I. Introduction

“Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it.”

— Justice Gorsuch[1]

Native Americans face unique challenges at the intersection of education, sovereignty, and systemic inequalities. The Supreme Court’s landmark decisions in Students for Fair Admissions v. Harvard[2] and Haaland v. Brackeen could significantly impact Native American representation in higher education, reshaping admissions policies and tribal sovereignty considerations.[3]

In Students for Fair Admissions (SFFA), the Court struck down race-conscious admission policies, declaring them unconstitutional.[4] The decision narrowed decades of precedent, including Grutter v. Bollinger, a landmark affirmative action case, and cast uncertainty over affirmative action policies designed to increase representation for historically underrepresented groups, such as Native American students.[5] In Brackeen, the Court was presented with a challenge to the Indian Child Welfare Act (ICWA).[6] The plaintiffs in this case challenged ICWA on four grounds: congressional power, the anticommandeering doctrine, equal protection, and nondelegation.[7] The Court upheld ICWA; however, it declined to rule on the equal protection challenge.[8] Brackeen resurfaced the question: When should Native American identity be considered a political classification rather than a racial one?[9] This question, as seen in this Comment, has been a common one throughout history, dating back to the founding of the United States.[10]

While SFFA knocked down race-conscious admission policies, Native Americans have historically been recognized not only as a racial group but also as a distinct political entity.[11] This Comment will examine how the SFFA ruling poses challenges for Native American students, given the special legal status of tribal nations and the federal government’s trust responsibilities, and how the Court’s silence on the equal protection issue in Brackeen fits into these challenges.

Part II focuses on SFFA v. Harvard and the pivotal affirmative action cases that shaped its outcome. Part III examines the unique political relationship between Native American tribes and the United States by exploring founding-era perspectives on tribal status. Part IV analyzes Morton v. Mancari, Haaland v. Brackeen, and ICWA to examine the Supreme Court’s approach of classifying Native Americans as a political rather than racial group in the context of affirmative action, to explore how this framing subjects Native American admissions preferences to rational basis review instead of strict scrutiny, and to consider its implications for the future of affirmative action for Native Americans. Part V explores the future of affirmative action for Native Americans, examining the legal uncertainty left by SFFA and Brackeen, as well as the sustainability of political classification-based admissions policies. Additionally, it will examine alternative strategies for maintaining Native American representation in higher education and potential challenges to political classification in affirmative action.

II. SFFA v. Harvard and the Future of

Affirmative Action

A. Supreme Court Precedent on Race-Conscious Admissions

The judicial history of affirmative action is complex and deeply embedded in American history.[12] This Comment does not aim to provide an exhaustive history but rather to outline key policies and trace the evolution of the judicial decisions on the issue. In SFFA, the plaintiffs asked the Court to “admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education.”[13] The plaintiff’s counsel continued, stating that “Grutter should be overruled both for public schools and for private schools that accept federal funds.”[14] The issue presented to the Court in SFFA is a familiar question, as it has been brought to the Court’s attention on numerous occasions.[15]

The Supreme Court has addressed race-conscious admission policies in several landmark cases. In 1978, the Court ruled on Regents of the University of California v. Bakke, where Allan Bakke, a white male applicant to the U.C. Davis Medical School, sued the university after being rejected twice despite strong academic qualifications.[16] Bakke argued that the medical school’s affirmative action program, which reserved seats for “disadvantaged” applicants, violated his Fourteenth Amendment right to equal protection.[17] The Court ruled in a fractured decision, allowing race to be used as a “plus” factor in admissions decisions but prohibiting quotas.[18] The Court recognized that a diverse student body was a compelling interest but warned that race should not be the sole deciding factor for admission.[19] Additionally, the Court rejected the argument that race-conscious admissions could solely remedy past societal discrimination, instead emphasizing that diversity itself was the legitimate goal.[20]

More than two decades later, the Court revisited race-conscious admissions in Grutter, upholding the University of Michigan Law School’s use of race in its admissions process.[21] The university’s policy aimed to achieve a “critical mass” of minority students, avoiding racial quotas and focusing on a holistic review of each applicant.[22] Justice O’Connor, writing for the majority, emphasized that diversity’s educational benefits were vital, reinforcing Bakke’s framework.[23] However, the majority stressed the idea that there must be a “logical end point” to race-conscious admissions.[24]

