Archive for category Constitutional Law

Clinton’s Scholarship Cited By United States Supreme Court

Three of Professor Clinton’s scholarly articles were cited six times and extensively relied upon in Justice Gorsuch’s concurring opinion in Haaland v. Brakeen, 599 U.S. 255 (2023). The case upholds congressional power to enact the Indian Child Welfare Act of 1978. The official opinions in the case can be found on the SCOTUS website here.

Clinton Authors Op-Ed on “Natural Born” Citizen Requirement for President

Professor Clinton has authored an Op-Ed on the meaning of the constitutional “natural born citizen” requirement for President.  The piece questions the constitutional qualification of Senator Ted Cruz (R-Tex.) and others to hold that office.  The piece was published today by US New & World Report and can be found here.

Clinton Quoted in Slate on Effect of Tribal Gay Marriage

Robert Clinton

Robert Clinton, Foundation Professor of Law, recently was quoted in an article about a Native American gay wedding written by Mark Joseph Stern for Slate magazine.

The article, “How Did a Gay Couple Legally Marry in Oklahoma?” tells the story of two Native American men who were wed under tribal law in a state where same-sex marriage remains formally banned.

Concerning whether the marriage will be recognized by the state of Oklahoma, Clinton said the current patchwork of marriage laws presents an intriguing ambiguity. He said that as a general rule, every state grants respects other states’ laws and rulings, but added that in 1939, the U.S. Supreme Court recognized a state’s right to ignore another state’s law if it seriously contravened its own—the so-called public-policy exception.

“The public-policy exception has never been litigated in application to gay marriage, but it seems possible that tribal gay marriages should be recognized in most states that don’t have strong public policy to the contrary,” Clinton said.

To read the full article, click here.

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights and civil procedure. He is an Affiliated Faculty member of the ASU American Indian Studies Program. He also is a Faculty Fellow in the Center for Law, Science & Innovation.

Race, Citizenship, and the Cherokee Nation

American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.

Prior to their removal from the ancestral aboriginal homelands in Georgia, North Carolina and Tennessee on the horrendous Trail of Tears, the Cherokees both influenced southern plantation culture in significant ways and were also significantly influenced by it. One of the most troubling aspects of that cross-cultural influence involved adoption by some Cherokees of plantation farming culture together with slavery. While history suggests that the Cherokee experience with slave holding was nowhere near as brutal as that suffered by slaves held by their white neighbors, the experience nevertheless was dehumanizing. That history gives lie to the notion that slavery uniquely constituted a white imposition on colored peoples and that “people of color” were incapable of such discrimination. Many of the Cherokees’ slaves suffered the same indignities as their “masters” when they were forcibly removed with the Cherokees on the Trail of Tears to the Indian Territory. The fact that some members of the Cherokee Nation continued slavery in the Indian Territory led portions of the Nation to side and fight with the Confederacy during the Civil War. In fact the last Confederate battalion to surrender during the Civil War was the batallion of Cherokees, Seminoles and Osages led by Brigadier General Stand Watie (Degata or Stand Firm), a noted and controversial Cherokee leader, who surrendered months after Lee had capitulated at Appomattox.

Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.

White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”

While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v. Ferguson (1896).

This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.

Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.

Earlier this month, the Cherokee Nation voted in a referendum to limit citizenship in the Cherokee Nation to persons of Cherokee blood. Most of the descendants of the Cherokee freedmen had not yet been enrolled and therefore could no participate in the referendum. The vote indicated that 76% of the voters favored moving from a race neutral to a racial definition of Cherokee citizenship in great part to exclude the descendents of the Cherokee freedmen who, of course, are of African-American descent. Since over 2,000 Cherokee freedmen descents had enrolled, the practical effect of the vote was to revoke the Cherokee citizenship of over 2,000 people and to deny future enrollment to others who could prove Cherokee freedmen descent. Answering a question asked by Chief Justice Stacy Leeds in the Allen litigation as to whether the Cherokee Nation was a political tribe or a race, the people of the Cherokee Nation voted overwhelmingly in favor of race. Since the Cherokee Nation did not begin as a people who culturally drew racial classifications as part of the determining tribal identity, the fact that three-fourths of the tribe now calculates its identity in purely racial terms speaks volumes about the ability of long-standing American racism to virally infect, contaminate and alter the sense of identity of others, including the victims of racial discrimination.

The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.

