132. Equal Protection under the Constitution. The Fourteenth Amendment to the United States Constitution requires that the States not deny to the people ‘the equal protection of the laws’. A similar guarantee of equality as against the United States itself has been read into the Fifth Amendment, which guarantees ‘due process’. The nature of the test or tests for equal protection applied by the Supreme Court has, of course, been extensively discussed and litigated. As Chief Justice Burger stated in Reed v Reed:
this court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of person in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike’.
In applying this basic test, the Court is, inevitably, engaged in a form of judicial review of the merits of legislation. In recognition of the delicacy of this task, and of the principle of the separation of powers, the Court will normally be satisfied with an arguable, as distinct from clear or conclusive, link between the legislative aim and the classification adopted by the law. This is the so-called ‘rational basis’ standard of review. Moreover, classifications need not be mathematically exact: for example, considerations of legislative efficiency or reasonable priorities may account for under inclusiveness in a particular law. But in cases involving certain fundamental rights or ‘suspect classifications, the standard is very much more stringent. In particular:
Racial and ethnic classifications of any sort are inherently suspect and thus call for the most exacting judicial examination.
133. The Test for ‘Affirmative Action’. The doctrine of ‘equal protection’ extends beyond the protection of minorities against discrimination. It is often thought necessary to provide special advantages to deprived minorities, eg by way of preferential housing, education or employment programs to achieve real equality or to provide for conditions of future equality. But such programs of ‘benign’ or reverse discrimination are also subject to scrutiny under the Fifth and Fourteenth Amendments, although the rigour which will be applied in different fields remains to be seen. The most important recent decision in this field, Regents of the University of California v Bakke, leaves the matter unclear. One view of the majority position there was that:
Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative or administrative bodies with competence to act in this area.
134. The Special Position of American Indians. With one exception, the continuing debate over reverse discrimination relates almost entirely to matters such as housing, employment and education, rather than to the recognition of minority customs or institutions. The exception involves the special position of American Indians. Originally, they were treated with, as separate communities, rather than treated as individual subjects. They came to be classified as ‘domestic dependent nations’, retaining considerable autonomy over their own affairs on their ‘reserve’ land. But continuing legislative and administrative incursions into Indian sovereignty, such as the Major Crimes Act and the Indian Civil Rights Act, have resulted in a substantial body of special federal law dealing with American Indian tribes and their members. This is an expression of a doctrine of ‘wardship’, whereby the United States has a special responsibility for the welfare of American Indians:
Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States … the power and duty of exercising a fostering care and protection over all dependent Indian communities within its borders … whether within or without the limits of a state.
In fact federal Indian law itself contains relatively few elements of Indian custom or tradition. But it does provide a degree of freedom on the part of Indian tribes to regulate themselves, a freedom which can be used to incorporate or apply Indian customs and traditions. This is true, for example, of traditional Indian marriages, which are recognized by virtue of their conformity, or presumed conformity, with the law and custom of the Indian reservation to which they relate.
135. Equal Protection and American Indians. Problems of equal protection can arise with respect to American Indians in two distinct ways. Indian tribal law is not delegated from and does not form part of federal law. Nor does the Fourteenth Amendment to the United States Constitution apply to action taken by the Indian tribes under their ‘original’ powers. But there is a modified form of equal protection guarantee in the Indian Civil Rights Act of 1968. Violation of equal protection by Indian tribes is, however, a matter for tribal courts rather than federal courts, except in respect of criminal cases (where the remedy of habeas corpus is available). In addition federal or state action with respect to Indians and Indian tribes is subject to the equal protection guarantee under the Fifth and Fourteenth Amendments. The consistency of special protective rules for Indian tribes with equal protection is, therefore, a significant issue. In Morton v Mancari, non-Indian employees of the federal Bureau of Indian Affairs (BIA) challenged a provision of the Indian Reorganization Act 1934 which established a preference in promotion for employees who were members of Indian tribes. It was claimed that such a preference violated their right to equal protection. The Supreme Court held unanimously that the employment preference did not violate the Fifth Amendment. Speaking for the Court, Justice Blackmun said:
Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 USC) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. Contrary to the characterization made by appellees, [the preference in employment under the 1934 Act] does not constitute ‘racial discrimination’. Indeed. it is not even a ‘racial’ preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference as applied, is granted to Indians not as a discrete racial group, but, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.
The Court concluded:
On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. As long as the special treatment can be tied rationally to the fulfilment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reasonable and rationally designed to further Indian self-government, we cannot say that Congress’ classification violates due process.