The last landmark Supreme Court case this Comment will touch on is Fisher v. University of Texas.[25] In this case, the Court’s stance on race-conscious admissions was tested again when Abigail Fisher challenged the University of Texas’s “Top Ten Percent” admissions plan, which effectively promoted racial diversity despite being race-neutral on its face.[26] Initially, the Court sent the case back to the lower courts for more rigorous review,[27] but later upheld the policy, reiterating that race-conscious admissions must meet strict scrutiny standards.[28] Although the Court approved the policy in Fisher II, it warned that the university must regularly reassess its effectiveness.[29] The decision foreshadowed future challenges to race-conscious admissions, reflecting the Court’s increasing concern over the long-term application and constitutionality of such policies.[30]

B. SFFA v. Harvard: The Decision, Reasoning, and Broader Implications

While the Court has historically allowed race-conscious admissions, it has also consistently emphasized that such policies must be narrowly tailored, flexible, and continuously reassessed to ensure they do not rely on quotas or stereotypes.[31] The most recent attack on race-conscious admissions programs was also the most successful.[32] The Court finally decided Justice O’Connor’s “logical end point” had arrived for race-conscious admissions in SFFA v. Harvard.[33]

Prior to SFFA, the consideration of race in college admissions was permitted only for two purposes: (1) to remedy the effects of past identified discrimination and (2) to promote a diverse student body.[34] However, as explained above, the majority in Grutter acknowledged the need for an eventual conclusion to race-conscious admissions policies, stating that the “use of race must have a logical end point.”[35] The majority further emphasized that the central purpose of the Fourteenth Amendment is to eliminate all government-imposed discrimination based on race.[36]

The Students for Fair Admissions (SFFA), which brought the suit against Harvard and the University of North Carolina (UNC), “is a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”[37] SFFA claimed that Harvard and UNC’s race-conscious admissions policies unfairly disadvantaged all applicants, but particularly Asian Americans, claiming that Harvard “holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission.”[38]

The legal argument in this case was not novel. It closely mirrored the argument presented in previous Supreme Court race-conscious cases;[39] however, SFFA leveraged the time that had passed since Grutter.[40] The language in Grutter[41] effectively created a countdown for how long diversity could remain a compelling governmental interest under strict scrutiny.[42] In the oral arguments, this concern was proven as the Justices questioned when the timeline ends for race-conscious admissions and claimed that the lack of a distinctive endpoint could have a dangerous effect.[43] Ultimately, the Court held that universities must operate race-based admission programs in a way that is “‘sufficiently measurable to permit judicial [review]’ under the rubric of strict scrutiny.”[44]

The decision struck down race-conscious admission policies, declaring them unconstitutional for “unavoidably employ[ing] race in a negative manner” and relying on “racial stereotyping.”[45] The decision narrowed decades of precedent, including the three landmark cases discussed above.[46] By rejecting the rationale that race could be used as a factor to foster diversity, the ruling cast widespread uncertainty over affirmative action policies designed to increase representation for historically underrepresented groups, such as Native American students.[47]

III. The History of the Unique Political Status of Native American Tribes

Understanding the unique challenges faced by Native American students in the context of affirmative action requires examining the historical and legal framework behind the relationship between tribal nations and the U.S. government. Native American law is often mistakenly considered to be race law.[48] However, this mischaracterizes the distinct political relationship between Native American tribes, Native American individuals, and the federal government.[49] This unique relationship was established during the founding era of the United States and has been consistently reinforced throughout U.S. legal precedent.[50]

A. Founding-Era Perspectives on the Status of Native American Tribes

The actions of the Framers of the Constitution and Congress during the early years of the American Republic make it clear that their original understanding recognized a distinctly political relationship between the federal government and Native American tribes.[51] “[W]hile their concerns [of Native Americans] derived from racial animus and misunderstanding, their policy and legal choices offered a response to the political status of Indian tribes, not the racial characteristics of Indian people.”[52]

The Framers’ decision to include the Indian Commerce Clause in the Constitution indicates that they saw the government’s relationship with the tribes as a distinctly political one. The clause granted Congress exclusive authority to regulate commerce with Native American tribes.[53] This shows the Framers recognized tribes as separate, distinct governments.[54] The Framers’ approach to tribal relations mirrored the way they treated foreign nations.[55] Similar to treaties with other sovereign entities, early U.S. treaties with Native American tribes acknowledged their autonomy and self-governance, establishing government-to-government relationships rather than mere regulatory oversight.[56]

