Document Type

Article

Publication Date

2025

Abstract

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any congressional classification based on Indian status that is rationally related to the fulfillment of the trust responsibility is constitutional. That is it. Sometimes we refer to it as a rational basis-type test, and there is a sort of rational basis element to this analysis. Sometimes people point to footnote twenty-four in Mancari and say that Justice Blackmun created or articulated a rule that the relationship between Indian tribes, Indian people, and the United States is political, not a race-based relationship. That is more or less true, but it is not the whole story.

I like the first part of the story better. That part of the story is rooted in the tradition of international law. It is rooted in the tradition of the separation of powers between the judiciary in Article III and Congress and its Indian affairs power in Article I. I will say more about what I mean by that.

I think the Mancari rule is the only way to interpret Indian affairs powers in relation to the equal protection principles of the Constitution. A little bit more on the Mancari rule—what are its origins, what are its jurisprudential underpinnings? Well, the first one is the duty of protection. This is what the trust responsibility was originally known as. If you read enough treaties, you will see the word “protection” a lot. The duty of protection is a creature of customary international law that existed before there was a United States. There have been numerous instances where a larger sovereign takes a smaller sovereign under its wing, so to speak. I will call it a nuclear umbrella of sorts. The two sovereigns can negotiate the scope of this protectorate.

Download


Share

COinS