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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, Sara

Kra

koff, 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.

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in political terms, justifying Mancari’s dichotomy. But interpreting “Indian” as a “racial”

category also provides little solace to Indian law’s critics because it fundamentally

undermines their insistence on a colorblind Constitution.

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Table of Contents

Introduction .......................................................................................................................................................... 1028

I. “Tribes” .......................................................................................................................................................... 1035

A. Nation .................................................................................................................................................. 1036

B. Tribe ..................................................................................................................................................... 1038

C. Legacy .................................................................................................................................................. 1042

D. The Constitutional Meaning of “Tribes” ......................................................................... 1045

II. “Indian” .......................................................................................................................................................... 1049

A. “Indian” as Nonwhite .................................................................................................................. 1050

B. “Indian” as Noncitizen ................................................................................................................ 1054

C. Whiteness and Citizenship in the Early United States ............................................ 1058

D. Legacy .................................................................................................................................................. 1061

E. The Constitutional Meaning of “Indian” ......................................................................... 1067

Conclusion ............................................................................................................................................................. 1075

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Introduction

Does federal legal classification of individuals as “Indian”

constitute a

racial category? Since the U.S. Supreme Court’s 1974 decision in Morton v.

Mancari,

the doctrinal answer has been no. In Mancari, the Court rejected an

equal protection challenge to a Bureau of Indian Affairs employment

preference for “Indians.”

Although the Court gestured toward several possible

rationales,

subsequent interpreters have compressed the holding to a single

footnote in which the Court reasoned that because Indian status required

membership in a “‘federally recognized’ tribe[], . . . the preference [was] political

rather than racial in nature.”

The Court invoked this distinction in later cases

to reject most challenges arguing that Indian legal status amounts to a racial

classification subject to strict scrutiny.

Yet the proposition for which Mancari has come to stand—that legal

classification as “Indian” is political, not racial—has always rested on a tenuous

foundation. Indian status has long been bound up with requirements of descent

that, often crudely expressed in terms of “blood,” seem to hearken to the worst

aspects of American racial history.

Even the classification at issue in Mancari

1. In this Article, I use the term “Indian” as a term of art for individuals either historically

labeled as “Indians” by Anglo-Americans or, in the present, legally defined as “Indian”

by the federal government. I use the term “Native” to describe the indigenous peoples of

North America and their descendants.

2. 417 U.S. 535 (1974).

3. See id. at 552-55, 553 n.24.

4. On the multiple possible interpretations of Mancari’s holding, see Carole Goldberg,

What’s Race Got to Do With It?: The Story of Morton v. Mancari, in I

NDIAN LAW STORIES

389, 410-13 (Carole Goldberg et al. eds., 2011).

5. See Mancari, 417 U.S. at 553 n.24; see also United States v. Antelope, 430 U.S. 641, 646

(1977); Addie C. Rolnick, The Promise of Mancari: Indian Political Rights as Racial

Remedy, 86 N.Y.U.

L. REV. 958, 996 (2011) (“After Mancari, . . . scholars and practitioners

have understandably avoided the question of permissible racial classifications

whenever possible, characterizing Indian issues as political instead.”).

6. See, e.g., Antelope, 430 U.S. at 645-47; Fisher v. Dist. Court, 424 U.S. 382, 390-91 (1976) (per

curiam); cf. Rice v. Cayetano, 528 U.S. 495, 518-22 (2000) (declining to extend Mancari to

Hawaii’s use of Hawaiian ancestry as a qualification to vote in a state-run election).

7. The Supreme Court has assumed, in the context of federal Indian law, that “[a]ncestry

can be a proxy for race.” See Rice, 528 U.S. at 514. There are good reasons to question this

tidy equivalence, which, as scholars have explored, obscures a much more complicated

history. See Bethany R. Berger, Race, Descent, and Tribal Citizenship, 4 C

ALIF. L. REV. CIR.

23, 32-36 (2013) (arguing that descent-based membership criteria are not race based);

Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional

Minimum, 69 S

TAN. L. REV. 491, 496 n.21 (2017) (interrogating the relationship between

race and ancestry). But this debate lies outside the scope of this Article, which seeks to

answer a different question: Given the Supreme Court’s (potentially problematic)

conclusion that state and federal classifications based on Native ancestry constitute

“racial” classifications, at least for the purposes of the Fifteenth Amendment, see Rice,

footnote continued on next page

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required “one-fourth or more degree Indian blood” in addition to tribal

membership, a fact the Court mentioned and then ignored.

Bureau of Indian

Affairs regulations governing federal recognition of Indian tribes require that

tribes “consist[] of individuals who descend from a historical Indian tribe.”

This tension has produced an important and thoughtful literature among

Indian law scholars demonstrating the artificiality of the political-racial

dichotomy.

In light of the long, complicated history of Native peoples within

the United States, they argue, “the political and racial elements of Indianness

are inseparable” and “hopelessly intertwined.”

528 U.S. at 517, are federal definitions of Indian status based on tribal membership—as

in the Indian Child Welfare Act (ICWA) of 1978, Pub. L. No. 95-608, 92 Stat. 3069

(codified as amended at 25 U.S.C. §§ 1901-1963 (2016)), which includes in its definition of

“Indian” “any person who is a member of an Indian tribe,” 25 U.S.C. § 1903(3)—similarly

subject to strict scrutiny if the tribe defines its membership based in part on ancestry?

8. See Mancari, 417 U.S. at 553 n.24 (quoting 44 BUREAU OF INDIAN AFFAIRS MANUAL § 3.1, at

335 (1974)).

9. 25 C.F.R. § 83.11(e) (2017).

10. The literature on this topic is large. See generally, e.g., Bethany R. Berger, Reconciling

Equal Protection and Federal Indian Law, 98 C

ALIF. L. REV. 1165 (2010) [hereinafter Berger,

Reconciling Equal Protection]; Bethany R. Berger, Red: Racism and the American Indian, 56

UCLA

L. REV. 591 (2009) [hereinafter Berger, Red]; Robert N. Clinton, Essay, The Rights

of Indigenous Peoples as Collective Group Rights, 32 A

RIZ. L. REV. 739 (1990); Allison M.

Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty:

The Supreme Court’s Changing Vision, 55 U.

PITT. L. REV. 1 (1993); Matthew L.M.

Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 S

T. JOHN’S

L. REV. 153 (2008) [hereinafter Fletcher, Political Status]; Matthew L.M. Fletcher, Race

and American Indian Tribal Nationhood, 11 W

YO. L. REV. 295 (2011) [hereinafter Fletcher,

Race and American Indian Tribal Nationhood]; Carole Goldberg, American Indians and

“Preferential” Treatment, 49 UCLA

L. REV. 943 (2002) [hereinafter Goldberg, American

Indians]; Carole Goldberg, Descent into Race, 49 UCLA

L. REV. 1373 (2002); L. Scott

Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 C

OLUM. L. REV. 809

(1996); L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 C

OLUM. L.

REV. 702 (2001); Kirsty Gover, Genealogy as Continuity: Explaining the Growing Tribal

Preference for Descent Rules in Membership Governance in the United States, 33 A

M. INDIAN L.

REV. 243 (2008-2009); Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal

Sovereignty, 87 W

ASH. L. REV. 1041 (2012) [hereinafter Krakoff, Inextricably Political];

Krakoff, supra note 7; Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of

Indian (Cultural) Appropriation, 94 T

EX. L. REV. 859 (2016); Rolnick, supra note 5; Alex

Tallchief Skibine, Indians, Race, and Criminal Jurisdiction in Indian Country, 10 A

LB.

GOV’T L. REV. 49 (2017); John Rockwell Snowden et al., American Indian Sovereignty and

Naturalization: It’s a Race Thing, 80 N

EB. L. REV. 171 (2001); Paul Spruhan, Indian as

Race/Indian as Political Status: Implementation of the Half-Blood Requirement Under the

Indian Reorganization Act, 1934-1945, 8 R

UTGERS RACE & L. REV. 27 (2006) [hereinafter

Spruhan, Indian as Race]; Paul Spruhan, A Legal History of Blood Quantum in Federal

Indian Law to 1935, 51 S.D.

L. REV. 1 (2006) [hereinafter Spruhan, Legal History of Blood

Quantum].

11. See, e.g., Rolnick, supra note 5, at 967-68.

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Lately, this critique of Mancari has moved from the academy into doctrine

and litigation. In the process, it has transformed: Instead of scholars’ call for

greater awareness of the complexities of history, a group of conservative and

libertarian thinkers whom I call collectively Indian law’s critics now advance

the claim that Indian status is an impermissible racial classification, even when

defined solely by eligibility for membership in a federally recognized tribe.

As the Court warned in Mancari, this approach would likely undermine nearly

the entire body of federal law concerning Native peoples.

Practically every

federal statute and rule in Indian law—including recent federal laws protecting

tribal autonomy, jurisdiction, and property—relies on classifying individuals as

Indian.

Nonetheless, the legal position that “Indian” classifications are constitu-

tionally suspect has gained ground, particularly in litigation around the Indian

Child Welfare Act (ICWA) of 1978,

a federal statute enacted to staunch an

epidemic of Indian children being taken from their homes and placed with

non-Native families.

In the Supreme Court’s recent decision in Adoptive

Couple v. Baby Girl, Justice Alito’s opinion for the Court suggested that ICWA’s

provisions protecting the children of enrolled tribal members “would raise

equal protection concerns” if applied to a child with a “remote” Indian

“ancestor.”

In dissent, Justice Sotomayor noted that ICWA defines Indian

12. The most fully elaborated statement of this position appears in a recent online forum

on ICWA. See Timothy Sandefur, Treat Children as Individuals, Not as Resources, C

ATO

UNBOUND (Aug. 1, 2016), https://perma.cc/D6SW-M4UU. For additional examples, see

Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae of Pacific Legal

Foundation in Support of Petitioners at 9-12, S.S. v. Colo. River Indian Tribes, No. 17-

95 (U.S. Aug. 18, 2017), 2017 WL 3635428; Naomi Schaefer Riley, A Welcome Victory

Against the Indian Child Welfare Act, W

KLY. STANDARD (June 28, 2017, 5:15 AM),

https://perma.cc/J5C4-KPVZ; and George F. Will, Opinion, The Blood-Stained Indian

Child Welfare Act, W

ASH. POST. (Sept. 2, 2015), https://perma.cc/6449-3MF2. For an

overview of the broader legal campaign, see Rebecca Clarren, A Right-Wing Think

Tank Is Trying to Bring Down the Indian Child Welfare Act. Why?, N

ATION (Apr. 6, 2017),

https://perma.cc/ZKM2-B5E2.

13. See Mancari, 417 U.S. at 552 (noting that if classifications based on Indian status “were

deemed invidious racial discrimination, an entire Title of the United States Code . . .

would be effectively erased and the solemn commitment of the Government toward

the Indians would be jeopardized”); see also Marcia Zug, Adoptive Couple v. Baby Girl:

Two-and-a-Half Ways to Destroy Indian Law, 111 M

ICH. L. REV. FIRST IMPRESSIONS 46, 49-

50 (2013) (noting that invalidating ICWA as an impermissible racial classification

“would almost completely eliminate existing Indian law”).

14. Pub. L. No. 95-608, 92 Stat. 3069 (codified as amended at 25 U.S.C. §§ 1901-1963 (2016)).

15. See 25 U.S.C. §§ 1901-1902.

16. See 133 S. Ct. 2552, 2557-58, 2565 (2013).

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status based on eligibility for membership, not ancestry, and suggested that the

majority’s phrasing was a subtle attack on Mancari.

Subsequent litigation has borne out Justice Sotomayor’s concerns. A host of

lawsuits have seized on Justice Alito’s words as an invitation to attack ICWA

and other statutes by pointing toward the role of descent in tribal citizenship,

wrapping themselves in the language of constitutional colorblindness and that

principle’s repudiation of racial classifications.

“By honoring the moral

imperatives enshrined in our Constitution, this nation has successfully shed

much of its history of legally sanctioned discrimination on the basis of race or

17. See id. at 2584-85 (Sotomayor, J., dissenting); see also Bethany R. Berger, In the Name of

the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67 F

LA. L. REV.

295, 325-35 (2015) (critiquing the Court’s reasoning on race).

18. See, e.g., Doe v. Piper, 165 F. Supp. 3d 789, 793-94, 796 (D. Minn. 2016) (involving

Minnesota’s analog to ICWA); S.S. v. Stephanie H., 388 P.3d 569, 576 (Ariz. Ct. App.

2017) (involving ICWA), cert. denied sub nom. S.S. v. Colo. River Indian Tribes, 138 S. Ct.

380 (Oct. 30, 2017); L.A. Cty. Dep’t of Children & Family Servs. v. J.E. (In re Alexandria

P.), 204 Cal. Rptr. 3d 617, 632-33, 635-36 (Ct. App. 2016) (involving ICWA), cert. denied

sub nom. R.P. v. L.A. Cty. Dep’t of Children & Family Servs., 137 S. Ct. 713 (2017);

Complaint and Prayer for Declaratory and Injunctive Relief ¶¶ 12-13, 236-46,

Brackeen v. Zinke, No. 4:17-cv-00868-O (N.D. Tex. Oct. 25, 2017) (involving a challenge

to ICWA by private parties and the state of Texas); Verified Complaint for Declaratory

and Injunctive Relief ¶¶ 1, 78, Donn v. Nelson, No. 1:15-cv-00982-JTN-ESC (W.D.

Mich. Sept. 29, 2015) (challenging Michigan’s analog to ICWA); Verified Complaint for

Declaratory and Injunctive Relief ¶¶ 1, 57-59, Doe v. Pruitt, No. 4:15-cv-00471-JED-

FHM (N.D. Okla. Aug. 19, 2015), 2015 WL 7259553 (challenging Oklahoma’s analog to

ICWA); Class Action Complaint for Declaratory and Injunctive Relief ¶¶ 1-5, 87, 89-94,

A.D. ex rel. Carter v. Washburn, No. 2:15-cv-01259-DKD (D. Ariz. July 6, 2015)

[hereinafter A.D. Complaint] (challenging ICWA).

Although many of these cases have been resolved on procedural grounds, nearly all

presented constitutional claims sounding in equal protection. These cases build on a

number of challenges to Indian law alleging equal protection violations outside the

context of ICWA. See, e.g., United States v. Zepeda, 792 F.3d 1103, 1110-15 (9th Cir. 2015)

(en banc) (holding that although “some quantum of Indian blood” is required for Indian

status under the Indian Major Crimes Act, ch. 341, § 9, 23 Stat. 362, 385 (1885) (codified

as amended at 18 U.S.C. § 1153 (2016)), a prosecution under that statute is “insulate[d] . . .

from an equal protection challenge” when the defendant has “Indian political status” as

evidenced by “a current relationship with a federally recognized tribe”); KG Urban

Enters. v. Patrick, 693 F.3d 1, 17-20 (1st Cir. 2012) (affirming the district court’s denial of

a preliminary injunction but suggesting that state gaming preferences based on Indian

status may violate the Equal Protection Clause); Williams v. Babbitt, 115 F.3d 657, 663-

66 (9th Cir. 1997) (engaging in constitutional avoidance by rejecting an agency’s

interpretation of a statute as barring reindeer herding by non-Indians because the

interpretation raised equal protection concerns). For additional background on current

challenges to ICWA, see Addie C. Rolnick & Kim Hai Pearson, Racial Anxieties in

Adoption: Reflections on Adoptive Couple, White Parenthood, and Constitutional Challenges

to the ICWA, 2017 M

ICH. ST. L. REV. (forthcoming 2018).

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ethnicity,” one representative complaint reads.

“Children with Indian

ancestry, however, are still living in the era of Plessy v. Ferguson.”

Yet whatever its moral imperatives, “our Constitution” contains some-

thing this argument elides: the term “Indian.” The original text excludes

“Indians not taxed” from representation and grants Congress the power to

regulate “Commerce . . . with the Indian Tribes,”

while the Fourteenth

Amendment, far from repudiating or altering these provisions, repeats the

“Indians not taxed” phrase verbatim.

As the Court noted in Mancari, the

Constitution itself “singles Indians out as a proper subject for separate

legislation.”

This reality presents something of a challenge for Indian law’s

critics, who are arguing that it is unconstitutional to use a classification used in

the Constitution itself.

The presence of “Indian Tribes” within the constitutional text raises the

Mancari question again, albeit with constitutional import: Are “Indian” and

“tribe” as used in the Constitution racial terms? One way to answer this

question would be to unpack the terms’ meanings at the time of the

19. A.D. Complaint, supra note 18, ¶ 1.

20. Id. ¶ 3; see also Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ.,

347 U.S. 483 (1954).

21. U.S. CONST. art. I, §§ 2, 8.

22. Id. amend. XIV, § 2. Although outside the scope of this Article, which focuses on history

prior to the Civil War, there is a large literature on the implications of the Fourteenth

Amendment for Indian status, which persuasively argues that the Fourteenth

Amendment was not intended to alter previous arrangements but rather reinforced the

separateness of Native peoples. See, e.g., Berger, Reconciling Equal Protection, supra

note 10, at 1171-79 (providing background on Indians and the drafting of the Four-

teenth Amendment); Gerard N. Magliocca, The Cherokee Removal and the Fourteenth

Amendment, 53 D

UKE L.J. 875, 914-29 (2003) (arguing that Indian affairs played a role in

shaping the Fourteenth Amendment). The Fourteenth Amendment excluded from

birthright citizenship those not “subject to the jurisdiction” of the United States, see U.S.

CONST. amend. XIV, § 1, a provision that was read to omit Indians, see Elk v. Wilkins,

112 U.S. 94, 98-99, 102, 109 (1884); see also R

OGERS M. SMITH, CIVIC IDEALS: CONFLICTING

VISIONS OF CITIZENSHIP IN U.S. HISTORY 309 (1997) (“The jurisdiction clause was meant

to signal the tribes’ special status as persons who were not fully subject to the U.S.

because they had another primary political allegiance.”). See generally Bethany R.

Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim

Ark, 37 C

ARDOZO L. REV. 1185 (2016) [hereinafter Berger, Birthright Citizenship]

(exploring the history and context of Elk v. Wilkins). For additional exploration of the

Fourteenth Amendment and Indian citizenship, see Gerard N. Magliocca, Indians and

Invaders: The Citizenship Clause and Illegal Aliens, 10 U.

PA. J. CONST. L. 499 (2008); and

Leti Volpp, The Indigenous as Alien, 5 U.C.

IRVINE L. REV. 289 (2015).

23. Morton v. Mancari, 417 U.S. 535, 551-52 (1974); see also Goldberg, American Indians,

supra note 10, at 966 (“[T]he equal protection requirements of the Constitution have

only limited application to federal Indian legislation, because the Indian Commerce

Clause of the Constitution specifically authorizes the exercise of federal power with

respect to tribes in particular.”).

