Many people mistakenly believe that the unique status of Indians and Indian tribes is based on race. Unfair and illegal racial discrimination is a commonly used argument in challenging tribal sovereignty, the tax status of tribes and individual Indians, and other perceived “special rights.”

Indian people and tribes often are treated differently under U.S. laws, but such treatment has nothing to do with racial classification. While Indians and non-Indians are different races, Congress and the courts have made clear that separate treatment of Indians is based on their status as separate political – not racial – groups. Indeed, the Commerce Clause of the Constitution explicitly authorizes Congress to treat Indians and Indian tribes as distinct groups, separate from other American citizens and domestic or foreign governments.¹; As the Supreme Court has recognized, “classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the federal government’s relations with Indians.”²

Similarly, the Supreme Court has explicitly held, in a case involving hiring preferences for Native Americans at the Bureau of Indian Affairs, that such preferences are not discriminatory:

“(T)his preference 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… It is directed to participation by the governed in the governing agency… similar in kind to the constitutional requirement that a United States Senator, when elected, be ‘an Inhabitant of the State for which he shall be chosen.’ … The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities… As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.”³

In fact, of the thousands of federal Indian laws that treat Indians differently than non-Indians, the Supreme Court has not invalidated a single one on the grounds that it constitutes race discrimination.⁴

1 U.S. Constitution, Article I, Section 8, Clause 3.

2 U.S. v. Antelope, 430 U.S. 641, 645 (1977).

3 Morton v. Mancari, 417 U.S. 535 (1974).

4 The Rights of Indians and Tribes, The Basic ACLU Guide to Indian and Tribal Rights, Stephen L. Pevar, 2nd ed., 1992.