Bethany R. Berger

Reconciling Equal Protection and Federal Indian Law

Federal Indian law and policy, which largely concern the distinct status of Indian individuals and tribes defined in part by descent, increasingly face challenges that they violate equal protection law. This Article argues that such challenges stem from what Professor Philip Frickey has criticized as the seduction of artificial coherence, and ignore the congruence of federal Indian policy and equal protection as matters of constitutional norms, history, and text. At their best, federal Indian policies undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and tribal rights, moreover, is affirmed by the framers of the Fourteenth Amendment, judicial precedent, and historical practice. Basic constitutional values and interpretive principles support both equal protection and tribal rights, and militate against any false dichotomy that would undermine the principles of equality and respect on which both are based.