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Constitution’s adoption. Yet notwithstanding the large and thoughtful

literature on Indians and race, there have been few efforts to do so—a

surprising omission given the recent scholarly vogue for such textual

investigations.

The problem is generally perceived to be lack of evidence. In

her compelling recent article exploring the role of descent in constitutional

definitions of Indianness, for instance, Sarah Krakoff, drawing on the scarce

extant literature, describes a “gap” in the late eighteenth century.

“[D]espite

the . . . distinct treatment of Indian tribes in the Constitution,” she observes,

“there was virtually no . . . discussion about how to define” them.

This Article seeks to close this perceived gap by reconstructing late

eighteenth century meanings of “tribe” and “Indian.” The seeming silence on

these terms reflects the methodological myopia of many explorations of

original constitutional meanings: As I have argued elsewhere, well-known

sources like the Federalist Papers or state ratifying conventions often had little

to say about Indian affairs, even as Anglo-Americans of the era hotly debated

these questions in other fora.

An interdisciplinary perspective helps move

beyond this source challenge and capture that debate. In recent years,

intellectual, cultural, and legal historians of early America, though seemingly

unfamiliar with current doctrinal battles, have developed a growing literature

on the racialization of Native peoples, one that portrays the mid-to-late

eighteenth century as the moment when Anglo-Americans increasingly

conceived of themselves as “white” and Indians as “red.” Pairing the insights of

this work with a reexamination of the era’s legal and administrative

documents counters claims of a gap: Despite the absence of tidy statutory

definitions, Anglo-Americans of the late eighteenth century thought a lot

about how to classify Natives and sometimes codified those thoughts into law.

The portrait that emerges is one of dualities rather than consensus. Anglo-

Americans of the late eighteenth century defined “Indians” by what they were

not. Sometimes, they spoke of Indians as nonwhites, “red” people defined by

racial difference. Other times, especially in diplomacy and law, they classified

24. Much of this scholarship has focused on the meaning of “commerce.” See, e.g., Jack M.

Balkin, Commerce, 109 M

ICH. L. REV. 1 (2010); Randy E. Barnett, The Original Meaning of

the Commerce Clause, 68 U.

CHI. L. REV. 101 (2001).

25. Krakoff, supra note 7, at 531 (citing William T. Hagan, Full Blood, Mixed Blood, Generic,

and Ersatz: The Problem of Indian Identity, 27 A

RIZ. & THE WEST 309, 309-10 (1985)).

26. Id. Underscoring Krakoff’s point, the sole law review article exploring the original

understanding of the term “Indian Tribes” mines conventional sources such as the

Federalist Papers to argue for the dominance of a political understanding of tribes’

status. See Fletcher, Political Status, supra note 10, at 165-70. As thorough as Matthew

Fletcher is, the challenge for him as well as for other scholars is that those sources

contain almost no discussion of how either “Indians” or “tribes” were to be defined.

27. See Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 YALE L.J. 1012, 1017-18

(2015).

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Indians as noncitizens marked by their allegiance to another sovereign. Anglo-

Americans also split on how to classify Native polities. Often, they used the

term “nation,” which implied separateness and participation in the

international community on equal footing. But at other moments, they used

the word “tribe,” a quasi-anthropological term that carried connotations of

primitiveness.

Although exploring textual meanings at the time of the Constitution’s

adoption has become associated with original public meaning originalism, this

Article does not argue that the original meaning of the text dictates current

law.

Rather than advance a particular mode of constitutional interpretation,

my goal is to provide a helpful starting point for inquiries about Indians, race,

and the Constitution, given that nearly all theories of constitutional

interpretation acknowledge a role for text and history.

If anything, the

multiple historical meanings of “nation,” “tribe,” and “Indian” conflict with the

project to identify a sole, legally binding original public meaning. The tension

and overlap between these multiple textual meanings at the time of the

Constitution’s adoption later produced significant challenges for the

document’s early interpreters, who legitimately drew sharply different

conclusions based on the same text. In this sense, this history bolsters the

argument of Indian law scholars who have contended that race and political

status are inextricably entangled in defining Indian status. The confusion and

interconnection between the two categories they observe in the present traces

back to the Constitution’s creation.

Both “tribe” and “Indian” are central terms of art in Indian law and,

depending on how the past is translated into law, their history has important

doctrinal implications. For instance, although many Anglo-Americans used

“tribe” and “nation” interchangeably to describe Indian communities, only

“tribe” appears in the Constitution. The history of this term helps clarify the

current law on the relationship between “tribes” and individual “Indians,” as

well as the role of courts in parsing tribal status.

The historical meaning of

28. The literature on original public meaning originalism is too enormous to cover here.

Helpful starting points include K

EITH E. WHITTINGTON, CONSTITUTIONAL

INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999);

Keith E. Whittington, The New Originalism, 2 G

EO. J.L. & PUB. POL’Y 599 (2004); and

Symposium, The New Originalism in Constitutional Law, 82 F

ORDHAM L. REV. 371 (2013).

29. See, e.g., Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1, 21 (2009) (noting

that the claim that “the intent of the framers, the understanding of the ratifiers, [or] the

text’s original public meaning . . . ‘matters’ or ‘is relevant’ to proper constitutional

interpretation” is a truism “without dissenters” in constitutional law); cf. William

Baude, Essay, Is Originalism Our Law?, 115 C

OLUM. L. REV. 2349, 2351-53, 2404-07 (2015)

(arguing that originalism holds a privileged place in constitutional law but noting that

even arguments for constitutional pluralism invoke history and textual meaning).

30. See infra Part I.

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“Indian” also proves highly relevant, particularly to the ongoing controversies

over Indians and equal protection. Although early Americans employed both

political and racial definitions of Indianness, under either interpretation the

current equal protection challenge is at odds with history. If “Indian” in the

Constitution is read as a political classification, as one view of the history

would suggest, then present-day classifications do not warrant strict scrutiny;

if, as another view of the history posits, it should be read as a racial

classification, then it is a racial category that appears in the Constitution itself

and arguably authorizes the ancestry-based classifications Indian law’s critics

seek to overturn.

In working through this history, this Article is divided into two Parts.

Reversing the order in the Constitution and moving from large to smaller

scale, Part I explores meanings of the terms “Nation” and “Tribe”; Part II, the

meaning of the term “Indian.” Each Part separately considers two diverging

textual meanings, only to consider how subsequent history revealed the

confusions and overlaps hidden by these dichotomies. Each Part then concludes

by examining how, despite these complexities, we might use these terms’

respective textual histories to inform current doctrine.

I. “Tribes”

Anglo-Americans used haphazard and seemingly interchangeable language

to label Native polities in the late eighteenth century. As Justice Baldwin would

later complain, federal officials inconsistently employed diverse terms in

treaties and statutes to describe Indians: “nations, tribes, hordes, savages, chiefs,

sachems and warriors.”

By far the most frequent of these labels were “nation”

and “tribe.”

But here too, the early federal government seemed to little heed

any difference: “[T]he terms ‘nation’ and ‘tribe’ are frequently used indiscrimi-

nately, and as importing the same thing,” Justice Thompson would later write

in his review of early federal practice.

Given this promiscuity of language—

and the seemingly thoughtless drafting of the Indian Commerce Clause itself—

the Constitutional Convention’s decision to grant Congress power over

commerce with tribes did not necessarily carry great linguistic import.

31. See infra Part II.E.

32. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 33 (1831) (opinion of Baldwin, J.).

33. See infra Parts I.A-.B.

34. Cherokee Nation, 30 U.S. (5 Pet.) at 63 (Thompson, J., dissenting).

35. See U.S. CONST. art. I, § 8, cl. 3 (granting Congress the power “[t]o regulate Commerce . . .

with the Indian Tribes”). On the haphazard drafting of the Indian Commerce Clause,

see Ablavsky, supra note 27, at 1021-23.

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Yet “nation” and “tribe” were not exact synonyms, even if Anglo-

Americans often used the terms interchangeably. Rather, as this Part explores,

considering first “nation,” then “tribe,” the words arose within different

discourses and came freighted with potentially divergent meanings. At times,

Anglo-Americans even explicitly examined the stakes involved in choosing

how to describe Indians. Recovering these discussions helps us understand why

it might matter when contemporaries chose one term over the other and how

we should interpret their linguistic choices in the present.

A. Nation

The late eighteenth century was a watershed moment in the history of the

concept of nationhood. According to historians, the era witnessed the creation

of modern nationalism, a movement invested in the idea of a nation as a

“political community [that is] imagined as both inherently limited and

sovereign,” in the words of Benedict Anderson.

Other historians have

demonstrated how the concept of nationhood was particularly pressing to the

young United States, which came into existence fixated on asserting its right to

an “equal station” “among the powers of the earth.”

As the Declaration of Independence’s bid for international belonging

suggests, early Americans’ conception of nationhood was bound up in a

particular set of legal meanings—those of the era’s law of nations. Emer de

Vattel, whose writings dominated early Americans’ understanding of

international law, defined nations as “bodies politic, societies of men united

together for the purpose of promoting their mutual safety and advantage.”

Vattelian conceptions of nationhood carried important implications. First,

36. BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND

SPREAD OF NATIONALISM 5-6 (rev. ed. 2006). Anderson dates “the creation of these

artefacts” to “the end of the eighteenth century.” Id. at 4. Historical investigations

focused on particular countries have generally agreed with Anderson’s chronology. See,

e.g., D

AVID A. BELL, THE CULT OF THE NATION IN FRANCE: INVENTING NATIONALISM,

1680-1800, at 3-9 (2001); LINDA COLLEY, BRITONS: FORGING THE NATION, 1707-1837, at 1-

9 (2009 ed.).

37. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). For background on this

aspiration in the early United States, see E

LIGA H. GOULD, AMONG THE POWERS OF THE

EARTH: THE AMERICAN REVOLUTION AND THE MAKING OF A NEW WORLD EMPIRE (2012);

and David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American

Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U.

REV. 932 (2010).

38. EMER DE VATTEL, THE LAW OF NATIONS, OR, PRINCIPLES OF THE LAW OF NATURE,

APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS preliminaries § 1,

at 67 (Béla Kapossy & Richard Whatmore eds., Thomas Nugent trans., Liberty Fund

2008) (1758). On Vattel’s influence in early America, see P

ETER ONUF & NICHOLAS ONUF,

EDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS,

1776-1814, at 10-19 (1993).

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1037

nations had citizens, created through birth or naturalization.

Second, for

Vattel, perhaps the most fundamental attribute of the nation was that it was

“absolutely free and independent with respect to all other men, all other

nations.”

To claim status as and be recognized as a nation, then, conveyed

rights of autonomy and independence, a legal position that the United States

also embraced in the Declaration of Independence.

Anglo-Americans understood that using the term of art “nation” to

describe Native polities evoked legal meanings of independence, even though

one present-day scholar has made a thinly supported assertion to the

contrary.

In 1784, the New Yorker James Duane, eager to assert New York’s

purported dominance over the Haudenosaunee (known to New Yorkers as the

Iroquois), insisted that in negotiations, he “woud never suffer the word nations,

or Six Nations . . . or any other Form which woud revive or seem to confirm

their former Ideas of Independence.”

This association between the term

“nation” and autonomy persisted. Two decades later, for instance, a

Tennessean, writing to President Jefferson, said of the Cherokee, “I will yet call

them a Nation, though they are not alltogether independant in reality, but so in

form.”

This language of independence carried into the policy views of the

Washington Administration. In advocating for Natives’ immunity from state

authority, for instance, Henry Knox argued that Native polities “ought to be

considered as foreign nations, not as the subjects of any particular state.”

And

39. See VATTEL, supra note 38, bk. 1, §§ 211-19, at 217-20.

40. See id. preliminaries § 4, at 68.

41. See THE DECLARATION OF INDEPENDENCE paras. 1, 32 (U.S. 1776); see also DAVID

ARMITAGE, THE DECLARATION OF INDEPENDENCE: A GLOBAL HISTORY 25-62 (2007).

42. Robert Natelson argues that in the context of late eighteenth century Indian affairs, the

“word ‘nation’ did not necessarily evoke the association with political sovereignty it

evokes today.” See Robert G. Natelson, The Original Understanding of the Indian

Commerce Clause, 85 D

ENV. U. L. REV. 201, 258-59 (2007). In support of this proposition,

Natelson cites no evidence from the late eighteenth century United States, instead

resting his argument on three British dictionary definitions (one of which, he

acknowledges, supports the contrary interpretation) along with his “knowledge of

Latin.” See id. at 259 & nn.411-13.

43. James Duane’s Views on Indian Negotiations (1784), in 18 EARLY AMERICAN INDIAN

DOCUMENTS: TREATIES AND LAWS, 1607-1789, at 299, 299-300 (Colin G. Calloway ed.,

1994). On the diverse terminology employed for the Haudenosaunee Confederacy, see

ANIEL K. RICHTER, THE ORDEAL OF THE LONGHOUSE: THE PEOPLES OF THE IROQUOIS

LEAGUE IN THE ERA OF EUROPEAN COLONIZATION 1 (1992).

44. Letter from David Campbell to Thomas Jefferson 2 (Jan. 1, 1804), https://perma.cc/MNT6

-8ETW.

45. See Letter from Henry Knox to George Washington (July 7, 1789), in 3 THE PAPERS OF

GEORGE WASHINGTON: PRESIDENTIAL SERIES 134, 138 (Dorothy Twohig ed., 1989)

[hereinafter P

APERS OF GEORGE WASHINGTON].

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1038

Attorney General William Bradford concluded that Native groups living on

Indian land were immune from regulation by federal law.

Bradford and Knox

both used the same terms to describe these communities free from outside

interference: “independent Nations & Tribes of Indians.”

The evidence suggests, then, that early American references to Native

polities as “nations” carried associations of autonomy and sovereignty. Of

course, as Bradford’s and Knox’s statements suggest, these meanings could also

extend to “tribes.” But it was telling that Bradford and Knox listed “tribes”

second because, as I now explore, “tribe” carried a different set of implications.

B. Tribe

“Tribe” emerged from a different discourse than “nation.”

While nation-

hood was bound up with the law of nations, for early Americans “tribe”

46. See Letter from William Bradford, U.S. Attorney Gen., to U.S. Sec’y of the Treasury

(June 19, 1795), in 2 T

HE TERRITORIAL PAPERS OF THE UNITED STATES 520, 520 (Clarence

Edwin Carter ed., 1934).

47. Id.; Letter from Henry Knox to George Washington, supra note 45, at 138.

48. Full-text searches of digitized versions of late eighteenth century documents should be

engaged in carefully, especially given the uneven nature of print culture in the early

United States, which was heavily concentrated in New England and in which

government printing, religious tracts, and almanacs predominated. See Hugh Amory, A

Note on Statistics, in 1 A

HISTORY OF THE BOOK IN AMERICA app. at 504, 511 graph 5a

(Hugh Amory & David D. Hall eds., Univ. of N.C. Press 2007) (2000). Moreover, most

printed material was imported from Europe. See id. app. at 511 graph 5a, 514 graphs 7a,

7b.

Nonetheless, a search for the word “tribe” in the Evans compendium of all books and

pamphlets printed in the United States in 1787 is suggestive. See Early American

Imprints, Series I: Evans, 1639-1800, R

EADEX, https://perma.cc/AW7W-VXDN

(describing the contents of the Evans compendium). The term appeared in 79 different

works printed in 1787. See Early American Imprints, Series I: Evans, R

EADEX,

https://perma.cc/8LRC-8VN5 (to locate, select “View the live page,” then search for

“tribe” and narrow by date of publication to “1787”). In 26 of these works, it was used in

what I label a religious context, usually to discuss one of the Twelve Tribes of Israel.

See, e.g., H

ANNAH MORE, SACRED DRAMAS, CHIEFLY INTENDED FOR YOUNG PERSONS 66

(Philadelphia, Thomas Dobson 1787). In 24 works, it was used in what I describe as a

literary sense, as a term for a collective grouping of like people or natural objects—

“feather’d tribe” to describe birds, see Winter, in M

ISCELLANIES, MORAL AND

INSTRUCTIVE, IN PROSE AND VERSE 150, 150 (Philadelphia, Joseph James 1787), or the

“whole sensitive tribe of vegetables,” see M

ADAME LA COMTESSE DE GENLIS, ALPHONSO

AND DALINDA: OR, THE MAGIC OF ART AND NATURE 240 n.73 (Thomas Holcroft trans.,

Philadelphia, Thomas Dobson new ed. 1787). In 15 works, “tribe” was used in an

ethnographic sense to describe “Indians” or, in a couple of instances, other indigenous

peoples. See, e.g., T

HOMAS HUTCHINS, A TOPOGRAPHICAL DESCRIPTION OF VIRGINIA,

PENNSYLVANIA, MARYLAND, AND NORTH CAROLINA 17-18 (Boston, John Norman 1787).

In 12 works, “tribe” was used in state statutes or legislative debates to discuss Indian

affairs, see, e.g., R

ESOLVES OF THE GENERAL COURT OF THE COMMONWEALTH OF

MASSACHUSETTS 281 (Boston, Adams & Nourse 1787); 3 instances were reprints of the

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connoted a quasi-ethnographic vision of the past. Most immediately, “tribe”

conjured up the Bible and the Twelve Tribes of Israel, whose descendants

many whites believed Natives to be.

For the educated, “tribe” also hearkened

to Anglo-Americans’ own imagined origins among the Celtic tribes of

antiquity depicted in classical texts.

When Anglo-Americans encountered

Indians, then, many believed that they were meeting people akin to their own

ancestors.

The contrast between nation and tribe—and the latter’s connotations of

supposed primitiveness and savagery—is apparent in a return to the

fundamental text of the era’s international order, Vattel’s Law of Nations. While

Vattel employed the term “nation” on nearly every page of his 900-page

treatise, he employed the term “tribe” only six times—two of which described

primitive “wandering tribes” and one of which referred to the “savage tribes of

North America.”

But the concept of “tribe” loomed still larger in another set of texts highly

influential among the educated early American elite—the writings of the

Scottish Enlightenment. One historian has argued that “American theorizing

about the Indian owed its greatest debt to [this] group of eighteenth-century

Scottish writers on man and society.”

Many of these writers embraced a

Constitution or ratification discussions, see, e.g., THE CONSTITUTION OR FRAME OF

GOVERNMENT, FOR THE UNITED STATES OF AMERICA, AS REPORTED BY THE CONVENTION

OF DELEGATES 10 (Boston, Adams & Nourse 1787); and in 1 instance, the term appeared

in a Latin dictionary as the translation of the word “tribus,” see J

AMES GREENWOOD,

THE PHILADELPHIA VOCABULARY, ENGLISH AND LATIN 72 (Philadelphia, Carey & Co.

1787). Note that these instances add up to 81 because in 2 works the term was used

multiple times in different senses.

