By: Matthew L.M. Fletcher
This Article will demonstrate that virtually all elements of
Indian affairs can be traced to the decision of the United States
to recognize Indian tribes as political entities and to make Indian
law and policy based on the political status of Indian
tribes. Indian law is often assumed to be race law. As
a result, observers tend to try to force Indian law into the
constitutional race law paradigm. Justice Blackmun’s footnote
24 in Morton v. Mancari—describing federal legislation and rules
relating to Indian tribes as a political classification—hit upon
the proper understanding of Indian law. The implementation of
the rule of Johnson v. M’Intosh, Indian treaties, and Acts of the
First Congress offers significant evidence that the original
understanding of the Founders was that Indian tribes and the
federal government enjoy a political, not racial, relationship.