Michael Doran of UVA Law has posted “The Equal-Protection Challenge to Federal Indian Law” (University of Pennsylvania Journal of Law & Public Affairs, vol. 6 (2020)) on SSRN. Here’s the abstract:

This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between Indians and non-Indians and thus uses the suspect classification of race, triggering strict scrutiny under the equal-protection component of the Due Process Clause. If the challenge to the Indian Child Welfare Act succeeds, the entirety of federal Indian law, which makes hundreds or even thousands of distinctions based on Indian descent, may be unconstitutional. This article defends the constitutionality of federal Indian law with a novel argument grounded in existing Supreme Court case law. Specifically, this article shows that the congressional plenary power over Indians and Indian tribes, which the Supreme Court has recognized for nearly a century and a half and which inevitably requires Congress to make classifications involving Indians and Indian tribes, compels the application of a rational-basis standard of review to federal Indian law.

Citation: 
Doran, Michael, The Equal-Protection Challenge to Federal Indian Law (September 29, 2020). University of Pennsylvania Journal of Law & Public Affairs, vol. 6 (2020), Available at SSRN: https://ssrn.com/abstract=3701565

Michael Doran

UVA Law School

Michael Doran is the Honorable Albert V. Bryan Jr. '50 Research Professor of Law at UVA Law School. His research interests include tax policy, executive compensation and legal ethics. Doran previously taught at the Law School from 2005 to 2009 and at Georgetown University Law Center from 2009 to 2014. Before he began teaching, he was a partner at Caplin & Drysdale in Washington, D.C., practicing federal tax and federal pension law. He also served twice in the Office of Tax Policy at the U.S. Treasury Department. Doran teaches tax, property, legal ethics, Native American law and employee benefits law.

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