49. See generally ZVI BEN-DOR BENITE, THE TEN LOST TRIBES: A WORLD HISTORY 135-67

(2009); COLIN KIDD, THE FORGING OF RACES: RACE AND SCRIPTURE IN THE PROTESTANT

ATLANTIC WORLD, 1600-2000, at 43-44, 60-62, 203-05 (2006); Richard W. Cogley, “Some

Other Kinde of Being and Condition”: The Controversy in Mid-Seventeenth-Century England

over the Peopling of Ancient America, 68 J.

HIST. IDEAS 35 (2007). For a key contemporane-

ous work making this contention based on observation of southern Indians, see J

AMES

ADAIR, THE HISTORY OF THE AMERICAN INDIANS 75-220 (Kathryn E. Holland Braund ed.,

Univ. of Ala. Press 2005) (1775).

50. See, e.g., KAREN ORDAHL KUPPERMAN, INDIANS AND ENGLISH: FACING OFF IN EARLY

AMERICA 21-30 (2000).

51. See VATTEL, supra note 38, bk. 1, § 203, at 213 (“wandering tribes”); id. bk. 1, § 209, at 216

(same); id. bk. 4, § 103, at 721 (“savage tribes of North America”). Two other references

described the Scythian and Germanic tribes of antiquity, and the final reference

described the “whole tribe of politicians.” See id. bk. 2, § 104, at 314 (“Scythian tribe”); id.

bk. 3, § 34, at 487 (“several German tribes”); id. bk. 4, § 93, at 709 (“whole tribe of

politicians”).

52. ROY HARVEY PEARCE, SAVAGISM AND CIVILIZATION: A STUDY OF THE INDIAN AND THE

AMERICAN MIND 82 (rev. ed. 1988). For other works emphasizing the influence of

Scottish Enlightenment thinking on Anglo-American conceptions of Indians, see

OLIN G. CALLOWAY, WHITE PEOPLE, INDIANS, AND HIGHLANDERS: TRIBAL PEOPLES AND

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methodology of conjectural history, in which they theorized the past as a series

of phases in human development, progressing from “savage” hunters toward

the highest forms of commerce and civilization.

Imagined histories of Native

peoples played an important role in this literature; one thinker, William

Robertson, devoted an entire book, his 1777 The History of America, to

describing the indigenous peoples of the Western Hemisphere.

Although

Robertson focused primarily on South America, his book was widely discussed

among Anglo-American elites, including Benjamin Franklin, John Adams,

James Madison, and Thomas Jefferson.

Robertson studied indigenous peoples to explore what he believed to be

the earliest of the “stages of society”: “In America,” Robertson wrote, “man

appears under the rudest form in which we can conceive him to subsist.”

Robertson proceeded to offer, in lurid terms, an account of Indians’ supposed

primitiveness. Though Robertson at times described Native peoples as

“nations,” a term he generally reserved for Europeans, he was quick to qualify:

“In America, the word nation is not of the same import as in other parts of the

globe,” he wrote.

“It is applied to small societies . . . .”

More frequently,

however, Robertson contrasted what he called “rude American tribes”

unfavorably with “more polished nations.”

In fact, Robertson consistently

favored the term “tribe” to describe indigenous peoples, often loading it with

COLONIAL ENCOUNTERS IN SCOTLAND AND AMERICA 77-81 (2008); and PATRICK GRIFFIN,

MERICAN LEVIATHAN: EMPIRE, NATION, AND REVOLUTIONARY FRONTIER 21-32 (2007).

For a discussion of the influence of Scottish Enlightenment thinking on early U.S. law

more generally, see William Ewald, James Wilson and the Scottish Enlightenment, 12 U.

PA. J. CONST. L. 1053 (2010); and James E. Pfander & Daniel D. Birk, Article III and the

Scottish Judiciary, 124 H

ARV. L. REV. 1613 (2011).

53. For explorations of this thought, see H.M. Höpfl, From Savage to Scotsman: Conjectural

History in the Scottish Enlightenment, J.

BRIT. STUD., Spring 1978, at 19; and Joseph S.

Lucas, The Course of Empire and the Long Road to Civilization: North American Indians and

Scottish Enlightenment Historians, 4 E

XPLORATIONS EARLY AM. CULTURE 166 (2000).

54. WILLIAM ROBERTSON, THE HISTORY OF AMERICA (Dublin, Whitestone 1777). For an

exploration of this literature with a focus on Robertson, see 4 J.G.A.

POCOCK,

ARBARISM AND RELIGION 157-226 (2005).

55. See CAROLINE WINTERER, AMERICAN ENLIGHTENMENTS: PURSUING HAPPINESS IN THE

AGE OF REASON 84-85 (2016); see also ROBERT F. BERKHOFER, JR., THE WHITE MAN’S

INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS TO THE PRESENT 48 (Vintage

Books 1979) (1978)

(describing Robertson’s book as “particularly influential in the

newly independent United States in shaping its leaders’ comprehension of the Indian”).

56. See 1 ROBERTSON, supra note 54, at 281-82.

57. Id. at 337.

58. Id.

59. See id. at 401. For other instances where indigenous peoples were compared

unfavorably to “polished nations,” see id. at 305-06, 309, 334, 344-45, 351, 368, 397. See

also id. at 356 (contrasting the “feeble American tribes” with the “powerful nations of

Europe”).

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epithets emphasizing degradation—“rude,” “uncivilized,” “wandering,”

“savage.”

“Tribe,” then, often suggested a different sense than “nation” of Natives’

status and civilization. It also conveyed a different conception of political

belonging: While belonging to a nation turned on the abstract category of

citizenship, tribes were defined by descent. The first definition of “tribe”

Anglo-American lexicographer Noah Webster offered was “[a] family, race or

series of generations, descending from the same progenitor and kept distinct.”

Other dictionaries offered similarly descent-based definitions.

Not confined to dictionary pages, this insistence on descent as the principal

criterion for tribal status shaped Anglo-Americans’ understanding of what

constituted a tribe. In his Notes on the State of Virginia, for instance, Jefferson

described as “nations” only those “Aborigines which still exist in a respectable

and independent form”; he consistently referred to the supposedly much-

reduced Native peoples of Virginia as “tribes.”

In seeking to trace “the

subsequent history of these tribes severally,” Jefferson displayed considerable

interest in their “stock[].”

He discovered that the Chickahominies had

“blended with the Pamunkies and Mattaponies” and so ceased to exist, while

the Mattaponies themselves consisted of “three or four men only, and they

have more negro than Indian blood in them.”

Only the Pamunkies persisted,

he suggested, with a dozen members “tolerably pure from mixture with other

colours.”

Jefferson’s racial essentialism prefigured later understandings of

60. In his book, Robertson used the term “nation” 211 times and the term “tribe” 155 times.

Of these instances, “nation” referred unambiguously to indigenous peoples 50 times,

while “tribe” referred to them 140 times (and 3 times to describe the ancient peoples of

Europe).

61. Tribe, 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (New

York, S. Converse 1828). Webster’s fifth definition was “[a] nation of savages; a body of

rude people united under one leader or government; as . . . the Seneca tribe in America.”

Id.

62. See, e.g., Tribe, THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH

DICTIONARY (London, Toplis & Bunney 18th ed. 1781) (defining “tribe” as “the

particular descendants or people sprung from some noted head, or a collective number

of people in a colony, &c. but particularly meant of the Jewish nation, who were

allotted their possessions by their tribes” (emphasis omitted)); Tribe, 2 T

HOMAS

SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (London, Charles Dilly

3d ed. 1790) (defining “tribe” as “[a] distinct body of the people as divided by family or

fortune, or any other characteristick”).

63. See THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 96-97, 102 (William Peden ed.,

Univ. of N.C. Press 1955) (1787); see also id. at 93-95 (presenting a table listing all the

“[t]ribes” of Virginia).

64. See id. at 96-97.

65. See id. at 96.

66. See id.

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Indian “tribes.” Anglo-Americans’ obsession with Indian descent made a tribe’s

purported disappearance upon the death of its “last” descendant a romantic and

melancholy staple of American culture in the early republic.

Thus, “tribe,” though often used interchangeably with “nation,” carried a

different set of connotations. Rather than suggesting the independence and

equality of Native polities, the term drew attention to their difference: Its

quasi-anthropological and historical context emphasized Natives’ common

descent and supposed lack of civilization. Though these meanings might strike

us now as derogatory, Anglo-Americans using “tribe” did not intend it as a slur.

Rather, blinkered by their unquestioned belief in their own cultural

superiority, Anglo-Americans thought they were accurately describing what

made Indian societies different from their own.

C. Legacy

The tension between the discourses of Natives as nations and as tribes long

lay submerged within federal law. But as the Supreme Court came to play an

increasing role in adjudicating Indian affairs, questions of classification became

more pressing. The issue whether Indians legally constituted “nations” or

“tribes” came to preoccupy the Court in one of its first and most important

Indian law cases, the 1831 decision in Cherokee Nation v. Georgia.

A suit by the Cherokee against Georgia’s assault on their sovereignty,

Cherokee Nation squarely presented the issue of Native polities’ constitutional

classification, as the Court had to determine whether the Cherokee Nation was

a “foreign State[]” for the purposes of the Court’s original jurisdiction under

Article III, Section 2.

Most commentary on the case has understandably

focused on Chief Justice Marshall’s conclusion for the majority that Natives

were not foreign, but rather “domestic dependent nations.”

But there was a

67. On this trope of the vanishing Indian, see BERKHOFER, supra note 55, at 86-96; JILL

LEPORE, THE NAME OF WAR: KING PHILIP’S WAR AND THE ORIGINS OF AMERICAN

IDENTITY 191-226 (Vintage Books 1999) (1998); ANDREW LIPMAN, THE SALTWATER

FRONTIER: INDIANS AND THE CONTEST FOR THE AMERICAN COAST 244-48 (2015); JEAN M.

O’BRIEN, FIRSTING AND LASTING: WRITING INDIANS OUT OF EXISTENCE IN NEW ENGLAND

105-43 (2010); and Kathryn E. Fort, The Vanishing Indian Returns: Tribes, Popular

Originalism, and the Supreme Court, 57 S

T. LOUIS U. L.J. 297, 308-20 (2013).

68. 30 U.S. (5 Pet.) 1 (1831).

69. U.S. CONST. art. III, § 2; see Cherokee Nation, 30 U.S. (5 Pet.) at 15-16. For a sampling of the

numerous works on Cherokee Nation, see T

IM ALAN GARRISON, THE LEGAL IDEOLOGY OF

REMOVAL: THE SOUTHERN JUDICIARY AND THE SOVEREIGNTY OF NATIVE AMERICAN

NATIONS 125-50 (2002); JILL NORGREN, THE CHEROKEE CASES: THE CONFRONTATION OF

LAW AND POLITICS (1996); Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics,

and Morality, 21 S

TAN. L. REV. 500 (1969); and Matthew L.M. Fletcher, The Iron Cold of

the Marshall Trilogy, 82 N.D.

L. REV. 627 (2006).

70. See Cherokee Nation, 30 U.S. (5 Pet.) at 17, 20.

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vociferous antecedent debate over whether the Cherokee constituted a “state”

at all. While Chief Justice Marshall, in a brief and unequivocal paragraph,

concluded that the Cherokee were a state because the federal government had

always treated them that way,

his fellow Justices were less confident. The

case produced two long concurrences and an even longer dissent fixated on the

issue Chief Justice Marshall thought so easy: Whether, under the Constitution,

“the Indians were considered and treated with as tribes of savages, or

independent nations, foreign states on an equality with any other foreign state

or nation.”

The two concurrences and the dissent seemingly agreed with the proposi-

tion that “[t]he terms state and nation are used in the law of nations, as well as in

common parlance, as importing the same thing.”

But they disagreed strongly

over whether Natives could legally claim the mantle of “nation,” a divide

reflected in the diverging discourses the Justices embraced. Justice Baldwin,

adopting a textualist approach, placed considerable weight on the choice of

terms in the Constitution, “which refers to [Indians] as tribes only.”

Justice

Johnson’s concurrence, by contrast, was quasi-anthropological. The “epithet

state,” Justice Johnson argued, could not apply “to a people so low in the grade

of organized society as our Indian tribes most generally are.”

The Indians’

“condition,” he observed, “is something like that of the Israelites, when

inhabiting the deserts”; elsewhere he described them as “a band of hunters.”

short, Justice Johnson concluded, it was “very clear” that Indians could not be

considered nations under international law

[T]he constitution neither speaks of them as states or foreign states, but as just

what they were, Indian tribes; an anomaly unknown to the books that treat of

states, and which the law of nations would regard as nothing more than wander-

ing hordes, held together only by ties of blood and habit . . . .

Justice Thompson, joined by Justice Story, dissented.

His tone was

different from the outset. Rather than beginning with either prior practice or

musings on Indian savagery, Justice Thompson started with a lengthy

71. See id. at 16.

72. Id. at 32 (opinion of Baldwin, J.).

73. Id. at 52 (Thompson, J., dissenting); see also id. at 21 (opinion of Johnson, J.) (appearing

to equate the term “nations” with “states”); id. at 32 (opinion of Baldwin, J.) (appearing to

equate the term “sovereign independent nation” with “foreign state”).

74. See id. at 43 (opinion of Baldwin, J.).

75. Id. at 21 (opinion of Johnson, J.).

76. See id. at 24, 27.

77. Id. at 27.

78. Id.

79. Id. at 50, 80 (Thompson, J., dissenting).

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exposition of Vattel’s criteria for nationhood, the principal requirement of

which was self-government under a nation’s own authority and laws.

Justice

Thompson believed that these principles, when applied to the Cherokee, made

inescapable “the conclusion, that they form a sovereign state.”

Confronting

the constitutional language of “tribe” rather than “nation,” Justice Thompson

asserted that this term had “probably” been selected to ensure that Congress had

the authority to regulate not just Native nations but also the subnational

“bands or tribes” that constituted those nations.

This vigorous debate proved surprisingly ephemeral: Cherokee Nation was

both the first and last time the Court grappled with the implications of the

Constitution’s selection of the word “tribe.” Much of this neglect stemmed

from Chief Justice Marshall’s conclusion that Natives were, regardless of

formal legal classification, outside the international community, which

blunted most legal consequences of acknowledging Native nationhood.

In the

ensuing years, as questions of Native status moved ever further from the law of

nations, the discourse of Indian polities as tribes became more dominant.

the late nineteenth century, the Supreme Court no longer argued over whether

Natives were tribes or nations but instead parsed whether a given group of

Indians was culturally inferior enough to constitute a “tribe” in white eyes.

This transformation both exacerbated and reflected the ever-greater fixation

on descent, in the form of Indian “blood,” described above.

The irony of Anglo-Americans’ diminishment of Native self-government

and autonomy is that it came even as Native communities began to look ever

more like Anglo-Americans’ visions of “states,” with written laws, formal

80. See id. at 52-53.

81. Id. at 53.

82. See id. at 62-63.

83. On the consequences of Anglo-American conclusions that tribes were outside the

community of nations, see L

EONARD J. SADOSKY, REVOLUTIONARY NEGOTIATIONS:

INDIANS, EMPIRES, AND DIPLOMATS IN THE FOUNDING OF AMERICA 180-215 (2009).

84. See generally Thomas Grillot, Indian Nations, Indian Tribes: Notes on the Colonial Career of

Twin Concepts, R

EVUE FRANÇAISE D’ÉTUDES AMÉRICAINES, 3d Trimestre 2015, at 49, 56-

58 (tracing what Grillot labels the “long tribalization of Indian nations” and observing

that by the late nineteenth century “the concept of [Indian] nations had been closely

associated with that of tribe” (capitalization altered)).

85. Compare United States v. Joseph, 94 U.S. 614, 614-15, 617 (1877) (concluding that the

Pueblo Indians, “if, indeed, they can be called Indians,” were not tribes for the purposes

of the Trade and Intercourse Act of 1834, ch. 161, 4 Stat. 729 (codified as amended in

scattered sections of 25 U.S.C.), because of the “degree of civilization which they had

attained”), abrogated by United States v. Candelaria, 271 U.S. 432, 441 (1926); with United

States v. Sandoval, 231 U.S. 28, 39, 48-49 (1913) (holding that the Pueblo Indians are

tribes because they were “Indians in race, customs, and domestic government” and

“essentially a simple, uninformed, and inferior people”).

86. See supra notes 61-67 and accompanying text.

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institutions of governance, and membership based on naturalization as well as

ancestry. But for neither the first nor the last time, Anglo-Americans

constructed their fantastic imaginings of what Indians were—increasingly

defined by their status as primitive, antimodern peoples—by ignoring the

contrary evidence in front of them.

D. The Constitutional Meaning of “Tribes”

In 1978, the Bureau of Indian Affairs adopted seven criteria for formal

federal recognition of “tribes,” including evidence of recognition as an “Indian

entity” and proof of indigenous descent.

Since the creation of these

regulations, the relevant legal distinction for most Native communities has

been between recognition and nonrecognition rather than between “nation”

and “tribe.

”

Some federally recognized communities self-identify as nations,

others as tribes.

Yet the Constitution’s use of “tribe,” rather than “nation,” still has im-

portant implications for current doctrine. Given the term’s complicated and at

times demeaning history, “tribe” might be read to suggest a more cabined

constitutional vision of Native authority than “nation.” I would argue the

contrary: Paradoxically, the Constitution’s use of the term “tribe” arguably

87. See, e.g., PHILIP J. DELORIA, INDIANS IN UNEXPECTED PLACES 4, 231 (2004) (noting the

dominance of white stereotypes of Indians marked by “[p]rimitivism, technological

incompetence, physical distance, and cultural difference,” even as many Indian peoples

“leapt quickly into modernity”); see also id. at 4-12, 224-36.

88. See Procedures for Establishing That an American Indian Group Exists as an Indian

Tribe, 43 Fed. Reg. 39,361, 39,363 (Aug. 24, 1978) (codified as amended at 25 C.F.R.

§ 83.11 (2017)).

89. On the process and significance of federal recognition, see RENÉE ANN CRAMER, CASH,

COLOR, AND COLONIALISM: THE POLITICS OF TRIBAL ACKNOWLEDGMENT (2005); BRIAN

KLOPOTEK, RECOGNITION ODYSSEYS: INDIGENEITY, RACE, AND FEDERAL TRIBAL

RECOGNITION POLICY IN THREE LOUISIANA INDIAN COMMUNITIES (2011); and Matthew

L.M. Fletcher, Politics, History, and Semantics: The Federal Recognition of Indian Tribes, 82

N.D.

L. REV. 487 (2006) (reviewing CRAMER, supra; and MARK EDWIN MILLER,

FORGOTTEN TRIBES: UNRECOGNIZED INDIANS AND THE FEDERAL ACKNOWLEDGEMENT

PROCESS (2004)).

