The Yale Law Journal

June 2022

Indigenous Subjects

U.S. Territories

abstract. 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 un- packs the doctrinal evolution of the Rice rule, examines its theoretical and practical consequences, and proposes a multitiered strategy to resist it.

author. San Manuel Band of Mission Indians Professor of Law, UNLV Boyd School of Law. I am grateful to Julian Aguon, who is navigating the doctrinal barriers set by these cases and working to mitigate their destructive impact every day. Thanks also to Gregory Ablavsky, Erwin Chemerinsky, Frank Rudy Cooper, Seth Davis, Elizabeth L. MacDowell, K-Sue Park, Susan K. Serrano, Kathryn M. Stanchi, David Tanenhaus, Mahina Tuteur, Leslie C. Griffin, Ian Bartrum, Ruben J. Garcia, and the faculties at UC Irvine, UC Berkeley, the University of Washington, and Drexel University for their comments and criticism; Devon W. Carbado, Sam Erman, Cheryl I. Harris, Kim Hai Pearson, and Rose Cuison Villazor, whose ideas have helped me refine the arguments presented here; and Lena Rieke and Alexis R. Wendl for research assistance.


American law protects the rights of subordinated people through different legal categories. Legislatures define the categories and courts shape them. But the categories also operate outside of the courtroom to shape identities and structure political movements. This Article considers the evolution of five such categories: Indigenous, Indian, colonized peoples, race, and ancestry. “Indigenous” and “Indian” are used interchangeably in popular discourse, but they are treated very differently by courts. “Race” and “ancestry” are also used interchangeably, a slippage that reflects popular confusion about the idea of race, a confusion shaped by and reflected in law. Colonization (the process and the category of colonized peoples) is rarely part of popular or legal discourse. In each instance, the legal meaning of the category has become progressively detached from the way it operates in people’s lives. This has led to absurd results that can dramatically threaten the fates of people who exist between or across the categories. This Article aims to bring clarity by tracing the historical and legal legacies of these categories and exposing a campaign to use the categorical distinctions to further subordinate the people affected by them.

This category confusion is especially dangerous for Indigenous peoples, as evidenced by recent lawsuits that have used the Reconstruction Amendments and civil-rights laws to attack Indigenous land, self-governance, and self-determination rights. These lawsuits argue that laws protecting such rights are actually illegal racial classifications. For example, in 2017, the U.S. Department of Justice sued Guam, alleging that a longstanding lease program implemented to protect the land rights of colonized Indigenous peoples violated federal civil-rights laws.1 The same year, a Texas couple sued to invalidate the Indian Child Welfare Act (ICWA), leading a federal district court to strike down the law as a violation of the Equal Protection Clause in Brackeen v. Zinke.2 These suits are the most recent in a series of cases that “highlight[] a conflict between an individual’s right to be free from race discrimination and the [I]ndigenous group’s claim for the protection of their lands and cultural rights.”3 Both plaintiffs argued that the laws in question were illegal because they singled out Indigenous people based on race. The law challenged in Guam applies to “native Chamorros,” defined as “those persons who became U.S. citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons.”4 In Brackeen, the plaintiffs challenged two classifications: “Indian famil[y]” and “Indian child[ren],” the latter defined as unmarried people under eighteen who are either “a member of an Indian tribe” or “eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe.”5 The plaintiffs in both cases characterized the laws as illegal racial classifications—illegal under the Fair Housing Act in Guam6 and illegal under the Fifth Amendment in Brackeen.7

The Guam suit ultimately settled,8 and the Court of Appeals for the Fifth Circuit reversed most of the district court’s Brackeen decision in panel and en banc decisions.9 However, the legacy of these cases lives on. The Supreme Court has agreed to review the decision in Brackeen,10and the Guam government is working to rewrite a law authorizing a self-determination plebiscite after another classification in that law was struck down on similar grounds.11 These lawsuits are just the most recent examples of race-based challenges to Indigenous rights. In such cases, plaintiffs argue that laws that apply only to a subset of people identified as Indigenous (or Indian) are illegal because indigeneity (or Indianness) itself is a racial category or because the laws use descent or ancestry as a criterion, and ancestry-based classifications are a stand-in for racial ones. Although the equal-protection guarantee in the Fifth and Fourteenth Amendments is the most common basis for such suits,12 some allege violations of the Fifteenth Amendment13 or federal civil-rights laws.14

Recent claims cite the U.S. Supreme Court’s 2000 opinion in Rice v. Cayetano15 to argue that that ancestry-based laws that project Indigenous rights are illegal because they classify people on the basis of race. In Rice, the Court relied on a thin conception of race as a static biological fact and a narrow construction of indigeneity as dependent on Federal Indian tribal status. These definitions fail to reflect the historical significance and material realities of race and indigeneity. They are also generally out of sync with how these concepts are understood in social and political movements.