The Trade and Intercourse Acts regulated trade between the United States and Native American tribes.[57] These policies laid the groundwork for how the United States would interact with Native tribes.[58] One of the first regulations put in place by Congress to regulate trade with tribes stated “[t]hat no person shall be permitted to carry on any trade or intercourse with the Indian tribes.”[59] The United States continued to engage with tribes through treaties “as opposed to seeking opportunities to purchase lands from individual Indian landholders.”[60] Treaties were the primary method of engaging with tribes until 1871.[61]

B. Post-Ratification Perspectives on the Status of Native American Tribes: The Marshall Trilogy

The Supreme Court solidified the political status of Native American tribes in one of the first major cases involving Native American law: Johnson v. M’Intosh.[62] This case was the first of three cases that make up the Marshall Trilogy, a string of cases that provided foundational determinations for Native American law in early America.[63] Johnson set important precedents for how U.S. law views Native American land rights and the relationship between Native tribes and the federal government.[64]

Johnson involved the sale of the same parcel of land in Illinois by the same Native tribe to two different buyers, one in 1773 and the other in 1775.[65] The question presented to the Court was whether these land transactions were valid under U.S. law.[66] Ultimately, the Court invalidated the first sale, stating the Native tribes could not freely sell land without the approval of the federal government.[67] This was based on the Rule of Discovery, a European legal concept that granted European nations the right to claim lands occupied by non-Christians.[68] The second sale was approved because “it was transacted in accordance with the authority of the sovereign.”[69]

This opinion is key to the argument in this Comment because the Court established that Native tribes’ rights to land were absolute; they could be extinguished only through conquest or purchase.[70] First, the United States could extinguish Native American land rights by conquering a tribe; this didn’t necessarily mean killing or displacing individual Native Americans, but rather overcoming the sovereignty of the tribe as a whole.[71] Second, Native American land rights could be extinguished through treaties and purchases made by the federal government.[72] This treated Native tribes as sovereign entities with the ability to negotiate and consent to land sales.[73]

The Court’s treatment of Native American affairs in Johnson reflects the view that Native American tribes were sovereign nations with the ability to enter into treaties, rather than being merely collections of individuals or families.[74] The Court’s ruling solidified the idea that Native American tribes were political entities with certain rights. However, these rights were limited by the Rule of Discovery, which gave the U.S. government ultimate authority over Native American lands.[75]

The political sovereignty idea was recognized again by the Court in the remaining cases that make up the Marshall Trilogy. In Worcester v. Georgia, the Marshall majority recognized the Native American tribes’ unique political status as “distinct political communities.”[76] Additionally, in Worcester, the Court ruled that Georgia had no authority to enforce its laws in Cherokee territory, affirming the sovereignty of the Cherokee Nation within its own lands and protecting it from state interference.[77] In Cherokee Nation v. Georgia, the Court held that the Native American tribes were not foreign nations within the meaning of the Constitution; rather, they were considered “domestic dependent nations,” meaning they had a unique relationship with the U.S. government but were not fully sovereign states.[78]

The Marshall Trilogy is fundamental in understanding the legal status of Native American tribes and their sovereignty. Johnson set the stage for how the United States would treat Native American tribes as political entities regarding land rights.[79] The cases that followed Johnson, making up the remainder of the Marshall Trilogy, solidified the political status of Native American tribes by recognizing them as “distinct political communities”[80] or “domestic dependent nations.”[81]

C. The Fourteenth Amendment Historically Excluded Native Americans

After the Civil War, the Civil Rights Act of 1866 granted full citizenship to formerly enslaved peoples; however, it excluded “Indians not taxed.”[82] The Civil Rights Act was quickly constitutionalized through the Fourteenth Amendment.[83] Before the adoption of the Fourteenth Amendment, congressional debates on the Civil Rights Act reveal that Congress consistently recognized the political relationship between Native American tribes and the U.S. government.[84]

During the Senate’s three-day debate regarding the status of Native Americans under the Civil Rights Act, Senator Trumbull stated that the United States’ “dealings with the Indians are with them as foreigners, as separate nations. [That the United States] deal[s] with them by treaty and not by law.”[85] Trumbull continued, “[t]he Indians have separate governments of their own. They do not recognize nor are they made subject to the laws of the United States. They make and administer their own laws.”[86] Senator Trumbull suggested the phrasing “excluding Indians not taxed,” which ultimately became the words used in the Civil Rights Act as well as the Fourteenth Amendment.[87]