90. For a small sampling of the 567 federally recognized Native polities, see BISHOP PAIUTE

TRIBE, https://perma.cc/3XBW-TS7E (archived Feb. 15, 2018); HOPI TRIBE,

https://perma.cc/4XWP-9AX2 (archived Feb. 15, 2018); N

AVAJO NATION GOV’T,

https://perma.cc/SQ6T-AXRC (archived Feb. 15, 2018); and Y

AKAMA NATION,

https://perma.cc/C4S6-PS5C (archived Feb. 15, 2018). See also Indian Entities Recog-

nized and Eligible to Receive Services from the United States Bureau of Indian Affairs,

83 Fed. Reg. 4235 (Jan. 30, 2018) (listing 567 federally recognized “Tribal entities”);

AT’L CONG. OF AM. INDIANS, TRIBAL NATIONS AND THE UNITED STATES: AN

INTRODUCTION 9 (n.d.), https://perma.cc/KQ7L-LYHF (“567 sovereign tribal nations

(variously called tribes, nations, bands, pueblos, communities, and Native villages) have

a formal nation-to-nation relationship with the US government.”).

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provides a more solid foundation for aspects of present law protective of

Native rights.

For one, the use of the term “tribe” is relevant to the legal questions of race

discussed more fully in the next Part. Unlike nations, tribes as understood by

early Americans were defined through common ancestry. As discussed above,

this embrace of descent as a requirement of Indianness was often linked to

troubling ideas about racial purity. But this concept also provided legal space

for Native peoples to craft membership rules when, for very different reasons

from Anglo-Americans, they emphasized shared ancestry as an essential aspect

of their communal identity.

The second point is more abstract. It begins with the recognition that

Anglo-Americans have often invidiously compared independent Native

“nations” against those indigenous communities that failed to satisfy non-

Native understandings of Indian separateness and autonomy. Justice

Thompson’s pro-Cherokee dissent in Cherokee Nation, for instance, contrasted

the self-governing Cherokee peoples against the “mere remnant of tribes

which are to be found in many parts of our country, who have become mixed

with the general population of the country: their national character

extinguished; and their usages and customs in a great measure abandoned.”

Justice Johnson framed the problem as he saw it: “Must every petty kraal of

Indians, designating themselves a tribe or nation, and having a few hundred

acres of land to hunt on exclusively, be recognized as a state?”

But by the late nineteenth and early twentieth centuries, the Court largely

abandoned its earlier forays into assessing tribal status, instead pledging

deference to the determinations of “the executive and other political

departments of the government.”

“If by them those Indians are recognized as

a tribe,” the Court reasoned, the “court must do the same.”

Consequently,

formal recognition by the Bureau of Indian Affairs and Congress is generally

dispositive in establishing tribal status.

91. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 60 (1831) (Thompson, J., dissenting).

92. Id. at 25 (opinion of Johnson, J.).

93. See United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1866).

94. Id.; see also United States v. Sandoval, 231 U.S. 28, 46 (1913) (“[T]he questions whether, to

what extent, and for what time [Indian communities] shall be recognized and dealt

with as dependent tribes . . . are to be determined by Congress, and not by the courts.”).

95. See, e.g., United States v. Zepeda, 792 F.3d 1103, 1114 (9th Cir. 2015) (en banc) (“[F]ederal

recognition of a tribe . . . [is] a political decision made solely by the federal government

and expressed in authoritative administrative documents . . . .”); United States v.

Washington, 394 F.3d 1152, 1158 & n.8, 1159 (9th Cir. 2005), overruled in part by United

States v. Washington, 593 F.3d 790 (9th Cir. 2010) (en banc); James v. U.S. Dep’t of

Health & Human Servs., 824 F.2d 1132, 1136-37 (D.C. Cir. 1987).

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Recent decisions, however, have returned the courts to the role of distin-

guishing among tribes even when the political branches have formally

recognized them. Such distinctions among federally recognized tribes appear,

for instance, in the Court’s recent interpretation of the Indian Reorganization

Act in Carcieri v. Salazar, which divides tribes that were “under federal

jurisdiction” in 1934 from those that were not.

The Court’s interpretation of

this ambiguous language has thrust lower courts into the position of

scrutinizing each tribe’s history to discover the requisite federal involvement,

often to the detriment of smaller Native communities, especially in the eastern

United States, that whites have long dismissed as no longer Indian.

Justice

Thomas recently called for the Court to go further, noting that because tribes

have “different patterns of assimilation and conquest,” the Court should closely

scrutinize each tribe “to understand the ultimate source of each tribe’s

sovereignty and whether it endures.”

This worrying call seems to suggest

that the Court would return to parsing which Native groups are truly

“nations,” likely based on the same blinkered and culturally essentialist

assumptions about what constitutes nationhood, autonomy, and independence

as in the past.

Although Carcieri rests on statutory grounds, Justice Thomas’s call for the

Court to second-guess the political branches’ recognition decisions implicitly

relies on the Constitution.

Yet to be an Indian “tribe” in the late eighteenth

century did not require the high standard of unbroken outside acknowledg-

ment of sovereignty Justice Thomas seems to advocate as the requisite test; it

involved descent and some amount of self-governance.

100

Congress and the

executive, by creating the procedures for recognition, have created the system

to determine whether these requirements have been met.

101

But when these

other branches have acted, the Constitution, by using the term “tribe” and its de

minimis standard as opposed to “nation,” deprives the courts of any textual

basis for second-guessing their judgments.

Finally, Justice Thomas has made a separate point with respect to enumer-

ated powers, arguing that the Constitution’s grant of congressional power to

regulate commerce “with the Indian tribes” does not provide congressional

96. See 555 U.S. 379, 387-93 (2009); see also Indian Reorganization Act, Pub. L. No. 73-383, 48

Stat. 984 (1934) (codified as amended in scattered sections of 25 U.S.C.).

97. On the geographically disparate impact of the Carcieri decision, see William Wood,

Indians, Tribes, and (Federal) Jurisdiction, 65 K

AN. L. REV. 415, 428-30, 483-92 (2016).

98. See United States v. Bryant, 136 S. Ct. 1954, 1968 (2016) (Thomas, J., concurring).

99. See id. at 1967-68 (questioning whether the Court’s view of tribal sovereignty rests on a

“sound constitutional basis”).

100. See supra Part I.B.

101. See 25 C.F.R. §§ 83.1-.46 (2017).

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1048

authority to regulate individual Indians, as ICWA does.

102

This distinction

finds no support in constitutional history, regardless whether Native

communities are described as nations or as tribes. Whether defined through

citizenship or descent, both nations and tribes were, and are, composed of

members. Like Vattel, who devoted an entire chapter of his international law

treatise to questions of jurisdiction and property over individual foreigners,

103

Anglo-Americans understood that the treatment of the members profoundly

affected relationships between sovereigns. That was why the Trade and

Intercourse Act of 1790 barred sales to U.S. citizens “by any Indians, or any

nation or tribe of Indians,” and federalized crimes against “any peaceable and

friendly Indian or Indians,” rather than against tribes.

104

From the perspective of Native peoples, both the terms “nation” and “tribe”

are colonial impositions that fail to capture the nuances of their own political

orderings.

105

“[N]ation,” Chief Justice Marshall acknowledged for the Court, is

a “word[] of our own language, selected in our diplomatic and legislative

proceedings, by ourselves,” and then “applied . . . to Indians.”

106

But Natives’

longstanding insistence on their status as separate and sovereign stems from a

keen recognition that the often grudging rights afforded them under Anglo-

American law depend precisely on such terms. In that regard, the constitution-

al term “tribe,” though freighted with historical baggage, paradoxically

provides a compelling textual basis for some of those hard-won rights in the

present.

102. See Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2567-68 (2013) (Thomas, J., concurring).

103. See VATTEL, supra note 38, at 38; id. bk. II, ch. VIII, §§ 99-115, 311-19.

104. See ch. 33, §§ 4-5, 1 Stat. 137, 138 (codified as amended at 25 U.S.C. § 177 (2016)) (emphasis

added). Although the legislative history of the Trade and Intercourse Act is sparse,

context suggests why the statute enumerated a ban on purchases from both individual

Indians and tribes. A favorite tactic of would-be land speculators seeking to circumvent

this restriction had been to find individual Indians and get them to sign deeds

alienating their land rights, notwithstanding their dubious ownership claim. See

TUART BANNER, HOW THE INDIANS LOST THEIR LAND: LAW AND POWER ON THE

FRONTIER 27-33 (2005).

105. See, e.g., STEVEN C. HAHN, THE INVENTION OF THE CREEK NATION, 1670-1763, at 5 (2004)

(“Creek peoples are better understood not as a nation in the modern sense but as an

extended family united by bonds of clan affiliation, marriage, and ritually prescribed

friendships.”); Grillot, supra note 84, at 51-53 (noting the colonial origins of ideas of

Native nationhood); cf. M

ICHAEL WITGEN, AN INFINITY OF NATIONS: HOW THE NATIVE

NEW WORLD SHAPED EARLY NORTH AMERICA 12-21 (2012) (arguing for the centrality of

Native political conceptions and social formations in dictating encounters between

Anglo-Americans and the Anishinaabe).

106. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559-60 (1832), abrogated in other part by Utah &

N. Ry. v. Fisher, 116 U.S. 28 (1885), as recognized in Nevada v. Hicks, 533 U.S. 353 (2001).

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II. “Indian”

By the time of the Constitution’s drafting, Anglo-Americans had lived

alongside, negotiated with, and fought the indigenous peoples they labeled as

“Indians” for over two centuries.

107

In the process, the term “Indian” became a

signifier for all the ways North America differed from the familiar world of

England. Colonists ate maize, “Indian corn,” instead of wheat or barley

108

and

dressed in “Indian fashion” when they eschewed European clothing.

109

But the

most frequent use of “Indian” was to ascribe identity to Native peoples and

convey their difference from Europeans. From first settlement onward,

English colonists constructed their own identities against qualities they

imputed to “Indians.”

110

With the American Revolution, historians have

argued, the new nation similarly came to define itself against the Native

peoples who found themselves unwillingly folded within its borders.

111

As this Part explores, the definitions of “Indian” that Anglo-Americans

employed in the late eighteenth century reflected this oppositional quality:

What made people “Indians” was their difference from Anglo-Americans. But

which difference was most salient depended on how those who proclaimed

themselves “Americans” imagined themselves. Sometimes, the defining

characteristic was race: Anglo-Americans, classifying themselves as “white,”

labeled Indians “not white”—most frequently, “red.”

112

At other times, the key

107. Numerous works recount this history. For key works providing an overview, see

OLIN G. CALLOWAY, NEW WORLDS FOR ALL: INDIANS, EUROPEANS, AND THE REMAKING

OF EARLY AMERICA (1997); DANIEL K. RICHTER, FACING EAST FROM INDIAN COUNTRY: A

NATIVE HISTORY OF EARLY AMERICA (2001); and RICHARD WHITE, THE MIDDLE GROUND:

INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES REGION, 1650-1815 (20th

anniversary ed. 2011).

108. See, e.g., JEFFERSON, supra note 63, at 166-67 (noting that Virginia exported 600,000

bushels of “Indian corn” each year).

109. On Indian fashion, see Timothy J. Shannon, Dressing for Success on the Mohawk Frontier:

Hendrick, William Johnson, and the Indian Fashion, 53 W

M. & MARY Q. 13 (1996).

110. See PHILIP J. DELORIA, PLAYING INDIAN 3 (1998) (“Savage Indians served Americans as

oppositional figures against whom one might imagine a civilized national Self.”). For

other works stressing the oppositional role of Native peoples in Anglo-American

efforts to construct their own identity, see B

ERKHOFER, supra note 55; LEPORE, supra

note 67; and C

ARROLL SMITH-ROSENBERG, THIS VIOLENT EMPIRE: THE BIRTH OF AN

AMERICAN NATIONAL IDENTITY (2010).

111. See, e.g., ROBERT G. PARKINSON, THE COMMON CAUSE: CREATING RACE AND NATION IN

THE AMERICAN REVOLUTION 581-673 (2016); PETER SILVER, OUR SAVAGE NEIGHBORS:

HOW INDIAN WAR TRANSFORMED EARLY AMERICA 230-92 (2008); ALAN TAYLOR,

MERICAN REVOLUTIONS: A CONTINENTAL HISTORY, 1750-1804, at 251-78 (2016); David

J. Silverman, Racial Walls: Race and the Emergence of American White Nationalism, in

NGLICIZING AMERICA: EMPIRE, REVOLUTION, REPUBLIC 181, 196-204 (Ignacio Gallup-

Diaz et al. eds., 2015).

112. See infra Part II.A.

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difference was political allegiance: Anglo-Americans were citizens of the

United States, while Indians were members of their respective nations.

113

Both of these meanings of “Indian”—as nonwhite and noncitizen—have a

claim to be the constitutional meaning, especially because, as subsequent

history demonstrates, the divide between the two meanings was blurry. Which

history we privilege depends on our interpretive approach. Originalism, I

suggest, points toward one reading, whereas acknowledging the interconnec-

tion between race and formally race-neutral categories points toward another.

Yet neither interpretation, I argue, supports Indian law’s critics’ claim that

classifications based on Indian status are constitutionally impermissible. Under

one reading, the Constitution enshrined the principle that “Indian” is a race-

neutral jurisdictional category; under the other, “Indian” is a racial category,

but one that is constitutionally defined and mandated.

A. “Indian” as Nonwhite

During the colonization of North America, conceptions of hierarchies of

peoples defined by innate, biological, and physically observable traits

supplanted older ideas of difference rooted in culture and religion. Explaining

the emergence of this ideology of race has long been one of the central

questions of early American history. For many years, a rich historiography has

focused on the racial construction of African Americans as “black.”

114

In the

last couple of decades, a proliferation of monographs and articles has expanded

this focus to consider the racial construction of Indians, particularly when and

how “Indian” became a separate racial category defined by the skin color

“red.”

115

113. See infra Part II.B.

114. The historical literature on the development of racial prejudice against Africans is

voluminous. For an overview of one of the core historiographical debates, see Alden T.

Vaughan, The Origins Debate: Slavery and Racism in Seventeenth-Century Virginia, 97 V

MAG. HIST. & BIOGRAPHY 311 (1989). For some of the key entries in this rich literature,

see K

ATHLEEN M. BROWN, GOOD WIVES, NASTY WENCHES, AND ANXIOUS PATRIARCHS:

GENDER, RACE, AND POWER IN COLONIAL VIRGINIA (1996); WINTHROP D. JORDAN, WHITE

OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812 (1968); IBRAM X.

KENDI, STAMPED FROM THE BEGINNING: THE DEFINITIVE HISTORY OF RACIST IDEAS IN

AMERICA (2016); EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE

ORDEAL OF COLONIAL VIRGINIA (1975); and ANTHONY S. PARENT, JR., FOUL MEANS: THE

FORMATION OF A SLAVE SOCIETY IN VIRGINIA, 1660-1740 (2003).

115. Some central recent works include TIYA MILES, TIES THAT BIND: THE STORY OF AN

AFRO-CHEROKEE FAMILY IN SLAVERY AND FREEDOM (2d ed. 2015); THEDA PERDUE,

“M

IXED BLOOD” INDIANS: RACIAL CONSTRUCTION IN THE EARLY SOUTH (2003); RICHTER,

supra note 107; C

LAUDIO SAUNT, BLACK, WHITE, AND INDIAN: RACE AND THE UNMAKING

OF AN AMERICAN FAMILY (2005); NANCY SHOEMAKER, A STRANGE LIKENESS: BECOMING

RED AND WHITE IN EIGHTEENTH-CENTURY NORTH AMERICA (2004); SILVER, supra

note 111; D

AVID J. SILVERMAN, RED BRETHREN: THE BROTHERTOWN AND STOCKBRIDGE

footnote continued on next page

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Taken together, these works offer a cohesive narrative. In this account,

Natives and Anglo-Americans first began to define themselves as “red” and

“white” in the early to mid-eighteenth century, perhaps adopting these labels

from longstanding metaphors for the moieties of peace and war employed by

Cherokees, Creeks, and other southeastern Indians.

116

But while the terms

likely stemmed from Native culture, the concept that physical difference,

particularly skin color, best characterized the divide between Europeans and

Natives was an idea that Anglo-Americans embraced with gusto. As historian

Peter Silver argues, the violence of the Seven Years’ War, when British

colonists suffered frequent raids from Natives, helped establish the concept

that Anglo-Americans collectively constituted “white people,” a separate and

distinct group bound by common interests.

117

Throughout eastern North

America, brutal, searing attacks between “red” and “white” people persisted for

decades, during and after the American Revolution, as Native nations and the

emergent United States fought for the continent.

118

As a consequence, Silver

states, “A newly virulent anti-Indian rhetoric, which included noticeably more

often the idea of [Indians’] being a vicious ‘race of mankind,’ could now begin to

spread.”

119

As an English visitor to the United States just before the

Revolutionary War reported, “The white Americans also have the most

rancorous antipathy to the whole race of Indians; and nothing is more

common than to hear them talk of extirpating them totally from the face of

the earth, men, women, and children.”

120

This was not idle talk. Motivated by

INDIANS AND THE PROBLEM OF RACE IN EARLY AMERICA (2010); JOHN WOOD SWEET,

ODIES POLITIC: NEGOTIATING RACE IN THE AMERICAN NORTH, 1730-1830 (2003); ALDEN

T. VAUGHAN, ROOTS OF AMERICAN RACISM: ESSAYS ON THE COLONIAL EXPERIENCE (1995);

and Kathleen Brown, Native Americans and Early Modern Concepts of Race, in E

MPIRE AND

OTHERS: BRITISH ENCOUNTERS WITH INDIGENOUS PEOPLES, 1600-1850, at 79 (Martin

Daunton & Rick Halpern eds., 1999). For a review of some of this work, see Joshua

Piker, Indians and Race in Early America: A Review Essay, H

IST. COMPASS (2005),

https://perma.cc/XD77-3F2J.

116. See SHOEMAKER, supra note 115, at 130-34; see also Alden T. Vaughan, From White Man to

Redskin: Changing Anglo-American Perceptions of the American Indian, 87 A

M. HIST. REV.

917, 929 (1982) (describing this “fundamental shift in color perception from the early

seventeenth to the late eighteenth century”).

117. See SILVER, supra note 111, at xviii-xxvi.

118. See id. at 263-92; see also COLIN G. CALLOWAY, THE AMERICAN REVOLUTION IN INDIAN

COUNTRY: CRISIS AND DIVERSITY IN NATIVE AMERICAN COMMUNITIES 272-301 (1995);

James H. Merrell, Declarations of Independence: Indian-White Relations in the New Nation,

in T

HE AMERICAN REVOLUTION: ITS CHARACTER AND LIMITS 197, 197-203 (Jack P. Greene

ed., 1987).