The Court in Rice invalidated a voting rule that allowed only Indigenous Hawaiians to vote for the trustees responsible for land and assets held by the state in trust to benefit Indigenous Hawaiians. Rice rested on a shaky precedential foundation. The Court effectively invented a new rule about ancestry-based classifications in voting.16 For Indigenous peoples, this rule now threatens to limit all legal recognition of indigeneity to the framework of federal acknowledgement and tribal citizenship,17 leaving unrecognized tribes, Indigenous Hawaiians, Indigenous peoples in the U.S. territories, and anyone who is not a tribal citizen unprotected. As evidenced by Brackeen, it also occasionally threatens long-established federal laws that apply to Indian tribes and their citizens. These threats are not abstract: weakened legal protections for tribes and other Indigenous peoples can mean a loss of land and housing, loss of children, weakened political and judicial institutions, poorer health, greater poverty, language loss, and damage to cultural and religious practices.

The jurisprudential story of Rice exemplifies the legacy of historical blindness in the Court’s interpretation of the Reconstruction Amendments. As such, the case was an important step in a series of juridical moves to articulate a theory of race as diametrically opposed to group political consciousness. It is one of many cases remaking the Reconstruction Amendments, which addressed group harms, into individual dignitary protections and then conscripting those protections in the service of White people as a weapon against non-White group identity. It was also an important milestone in the Court’s effort to connect century-old cases about anti-Black discrimination to modern attempts to amplify the political power of minority groups through voting, flattening any distinctions between the two by ignoring their historical context. This historical blindness is part of what Ian F. Haney López labels “reactionary colorblindness,” and it is exemplified in the Court’s treatment of race-conscious remedies as morally and legally equivalent to laws intended to subjugate racial minorities.18 Neil Gotanda has similarly pointed to a sense of “unconnectedness” that distinguishes “formal race” as used by the Court from “historical race.”19 Indeed, the foundation of the Rice holding is almost entirely theoretical. The case reaches back more than a century for its primary precedent, and it connects present to past with the thinnest of factual and doctrinal threads. It is, at bottom, a triumph of the Court’s insistence that race is reducible to biological labels and devoid of political content or historical meaning.

It is striking that a case standing on such shaky doctrinal ground has not been more effectively cabined, or even overturned. If it threatens the self-determination rights, political identity, and material conditions of so many people, why hasn’t it been limited to its facts?20 Instead, Rice has been honed into a doctrinal weapon in the cultural and geographic shadows of American law through a series of Fifteenth Amendment challenges to Indigenous rights in the Pacific territories. Because these cases involved Indigenous Pacific Islanders, who are not recognized as Indians, they are not Federal Indian law cases. Because they involved disputes over land rights and self-determination, they are also not typical civil-rights cases. Off the radar of Indigenous-rights21 and racial-justice lawyers, non-Native people and conservative voting-rights groups have successfully used Rice to undermine the rights of Indigenous peoples in the U.S. territories.22

To fully comprehend the significance of these attacks on Indigenous rights in the U.S. territories, this Article engages directly with three areas of law that are not typically in conversation: Federal Indian law, constitutional race law, and the law of the territories. It is the first article to consider all three areas together, and one of only a few to consider any two of them together. The Article identifies the doctrinal framework that has discouraged such conversations and traces its effect on litigation and scholarship. In Indian law, this framework manifests in a failure to identify commonalities between Indigenous rights on the mainland and in the U.S. territories or between recognized and unrecognized tribal groups. The marginalization experienced by territorial residents is thereby reproduced in the area of Indigenous rights. In race law, it appears as a reluctance to fully understand and appreciate the racialized harms experienced by Indigenous peoples. In the law of the territories, it has resulted in a near-total failure to grapple with the desires and contemporary struggles of Indigenous residents as a distinct group. In each area, shortsighted acceptance of the doctrinal divisions between race and Indianness, between recognized and unrecognized Indigenous groups, and between citizens and subjects has also resulted in missed opportunities to rethink important questions about racialized harm, history, and inclusion. The Article argues that scholars and advocates should reject, not accept, these doctrinal divisions—and it proposes both short- and long-term options for doing so.