Senator Howard protested the addition of the “Indians not taxed” language, stating he “hope[s] that amendment to the amendment will not be adopted. Indians born within the limits of the United States and who maintain their tribal relations are not in the sense of this amendment born subject to the jurisdiction of the United States.”[88] Senator Howard continued, “[Native Americans] are regarded, and always have been in our legislation and jurisprudence, as being quasi-foreign nations.”[89]

The Supreme Court viewed the language of the Fourteenth Amendment regarding Native Americans to indicate that the absolute exclusion of Native Americans was “wholly inconsistent with their being considered citizens.”[90] Even if a Native American born within a tribe renounced tribal affiliation and came within the complete jurisdiction of the United States, they were still denied citizenship.[91]

The Civil Rights Act of 1866 debates, along with the Supreme Court’s interpretation of the original language in the Fourteenth Amendment,[92] continue with the theme seen throughout history that Native Americans were viewed as distinct political groups by Congress and the Court.[93] The relationship between the U.S. government and Native American tribes has been distinctive throughout history, and that relationship stands to this day.[94] This idea was stressed only six years ago in McGirt v. Oklahoma, when Justice Gorsuch, writing for the majority, emphasized that Native American tribes remain “distinct political communities, having territorial boundaries, within which their authority is exclusive” and recognized by the United States, free from state interference.[95]

The historical and legal framework surrounding Native American tribes demonstrates that their relationship with the federal government is fundamentally political, not racial.[96] From the Founding Era to modern Supreme Court decisions, Congress and the courts have consistently recognized tribes as sovereign political entities.[97] This long-standing precedent continues to shape Native American law today, reinforcing that laws affecting Native Americans—such as the ICWA and tribal self-governance policies—are based on political classification rather than racial preferences.[98] As legal challenges to affirmative action persist, this historical context remains critical in protecting Native American rights.

IV. Reframing Equal Protection: Native American Classification Under Morton v. Mancari and Haaland v. Brackeen

This Part examines how the Supreme Court has framed Native American classification under the Equal Protection Clause, focusing on the foundational case Morton v. Mancari and its implications for laws specific to Native Americans. Morton established that preferences for Native Americans in federal policies are political rather than racial classifications, which shaped the legal framework for Native American rights under the Equal Protection Clause.[99] This Part also discusses the ICWA, a law rooted in the same political classification justification, and its role in preserving tribal sovereignty. Lastly, this Part analyzes the recent challenges to ICWA in Haaland v. Brackeen, where the Court sidestepped the equal protection question, leaving Native American laws vulnerable to future legal attacks.

A. Morton v. Mancari

Morton v. Mancari is a pivotal case in Native American law, especially regarding Native American tribe members’ classification under the Equal Protection Clause. The case was brought by a group of non-Native American employees from the Bureau of Indian Affairs (BIA).[100] In this case, the Commissioner of Indian Affairs implemented a policy allowing the BIA to grant hiring and promotion preferences to qualified Native Americans.[101] This policy applied not only during the initial hiring process but also when a Native American and a non-Native American employee within the BIA competed for a promotion.[102]

The non-Native employees filed a class action, arguing that the BIA’s preferential treatment of Native Americans constituted invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment.[103] Ultimately, the Court held that the preference did not violate the Fifth Amendment.[104] The Court found the BIA’s hiring preference was “granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”[105]

Footnote 24 in Morton v. Mancari introduced a way of thinking about how the law should treat certain preferences for Native Americans in comparison to other racial minorities.[106] Justice Blackmun “articulate[s] a theory suggesting that the strict scrutiny analysis applied to laws specifically pertaining to racial minorities should not apply to federal statutory or regulatory preferences favoring Indians.”[107] Blackmun argues that federal laws pertaining to Native Americans are not racially discriminatory because they are based on a political status.[108] Additionally, the laws apply to members of federally recognized tribes, not to all individuals who are racially classified as Native Americans.[109] Thus, it is not about race; it is about the special political relationship that exists between the federal government and federally recognized tribes.[110]