119. SILVER, supra note 111, at 264. For the apparent source of the phrase “race of mankind,”

see I

NDEP. CHRON. & UNIVERSAL ADVERTISER (Boston), July 10, 1783, at 2.

120. 1 J.F.D. SMYTH, A TOUR IN THE UNITED STATES OF AMERICA 227 (Dublin, Price 1784). For

additional context and instances of postrevolutionary discussions of “extirpating”

Indians, see C

ALLOWAY, supra note 118, at 272-91; GRIFFIN, supra note 52, at 241-69;

footnote continued on next page

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such hatred, whites committed what historians have labeled genocidal acts

against Natives.

121

These racial views were not universal. There were substantial class and

regional divides in how Anglo-Americans viewed Native peoples. Some

politicians, particularly from the frontier, readily embraced anti-Indian

rhetoric—one Georgia representative proclaimed in Congress that he “would

not give the life of one white man for those of fifty Indians.”

122

But others,

particularly the Federalists who came to populate the Washington

Administration, regarded such opinions as the vulgar province of the

uneducated and uncultured. “I have known people who by their practices &

declarations do not deem Indians entitled to the common rights of humanity,”

Secretary of War Timothy Pickering observed, “but these people have lived

very remote from the seat of government.”

123

Many Federalists discounted the

vituperative accounts of Indian bloodthirstiness that filled newspapers in the

American West. President Washington observed that unlike whites, Indians,

“poor wretches, have no Press thro’ which their grievances are related.”

124

In contrast to frontier settlers’ insistence on race, many of the early U.S.

political elite clung to an older view that attributed human difference to class,

culture, and upbringing.

125

“The difference between civilized and savage modes

of life is so great, as, upon a first view, almost leads to the conclusion that the

earth is peopled with races of men possessing distinct primary qualities,”

Secretary of War Henry Knox, who oversaw Indian affairs in the early 1790s,

instructed a federal agent preparing to travel into Indian country.

126

“[B]ut,

SILVER, supra note 111, at 263-92; and Jeffrey Ostler, “To Extirpate the Indians”: An

Indigenous Consciousness of Genocide in the Ohio Valley and Lower Great Lakes, 1750s-1810,

72 W

M. & MARY Q. 587, 599-622 (2015).

121. See Benjamin Madley, Reexamining the American Genocide Debate: Meaning,

Historiography, and New Methods, 120 A

M. HIST. REV. 98, 109, 113-14, 132-34 (2015)

(noting that postrevolutionary massacres of Natives constitute prima facie evidence of

genocidal acts); cf. Rob Harper, Note, Looking the Other Way: The Gnadenhutten Massacre

and the Contextual Interpretation of Violence, 64 W

M. & MARY Q. 621, 621-22, 626-29 (2007)

(describing a massacre of nearly a hundred unarmed Natives by an Anglo-American

militia during the American Revolution).

122. 4 ANNALS OF CONG. 778 (1794) (statement of Rep. Carnes).

123. Letter from Timothy Pickering, U.S. Sec’y of War, to David Campbell 6-7 (Aug. 28,

1795) (on file with author).

124. Letter from George Washington to Edmund Pendleton (Jan. 22, 1795), in 17 PAPERS OF

GEORGE WASHINGTON, supra note 45, at 424, 425 (David R. Hoth & Carol S. Ebel eds.,

2013).

125. On these older ideas about difference applied to Indians, see KUPPERMAN, supra note 50,

at 41-76.

126. See H. Knox, U.S. Sec’y of War, General View (1792), in 1 AMERICAN STATE PAPERS:

INDIAN AFFAIRS 225, 247 (Walter Lowrie & Matthew St. Clair Clarke eds., Gales &

Seaton 1832) (reproducing Knox’s instructions in a report to Congress).

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upon a closer inspection, this will appear fallacious, and that the immense

difference arises from education and habits.”

127

Knox’s views closely echoed

Thomas Jefferson’s earlier opinions in Notes on the State of Virginia, in which

the future Secretary of State argued that Indians were whites’ physical and

mental equals, with any differences tracing to the “circumstances of [Indians’]

situation”—even as Jefferson insisted mere pages later on the innate biological

inferiority of black people.

128

Yet such views did not convert federal officials into anti-racist champions

of egalitarianism. Rather, federal officials adopted a condescending paternalism

that portrayed Indians as objects of pity rather than as equals. This was

particularly true of Knox, who wholeheartedly embraced a powerful and

pernicious trope historians have labeled as the myth of the vanishing Indian.

129

In writing to President Washington regarding federal Indian policy, Knox

feared that soon “the Idea of an Indian . . . will only be found in the page of the

historian.”

130

To counteract this imagined future, Knox urged adoption of a

system of benevolent federal “protection of the helpless ignorant Indians,”

131

particular suggesting that Natives’ preservation required efforts to “civilize”

them by introducing Anglo-American principles of property and govern-

ance.

132

In practice, then, federal officials and their frontier constituents broadly

shared similar conceptions about Indians. There were disagreements, to be

sure—about the innateness of Native difference and about whether they should

regard “Indians” with pity or with fear. These divergent views led to markedly

different policy prescriptions: While federal officials halfheartedly sought to

protect Indians as vulnerable minorities, white settlers, decrying these actions

as coddling vicious and bloodthirsty enemies, called for violence instead.

133

But

these heated feuds obscured a more fundamental congruence. Though their

views had different roots, elite officials and white settlers thought of “Indians”

similarly—as a single, undifferentiated category defined by contrast to its

opposite, “white people.”

127. Id.

128. See JEFFERSON, supra note 63, at 60-63, 70-71, 138-43.

129. See supra note 67 and accompanying text.

130. See Letter from Henry Knox to George Washington, supra note 45, at 139.

131. See Letter from Henry Knox, U.S. Sec’y of War, to William Blount, Governor, Sw.

Territory (Apr. 22, 1792), in 4 T

HE TERRITORIAL PAPERS OF THE UNITED STATES, supra

note 46, at 137, 141 (Clarence Edwin Carter ed., 1936).

132. See Letter from Henry Knox to George Washington, supra note 45, at 139.

133. See GRIFFIN, supra note 52, at 213-69; DAVID ANDREW NICHOLS, RED GENTLEMEN &

WHITE SAVAGES: INDIANS, FEDERALISTS, AND THE SEARCH FOR ORDER ON THE AMERICAN

FRONTIER 57-97 (2008).

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There were good reasons for the ascendance of this dichotomy between

“white” and “red.” The “white people” of the early United States were a diverse,

polyglot, religiously pluralist amalgamation of nationalities further segmented

by regional differences.

134

As historians have noted, the shared “white” identity

of these myriad groups was one of the few sources of national cohesion.

135

(Equally diverse Native peoples, who also came to conceive of themselves as

possessing a shared identity as “red,” also drew on these racial ideas to make

their own efforts at unity.)

136

But as a consequence of its power, this racialized

understanding of a world divided between red and white (and black) came to

infect nearly all “white people,” even those who insisted that Indians were not a

separate race.

B. “Indian” as Noncitizen

Racialized conceptions of Indians as nonwhite were not the only way

Anglo-Americans defined Indian status. In actual governance, classing all

Indians as a single racial mass proved unworkable. In their diplomatic

negotiations with Native peoples, representatives of the new federal

government never encountered just “Indians.” They met, rather, Cherokees,

Chickasaws, Creeks, Delawares, Haudenosaunee, Ottawas, Wyandots, and

members of the many other indigenous “nations” or “tribes” discussed above.

137

Lumping these diverse groups together could prove perilous—sometimes a

literal matter of war and peace, given the varying dispositions of the different

“Indian” groups. One federal agent complained that “the Whites” frequently

retaliated against (peaceful) Cherokees for the actions of (hostile) Creeks: The

whites claimed that they could not separate the two, though the agent quipped

that “it would not be transgressing the bounds of Charity to say they do not

wish to distinguish.”

138

In Congress, Representative Fisher Ames of

Massachusetts traced the consequences of such actions. When the frontier

militia went out, he argued, “the first man with a red skin whom they met

would be shot.”

139

But, he continued, “Presently you discover that you have

134. See DANIEL K. RICHTER, BEFORE THE REVOLUTION: AMERICA’S ANCIENT PASTS 417-22

(2011); S

ILVER, supra note 111, at xviii.

135. See SILVER, supra note 111, at 114-23 (describing the rise of “white people’s

nationalism”); Silverman, supra note 111, at 196-97.

136. See GREGORY EVANS DOWD, A SPIRITED RESISTANCE: THE NORTH AMERICAN INDIAN

STRUGGLE FOR UNITY, 1745-1815, at 30-31, 141-42 (1992).

137. See supra Part I.

138. See Letter from Silas Dinsmoor to Colonel David Henley 1 (Mar. 18, 1795) (on file with

author).

139. See 4 ANNALS OF CONG. 776 (1794) (statement of Rep. Ames); see also BIOGRAPHICAL

DIRECTORY OF THE UNITED STATES CONGRESS, 1774-2005, H.R. DOC. NO. 108-222, at 49

footnote continued on next page

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been shooting an Indian of the wrong nation, while, in the mean time, this

whole nation rises and attacks you.”

140

Acknowledging and recognizing Native diversity, then, was central to the

federal government’s ability to manage so-called “Indian affairs.” Despite the

new nation’s repudiation of many British precedents, Anglo-Americans largely

adopted prerevolutionary imperial diplomatic practices, which regarded

Native peoples not as an undifferentiated mass of “Indians” but as the

polylingual, distinct polities they actually were.

141

Following its predecessor,

the federal government negotiated separate treaties with each Native nation.

142

Also like the British, the federal government appointed agents (somewhat

analogous to ambassadors) to Native nations to represent the interests of the

United States.

143

The existence of Creeks, Cherokees, and members of other Native nations,

however, did not eliminate the category of “Indian,” any more than the

existence of Englishmen and Frenchmen obviated the category of foreigner.

Rather, particularly in matters of law and diplomacy, federal officials adopted a

definition of “Indian” different from the racial categorization of Indians as “not

white.” Similarly framed by opposition, this definition posited as Indians those

who, by virtue of their membership in Native nations, were not “citizens or

inhabitants of the United States.”

144

Defining Indians as noncitizens represented a break from British prece-

dent. The key term denoting legal belonging within the British Empire was

“subject,” a status defined primarily by allegiance to the Crown.

145

This

(2005) (listing Representative Fisher Ames of Massachusetts as a member of the Third

Congress).

140. See 4 ANNALS OF CONG. 776 (1794) (statement of Rep. Ames).

141. On British Indian policy, see COLIN G. CALLOWAY, CROWN AND CALUMET: BRITISH-

NDIAN RELATIONS, 1783-1815 (1987); HELEN LOUISE SHAW, BRITISH ADMINISTRATION OF

THE SOUTHERN INDIANS, 1756-1783 (1931); and Daniel K. Richter, Native Americans, the

Plan of 1764, and a British Empire That Never Was, in C

ULTURES AND IDENTITIES IN

COLONIAL BRITISH AMERICA 269 (Robert Olwell & Alan Tully eds., 2015).

142. See, e.g., sources cited infra note 151.

143. See, e.g., H. Knox, War Office, Report of Secretary at War on Letter of Governor

Randolph (1788), in 34 J

OURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 182,

182-83 (Roscoe R. Hill ed., 1937) [hereinafter J

OURNALS OF THE CONTINENTAL CONGRESS]

(recommending the appointment of an agent to the Cherokee); Minutes of Aug. 20,

1788, in 34 J

OURNALS OF THE CONTINENTAL CONGRESS, supra, at 432, 433 (noting a

resolution appointing Joseph Martin as agent to the Chickasaw and the Cherokee).

144. See Treaty of Peace and Friendship, Cherokee Nation-U.S., art. X, July 2, 1791, 7 Stat. 39

[hereinafter Treaty of Holston]; Treaty of Peace and Friendship, Creek Nation-U.S.,

art. VIII, Aug. 7, 1790, 7 Stat. 35 [hereinafter Treaty of New York].

145. See 2 GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO

THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE COMMONWEALTH OF VIRGINIA 366 (Philadelphia, William Young Birch &

footnote continued on next page

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expansive conception made subjecthood a capacious category. Anglo-American

colonists were British subjects, but Indians were described as subjects too—by

both British officials and Native peoples themselves.

146

Though these two

groups employed the same ambiguous word to mean strikingly different

things, at core was the shared understanding that as long as Natives

acknowledged the ultimate protection of the King, they could be both British

“subjects” and members of separate, autonomous communities.

147

“Citizen,” by

contrast, required more than shared allegiance; it denoted belonging and

participation within a common political community.

148

In other words,

defining Indians as noncitizens conveyed a sense of political and jurisdictional

difference, of Indian as alien—a person who was a member of a polity other than

the United States.

149

This understanding of Indianness as a form of belonging to a Native polity

rather than to the political community of the United States prevailed in early

American legal documents. Indian treaties adopted both before and after the

Constitution, for instance, stated specifically that they were on behalf of, and

binding upon, the “citizens and members” of both the United States and

signatory Native nations.

150

In parsing issues of jurisdiction, illegal settlement,

and trade, the treaties consistently dichotomized between two groups,

Abraham Small 1803) (“Natural-born subjects are such as are born within the domin-

ions of the crown of England; that is, within the ligeance, or as it is generally called, the

allegiance of the king . . . .”). For consideration of the legal meaning of subjecthood

within the British Empire writ large, see H

ANNAH WEISS MULLER, SUBJECTS AND

SOVEREIGN: BONDS OF BELONGING IN THE EIGHTEENTH-CENTURY BRITISH EMPIRE 16-44

(2017).

146. See, e.g., JENNY HALE PULSIPHER, SUBJECTS UNTO THE SAME KING: INDIANS, ENGLISH, AND

THE CONTEST FOR AUTHORITY IN COLONIAL NEW ENGLAND 27-31, 110 (2005).

147. See id. at 18-20 (describing how New England Natives who regarded themselves “as

subjects of the distant king” nonetheless “could, simultaneously, have viewed

themselves as sovereign peoples” in part because the English “use[d] the term ‘subject’

for both themselves and the Indians”); Richter, supra note 141, at 292 (“[A]t least some

British imperial officials in both Whitehall and North America actually considered

Native people to be something resembling subjects of the Crown who had rights and

interests that had to be protected . . . .”). But see G

REGORY EVANS DOWD, WAR UNDER

HEAVEN: PONTIAC, THE INDIAN NATIONS, & THE BRITISH EMPIRE 174-85 (2002) (arguing

that the British envisioned Indians as subjects primarily as in the context of “subjec-

tion” rather than as the equals of white British subjects).

148. See infra notes 157-61 and accompanying text.

149. Cf. DOUGLAS BRADBURN, THE CITIZENSHIP REVOLUTION: POLITICS AND THE CREATION OF

THE AMERICAN UNION, 1774-1804, at 55 (2009) (“One of the most immediate consequenc-

es of the citizenship revolution was the bright line drawn between American citizens

and American Indians . . . . [F]rom the beginning there existed a widely held presump-

tion that Indians were not Americans . . . .”).

150. See, e.g., Treaty of Holston, supra note 144, pmbl.; Treaty of New York, supra note 144,

pmbl.

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“Indians” and “citizens of the United States”: “Citizen” served as a term of art

used 96 times to define non-Indians in the 18 Indian treaties the United States

ratified before 1800.

151

Statutory law was similar. The most important legislation governing

Indian affairs during this period, the Trade and Intercourse Act, created federal

criminal jurisdiction for crimes committed by non-Indians against “peaceable

and friendly . . . Indians.”

152

Although the statute did not explicitly define who

constituted an Indian, it stipulated that the law’s criminal prohibition applied

to “any citizen or inhabitant of the United States” and provided that the

penalties for crimes committed against an “Indian” would be the same as if the

crime were committed in a state or territory “against a citizen or white

inhabitant thereof.”

153

Moreover, the statute limited the scope of its criminal

jurisdiction to “any town, settlement or territory belonging to any nation or

tribe of Indians.”

154

Implicit throughout the statute, then, was a definitional

model predicated on political membership. Non-Indians were defined by their

belonging to the United States; Indians, by their presumed belonging to the

“nation or tribe” whose territory they inhabited.

These legal categories of Indian and U.S. citizen might seem woefully ill

defined, leaving ambiguous all sorts of borderline cases—an issue I explore

further in the next Subpart. But setting aside questions of enforcement and

indeterminacy, these early treaties and laws conveyed an understanding that

legal status as “Indian” hinged on membership in an Indian polity. Federal

officials adopted this definition because it was a politically more accurate and

151. Treaty, Cherokee Nation-U.S., Oct. 2, 1798, 7 Stat. 62 [hereinafter Treaty of Tellico];

Treaty of Peace and Friendship, Creek Nation-U.S., June 29, 1796, 7 Stat. 56; Treaty,

Seven Nations in Canada-U.S., May 31, 1796, 7 Stat. 55; Treaty of Peace, U.S.-Wyandot

Nation et al., Aug. 3, 1795, 7 Stat. 49 [hereinafter Treaty of Greenville]; Treaty, Oneida

Nation et al.-U.S., Dec. 2, 1794, 7 Stat. 47; Treaty, Six Nations-U.S., Nov. 11, 1794, 7 Stat.

44; Treaty, Cherokee Nation-U.S., June 26, 1794, 7 Stat. 43; Treaty of Holston, supra

note 144; Treaty of New York, supra note 144; Treaty for Removing All Causes of

Controversy, Regulating Trade, and Settling Boundaries, Six Nations-U.S., Jan. 9, 1789,

7 Stat. 33 [hereinafter Treaty of Fort Harmar, Six Nations]; Treaty for Removing All

Causes of Controversy, Regulating Trade, and Settling Boundaries, U.S.-Wyandot

Nation et al., Jan. 9, 1789, 7 Stat. 28 [hereinafter Treaty of Fort Harmar, Wyandot

Nation et al.]; Treaty, Shawanoe Nation-U.S., Jan. 31, 1786, 7 Stat. 26; Treaty, Chicka-

saw Nation-U.S., Jan. 10, 1786, 7 Stat. 24 [hereinafter Treaty of Hopewell, Chickasaw

Nation]; Treaty, Choctaw Nation-U.S., Jan. 3, 1786, 7 Stat. 21 [hereinafter Treaty of

Hopewell, Choctaw Nation]; Articles, Cherokee Nation-U.S., Nov. 28, 1785, 7 Stat. 18

[hereinafter Treaty of Hopewell, Cherokee Nation]; Treaty, U.S.-Wyandot Nation et

al., Jan. 21, 1785, 7 Stat. 16 [hereinafter Treaty of Fort McIntosh]; Articles, Six Nations-

U.S., Oct. 22, 1784, 7 Stat. 15; Articles of Agreement and Confederation, Delaware

Nation-U.S., Sept. 17, 1778, 7 Stat. 13.