Beginning with its 1974 decision in Morton v. Mancari, the Supreme Court has carved out a clear doctrinal distinction between indigeneity and race.23 The law has long addressed the effects of colonization through a different structure than it addressed the effects of Black slavery and subordination. Until Mancari, however, it was possible to understand colonization as a racial harm, albeit a distinct one from enslavement.24 I have previously described how the Mancari holding, while legally correct, formally bifurcated Indianness from race and how later applications of its rule compressed the legal meaning of both categories to make them oppositional.25 In that article, I described Rice as the case that “solidified this oppositional framing” and argued that it was “a key step in the evolution of the political classification doctrine because the majority decision crystallized the dichotomy” first outlined in Mancari.26 The decision was “driven in part by a concern that legal recognition of indigeneity, which implicates ancestry, would be in conflict with Equal Protection jurisprudence that eschews any use of racial classifications,” and I predicted that it would therefore make “classifications that rely on indigenous ancestry . . . difficult for some courts to square with the Court’s colorblind race jurisprudence.”27 The cases described in this Article show that Rice has indeed been used to dismantle legal protections for indigeneity, first for non-Indian Indigenous peoples and eventually for Indian tribes as well.

Rice’s ancestry-race equivalence is central to a colorblind, anticlassification view of the Constitution. From the First Reconstruction through the Second Reconstruction, Black Americans were socially and legally classified according to race and subordinated as a result of that classification. Courts did not have to determine whether the central injury of racism occurred at classification or at subordination because the two were undeniably linked in almost every case.28 When asked to decide the constitutionality of race-conscious remedies, the Court beginning in the 1970s embraced the anticlassification view, locating the harm of racism at the moment of classification.29 As envisioned by the Court, the injury of classification is immediate and dignitary. That is, the harm is one to personal dignity; occurs at the moment of classification; and is equally experienced by anyone so classified, White or non-White, regardless of the purpose or material outcome of the classification. According to this view, classification alone causes harm because race is insignificant and irrelevant, and it therefore harms a person’s dignity to be classified according to an insignificant trait. The anticlassification view is thus premised on an understanding of race as a static, biological fact, unconnected to history, political power, or collective identity. From that definition flows descriptive and normative colorblindness—the belief that physical or biological attributes are and should be unrelated to legal rights like voting and citizenship. Accordingly, laws that make rights turn on racial classifications must be carefully reviewed.30

On the other hand, an antisubordination view focuses on whether state action harms a historically oppressed group or enforces existing hierarchies.31 Racial classifications employed to dismantle hierarchies might thus be treated differently than racial classifications that reinforce them. This view understands race as a dynamic sociohistorical process by which hierarchies have been produced, not as an abstract question of biology. It requires attention to historical harm and relative political power.32 Although it may not be immediately apparent, the reflexive assumption that race is interchangeable with ancestry is thus tied to an anticlassification, as opposed to antisubordination, view of the Constitution.

The Rice decision itself was limited in many respects. It involved a state asserting authority over matters generally reserved to the federal government. It involved voting for officers of a state government. And it involved the unique situation of an Indigenous group whom Congress had declined to recognize as an Indian tribe. As precedent, however, the case has taken on a new life. Since it was decided, advocates have cited Rice for a rule that clumsily equates race with ancestry, categorically barring ancestry-based classifications under the Fifteenth Amendment and requiring strict scrutiny under the Fifth and Fourteenth.33 It is cited in cases challenging the legality of “Indian” classifications generally,34 as well as in cases challenging benign racial classifications in other contexts, such as majority-minority voting districts and affirmative action.35 This Article traces the precedential life of Rice to show how these three areas (Indigenous rights in the territories, Indian law, and constitutional race law) are connected—and how courts have employed specific intellectual moves to endanger all three.

