Recently, I presented research on the interaction between federal Indian law and equal protection, and discussed ways that advocates can defend important structures in Indian law, like ICWA and IGRA, from equal protection challenges.

Specifically, I argued that if the Court is skeptical of the oft cited rule from Morton v. Mancari that federal legislation directed towards Indian Tribes is generally subject to rational basis review, they need look no further than the alienage doctrine from existing equal protection analyses for solid support.

In short, the alienage doctrine generally subjects federal legislation that classifies on the basis of alienage (U.S. citizenship status) to only rational basis review, rather than the more demanding strict scrutiny standard. The Court has come to this conclusion for several reasons, including that subjecting such laws to strict scrutiny would effectively dismantle Congress’s enumerated power over immigration and naturalization.

I argue that the same reasoning ought to apply in the federal Indian law context because to subject all legislation that classifies on the basis of affiliation with an Indian Tribe would effectively dismantle Congress’s enumerated power over Indian commerce, its power to implement Indian treaties, and its implied power to fulfill its trust responsibility towards Indian Tribes. Thus, I think the alienage doctrines serves as a useful analogy to demonstrate why the Equal Protection Clause doesn’t demand the destruction of federal Indian law.

Watch the presentation here: Presentation

And be on the lookout for a paper on this very soon!