152. See, e.g., Trade and Intercourse Act of 1790, ch. 33, § 5, 1 Stat. 137, 138 (amended 1793).

153. See id.

154. See id.

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useful understanding of Indian status, particularly for the purposes of

governance. But this choice had particular salience in the late eighteenth

century, a moment when both Indians and non-Indians increasingly

interpreted their differences in racial terms. In this context, the decision to

adopt legal definitions that were formally race-neutral implicitly reflected a

denial of that era’s widespread racialization.

C. Whiteness and Citizenship in the Early United States

Indian law’s critics argue that status based on tribal membership, although

formally race-neutral, nonetheless constitutes impermissible racial

discrimination because membership usually requires some form of descent.

155

In the late eighteenth century, however, Native nations’ conceptions of

belonging were capacious. Although Native peoples did not have formal legal

categories of membership, they had long assimilated outsiders through kinship

and clan ties, networks that expanded to encompass “whites” who married

Native women as well as captive Anglo-American children.

156

But in the late eighteenth century, there was another formally race-neutral

membership category to which access was explicitly limited by race: U.S.

citizenship. Prior to the American Revolution, the term “citizen” had little legal

content.

157

But in the course of gaining independence, newly minted

“Americans” transformed “citizen” into the primary legal term of art for

belonging within the new United States, even as “Americans” struggled to

define it.

158

Perhaps the dominant understanding was a consensual view of

citizenship as a freely chosen political identification with a particular nation, a

“tie between the individual and the community” that was “contractual and

volitional.”

159

This approach, defined in opposition to ideas of subjecthood

based on irrevocable allegiance from birth, suggested a nation open to all who

155. See supra note 12 and accompanying text.

156. For works exploring intermarriage between Natives and whites, see RICHARD

GODBEER, SEXUAL REVOLUTION IN EARLY AMERICA 154-89 (2002); and SUSAN SLEEPER-

MITH, INDIAN WOMEN AND FRENCH MEN: RETHINKING CULTURAL ENCOUNTER IN THE

WESTERN GREAT LAKES (2001). On captive Anglo-American children, see JAMES

AXTELL, THE INVASION WITHIN: THE CONTEST OF CULTURES IN COLONIAL NORTH

AMERICA 302-27 (1985); and JOHN DEMOS, THE UNREDEEMED CAPTIVE: A FAMILY STORY

FROM EARLY AMERICA (1994).

157. See BRADBURN, supra note 149, at 10 (noting that before the Revolution, “being a

‘citizen’ remained limited in legal meaning, completely subsumed by the fundamental

status of all members of the British Empire as ‘subjects’”).

158. See id. at 2 (describing the American Revolution as bringing about a “citizenship

revolution” that reflected a “transformation in the status of persons, the potential of

rights, and the meaning of sovereignty”).

159. See JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 9-10

(1978).

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opted to become members. But from the beginning, this view coexisted with an

alternate strain of thought that scholar Rogers Smith has labeled an ascriptive

vision of citizenship.

160

In this scheme, legal belonging was explicitly

conditioned on would-be citizens’ membership in dominant racial, ethnic, and

gender categories.

161

There was little tension between ascriptive and consensual conceptions of

citizenship when applied to what many early Americans imagined as the

generic political actor: a white man born in, or who emigrated to, the United

States.

162

Nor did Native peoples, envisioned by most Anglo-Americans as male

and in a quasi-foreign region U.S. law labeled “the Indian country,”

163

present

conceptual difficulties. Not only were Indians not white, but they also did not

seek—in fact, they resisted—inclusion within the political community defined

by the United States.

164

They remained members of their own nations, which,

although nominally within the borders of the United States, enjoyed both

de facto and de jure autonomy.

The definitional challenge for citizenship lay rather with the numerous in-

between categories, people who were neither white men who self-identified as

“Americans” nor nonwhite aliens. Black people, women, European subjects

who served on U.S. ships or roamed the borderlands—all constituted to varying

degrees what historian Kunal Parker has labeled as “internal foreigners.”

165

These ambiguities meant that citizenship remained a legally hazy and ill-

defined concept.

166

Reflecting the partial triumph of the ascriptive vision,

practically the sole unifying feature of U.S. citizenship law was race: The

nation’s first naturalization law, enacted in 1790, explicitly provided that only

160. See SMITH, supra note 22, at 13-39.

161. See id. at 1. Smith’s primary argument is that the ascriptive impulse was historically at

least as powerful as the consensual approach: “[T]hrough most of U.S. history,

lawmakers pervasively and unapologetically structured U.S. citizenship in terms of

illiberal and undemocratic racial, ethnic, and gender hierarchies, for reasons rooted in

basic, enduring imperatives of political life.” Id.

162. On white able-bodied men as the “embodiment of the nation” during this period, see

ARBARA YOUNG WELKE, LAW AND THE BORDERS OF BELONGING IN THE LONG

NINETEENTH CENTURY UNITED STATES 21-60 (2010).

163. See Trade and Intercourse Act of 1790, ch. 33, § 3, 1 Stat. 137, 137-38 (codified as

amended at 25 U.S.C. § 264 (2016)).

164. See Merrell, supra note 118, at 201-03.

165. See KUNAL M. PARKER, MAKING FOREIGNERS: IMMIGRATION AND CITIZENSHIP LAW IN

AMERICA, 1600-2000, at 4-11, 81-115 (2015). On the ambiguities raised by sailors in

particular, see N

ATHAN PERL-ROSENTHAL, CITIZEN SAILORS: BECOMING AMERICAN IN

THE AGE OF REVOLUTION (2015).

166. Cf. SMITH, supra note 22, at 14 (“American citizenship, in short, has always been an

intellectually puzzling, legally confused, and politically charged and contested status.”).

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“free white person[s]” could naturalize, a requirement that remained in at least

partial effect until the 1950s.

167

These uncertainties affected Indian affairs because Indian country was full

of such in-between people—including British and French traders married to

Native women, escaped African slaves, and “whites” who nonetheless anointed

themselves as Indian leaders.

168

Such people inhabited the seams between

“Indian” and “U.S. citizen”: Racially non-Indian, they professed no allegiance to

the United States but were not members of Native nations in a formal legal

sense legible to Anglo-Americans. Federal officials accordingly struggled to

craft legal language to classify these ambiguous individuals. Sometimes treaties,

repurposing older imperial language, described such people as the “subjects” of

the United States, a category that presumably included black people but

excluded European foreigners;

169

other times the treaties simply called them,

circularly, “other person[s] not being an Indian.”

170

When all else failed, treaties, like the naturalization law, plugged the holes

using race. One treaty called white noncitizens in Indian country “all other

white persons” and “any other white person or persons.”

171

In another instance,

a treaty promised indemnity only for actions committed by “a white man,

citizen of the United States.”

172

The first version of the Trade and Intercourse

Act included a promise that crimes against Indians would be punished as if they

167. See Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (repealed 1795); Enid Trucios-Haynes,

The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of the

American National Identity, 76 O

R. L. REV. 369, 388 (1997).

168. On the diversity of Indian country, see RICHTER, supra note 107, at 151-88; AMY C.

SCHUTT, PEOPLES OF THE RIVER VALLEYS: THE ODYSSEY OF THE DELAWARE INDIANS 150-

74 (2007); and Helen Hornbeck Tanner, The Glaize in 1792: A Composite Indian Communi-

ty, 25 E

THNOHISTORY 15, 15-20 (1978).

169. See Treaty of Fort Harmar, Six Nations, supra note 151, separate art.; Treaty of Fort

Harmar, Wyandot Nation et al., supra note 151, arts. III-IV, VI, IX. Anglo-Americans

considered black people to be subject to U.S. laws but often excluded them from the

privileges of citizenship. See D

AVID RAMSAY, A DISSERTATION ON THE MANNER OF

ACQUIRING THE CHARACTER AND PRIVILEGES OF A CITIZEN OF THE UNITED STATES 3 (n.p.,

n. pub. 1789) (“Negroes are inhabitants, but not citizens.”); see also B

RADBURN, supra

note 149, at 235-71 (discussing the citizenship status of black people).

170. See Treaty of Holston, supra note 144, art. VIII; Treaty of New York, supra note 144,

art. VI; Treaty of Hopewell, Chickasaw Nation, supra note 151, art. IV; Treaty of

Hopewell, Choctaw Nation, supra note 151, art. IV; Treaty of Hopewell, Cherokee

Nation, supra note 151, art. V; Treaty of Fort McIntosh, supra note 151, art. V; cf. Treaty

of Fort Harmar, Wyandot Nation et al., supra note 151, art. IX (“citizens or subjects of

the United States, or any other person not being an Indian”).

171. See Treaty of Greenville, supra note 151, arts. V-VI.

172. See Treaty of Tellico, supra note 151, art. IX.

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had been committed against a “white inhabitant”—implicit reinforcement of

the idea that Indians were not white.

173

As such examples underscore, in the early United States formal and

informal racial exclusions suffused the political category of citizenship,

limitations that restricted the egalitarian and inclusive promise of consensual

membership. Indians defined as noncitizens thus formed a nonracial category

only in a legal-fictional sense that ignored these entanglements.

D. Legacy

The tension between Indian as a category of belonging to both a race and a

political community, as well as between consensual and ascriptive visions of

U.S. citizenship, produced few problems in the late eighteenth century, when

most members of Native communities remained both nonwhite and

noncitizens who had little interest in joining the U.S. polity. By the mid-

nineteenth century, however, neither fact was still true. As they adopted legal

systems that paralleled those of their Anglo-American neighbors, some Native

nations enacted formal membership criteria.

174

Tribes’ membership laws often

permitted “whites,” particularly those married to tribe members, to legally

naturalize as tribal citizens.

175

In other words, in Natives’ own debates over

citizenship, they opted for consensual as well as ascriptive visions of belonging.

At the same time, acculturation among some Native communities meant that

some “civilized Indians” now sought to make good the promise of consensual

173. See Trade and Intercourse Act of 1790, ch. 33, § 5, 1 Stat. 137, 138 (amended 1793). This

provision was also an acknowledgment of the inferior justice afforded under state law

for crimes against black people.

174. On the transformation of Native legal systems, see RENNARD STRICKLAND, FIRE AND

THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT (1975); and Theda Perdue, Clan and

Court: Another Look at the Early Cherokee Republic, 24 A

M. INDIAN Q. 562, 563-64 (2000).

175. See, e.g., Act of Oct. 1840, in THE CONSTITUTION AND LAWS OF THE CHOCTAW NATION 33-

(Park Hill, Cherokee Nation, Mission Press 1847) (requiring that a white man who

marries a Choctaw woman procure a license “before he shall be entitled and admitted

to the privilege of citizenship”); Act of Nov. 2, 1819, in L

AWS OF THE CHEROKEE NATION:

ADOPTED BY THE COUNCIL AT VARIOUS PERIODS 10, 10 (Tahlequah, Cherokee Nation,

Cherokee Advocate Office 1852) (providing that a “white man” who married a

Cherokee woman would be “entitled and admitted to the privilege of citizenship” only

upon following legal procedures); see also Minutes of Aug. 27, 1828, in P

ETER PERKINS

PITCHLYNN, A GATHERING OF STATESMEN: RECORDS OF THE CHOCTAW COUNCIL

MEETINGS, 1826-1828, at 99, 100-01 (Marcia Haag & Henry Willis eds. & trans., 2013)

(“From this day forward, when a white man and a Choctaw woman marry, . . . the man

will be included with us and be counted with us.”). For background on tribal citizenship

for those without Native ancestry, see F

AY A. YARBROUGH, RACE AND THE CHEROKEE

NATION: SOVEREIGNTY IN THE NINETEENTH CENTURY (2008); and Bethany R. Berger,

“Power Over This Unfortunate Race”: Race, Politics and Indian Law in United States v.

Rogers, 45 W

M. & MARY L. REV. 1957, 2020-25 (2004).

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U.S. citizenship and naturalize as state and federal citizens.

176

These

developments exposed the tension between Anglo-Americans’ two definitions

of Indians as nonwhites and noncitizens: Could a racially “white” person

nonetheless become legally an Indian through naturalization? And could a

racially “Indian” person cease legally being an Indian by becoming a U.S.

citizen?

The U.S. Supreme Court answered the first question in 1846 in United

States v. Rogers, a federal prosecution under the Trade and Intercourse Act of an

intermarried white citizen of the Cherokee Nation who had killed another

intermarried white citizen.

177

At the time, the Trade and Intercourse Act of

1834 specifically excluded from its scope crimes committed by one Indian

against another Indian.

178

Rogers argued that because both he and the victim

were Cherokee citizens, they were both “Indians,” and his crime was therefore

exempt from the law.

179

Rogers’s insistence that he was legally an Indian found

considerable support in the consensual interpretation of citizenship. In the

early republic, the federal government had forcefully argued that individuals

had the right to renounce membership in one nation and freely choose to join

another: As President, Thomas Jefferson had declared this “right of

expatriation to be inherent in every man.”

180

176. For an exploration of these debates, see DEBORAH A. ROSEN, AMERICAN INDIANS AND

STATE LAW: SOVEREIGNTY, RACE, AND CITIZENSHIP, 1790-1880, at 155-201 (2007).

177. See 45 U.S. (4 How.) 567, 571-72 (1846). For an excellent overview of the case, see Berger,

supra note 175.

178. Ch. 161, § 25, 4 Stat. 729, 733 (codified as amended at 18 U.S.C. § 1152 (2016)) (providing

that federal criminal jurisdiction “shall not extend to crimes committed by one Indian

against the person or property of another Indian”).

179. See Rogers, 45 U.S. (4 How.) at 571.

180. Letter from Thomas Jefferson to Albert Gallatin (June 26, 1806), https://perma.cc

/8KD7-PYYP. On the social and legal history of expatriation in the United States, see

Nancy L. Green, Expatriation, Expatriates, and Expats: The American Transformation of a

Concept, 114 A

M. HIST. REV. 307 (2009). In Talbot v. Janson, 3 U.S. (3 Dall.) 133 (1795), the

Supreme Court, writing seriatim, abstractly embraced a right of expatriation before

concluding that the defendant in the case had failed to follow the correct procedures

for renouncing his U.S. citizenship. See id. at 152-53 (opinion of Paterson, J.); id. at 161-

65 (opinion of Iredell, J.); cf. id. at 168-69 (opinion of Cushing, J.) (declining to reach the

expatriation issue but describing the right as “important”); id. at 169 (opinion of

Rutledge, C.J.) (characterizing the “doctrine of expatriation” as “certainly of great

magnitude” but declining to reach the issue). Similarly, in his influential Americanized

version of Blackstone, St. George Tucker, a leading early American legal thinker,

embraced the right of expatriation as a natural right, concluding that a U.S. citizen who

renounces his citizenship and “attaches himself to any other nation” is no “longer

amenable to the United States for his conduct.” See 2 T

UCKER, supra note 145, app. at 96-

97.

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Yet the Court rejected both Rogers’s purported expatriation and his

proposed definition of “Indian.”

181

The term “Indian” as used in the statute,

Chief Justice Taney wrote for the Court, “does not speak of members of a tribe,

but of the race generally,—of the family of Indians.”

182

Rogers may have taken

on obligations to the Cherokee by virtue of his citizenship, but “[h]e was still a

white man, of the white race, and therefore not within the exception in the act

of Congress.”

183

The Court’s decision made explicit the primacy of the racial

definition of Indian status: Tribal citizenship was not sufficient to become an

Indian for the purposes of federal law.

184

The inverse question—whether individuals who were racially “Indians”

could become citizens—percolated through the courts during the early

republic.

185

As states asserted jurisdiction over Indian country, some judges

concluded that Native communities could no longer be considered separate

nations. If tribes had in fact “lost every attribute of sovereignty,” the New York

Supreme Court of Judicature reasoned, then tribe members could no longer be

aliens; therefore, “upon the principles of the common law, they must be

citizens.”

186

This vision of Indian citizenship offered a powerful weapon in a

broader campaign to dispossess Native peoples by stripping protections Indians

enjoyed under federal and state law; the New York case itself involved an effort

to divest an Oneida family of its land.

187

But on appeal, Chancellor James Kent

forcefully rejected the lower court’s conclusion, writing for the court: “In my

view of the subject, [Indians] have never been regarded as citizens or members

181. See Rogers, 45 U.S. (4 How.) at 572-73.

182. See id. at 573.

183. Id.

184. See Berger, supra note 175, at 2019-20 (noting that Rogers “defin[ed] tribes as inherently

bounded by race”).

185. See, e.g., Jeffries v. Ankeny, 11 Ohio 372, 374-75 (1842) (holding that “the offspring of

whites and half breed Indians” had the rights of “white citizen[s]” because they were

“nearer white than black, or of the grade between the mulattoes and the whites”); State

ex rel. Marsh v. Managers of Elections, 17 S.C.L. (1 Bail.) 215, 215-16 (1829) (holding that

an Indian was ineligible to vote because South Carolina’s constitution “confine[d] the

right of voting to free white men,” as distinct from “the indian, and negro, or mulatto”);

cf. United States v. Ritchie, 58 U.S. (17 How.) 525, 538-40 (1855) (holding as a matter of

Mexican law that “a civilized Indian” was a Mexican citizen and thus competent to

receive a land grant from the Mexican government).

186. See Jackson ex rel. Smith v. Goodell, 20 Johns. 188, 193 (N.Y. Sup. Ct. 1822), rev’d, 20

Johns. 693 (N.Y. 1823).

187. See id. at 188 (statement of the case). On citizenship as a tool of dispossession, see

Frederick E. Hoxie, What Was Taney Thinking?: American Indian Citizenship in the Era of

Dred Scott, 82 C

HI.-KENT L. REV. 329, 335-43 (2007).

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of our body politic, within the contemplation of the constitution.”

188

Rather,

he argued, they had always been regarded as “dependent tribes.”

189

But if antebellum courts declined to deem all Indians citizens, a thornier

issue involved Indians who, inverting Rogers’s course, sought to expatriate

from the Native nations of their birth and naturalize as U.S. citizens. As Native

peoples turned to promises of citizenship as a legal tool to avoid removal,

antebellum federal treaties and state constitutions, particularly in the Midwest,

seemingly opened the possibility that so-called “civilized” Indians could

naturalize and vote.

190

The question of citizenship for such acculturated Indians laid bare the

dichotomy between Indians defined as aliens, who could naturalize, and

Indians defined as nonwhites, who could not. In a portion of his lengthy

opinion for the Court in Dred Scott v. Sandford, Chief Justice Taney seemingly

embraced the political definition of Indian status, opining that Indians, “like

the subjects of any other foreign Government, [may] be naturalized by the

authority of Congress, and become citizens of a State, and of the United

States.”

191

But Chief Justice Taney’s aside should probably be read less as a

description of the law than as an effort to reinforce what he saw as the

uniquely degraded status of African-descended peoples.