While this theory is important to the future of Native American classification under the Fifth and Fourteenth Amendments, the footnote is underdeveloped.[111] The Court failed to fully explore or justify this idea in the case itself; thus, the footnote could, arguably, be dicta.[112] However, subsequent Supreme Court cases have upheld the view that the Fifth and Fourteenth Amendments do not mandate courts to apply strict scrutiny to federal and state statutes that apply exclusively to Native Americans.[113]

B. The Indian Child Welfare Act

The ICWA, passed in 1978, set forth procedures and standards to regulate the removal of Native American children from their families by state authorities and their placement in foster or adoptive homes.[114] “Specifically, the Act intended to protect and preserve tribes and to give tribes jurisdiction over child welfare proceedings.”[115]

The Act offers specific protections to the parents and families of Native American children, while also safeguarding tribal governments’ rights to intervene, assert jurisdiction, and participate in cases involving their members.[116] State courts are required to transfer Native American child custody proceedings to tribal courts unless there is a “good cause to the contrary.”[117]

The ICWA was a response to a long history of assimilation and “in response to the alarmingly high rates of Native children removed from their homes and placed in non-Native foster care and adoptive homes.”[118] Starting in the early 1800s, “missionary schools and federally-operated boarding schools removed Native American children from their tribes and families,” placing them in distant institutions that worked to “civilize” them by enforcing Christian values and prohibiting Native language, attire, and religious practices.[119] These schools kept children away from their homes for extended periods, severing their cultural and familial ties.[120] This led to the separation of more than a quarter of Native American and Native Alaskan children from their families.[121] Of the children removed from their families, 85% were placed outside of their families and communities, even when capable and willing relatives were available to take in the child.[122]

The ICWA itself recognizes the importance of keeping Native children in their communities, stating that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”[123] The ICWA continues by acknowledging the disproportionate and concerning percentage of Native children removed from their community, stating “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”[124] In passing the ICWA, Congress recognized that state courts and agencies often acted against the interests of the Native tribes and their children, granting tribes the right to take child custody matters to federal court.[125]

C. Challenges to ICWA: Haaland v. Brackeen

The ICWA has been challenged a number of times since its passage in 1978.[126] The most recent challenge to make it all the way to the Supreme Court is Haaland v. Brackeen.[127] The Brackeen case originated in 2017 when Texas, Indiana, Louisiana, and seven non-Native prospective adoptive parents of Native American children filed suit in the U.S. District Court for the Northern District of Texas.[128]

The case involved a family, the Brackeens,[129] who had been fostering A.L.M., a Native American child as defined by the ICWA, after he was removed from his paternal grandmother’s custody at the age of ten months.[130] After A.L.M.‘s biological parents’ parental rights were terminated, the Navajo Nation identified a prospective family for A.L.M. with a tribe member in New Mexico; however, the placement fell through.[131] The Brackeens adopted A.L.M., filed a complaint arguing that the ICWA was unconstitutional, and worked to adopt A.L.M.'s biological sister, who is also a Native American child as defined by the ICWA.[132]

The plaintiffs challenged the constitutionality of the ICWA, arguing that it violated the Fifth Amendment’s guarantees of equal protection and due process.[133] The district court concluded that the ICWA relied on racial classifications rather than political ones and, as a result, applied strict scrutiny.[134] After analyzing the Act under this standard, the district court granted summary judgment in favor of the plaintiffs regarding the equal protection claim, finding the Act did not survive strict scrutiny.[135]

The Fifth Circuit reversed the trial court’s decision, disagreeing with the argument that the ICWA relied on racial classification and was thus subject to rational basis rather than strict scrutiny.[136] The Fifth Circuit found that the Act relied on a political classification rather than a racial one, stating that “Congress has exercised plenary power ‘over the tribal relations of the Indians . . . from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.’”[137]

After an en banc hearing by the Fifth Circuit,[138] the Supreme Court granted certiorari[139] and heard oral arguments on November 9, 2022.[140] Ultimately, the Supreme Court refused to rule on the merits of the equal protection argument, holding that “no party before the Court has standing to raise them.”[141] The Brackeen decision was undoubtedly a win for supporters of the ICWA.[142] However, the Supreme Court’s decision not to rule on the merits of the equal protection question leaves the ICWA and other Native American laws vulnerable to future equal protection challenges.

