Document Type

Article

Publication Date

2011

Abstract

In 1974, the Supreme Court declared that an Indian employment preference was based on a "political rather than racial" classification. The Court's framing of Indianness as a political matter and its positioning of "political" and "racial" as opposing concepts has defined the trajectory of federal Indian law and influenced common sense ideas about what it means to be Indian ever since. This oppositional framing has had specific practical consequences, including obscuring the continuing significance of racialization for Indians and concealing the mutually constitutive relationship between Indian racialization and Indian political status. This Article explores the legal roots of the political classification doctrine, its ongoing significance, and the descriptive limits and normative consequences of the ideas that it contains. Specifically, this Article argues that the political classification doctrine constructs race as an irrelevant matter of ancestry and Indianness as a simple matter of civic participation. This Article suggests a new framework for considering Indian issues and federal Indian law that draws on a more robust and realistic understanding of both race and Indianness to acknowledge the cyclical relationship between Indian racialization and Indian political status.

Publication Citation

86 N.Y.U. L. Rev. 958 (2011).