192

188. Goodell v. Jackson ex rel. Smith, 20 Johns. 693, 710 (N.Y. 1823); see also John H.

Langbein, Chancellor Kent and the History of Legal Literature, 93 C

OLUM. L. REV. 547, 564

(1993) (noting that James Kent served as Chancellor of New York from 1814 through

July 1823).

189. Goodell, 20 Johns. at 710.

190. See, e.g., MICH. CONST. of 1850, art. VII, § 1 (enfranchising “every civilized male

inhabitant of Indian descent, a native of the United States and not a member of any

tribe”); M

INN. CONST. of 1857, art. VII, § 1 (enfranchising “[p]ersons of mixed white and

Indian blood, who have adopted the customs and habits of civilization” and “[p]ersons

of Indian blood residing in this State, who have adopted the language, customs, and

habits of civilization”); W

IS. CONST. of 1848, art. III, § 1 (enfranchising “[c]ivilized

persons of Indian descent not members of any tribe”); see also R

OSEN, supra note 176, at

155-201 (providing background on debates over Indian citizenship at the state level). In

1839, the Brothertown Indians became the first Native nation to receive U.S. citizen-

ship by statute. See Act of Mar. 3, 1839, ch. 83, § 7, 5 Stat. 349, 351; see also S

ILVERMAN,

supra note 115, at 184-210. For antebellum treaties contemplating Indian citizenship,

see Treaty, U.S.-Wyandott Indians, art. 1, Jan. 31, 1855, 10 Stat. 1159; Treaty, Cherokee

Nation-U.S., art. 12, Dec. 29, 1835, 7 Stat. 478; Treaty of Perpetual Friendship, Cession

and Limits, Choctaw Nation-U.S., art. XIV, Sept. 27, 1830, 7 Stat. 333; Treaty of

Friendship, Limits, and Accommodation, Choctaw Nation-U.S., art. 4, Oct. 18, 1820, 7

Stat. 210; and Treaty, Cherokee Nation-U.S., art. 8, July 8, 1817, 7 Stat. 156.

191. 60 U.S. (19 How.) 393, 404 (1857), superseded in other part by constitutional amendment, U.S.

ONST. amend. XIV.

192. See Hoxie, supra note 187, at 332 (noting Chief Justice Taney’s efforts to “distinguish

between Indians and blacks”); see also id. at 331 (“There was no evidence in 1857 that

anyone but the Chief Justice had entertained the idea that Indians could be naturalized

as citizens of the United States.”).

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In a near-simultaneous opinion devoted specifically to the question

whether Indians could become citizens, U.S. Attorney General Caleb Cushing

concluded that Indians were different from other foreigners.

193

“[N]o person of

the race of Indians is a citizen of the United States by right of local birth,”

Cushing stated.

194

“It is an incapacity of his race.”

195

Nor, Cushing stressed,

could Indians become citizens under the naturalization statute because they

were not white.

196

There were, Cushing concluded, only two ways Indians

could become citizens. One was through a special act of Congress.

197

The other

was that Indians, “by continual crossing of blood, [would] cease to be

Indians.”

198

But Cushing punted on the precise threshold of European ancestry

required for an Indian to become legally white.

199

By the mid-nineteenth century, then, as race increasingly defined Anglo-

American understandings of legal membership within both Native nations and

the United States, ideas of Indians as nonwhite and Indians as noncitizens were

conflated. In part, this shift reflected changes in racial ideology. While the

eighteenth century divide between “red” and “white” had been a crude

dichotomy justifying frontier antipathy toward Indians, the antebellum

United States, like the European empires of the time, developed increasingly

finer racial distinctions embedded within supposedly scientific discourse.

200

This understanding of race, focused on biology and heredity, helped give rise to

the fixation with “blood” evident in the views of Cushing and Chief Justice

Taney, an obsession that soon translated into federal policies imposed on

tribes.

201

As a consequence, from the nineteenth century through the present,

193. See Relation of Indians to Citizenship, 7 Op. Att’y Gen. 746, 749 (1856).

194. Id. at 750.

195. Id.

196. See id. at 749-50.

197. See id.

198. See id. at 750.

199. See id. at 750-52.

200. The literature on these topics is enormous. On the development of racial ideology in

the early United States, see B

RUCE DAIN, A HIDEOUS MONSTER OF THE MIND: AMERICAN

RACE THEORY IN THE EARLY REPUBLIC (2002); ANN FABIAN, THE SKULL COLLECTORS:

RACE, SCIENCE, AND AMERICA’S UNBURIED DEAD (2010); NICHOLAS GUYATT, BIND US

APART: HOW ENLIGHTENED AMERICANS INVENTED RACIAL SEGREGATION (2016); and

EGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL

ANGLO-SAXONISM (1981).

201. For background on this history, see Doug Kiel, Bleeding Out: Histories and Legacies of

“Indian Blood,” in T

HE GREAT VANISHING ACT: BLOOD QUANTUM AND THE FUTURE OF

NATIVE NATIONS 80, 87-90 (Kathleen Ratteree & Norbert Hill eds., 2017).

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Native communities have struggled to define their membership in the midst of

a society that has employed racial essentialism to assess Native authenticity.

202

Yet this racialization of Native status did not represent a nineteenth

century decline from a race-neutral past. In the late eighteenth century, ideas

about membership and citizenship had been vague and ill defined and had

coexisted in uncertain relationship with similarly hazy notions about racial

difference. Only the naturalization statute, with its requirement of whiteness,

had explicitly applied this implicit racial subtext to ideas of federal

citizenship.

203

Over the course of the nineteenth century, as questions of status

and line drawing became increasingly pressing, these older ideas were refined,

clarified, and hardened. As a result, implicit racial boundaries were increasingly

enunciated and codified.

204

In the process, the earlier dueling conceptions of

Indians as jurisdictional and as racial outsiders collapsed together.

Over the late nineteenth and twentieth centuries, the entanglement of

racial and political ideas of Indianness persisted. After the Reconstruction

Amendments both expanded citizenship and heightened the category’s legal

salience, what one observer called the “not quite constitutionalized” status of

Indians became an increasingly difficult question for courts.

205

The triumph of

federal plenary power and the subordination of tribal sovereignty, the

piecemeal statutory extension of citizenship to Indians deemed sufficiently

“civilized,” the nebulous jurisdictional status of Indian country—all further

confused matters until 1924, when Congress granted U.S. citizenship to all

Indians.

206

But this action did not settle the question of Native status because

202. On the challenges Native peoples faced in maintaining their autonomy against Anglo-

American racial essentialism, see M

IKAËLA M. ADAMS, WHO BELONGS?: RACE,

RESOURCES, AND TRIBAL CITIZENSHIP IN THE NATIVE SOUTH (2016); ARIELA J. GROSS,

HAT BLOOD WON’T TELL: A HISTORY OF RACE ON TRIAL IN AMERICA (2008); MALINDA

MAYNOR LOWERY, LUMBEE INDIANS IN THE JIM CROW SOUTH: RACE, IDENTITY, AND THE

MAKING OF A NATION (2010); and KATHERINE M.B. OSBURN, CHOCTAW RESURGENCE IN

MISSISSIPPI: RACE, CLASS, AND NATION BUILDING IN THE JIM CROW SOUTH, 1830-1977

(2014).

203. See supra text accompanying note 167.

204. For foundational works on the hardening of racial categories in the nineteenth century

United States, see H

ORSMAN, supra note 200; RONALD TAKAKI, IRON CAGES: RACE AND

CULTURE IN 19TH-CENTURY AMERICA (Oxford Univ. Press rev. ed. 2000) (1979); and

James Brewer Stewart, Essay, The Emergence of Racial Modernity and the Rise of the White

North, 1790-1840, 18 J.

EARLY REPUBLIC 181 (1998).

205. Stephen Kantrowitz, “Not Quite Constitutionalized”: The Meanings of “Civilization” and the

Limits of Native American Citizenship, in T

HE WORLD THE CIVIL WAR MADE 75, 76

(Gregory P. Downs & Kate Masur eds., 2015) (quoting C

ONG. GLOBE, 42d Cong., 3d Sess.

373 (1873) (statement of Sen. Howe)).

206. On the complicated late nineteenth and early twentieth century history of Indian

citizenship, see F

REDERICK E. HOXIE, A FINAL PROMISE: THE CAMPAIGN TO ASSIMILATE

THE INDIANS, 1880-1920, at 212-23 (1984); SMITH, supra note 22, at 390-94, 459-62; Berger,

Birthright Citizenship, supra note 22, at 1231-46; and Philip J. Deloria, American Master

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the Supreme Court affirmed that “[c]itizenship is not incompatible with tribal

existence or continued guardianship.”

207

No longer defined by exclusion from

the U.S. polity, “Indian” remained both a nonwhite racial identity and a

category marked by formal membership in a quasi-sovereign, quasi-separate

polity.

E. The Constitutional Meaning of “Indian”

Like most history, the history of Indians, race, and membership is compli-

cated and messy. But while complexity and ambiguity are comfortable for

historians, they poorly serve lawyers and judges, who must draw lines and

make distinctions.

208

This Subpart seeks to explore how the constitutional

history examined here, though not simple or straightforward, can nonetheless

help address the current equal protection challenges to federal classification

based on Indian status.

Indian law’s critics’ arguments against ICWA and similar statutes invoke

constitutional colorblindness

209

—the doctrine that the Constitution’s

guarantee of equal protection prohibits formal classifications based on race.

210

Narratives and the Problem of Indian Citizenship in the Gilded Age and Progressive Era, 14 J.

GILDED AGE & PROGRESSIVE ERA 3 (2015). For the grant of citizenship, see Indian

Citizenship Act, Pub. L. No. 68-175, 43 Stat. 253 (1924) (codified as amended at 8 U.S.C.

§ 1401 (2016)). For commentary on this statute, see Kevin Bruyneel, Challenging

American Boundaries: Indigenous People and the “Gift” of U.S. Citizenship, 18 S

TUD. AM. POL.

DEV. 30 (2004); and Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the

Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon

Indigenous Peoples, 15 H

ARV. BLACKLETTER L.J. 107, 123-28 (1999).

207. United States v. Nice, 241 U.S. 591, 598 (1916); see also United States v. Celestine, 215 U.S.

278, 289-90 (1909) (upholding the application of federal criminal jurisdiction based on

Indian status because, “[n]otwithstanding the gift of citizenship, both the defendant and

the murdered woman remained Indians by race”).

208. On the diverging uses of the past between lawyers and historians, see Martin S.

Flaherty, History “Lite” in Modern American Constitutionalism, 95 C

OLUM. L. REV. 523

(1995); and Cass R. Sunstein, The Idea of a Useable Past, 95 C

OLUM. L. REV. 601 (1995).

209. For instance, in his article critiquing ICWA, George Will takes as an epigraph one of

constitutional colorblindness’s key lines: Chief Justice Roberts’s statement, “It is a

sordid business, this divvying us up by race.” See Will, supra note 12 (quoting League of

United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in

part, concurring in the judgment in part, and dissenting in part)).

210. The touchstone of constitutional colorblindness is usually Chief Justice Roberts’s

opinion in Parents Involved in Community Schools v. Seattle School District No. 1, which

proclaims, “The way to stop discrimination on the basis of race is to stop discriminat-

ing on the basis of race.” 551 U.S. 701, 748 (2007) (plurality opinion); see also id. at 772

(Thomas, J., concurring) (emphasizing that racial classifications are illegitimate because

“[o]ur Constitution is color-blind” (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

(Harlan, J., dissenting), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954))). For

additional background on constitutional colorblindness, see R. Richard Banks, Race-

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Here, the constitutional colorblindness claim involves two steps. Step one:

Membership in most Native nations requires some form of ancestry, which,

this argument runs, amounts to a racial category. Step two: When the federal

government labels individuals as “Indians” based on their membership status, it

is employing these race-based classifications. This argument, in short, seeks to

overturn the Mancari dichotomy between race and political status by looking

at the underlying requirements for tribal membership: Because tribal

membership is supposedly racial, federal classifications based on tribal

membership are, too.

211

This argument elides a substantial challenge. The Constitution uses the

very same classification—“Indian”—that Indian law’s critics challenge as

unconstitutional. This seeming paradox arguably places considerable weight

on the interpretation of “Indian” in the Constitution, particularly the question

whether the constitutional term is either a political or racial classification.

So which constitutional interpretation of “Indian”—political or racial—is

best supported by history? The answer depends on the methodology used to

translate the past into law. One approach—original public meaning

originalism—posits that the legal meaning of the constitutional text is the

word’s semantic meaning as understood by a reasonable speaker of English at

the time of the Constitution’s adoption.

212

In broad strokes, the history

explored here suggests that Anglo-Americans of the late eighteenth century

understood the term “Indian” to carry both racial and jurisdictional meanings.

But original public meaning provides guidance on how to interpret such

conflicts between meanings: The more technical meaning prevails if it is

apparent that the term is a legal “term of art.”

213

Here, while the vernacular

Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L.

REV. 1075 (2001).

211. See, e.g., Timothy Sandefur, Racial Discrimination Is No “Gold Standard,” CATO UNBOUND

(Aug. 15, 2016), https://perma.cc/8ZMC-HUE2.

212. See, e.g., Barnett, supra note 24, at 105 (“‘[O]riginal meaning’ refers to the meaning a

reasonable speaker of English would have attached to the words, phrases, sentences,

etc. at the time the particular provision was adopted.”).

213. Originalists largely agree on the need to interpret legal terms of art based on their

technical legal meaning of the time. See Caleb Nelson, Originalism and Interpretive

Conventions, 70 U.

CHI. L. REV. 519, 549 (2003) (observing that originalists consider

themselves bound by “founding-era understandings of specialized legal constructions

or terms of art”); Lawrence B. Solum, District of Columbia v. Heller and Originalism,

103 N

W. U. L. REV. 923, 967-70 (2009) (noting the need to interpret “terms of art” based

on their meaning to experts in the relevant art). “Indian” might seem like an unlikely

“term of art,” given that it also enjoyed a popular meaning. But as Lawrence Solum

notes, “If different groups had different understandings of the same phrase, constitu-

tional communication could still succeed, assuming the publicly available context of

constitutional utterance allowed resolution of the resulting ambiguity.” Solum, supra,

at 968. In this instance, there is a strong case that the context resolves the ambiguity in

favor of the formal, diplomatic meaning. As skeptical as I am about the possibility of

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meaning of “Indian” was arguably racial, diplomatic documents and formal

statutes employed a definition based on membership and jurisdiction. Given

that the Constitution used “Indian Tribes” in the context of federal regulatory

and diplomatic powers, there is a persuasive argument under originalist theory

that this race-neutral interpretation should be given greater weight.

But if “Indian” in the Constitution is interpreted as a political classification,

then the equal protection attack on ICWA and similar statutes becomes very

difficult to sustain. Indian law’s critics would find themselves in the awkward

position of insisting that while “Indian” in the Constitution is a political

classification, “Indian” as used in ICWA and other federal laws is not. This is a

difficult distinction to make. ICWA, by defining Indian status based on

eligibility for membership in a Native community, closely tracks the early U.S.

political definitions traced above.

214

It is also unavailing to argue that current

tribal membership classifications are actually racial because they involve

ancestry and descent. This critique was equally true in the early United States,

yet the early U.S. elite nonetheless opted to deal with “Indians” through the

formalist language of citizenship and membership.

215

In short, defining “Indian” as a solely political category is legally defensible.

It is also intellectually unsatisfying: Like Mancari, this definition is at least in

part a legal fiction reliant on a partial and formalist perspective. Careful

consideration of history reveals that the purportedly race-neutral category of

“Indian” possessed racial content from the beginning. One way to understand

the current equal protection challenges to federal Indian law is as an effort to

explode this legal fiction and demonstrate that “Indian” is not in fact a race-

neutral membership category.

216

summoning into being hypothetical eighteenth century English speakers, cf. Jack N.

Rakove, Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning

Originalism, 48 S

AN DIEGO L. REV. 575, 586 (2011) (“[T]he imaginary disinterested

original reader of the Constitution remains nothing more nor less than a creature of

the modern originalist jurist’s imagination.”), in this instance I think the evidence

persuasive to construe the word “Indian” in the Constitution to resemble the meaning

employed in treaties, statutes, and other governmental documents of the time. And I

think that Solum’s approach similarly endorses this resolution of possible ambiguity.

214. See supra Part II.B.

215. See supra Part II.B. Indian law’s critics also suggest that even if not racial, classifications

based on tribal membership might constitute national origin discrimination. See

Sandefur, supra note 211. This claim is untenable. Black-letter law makes clear that

classifications based on citizenship do not amount to national origin discrimination

under Title VII of the Civil Rights Act of 1964—an unsurprising holding, given that

citizenship requirements are rife in U.S. law. See Espinoza v. Farah Mfg. Co., 414 U.S. 86,

87-96 (1973), superseded in other part by statute, Immigration Reform and Control Act of

1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of the

U.S. Code); see also Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253-

66 (codified as amended at 42 U.S.C. §§ 2000e, 2000e-1 to -16, 2000e-17 (2016)).

216. See supra note 12 and accompanying text.

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Yet there is a deep irony that this aim arrives cloaked in the rhetoric of

constitutional colorblindness. Colorblindness is a formalist doctrine: It seeks to

maintain a sharp line between de jure and de facto discrimination and targets

as unconstitutional explicit racial classifications.

217

This formalism, and its

apparently willful blindness to how race implicates all sorts of seemingly race-

neutral categories, has been the focus of the most withering critiques of the

doctrine.

218

But the equal protection challenge to Indian classifications is

antiformalist: It relies on peering behind the federal legal category of “Indian”

to reveal its dependence on the ancestry-based classifications employed by

tribes.

219

In their seeming commitment to broaden legal understandings of

217. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 736 (2007)

(plurality opinion) (stressing the importance of the “distinction between de jure and de

facto segregation”); see also id. at 793-96 (Kennedy, J., concurring in part and concurring

in the judgment) (examining in detail the “difference between de jure and de facto

segregation” in crafting remedies in the school desegregation cases and arguing that the

concept is “of central importance”).

218. See, e.g., Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant

Rights & Fight for Equal. by Any Means Necessary (BAMN), 134 S. Ct. 1623, 1676 (2014)

(Sotomayor, J., dissenting) (“The way to stop discrimination on the basis of race is to

speak openly and candidly on the subject of race, and to apply the Constitution with

eyes open to the unfortunate effects of centuries of racial discrimination.”); G

ROSS,

supra note 202, at 294-305; Ian F. Haney López, “A Nation of Minorities”: Race, Ethnicity,

and Reactionary Colorblindness, 59 S

TAN. L. REV. 985, 1061-62 (2007) (“One detects in

current Supreme Court equality discourse a renewed penchant for . . . racial

formalism . . . . If race reduces to morphologies entirely disconnected from history and

social position, group mistreatment on any basis but one explicitly tied to skin color

cannot be racism . . . .”).