When the white government of South Africa disenfranchised and relegated to second class citizenship its black citizens under the guise of apartheid, the international community and, more particularly, the United States government took action to assure that equal political rights were given to all. Economic and cultural embargoes and the refusal to recognize or deal with the white apartheid government ultimately ended human rights abuses in South Africa and returned political control to a democratic state in which all South Africans had the right to participate equally. While Indian tribes no doubt have the same sovereign right to determine their own citizenship that South Africa does, their sovereign authority to do so does not and should not insulate them from either criticism or adverse political action by the federal government when they make decisions that disenfranchise or expel portions of their tribe, particularly when they do so strictly on the basis of race. The United States is a party to the 1866 Treaty and, just like any Indian tribe, has a right to insist that its treaty rights be honored. Cutting off federal assistance or refusing to recognize or deal with any government of the Cherokee Nation of Oklahoma elected under the citizenship rules just adopted by Cherokee voters might be major steps the federal government could take to demonstrate that racism is no more acceptable when undertaken by Cherokee voters than when adopted by Southern legislatures a half-century ago in de jure segregation statutes. Only time will tell whether the federal government has the same will and patience to end abuses of basic human political rights by Indian tribes in the same way it did in South Africa. The response of the United States government to this challenge will speak volumes about whether it really has developed a mature government-to-government relationship with the Indian tribes, as it frequently claims.


Equality & Indians

While visiting on sabbatical at Wellington University Victoria and discussing with others the debates over Maori rights, the question of the liberal paradigm of equal treatment of citizens within a state frequently arose. This problem involves precisely the same discussion of equality frequently heard regarding Indian law in the United States.

One answer that has occurred to me here is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The importance of the historic treaty relationship with many indigenous peoples is that it situates the problem in the second, rather than the first, paradigm.

By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!

Affirmative Action and the University of Michigan Cases (Drafted Before Decisions)

Affirmative Action, History & Judicial Social Engineering

Copyright 2003, Robert N. Clinton

A little over 185 years ago, Federal Treaty Commissioners, led by Lewis Cass, met at the foot of the Rapids of the Miami of Lake Erie to negotiate a treaty with a number of Great Lakes Indian tribes, including the Chippewa, Ottawa (or Odawa), and Potawatomi from Michigan. The Fort Meigs Treaty of 1817 emerged from those talks. In it the Michigan Tribes donated lands to a college at Detroit and further authorized the donated lands to be kept or sold at the discretion of the college. The express purpose of the land grant contained in the Treaty was Indian education. The donor Michigan Tribes stated in the Treaty that they made the grant because “may wish some of their children hereafter educated.”

The land grant in the Fort Meigs Treaty marked the start of the University of Michigan, which to this day bears the 1817 date on its official seal as the date of the founding of the school. Sale of the lands donated by the tribes produced the original endowment of the University of Michigan, which purchased the core of its current campus in Ann Arbor, Michigan and provided much the University’s original endowment. Lewis Cass, the territorial governor and federal treaty commissioner at the Fort Meigs Treaty became the first President of the University of Michigan.

Thus, like Harvard, Dartmouth, and the College of William and Mary, to name a few, the history of the University of Michigan demonstrates that it was founded in part specifically to educate Indian students. In this case, land grants from the Michigan Tribes intended to educate their children provided the school’s original capital. Ironically, today the University of Michigan finds itself embroiled in a major controversy pending before the United States Supreme Court over whether it can even consider Indian or other minority racial status of applicants in its admissions processes. In light of this history, the question of the constitutionality of affirmative action at the University of Michigan raises the issue of whether the University can continue discharge one of its original founding missions – the education of Indian students.

The history of the University of Michigan illustrates the fact that frequently public institutions of higher learning have multiple objectives, not all of which are entirely consistent. For example, the University of Michigan, as a state institution of higher learning, has some obligation of educate the citizens of the state. However, it also has a special mission, derived from the history of its founding, to educate minority students, and in particular the descendents (“children” in the words of the Fort Meigs Treaty) of Indian tribes. Of course, Indian tribes need educated and highly skilled tribal officials, tribal staff, and tribal citizens to run their tribal governments, just as much as the State of Michigan requires an educated electorate – a point the ancestors of the Michigan Tribes foresaw when they helped found the University of Michigan. In the University of Michigan cases, the University itself has argued that it not only has the objective of admitting an educationally qualified class, it also has a compelling educational objective in providing a racially and intellectually diverse educational environment that mirrors America, not just the most politically powerful and numerous segment of it.

The plaintiffs in the University of Michigan cases and the Bush Administration in its friend of court briefs have grossly over simplified the purposes of higher education and the nature of the admissions process in making their arguments against affirmative action. The premise of their argument is the simple suggestion that public schools have a single-minded objective to provide education to the most qualified and that the admissions process must therefore admit the most “qualified” on a colorblind, race-neutral basis under the Equal Protection Clause of the Fourteenth Amendment.

