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This Article tells the story of how race jurisprudence has become the most intractable threat to Indigenous rights -and to collective rights more broadly. It examines legal challenges to Indigenous self-determination and land rights in the U.S. territories. It is one of a handful of articles to address these cases and the only one to do so through the lenses of Indian law, the law of the territories, international law, and race law. These recent challenges rest on the 2000 case of Rice v. Cayetano, in which the Supreme Court struck down a Hawaii law that allowed only Indigenous Hawaiians, defined by reference to ancestry, to vote for trustees who controlled land and assets held in trust for them. The Court's holding-that ancestry can be, and was in that specific factual context, a proxy for race -rested on a thin conception of race as a static biological fact and a narrow construction of indigeneity. In the hands of aggressive litigants, it has been transformed into a shorthand rule that ancestry and race are equivalent; that ancestry-based classifications are therefore illegal under the Fourteenth and Fifteenth Amendments; and that legal protection for Indigenous rights is limited to a narrow class of American Indian tribal citizens. This rule has emerged as a significant threat to Indigenous rights and driven a deep wedge between the individual rights protected by the Reconstruction Amendments and the group-based harms they were intended to remedy. It threatens to juridically erase Indigenous peoples in the territories by equating any recognition of their historical claims with an illegal racial classification. This Article unpacks the doctrinal evolution of the Rice rule, examines its theoretical and practical consequences, and proposes a multitiered strategy to resist it.

Publication Citation

131 Yale L. J. 2652 (2022).