219. One possible way to reconcile this discrepancy might be to invoke Supreme Court

precedent discussing when actions by nongovernmental actors may be imputed to the

state, thereby constituting state action. See Blum v. Yaretsky, 457 U.S. 991, 1004-05

(1982) (crafting the test for when a private entity has the requisite nexus to the state to

be held to constitutional standards); see also Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 295-96 (2001) (refining and applying the test); Smith v.

Allwright, 321 U.S. 649, 656-57, 663-64 (1944) (concluding that the Texas Democratic

Party’s white primary constituted state action because of the party’s “character as a state

agency” derived from the “duties imposed upon it by state statutes”).

Yet this analogy is untenable. First, there is no question that the tribes’ membership

decisions constitute “state action” because tribes are sovereign governments: This fact

renders much of the Court’s state action jurisprudence absurd when applied to tribes.

See, e.g., Blum, 457 U.S. at 1005 (establishing as a prong of the test whether the entity has

“exercised powers that are ‘traditionally the exclusive prerogative of the State’”

(quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974))). The Fifth and

Fourteenth Amendments do not apply to tribes not because they are private actors but

because they, like other sovereigns such as foreign states, are not directly bound by the

provisions of the U.S. Constitution. See Talton v. Mayes, 163 U.S. 376, 384-85 (1896)

(holding that the Fifth Amendment did not apply to the Cherokee Nation because its

powers of self-government “existed prior to the Constitution”).

Second, the suggestion that the federal government has somehow transformed the

tribes into federal agencies by giving tribal membership force of law—which is what

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how race has been lived, defined, and constructed in the United States, then,

Indian law’s critics have become the unwitting allies of scholars who see the

entanglement of race and political status in Indian law as an attack on

constitutional colorblindness.

220

But this seeming contradiction offers more than irony; it has important

legal implications, even beyond Indian law. Although Indian law’s critics often

seek to portray federal Indian law as the last vestige of a repudiated legal order

that endorsed classifications based on ancestry,

221

ancestry-based distinctions

actually litter much of the law. Katie Eyer argues that far from being limited to

ICWA, such distinctions are ubiquitous in family law, where they have been

tolerated, and even endorsed, by the Supreme Court.

222

Ancestry is arguably

even more significant whenever any sovereign, not just a tribe, seeks to define

its membership. Nearly all nations’ citizenship laws—even those of the United

States—employ some jus sanguinis principles that grant citizenship based on

biological descent.

223

Some nations go still further and define belonging based

on remote ancestry: Spain, Germany, Israel, and several other nations all

extend citizenship to those who trace their descent through ancestral nationals,

some from centuries earlier.

224

International treaties forbidding racial

the state action doctrine requires—is sharply at odds with longstanding and very well-

settled precedent. Despite repeated constitutional challenges, one of the most durable

principles in the Supreme Court’s Indian law jurisprudence is the proposition that the

federal government is not the source of tribes’ authority; rather, that authority derives

from tribes’ retained inherent sovereignty. See, e.g., United States v. Bryant, 136 S. Ct.

1954, 1962 (2016) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); Puerto

Rico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016); United States v. Lara, 541 U.S. 193,

205 (2004); United States v. Wheeler, 435 U.S. 313, 324-29 (1978), superseded in other part

by statute, Indian Civil Rights Act of 1968, Pub. L. No. 90-284, tit. II, 82 Stat. 73, 77-78

(codified as amended at 25 U.S.C. §§ 1301-1304 (2016)), as recognized in Lara, 541 U.S. 193.

220. See Krakoff, supra note 7, at 546 (“[T]he argument here supports rejecting colorblind

constitutionalism generally.”); Rolnick, supra note 5, at 1026-27 (arguing that the

interconnectedness of political and racial definitions of Indians undermines “the

doctrinal allegiance to formal-race”).

221. Cf. A.D. Complaint, supra note 18, ¶ 3 (arguing that “[c]hildren with Indian ancestry” are

“[a]lone among American children” in that their ethnicity is considered when making

adoption and foster care placements).

222. See Katie Eyer, Constitutional Colorblindness and the Family, 162 U. PA. L. REV. 537, 540-41

(2014).

223. See Sarah Helene Duggin & Mary Beth Collins, “Natural Born” in the USA: The Striking

Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause

and Why We Need to Fix It, 85 B.U.

L. REV. 53, 103 (2005). On the history of one set of

descent-based distinctions in federal citizenship law, see Kristin A. Collins, Illegitimate

Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,

123 Y

ALE L.J. 2134, 2215-19 (2014).

224. On such provisions in the European Union, see Michael D. Moritz, The Value of Your

Ancestors: Gaining “Back-Door” Access to the European Union Through Birthright Citizenship,

26 D

UKE J. COMP. & INT’L L. 229, 254-55 (2015). Both Spain and Portugal grant citizen-

footnote continued on next page

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discrimination explicitly permit such distinctions.

225

In short, if federal

classifications are deemed race based whenever they rely on another

sovereign’s descent-based citizenship, then large swaths of foreign policy are

arguably subject to strict scrutiny.

226

ship to individuals who can trace their descent to Jews expelled from the Iberian

Peninsula in 1492. See Conor Gaffey, Spain Offers Citizenship to Descendents of Jews Who

Fled Inquisition, N

EWSWEEK (Mar. 26, 2015, 1:26 PM), https://perma.cc/B5YS-AB4W;

Barry Hatton, Portugal Approves Citizenship Plan for Sephardic Jews, A

SSOCIATED PRESS

(Jan. 29, 2015), https://perma.cc/3D42-AN89. The Spanish policy was expected to elicit

200,000 applications for citizenship. See Max Kutner, Spain Expects up to 200,000 Jews to

Apply for Citizenship, N

EWSWEEK (June 16, 2015, 1:18 PM), https://perma.cc/MKW5

-A2DG. Germany similarly permits the naturalization of individuals who can prove

descent from Jews persecuted in Germany between 1933 and 1945. See G

RUNDGESETZ

[GG] [BASIC LAW] art. 116(2), translation at https://perma.cc/Q8JE-84V5. Bulgaria,

Croatia, and Ireland all permit naturalization based on proof of an individual’s descent

from a citizen of the nation. See D

ANIEL SMILOV & ELENA JILEVA, EUDO CITIZENSHIP

OBSERVATORY, COUNTRY REPORT: BULGARIA 13 (2013), https://perma.cc/ELZ5-LKRV

(noting that individuals of “Bulgarian origin,” as defined by ethnic criteria, may become

Bulgarian citizens by naturalization without satisfying most of the ordinary require-

ments); F

RANCESCO RAGAZZI ET AL., EUDO CITIZENSHIP OBSERVATORY, COUNTRY

REPORT: CROATIA 13-14 (2013), https://perma.cc/HSL4-D57Z (noting that great-

grandchildren of Croatian citizens may become naturalized Croatian citizens without

meeting the ordinary requirements); J

OHN HANDOLL, EUDO CITIZENSHIP OBSERVATORY,

COUNTRY REPORT: IRELAND 12 (2012), https://perma.cc/QZ8C-QG8X (noting that the

Irish Minister for Justice and Equality “is empowered to dispense with [the conditions

for naturalization] in relation to persons of Irish descent”).

Such descent provisions are less common outside of Europe. Israel permits the

naturalization of all Jews and defines Jews as converts or as the children of Jewish

mothers, vesting rights in the children and grandchildren of Jews. See Law of Return,

5710-1950, § 1, 4 LSI 114 (as amended) (“Every Jew has the right to come to this country

as an [immigrant].”). Liberia limits both citizenship by birth and naturalization to

persons who are “Negro or of Negro descent.” See R

ULE OF LAW INITIATIVE, AM. BAR

ASS’N, ANALYSIS OF THE ALIENS AND NATIONALITY LAW OF THE REPUBLIC OF LIBERIA 13-

(2009), https://perma.cc/F9AS-GNQ5. Rwanda’s constitution provides: “All persons

originating from Rwanda and their descendants shall, upon their request, be entitled to

Rwandan nationality.” R

WANDA CONST., tit. I, art. 7.

225. See, e.g., International Convention on the Elimination of All Forms of Racial

Discrimination art. 1, ¶ 3, opened for signature Mar. 7, 1966, S.

EXEC. DOC. C, 95-2 (1978),

660 U.N.T.S. 195 (“Nothing in this Convention may be interpreted as affecting in any

way the legal provisions of States Parties concerning nationality, citizenship or

naturalization, provided that such provisions do not discriminate against any

particular nationality.”).

226. Unlike foreign sovereigns, tribes are subject to the power of the federal government.

See United States v. Wheeler, 435 U.S. 313, 323 (1978) (noting that tribal sovereignty

“exists only at the sufferance of Congress and is subject to complete defeasance”),

superseded in other part by statute, Indian Civil Rights Act of 1968, Pub. L. No. 90-284,

tit. II, 82 Stat. 73, 77-78 (codified as amended at 25 U.S.C. §§ 1301-1304 (2016)), as

recognized in United States v. Lara, 541 U.S. 193, 205 (2004). The federal government has

exercised its authority to apply the language of the Equal Protection Clause to tribes, see

25 U.S.C. § 1302(a)(8) (2016), but well-established precedent limits the remedies for

purported Indian Civil Rights Act (ICRA) violations in noncustodial instances to tribal

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But Indian law’s critics present a second, arguably more significant

challenge to constitutional colorblindness that further compromises their

argument. Indian law, while not unique in its use of ancestry, is exceptional in

one sense: “Indian” itself appears in the Constitution. If, as the equal protection

argument insists, we must read the classification “Indian” in light of its broader

context and definition, then history compels us to acknowledge “Indian” in the

Constitution as a racial term. At the time of the Constitution’s drafting, Indians

were considered nonwhite, a category that as we have seen was premised on

ancestry. And as I briefly discuss above, and as other scholars have traced much

more fully, this trend toward racialization was not repudiated either formally

(through constitutional amendment) or practically in the ensuing two

centuries.

227

On the contrary, the Fourteenth Amendment specifically

preserved a distinct status for Indians,

228

while the federal government

increasingly imposed descent requirements on tribes, seeking to prevent “fake

Indians”—that is, those who were supposedly not racially Indian enough—from

receiving federal recognition.

229

In short, if we abandon the legal fiction that

“Indian” is a political classification, we must also give up the larger fiction of a

colorblind Constitution. Under this interpretation, race is literally written into

the text of our Constitution.

The normative implications of this conclusion are fraught. It is, perhaps,

uncomfortable to think that the Constitution might bind us to a racialized past

characterized by an ideology of difference we as a nation have struggled to

overcome. In fact, this legal commitment to earlier, repudiated views is one of

the most controversial aspects of originalists’ commitment to a “dead”

courts, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60-72 (1978). Accordingly,

because the plaintiffs in these suits have elected to seek a federal instead of a tribal

remedy, they are foreclosed from advancing equal protection claims under ICRA.

Moreover, lower federal court decisions issued prior to Martinez uniformly upheld

tribal membership requirements against equal protection challenges under ICRA. See

Daly v. United States, 483 F.2d 700, 705 (8th Cir. 1973); Slattery v. Arapahoe Tribal

Council, 453 F.2d 278, 282 (10th Cir. 1971); Groundhog v. Keeler, 442 F.2d 674, 679, 681-

83 (10th Cir. 1971).

227. For explorations of this subsequent history, see generally Berger, Red, supra note 10;

Fletcher, Race and American Indian Tribal Nationhood, supra note 10; Krakoff, Inextricably

Political, supra note 10; Riley & Carpenter, supra note 10; Spruhan, Indian as Race, supra

note 10; and Spruhan, Legal History of Blood Quantum, supra note 10.

228. See U.S. CONST. amend. XIV, §§ 1-2 (limiting citizenship to those “subject to the

jurisdiction” of the United States and specifically “excluding Indians not taxed” from

representation).

229. On federal imposition of descent requirements, see 25 C.F.R. § 83.11(e) (2017); Fletcher,

Race and American Indian Tribal Nationhood, supra note 10, at 301-02, 312-13; and

Snowden et al., supra note 10, at 200-29. On federal fears about “fake” Indians, see

Wood, supra note 97, at 483-92.

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Constitution.

230

But it would be perverse to try to purify the Constitution by

striking down statutes like ICWA that seek to remedy the harms caused by

earlier racial views. The effect would not be to repudiate the past but to revive

it, reinstating the assimilationist imperative at the root of much disastrous

federal policy.

231

Moreover, the appearance of the term “Indian” is hardly the

only way the Constitution remains entangled in past racial practices; it is

merely the most textually explicit.

The doctrinal implications of acknowledging the potential racial meaning

of “Indian” in the Constitution are clearer and more straightforward. It is very

hard to argue that a classification is unconstitutional when it is mandated by

the Constitution itself. This reading strongly suggests that with respect to

those people labeled “Indians,” the Constitution itself authorizes distinctions

based on ancestry.

232

Wriggling out of this conclusion requires implausible

intellectual contortions, particularly for those who, like Indian law’s critics, are

committed to conservative jurisprudential theories. Shy of a new constitution-

al amendment or the embrace of a very broad concept of living constitutional-

ism, the word “Indian” cannot be expunged from the Constitution simply

because some people dislike the statutes it authorizes.

In sum, the appearance of “Indian” within the U.S. Constitution likely

dooms the equal protection challenge to Indian classifications, whichever

meaning we assign the term. If we read the history accurately but selectively to

conclude that “Indian” in the Constitution is a political classification, then the

use of Indian in ICWA and similar statutes must also be read as a political

classification. But if we insist on peering behind the formal legal classifications

and revealing how “Indian” is bound up with historical conceptions of race,

then we must conclude that the Constitution itself authorizes distinctions

based on Native ancestry. The implications of this interpretation reach broader

still. “Our Constitution is color-blind,” Justice Harlan famously stated in his

230. For influential articulations of this critique, see Jamal Greene, Originalism’s Race

Problem, 88 D

ENV. U. L. REV. 517, 518-22 (2011); and Thurgood Marshall, Commentary,

Reflections on the Bicentennial of the United States Constitution, 101 H

ARV. L. REV. 1, 2 (1987)

(“For a sense of the evolving nature of the Constitution we need look no further than

the first three words of the document’s preamble: ‘We the People.’ When the Founding

Fathers used this phrase in 1787, they did not have in mind the majority of America’s

citizens.”). For some responses, see R

ANDY E. BARNETT, RESTORING THE LOST

CONSTITUTION: THE PRESUMPTION OF LIBERTY 111-12 (2004); and John O. McGinnis &

Michael B. Rappaport, Originalism and the Good Constitution, 98 G

EO. L.J. 1693, 1757-64

(2010).

231. On the harms produced by assimilation, see HOXIE, supra note 206; and Judith V.

Royster, The Legacy of Allotment, 27 A

RIZ. ST. L.J. 1 (1995).

232. For further development of this line of argument based on case law, see Krakoff, supra

note 7, at 533-35.

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1075

Plessy dissent.

233

But Indian law’s critics are unwittingly working to discredit

this statement: Their reading renders Harlan’s formulation a remarkably

inaccurate description of a constitutional text that invokes an explicit racial

category three times.

Conclusion

This Article has used the tools of legal, intellectual, and cultural history to

explore the meanings of the terms “Indian” and “tribe” at the time of the

Constitution’s adoption. Once we expand our interpretive scope, we discover,

in place of the gap current scholarship posits, plenty of discussion, albeit little

clarity. Rather, Anglo-Americans promiscuously and interchangeably

employed meanings and terms—Natives as tribes and nations; Indians as

nonwhites and noncitizens—at once interrelated and in tension. Over the

course of the nineteenth century, courts and others struggled to resolve the

contradictions inherent in this constitutional legacy. In the process, they often

elevated one definition over another, usually favoring the terms and meanings

most denigrating to Native peoples.

There is both a simple and a hard story about the relationship of this

history to current doctrine. The simple story is that current law’s insistence

that Indian classification is a political, rather than racial, status has a historical

foundation tracing back to the Constitution’s creation. Viewed in this frame,

federal law has long regarded membership in an Indian nation as a form of

citizenship, a legal status no more racialized than classification as a French or

British subject.

The hard story starts by acknowledging that this defensible narrative rests

on the legal fiction that Indian status and race were, and are, separate and

distinguishable. In fact, thanks largely to the efforts of the federal government

itself, legal classification as “Indian” increasingly required more than formal

membership in a Native community; it mandated the requisite ancestry, often

expressed as “Indian blood.” Yet this racialized notion of Indian status that came

to dominate the nineteenth and twentieth century United States was not a

break from an earlier, preracial understanding. It represented rather the

efflorescence of an idea of Indians as nonwhite, as members of degraded and

racialized “tribes,” that was already ascendant when the Constitution was

adopted. Any effort to wrestle with this reality must acknowledge that the

Constitution does not stand apart from this history; on the contrary, this

legacy is arguably implicated in its very text.

233. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), overruled by Brown v.

Bd. of Educ., 347 U.S. 483 (1954).

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1076

Significantly, under both the simple and hard stories, the current challeng-

es to Indian classifications on equal protection grounds are at odds with

history. Either “Indian” is a permissible political classification or it is a racial

classification authorized by the Constitution itself. Neither view authorizes

courts to take the odd step of implicitly declaring the Constitution

unconstitutional.

This conclusion leaves unresolved the thorny problem of how to incorpo-

rate this messy past, with its deep roots in earlier unpalatable racial ideologies,

into current law. Scholars have offered alternative approaches. One path is a

forthright admission of the exceptionalism of Indian law, grounded in the

reality that the constitutional text specifically singles out Indian tribes.

234

Another tack makes the opposite claim: Rather than labeling Indian law as

exceptional, it posits the field as a model for a more honest, race-conscious

jurisprudence in general, one that would acknowledge how frequently race is

implicated in purportedly race-neutral categories. Each approach has merits;

both require a clear-eyed willingness to recognize in law the complexities and

nuances of our nation’s racial past. Until such intellectual courage exists, I

would argue that we should have the lesser courage of owning and embracing

our legal fictions, which, in Indian law, are arguably written into the

Constitution itself.

234. See Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 HARV. L.

REV. 431, 435-36 (2005) (arguing for the “exceptionalism of the field” of Indian law

against efforts to succumb to the “seduction of coherence” by slotting Indian law

principles into conventional public law doctrines (quoting Vicki C. Jackson, Seductions

of Coherence, State Sovereign Immunity, and the Denationalization of Federal Law, 31

UTGERS L.J. 691, 698 (2000))); see also Angela R. Riley, Native Nations and the Constitu-

tion: An Inquiry into “Extra-Constitutionality,” 130 H

ARV. L. REV. F. 173, 175-76 (2017)

(discussing the legal challenges presented by Native American exceptionalism).