The history of the founding the University of Michigan demonstrates the falsity of this premise. First, institutions of higher learning often have multiple objectives, which are reflected in their admissions processes. The University of Michigan, for example, was not founded merely to provide education to the state’s most “qualified” students based on some arbitrary test score; it was also specifically founded to educate Indian students in addition to other objectives such as educating Michigan residents and other students. Clearly, the University of Michigan cannot accomplish its founding mission of educating Indian students without considering their Indian status as part of the admissions process. Given that national curves suggest Indian students often score lower than non-Indian students on many standardized tests, in part as a result of the history of neglect of and inadequate funding by federal and state governments for education on Indian reservations, if the University of Michigan cannot consider an applicant’s Indian status as part of the admission process, it cannot fulfill its founding mission of educating Indian students because it may not even be able ask them if they are Indians as part of the admissions process.

In the University of Michigan cases pending before the United States Supreme Court, the plaintiffs and the Bush Administration argue that the Equal Protection Clause of the Fourteenth Amendment compels the University of Michigan and other public schools of higher learning to use race-neutral or colorblind criteria, impliedly arguing that the later adoption of the Fourteenth Amendment must have rendered the University of Michigan’s founding mission of educating Indian students somehow illegal. In fact, President Bush as much as said so in his message on affirmative action by specially singling out Native Americans in his comments.

This point raises the second problem with the argument — the political slogans of race neutrality or colorblindness find no support whatsoever in the language or history of Equal Protection Clause of the Fourteenth Amendment, as the University of Michigan cases demonstrate. If the University of Michigan was founded to educate Indian children, nothing in the Fourteenth Amendment could conceivably render that objective unconstitutional since section 2 of the Fourteenth Amendment itself draws an Indian classification for purposes of the census. Those who argue that the Equal Protection Clause of the Fourteenth Amendment requires race neutrality and colorblindness in all government decisionmaking totally ignore the fact the same constitutional amendment draws a benign Indian classification. The Fourteenth Amendment therefore could not conceivably have been thought by its drafters to totally outlaw even benign Indian classifications. What was outlawed by the 14th Amendment was what the early civil rights cases often called “invidious racial discrimination,” the disadvantaging of persons of minority races based solely on their race. Colorblindess as a legal norm therefore has no basis whatsoever in the language or history of the Fourteenth Amendment. Responding to contemporary political pressure, the decisions of the United States Supreme Court have simply invented it as a social engineering norm in the guise of legal doctrine. If the Court therefore accepts the arguments of the plaintiffs and the Bush Administration in the University of Michigan cases, it will be the majority of the Supreme Court and not the University of Michigan that is engaged in legal social engineering. The more interesting question is to what end. Here, history may provide another guide.

In 1883, the Supreme Court of the United States in the Civil Rights Cases struck down as unconstitutional under the Fourteenth Amendment the nation’s first law banning racial discrimination in places of public accommodation, such as hotels, public transportation, theaters, and other places of amusement. Justice Bradley’s opinion for the majority of Court ended, “[w]hen a man has emerged from slavery . . . there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen or man, are to be protected in the ordinary modes by which other men’s rights are protected.” The first Justice Harlan was the sole dissenter and the only Justice ready to uphold the ban on racial discrimination in places of public accommodation. He rejected the notion that special protections of the black race were inappropriate. He wrote, “If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic any class of human being in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.” Justice Harlan thus argued for a special entitlement of the black race under the Fourteenth Amendment designed to produce true racial equality by establishing the political independence of minority races.

History teaches important lessons about race in the United States. Within 15 years of the Court’s decision in The Civil Rights Cases, the same Supreme Court in Plessy v. Ferguson created the separate but equal doctrine that reinforced the nation’s racial segregation for another six decades. The only dissenter from the separate but equal doctrine in Plessy was Justice Harlan, the sole dissenter in The Civil Rights Cases and the only justice who believed that the Fourteenth Amendment permitted, and perhaps required, special legislation protecting minorities in order to create true political racial equality. National laws outlawing racial discrimination in places of public accommodation did not become a national reality for another 80 years. The debates today over affirmative action and the use of race in the University of Michigan admission processes sound remarkably like the debate between the majority of the Supreme Court and Justice Harlan over special legislation to protect the newly freed slaves. In light of this history, the nation should hope that the members of the United States Supreme Court recall the often repeated admonition of the great Harvard philosopher George Santayana, “those who do not remember history are condemned to repeat it.” The nation simply cannot afford another half-century delay in its often-derailed quest for social justice and political racial equality.

One thing is certain about the University of Michigan affirmative action cases, however. Whatever way the United States Supreme Court rules on whether the University of Michigan can continue to employ Indian status or other racial classifications in its admissions processes in furtherance of its founding mission of educating Indian students, the Michigan Indian Tribes that donated land that founded the University of Michigan so their children could be educated there will not get their land back!