The ongoing uncertainty over whether laws concerning Native Americans are based on racial or political classifications is a crucial issue that could significantly impact the future of affirmative action policies for Native American students in higher education. During the oral arguments for Brackeen, Justice Kavanaugh anticipated potential challenges to Native American preferences in college admissions.[143] Justice Kavanaugh questioned what would happen if Congress required states to prioritize Native American applicants in higher education.[144] His inquiry was likely influenced by the recent SFFA case, making affirmative action a particularly relevant issue at the time.[145]

Morton v. Mancari created the foundational principle that laws specific to Native Americans are based on political, not racial classifications.[146] However, this classification remains at risk following the challenge to ICWA in Haaland v. Brackeen. While the Court upheld the ICWA on procedural grounds, it refused to address the equal protection challenge, which leaves the possibility of future attacks on Native American laws relying on political classification.[147] Understanding the unique political status of Native Americans is essential in safeguarding their rights as affirmative action laws face increasing scrutiny.

V. The Future of Affirmative Action for Native Americans

A. What Is the Future of Native American Race-Conscious Admissions?

Both SFFA and Brackeen left significant uncertainty surrounding the future of affirmative action for Native Americans. The decision in SFFA failed to address the unique political status of Native American tribes and their members, leaving unresolved whether preferences for Native Americans in college admissions will be evaluated under the strict scrutiny framework as racial classifications or under the more deferential rational basis standard traditionally used for political classifications.[148] This omission creates a gap in the legal landscape, as Native American identity has long been recognized as a political classification.[149] Similarly, Brackeen failed to resolve the looming question of whether policies involving Native American identity fall under racial classification or political classification.[150]

On the one hand, the notion that Native American identity constitutes a political classification is deeply embedded in the fabric of American history. These ideas date back to foundational legal principles[151] and early Supreme Court decisions.[152] The federal government has consistently recognized Native American tribes as distinct political entities with inherent sovereignty.[153] However, the pressing questions remain: How far does this classification extend in the modern legal landscape? Does it apply to race-conscious admissions in higher education, and if so, to what extent? Does it, like affirmative action in the larger context, have an expiration date?

The ambiguity left by these Court decisions leaves Native American admissions policies in a shaky position. If courts interpret Native American admissions policies as a racial classification, they would be evaluated under a strict scrutiny test.[154] If evaluated under strict scrutiny, these laws will very likely face the same fate as other race-conscious policies.[155] However, this approach would disregard the notion of stare decisis by overlooking long-standing precedent that recognizes Native American classifications as political.[156] Nevertheless, recent Supreme Court decisions suggest that the Court is not afraid to depart from precedent.[157]

The lack of resolution in Brackeen indicates that the Court is reluctant to explicitly affirm the political classification of Native Americans when it comes to policies beyond tribal governance. This raises concern that affirmative action policies benefiting Native students could be recharacterized as racial preferences, making them subject to strict scrutiny. This would not only undermine the legal foundation of Native American self-determination but could also affect broader tribal sovereignty protections. Therefore, the uncertainties in SFFA and Brackeen extend far beyond higher education admissions policies.

B. Avenues for Preserving Native American Representation in Higher Education

Given the long history of Native American political status,[158] the strongest avenue for preserving consideration of Native American identity is through political classification. Universities could tailor admissions policies to emphasize tribal enrollment and political sovereignty rather than race per se, which could potentially shield their admission policies from strict scrutiny. This argument, developed throughout this Comment, is grounded in Supreme Court precedent, particularly Morton v. Mancari, which recognized tribal membership as a political classification.[159] The Supreme Court has consistently reaffirmed this principle, recognizing the unique government-to-government relationship between Native tribes and the federal government.[160] This political status traces back to the founding of the United States, when the Constitution granted Congress plenary power over Indian affairs.[161] If the Court adheres to stare decisis, there would be no basis to unravel this well-established precedent.

However, opponents of Indigenous rights policies have increasingly weaponized race jurisprudence to challenge laws benefiting Native communities.[162] The Supreme Court’s decision in Rice v. Cayetano[163] set a dangerous precedent by treating ancestry-based classifications as proxies for race, a trend that has fueled challenges to Indigenous legal protections, including the ICWA in Haaland v. Brackeen.[164] In light of the growing judicial skepticism toward race-conscious policies,[165] it is very possible that opponents of affirmative action will challenge Native-focused admissions policies, even if they are framed around tribal sovereignty.[166]

In light of Rice, Brackeen, and SFFA, this avenue for preserving Native American representation remains on shaky ground. Universities should tailor their policies to emphasize political sovereignty and tribal enrollment rather than racial identity, reinforcing the legal distinction that has historically protected Indigenous classifications from strict scrutiny. However, this option will remain questionable until the Supreme Court chooses to address the unanswered questions left in Brackeen and SFFA.