An important aspect of the decision was its denial that the classification was inherently a racial one. The United States stood in a ‘political’ relationship of wardship to the Indians, for whom it had special constitutional responsibility. The classification was thus ‘political rather than racial in nature’. This broader rationale has been upheld and extended in later Supreme Court cases. In Fisher v Rosebud District Court, it was argued that a provision of the Indian Reorganization Act 1934, pursuant to which a tribal court had exclusive jurisdiction over intra-tribal adoptions, violated equal protection because it deprived tribal members of access to state courts. The Supreme Court summarily rejected the argument:
The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law. Moreover, even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government.
136. United States v Antelope. More important was the decision in United States v Antelope in the following year. This followed a series of cases in lower courts examining the equal protection aspects of inequalities produced by the complex rules for criminal jurisdiction with respect to Indians. These rules bear no particular relation to specific Indian needs or to ‘the maintenance of the separate values of the Indian cultures’. Lower courts had oscillated between the benevolent approach of Morton v Mancari and a more exacting inquiry into the real justification for the differences at stake. United States v Antelope was specially significant in that the challenged legislation had an adverse impact on the Indian defendant, and did not involve ‘protective’ or ‘benevolent’ purposes. Indian defendants were charged under the Major Crimes Act for the murder of a non-Indian on a reservation. If a non-Indian had committed the offence, Idaho law would have applied and required proof of actual intent to kill. But under the Major Crimes Act the felony-murder rule was applicable, and the difference may have been important in this case. The Supreme Court unanimously rejected the equal protection claim. As in the earlier cases, it rejected the argument that differentiation between tribal Indians and others was racially based, but it did so in a context where the ‘political’ aspect of the classification was by no means obvious:
The decisions of this Court leave no doubt that federal legislation with respect to Indian tribes although relating to Indians as such, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes as subjects for legislation are expressly provided for in the Constitution and supported by the ensuing history of the Federal Government’s relations with the Indians … [T]he principles reaffirmed in Mancari and Fisher point … to the conclusion that federal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as ‘a separate people’ with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a ‘“racial” group consisting of “Indians”…’ Indeed, respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they were enrolled members of the Coeur d’Alene Tribe. We therefore conclude that the federal criminal statutes enforced here are based neither in whole nor in part upon impermissible racial classifications.
To summarise, the Court does not regard legislation in the exercise of the special responsibilities of the United States towards Indian tribes, their members and associates as based on a racial classification, or as requiring strict scrutiny. The equal protection guarantee, of course, continues to apply, but at least with respect to federal legislation it is satisfied by a rational link with the special responsibilities of the United States towards Indian communities and with their special needs. In this respect the position of American Indians under the Constitution is ‘unique’, and is not affected by the relatively strict scrutiny of benevolent legislation affecting minorities, which may follow from the decision in Bakke’s case.
137. A Test-case: The Indian Child Welfare Act 1978 (USA). The implications of this doctrine for legislation recognizing or allowing for special aspects of Indian tradition and culture may be seen from the debate over the constitutionality of the Indian Child Welfare Act 1978 (USA). The Act establishes both a preference for tribal court over state court jurisdiction in the placement of Indian children, and a preference in any forum for the placement of such children in Indian families. While the Indian Child Welfare Bill was before Congress, doubts about its constitutionality were raised by the Department of Justice. The Department doubted whether the Bill’s provisions were consistent with equal protection, since they deprived Indians of access to State courts on the basis of a ‘racial’ classification. However, both the House Report on the Bill, commentators and lower courts have had no trouble in upholding its constitutionality on the basis of Morton v Mancari. It is significant that the doubts about equal protection have related not to the placement principle established by the Act, but to the denial of state court jurisdiction. The placement principle is a presumptive, not an absolute, rule. It is a careful response to a proven pattern of unwarranted disruption of Indian families. The Act does not prefer one parent or relative over another on grounds of race (or indeed on any other grounds). What it does is to give a preference to parental, familial or community-based placements of certain Indian children over non-parental, non-familial or institutional placements. For these reasons it is entirely consistent with the constitutional guarantee of the equal protection of the laws.
See esp PG Polyviou, The Equal Protection of the Laws, London, Duckworth, 1980. For a summary see G Evans, ‘Benign Discrimination and the Right to Equality’ (1974) 6 Fed L Rev 26, 58-68.
404 US 71, 75-6 (1971), citing Royster Guano Co v Virginia 253 US 412, 415 (1920).
Polyviou, 66-7, 71-8.
