic Impact of Tribal Nations in Oklahoma Fiscal Year 2017,” Oklahoma Native Impact (July 10, 2019), www.unitedforoklahoma.com/media/1456/2019-economic-impact-of-tribal-nations-in-oklahoma.pdf.
7. Morton v. Mancari, 417 U.S. 535, 552 (1974).
8. Art. I, §8, cl. 3; Morton, 417 U.S. at 552.
9. Art. II, §2, cl. 2; Morton, 417 U.S. at 552.
10. The “Non-Intercourse Act” as it came to be known is still valid law: 25 U.S.C. §177.
11. United States v. Joseph, 94 U.S. 614, 616, 24 L. Ed. 295 (1876).
12. “[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution.... Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen.” Dred Scott v. Sandford, 60 U.S. 393, 451-53, 15 L. Ed. 691 (1857), superseded (1868) (C.J. Taney).
13. United States v. Sandoval, 231 U.S. 28, 39 (1913).
14. As an aside, the blood quantum qualification certainty continues the racial characteristic test by the United States in a new form. That particular qualification, however, largely continues simply due to legal inertia, is not relevant to the vast majority federal programs, and could be struck down fairly easily without greatly effecting federal Indian law. See Rice v. Cayetano, 528 U.S. 495 (2000).
15. Morton, 417 U.S. at 551.
16. United States v. Antelope, 430 U.S. 641 (1977).
17. Brackeen, 338 F. Supp. 3d at 531-34.
18. Adoptive Couple v. Baby Girl, 570 U.S. 690 (2013) (J. Sotomayor dissenting) (erroneously citing 25 C.F.R. §83.11(e) as 83.7(e)).
19. “But a person’s politics is rarely as readily discernible—and never as permanently discernible—as a person's race.” Vieth v. Jubelirer541 U.S. 267, 287, 124 S. Ct. 1769, 1782, 158 L. Ed. 2d 546 (2004); “[R]ace... is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583 (1973).
20. 25 C.F.R. §83.11(e).
21. “Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress.” United States v. Rogers, 45 U.S. 567, 573, 11 L. Ed. 1105 (1846).
22. Rice, 528 U.S. at 539 (J. Stevens dissenting).
23. 8 U.S.C. §1401.
24. “Citizenship is membership in a political society.” Luria v. United States, 231 U.S. 9, 22, 34 S. Ct. 10, 13, 58 L. Ed. 101 (1913).
25. Brief of Appellants Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians, Brackeen v. BernhardtCN-18-11479 (5th Cir. 2019), available at (citing Changing Numbers, Changing Needs: American Indian Demography & Public Health 108-09 (Gary D. Sandefur, et al., eds., 1996)), available at: turtletalk.files.wordpress.com/2019/01/intervenortribesbrief.pdf.
26. Alleen Brown, “How a Right-Wing Attack on Protections for Native American Children Could Upend Indian Law”, The Intercept (June 17, 2019), theintercept.com/2019/06/17/indian-child-welfare-act-goldwater-institute-legal-battle/.
27. Adoptive Couple, 570 U.S. at 641.
28. “Kenneth Ryan, an Assiniboine in Montana, expressed this sentiment when he declared before a gathering of Indian leaders in Oklahoma in 1993 that, ‘American Indians, horses, and dogs are the only warm-blooded mammals in the world who have to carry papers to show who they are.’» Jennie D. Woltz, “The Economics of Cultural Misrepresentation: How Should the Indian Arts and Crafts Act of 1990 Be Marketed?”; 17 Fordham Intell. Prop. Media & Ent. L.J. 443, 453–54 (2007).
29. President Donald Trump also shares that view: “I think I might have more Indian blood than a lot of the so-called Indians....” Gary Silverman, “US Presidential Campaign: Trump’s Casino War,” Financial Times (May 19, 2016), www.ft.com/content/d1c95162-1b49-11e6-b286-cddde55ca122.
30. Adoptive Couple, 570 U.S. at 690 (J. Sotomayor dissenting).

Originally published in the Oklahoma Bar Journal -- OBJ 91 pg. 12 (February 2020)