No, I don't miss that point. I simply come at it from a direction you are not used to. Tribal governments must decide if they want to defend the constitutionality of Title 25 of the US Code based on the distinction between "race" and political affiliation. Because most tribal histories conflate "race" with cultural competence (for a bunch of good reasons that appear elsewhere in my writings), Indians generally rely on "race." "Race," as a scientific category, does not exist. As a legal category it is poisonous, and I think we will lose. However, as an Indian lawyer I will take the Indian side even if the tribes cut my legs off. You are wrong to think the Cherokee Supreme Court was in a no win situation. That had a chance to take on the race/citizenship distinction and they did not. Even a bigger deal, they had a chance to make a principled statement on treaty abrogation from an Indian point of view and they did not. In short, they could have reached the same outcome in a manner more congenial to Indian interests, and they did not. I will say I would not have reached that outcome, but that's not the thrust of my criticism. The opinion is a horrible job of work, no matter what result.
Thursday, September 15, 2011 - 16:39