Volume 2.2 - Discrimination - Spring 1998

Title: American Indians in the Twilight of Affirmative Action

Author: Steve Russell

Abstract: So called "reverse discrimination" lawsuits attacking affirmative action based upon equal protection of the law have been successful in three federal circuit courts and unsuccessful in two. When the Supreme Court granted certiorari to hear one of these cases in the current term, civil rights organizations raised the money to settle with the white plaintiff, Citizen ballot initiatives also continue to raise the "reverse discrimination" issue in several states. Given these events, it seems that affirmative action, never intended to be permanent as a present remedy for past discrimination, is unlikely to survive on the theory that diversity is a value of constitutional dimensions.

The group at the statistical bottom of all the scales thought to measure lock of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when "Indians" is understood to mean members of federally recognized tribes rather than Indians by ethnicity. This state of the low poses difficult policy issues for tribal leaders. Standing aside from other minorities is risky, as is litigation against formal equality as a maximum when the law does not guarantee Indians formal equality as a minimum.

About the Author: Steve Russell is an Assistant Professor of Social and Policy Sciences at the University of Texas at San Antonio and President of the Texas Indian Bar Association.

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