‘Underinclusiveness’ is the failure to extend the benefits of a law to persons who ought, given the legitimate aims of the law, properly to be covered by it. Over-inclusion is, conversely, the extension of the law to persons who ought not to be covered by it, given those aims. Under-inclusion may be accounted for by a reasonable legislative choice to deal with some claimants rather than all as a matter of priority of resources. This argument cannot apply to over-inclusive laws, which are accordingly more difficult to justify. cf Polyviou, 78-80. See further L Re and A Brown, Flying South, William Collins, Sydney, 1986.
University of California Regents v Bakke 438 US 265, 291 (1978) (Powell J).
Polyviou, 348-79, 703-21.
438 US 265 (1978).
id, 325 (Brennan, White, Marshall, Blackmun JJ). And see Fullilove v Flutznick 448 US 448 (1980).
cf AH Goldman, Justice and Reverse Discrimination, Princeton University Press, Princeton NJ, 1979, 4.
Cherokee Nation v Georgia 30 US 1, 17 (1831) (Marshall CJ); Worcester v Georgia 31 US 515, 554-60 (1832) (Marshall CJ).
23 Stat 385 (1885); see now 18 USC 1153. For the circumstances of its enactment, cf US Commission of Civil Rights, Indian Tribes. A Continuing Quest for Survival, Washington, 1981, 139-40.
25 USC 1301ff (1976).
United States v Sandoval 231 US 28, 45-6 (1913).
GW Bartholomew, ‘Recognition of Polygamous Marriages in America’ (1964) 13 ICLQ 1022, 1033-68.
25 USC 1302(8) (1976).
Santa Clara Pueblo v Martinez 436 US 49 (1978); US Commission on Civil Rights, 30-1.
417 US 535 (1974).
id, 552-4. Among earlier decisions see eg Board of County Commissioners v Seber 318 US 705, 718 (1943) (tax exemption favouring certain Indian lands upheld as an ‘appropriate means by which the federal government protects its guardianship and prevents the impairment of a considered program undertaken in discharge of the obligations of that guardianship’).
417 US 535, 555 (1974).
id, 553 n 24.
424 US 382, 390-1 (1976).
430 US 641 (1977).
DH McMeekin, ‘Red, White and Gray: Equal Protection and the American Indian’ (1969) 21 Stanford L Rev 1236, 1247.
Gray v United States 394 F2d 96 (1968), cogently criticised by MacMeekin, United States v Analla 490 F2d 1204 (1974), vacated and remanded on other grounds 42 Led (2d) 40.
United States v Cleveland 503 F2d 1067 (1974); United States v Big Crow 523 F2d 955 (1975), cert den 424 US 920. cf Keeble v United States 412 US 205, 213 (1973).
430 US 641, 645-7 (1977) (Burger CJ). The Court reserved its position with respect to the conflicting cases in lower courts: id, 649 n11. See also Washington v Yakima Indian Nation 439 US 463 (1979).
US Commission on Civil Rights, 32 (and cases there cited).
Morton v Mancari 417 US 535, 554, 555 (1974). cf RM Klein, ‘Morton v Mancari: Achieving the Landmark Status Denied De Funis?’ (1974) 2 Ohio NU L Rev 371; Polyviou, 366.
The position of US Indians was expressly reserved by the Court in Bakke: 438 US 265, 780 n42 (Powell J), 844 (Blackmun J).
See para 353-64 for discussion of the Act and its Australian equivalents.
See 95th Congress, 2d Session, House of Representatives, Report together with Dissenting Views to Accompany HR 12533 (1978) 36-40, for the Justice Department’s objections.
id, 12-17, 19.
eg ML Vanderpan, ‘In re DLL and CLL Minors: Ruling on the Constitutionality of the Indian Child Welfare Act’ (1981) 26 S Dakota L Rev 67; MP Guerrero, ‘Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture caused by Foster and Adoptive Placements of Indian Children’ (1979) 7 Am Indian L Rev 51 74-6; B Davies, ‘Implementing the Indian Child Welfare Act’ (1982) 16 Clearinghouse Review 179, 183-4; LA Marousek, ‘The Indian Child Welfare Act of 1978: Provisions and Policy’ (1980) 24 S Dakota L Rev 98, 105-6. RL Barsh, ‘The Indian Child Welfare Act of 1978: A Critical Analysis’ (1980) 31 Hastings LJ 1237, 1307-8 argues that the Act’s definition of ‘Indian child’ is under-inclusive (although apparently not so seriously as to raise any equal protection issue).
417 US 535 (1974) See especially In re DLL and CLL, Minors 291 NW (2d) 278, 281 (1980), noted Vanderpan (1981) 67; In re Melinda Twobabies, unreported, Oklahoma District Court, 1979.