The claim that ancestry is equivalent to race, if taken to its logical conclusion in the hands of a colorblind, anticlassification Court, could juridically erase Indigenous peoples and fully sever the legal idea of race from its historical and material context of group harm. This will be the eventual consequence of American law’s refusal to link colonization and racial subordination.36 By centering racialized Indigenous peoples in the territories and demonstrating how their claims are illegible under Indian law, race law, and the law of the territories, this Article highlights the limits of current legal doctrine.37 Together, the existing cases cabin the recognition of historical harm and group rights to a small subset of American people (subject to ultimate federal domination) and convert any recognition of group harm into illegal race discrimination.

Because this Article is fundamentally about the law’s unwillingness to capture the overlap, distinction, and nuance of political identity categories, I begin in Part I by identifying several interrelated categories—Indigenous, Indian, colonized peoples, race, and ancestry—and describing the meaning, significance, and boundaries of each one. Three of them (Indianness, colonization, and race) are associated with distinct bodies of U.S. law (Federal Indian law, law of the territories, and civil-rights law),38 so that the axis of categorization determines the body of law that will apply to a case. In addition, when a classification is challenged in court as a violation of equal protection, the test that courts apply turns on the way the classification is characterized. Most obviously, if it is racial or can be characterized as racial, a court will apply strict scrutiny. This analysis presumes illegality unless stringent conditions are satisfied and a court’s decision to apply it often signals that it will strike down the law or policy.39 Opponents of Indigenous rights can manipulate these categories to invoke the body of law most likely to result in their desired outcome, as the litigants did in Rice. More broadly, the tight association between category and body of law can mean that the law is unresponsive to the situations of groups or people who fall into more than one category.

In Part II, I trace Rice from its holding in 2000 to its use as precedent in later cases. In that case, the State of Hawaii, seeking to invoke Federal Indian law, argued that Indigenous Hawaiians were like Indians.40 Meanwhile, the challenger, seeking to invoke constitutional prohibitions on racial classifications, argued that the class was defined by ancestry and that ancestry should be treated the same as race.41 When the Court held in favor of the challenger, it did so by holding that the use of ancestry to identify Indigenous Hawaiians was a proxy for race, and juxtaposing both concepts against political Indianness.42 The decision thus set Indigenous Hawaiians apart from Indian tribes as a matter of constitutional law and crystallized a political-versus-racial dichotomy. Part II examines how the Court used Fifteenth Amendment precedent to accomplish this result more expediently. It then examines how the limited holding of Rice has been expanded into a broad rule through circuit-court cases applying its Fifteenth Amendment analysis to the territories and later in lawsuits that move its analysis beyond the context of voting. It concludes by examining the return of Rice in lawsuits challenging the rights of Indian tribes. Part II thus provides a detailed map of the doctrinal evolution of the Rice rule through individual cases.

Part III focuses on the implications of the broad rule that emerged from the process described in Part II and its potential effects on Indigenous sovereignty and self-determination. It also considers how the delineation between categories of law has implications beyond Indigenous rights. It argues that the modern rule of Rice employs constitutional race jurisprudence to perfect the colonization project. First, it argues that prohibiting any use of ancestry juridically erases Indigenous and colonized peoples as a separate class in the present day and paves the way for members of colonizer nations to complete the project of colonization by outnumbering and outvoting them. Second, it argues that the equivalence between ancestry and race is an important pillar of the Court’s understanding of race as a matter of individual, immutable, biological characteristics. This definition of race is what enables the Court to insist, as it did in Rice, that race is irrelevant to rights, identity, and peoplehood. Biologizing race further divorces it from social, political, and historical reality, making possible the Court’s colorblind, anticlassification theory of race and turning the Reconstruction Amendments into a tool to dismantle collective racial identity and forbid structural remedies for racial subordination. That neither Indianness nor race are closely associated with the U.S. territories supports a territorial jurisprudence that inadequately addresses the role of racialization and forced inclusion in U.S. colonization, while positioning full incorporation as the solution to colonial subordination.

Finally, Part IV returns to the question of how to protect Indigenous peoples in the territories. It presents five strategies and analyzes their practical consequences and the theoretical challenges they could pose to the doctrinal puzzle described in this Article. The purpose of Part IV is not to advocate for a particular solution, but to illustrate that nearly all strategies benefit one group while harming another. I suggest that parties and amici advance the most practical and available defenses, while also challenging the larger doctrinal structure in which cases arise.