Document Type
Article
Abstract
In Morton v. Mancari, the Supreme Court upheld a statute granting hiring preference to Indian candidates on the grounds that it did so not on the basis of race but on the basis of affiliation with a tribe as a political entity. As the Court recognized, if such a law were struck down on equal protection grounds, the basis for all federal policy protecting Indian interests would be undermined. In Mancari, this reasoning was used to uphold a law that benefitted Indian candidates pursuant to the federal government’s recognized trust responsibility to Indian tribes. The logic of Mancari has since been extended in cases challenging restrictive and burdensome federal Indian policies on the grounds that these policies—while perhaps detrimental to the individual Indians subject to them— are not subject to heightened scrutiny because they classify Indians based on political, as opposed to racial, status. Over time, the Mancari analysis has morphed from a nuanced assessment of the federal government’s relationship to Indian tribes into yet another tool of asserting plenary federal power over tribes, often to the detriment of tribal sovereignty and the welfare of individual tribe members.
While much has been written about Mancari’s determination that Indian status is a “political rather than racial” distinction, no in-depth attempt has been made to square this line of cases with existing First Amendment law protecting the freedom of association. This article explores the intersection between Mancari and First Amendment doctrine, arguing that portions of federal Indian policy impermissibly burden the free association rights of individual Indians to engage with their tribes. Viewed through the lens of the First Amendment, clearer distinctions can be drawn between laws that impermissibly penalize tribal affiliation and those that rely on Indian status as a means of providing support consistent with the federal government’s trust responsibility.
This article accomplishes two goals: (1) to further develop the theory of tribal membership as a political association rather than a racial classification, buttressing the Mancari analysis against recent attacks that seek to undermine legislation that is protective of Indian interests; and (2) to offer a pathway to restoring Mancari’s promise of fulfilling the federal trust responsibility and promoting tribal sovereignty, while still allowing for strict scrutiny of measures burdening Indian interests.
DOI
https://www.doi.org/10.70657/SDLR.V71.I3.644
Recommended Citation
Andrea Nishi,
Freedom of Tribal Association,
71
S.D. L. Rev.
644
(2026).
Available at:
https://red.library.usd.edu/sdlrev/vol71/iss3/15