Another strategy universities may employ is the expansion of socioeconomic and geographic-based admissions policies.[167] Historically, Native American communities have been underserved, and admission policies emphasizing economic disadvantage, first-generation status, or rural backgrounds may continue to provide opportunities for access.[168] However, this may not fully embrace the opportunities needed to increase or simply keep steady the number of Native American students coming into higher education. This could result in a diminishing representation of Native students in higher education, which is already alarmingly low.[169]

Universities may need to increasingly rely on targeted outreach and recruitment efforts in the wake of SFFA. This can be done by investing in pipeline programs, exposing faculty to Native cultures, providing dedicated support and opportunities to students, and enhancing scholarship opportunities tailored for Native American students.[170] These initiatives are unlikely to be legally challenged; however, their effectiveness in maintaining or improving Native American enrollment is unclear.

Further litigation is needed to define the boundaries of acceptable considerations in college admission programs. The conservative majority on the current Supreme Court has indicated an intent to dismantle admission policies that rely on racial classifications.[171] This raises concern that even indirect methods of supporting Native American students may be challenged.[172]

The Court’s silence in SFFA about race-neutral alternatives causes more confusion.[173] Past affirmative action cases required considering race-neutral alternatives under strict scrutiny.[174] In SFFA, the Court could have ruled against UNC and Harvard while affirming race-neutral methods but chose not to.[175] By skipping the narrow-tailoring analysis, the decision offers little insight into the majority’s stance on the constitutionality of race-neutral alternatives.[176]

The future of Native American representation in higher education remains uncertain in the wake of SFFA. While framing admissions policies around political sovereignty and tribal enrollment offers potential protection, it is unclear how strong this protection would be, especially given the Court’s increasing skepticism toward any classification linked to ancestry.[177] Socioeconomic and geographic-based policies paired with targeted outreach and recruitment offer a potential path to maintaining Native American representation; however, they may fall short. Until the Supreme Court clarifies the uncertainty surrounding political classification, universities are left to navigate these legal questions.

C. Challenges to Political Classification in Native American Affirmative Action

In the Brackeen oral arguments, it is apparent that the Justices are grappling with the same questions that are central to this Comment. Justice Kavanaugh asks Matthew McGill, counsel for the Brackeens, if “Mancari alone [would] justify a federally mandated preference for state universities [in] college admissions for American Indians.”[178] Justice Gorsuch similarly probes the distinction, asking, “[h]ow is this an invidious racial classification rather than a political classification?”[179] These questions underscore the tension between precedent affirming Native classifications as political and arguments seeking to reframe them as racial.

Opponents of the political classification argument contend that Mancari does not authorize the federal government to implement preferential treatment for Native Americans in higher education.[180] Mr. McGill, for example, emphasized that the preference in Mancari was explicitly upheld within the context of employment at the BIA due to its unique role in tribal governance, a context the Court describes as sui generis.[181] Mr. McGill argued that “a classification is political when it . . . regulates the tribe’s . . . sovereign interests.”[182] Mr. McGill relies heavily on Rice v. Cayetano throughout his oral argument.[183]

However, Rice can be distinguished. The Court in Rice rejects the State’s argument that the voting rules should be constitutional under Mancari because Native Hawaiians do not have the same political status as federally recognized tribes.[184] By contrast, Native American tribes have been recognized through treaties, federal statutes, and Supreme Court decisions as distinct political entities with inherent self-governance rights.[185] Thus, Native American affirmative action policies would align more closely with Mancari than Rice.

Additionally, the Court’s characterization of “sui generis” in Mancari does not necessarily preclude its broader application.[186] While the Court in Rice noted the uniqueness of employment preferences in Mancari, it did not foreclose the possibility that other preferences tied to tribal self-governance could be upheld.[187] For instance, the Rice opinion recognized that “Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs.”[188] This language suggests that Congress retains broad authority to pass laws addressing the unique needs of Native American communities, including policies designed to promote access to higher education.[189]

Ultimately, while opponents of Native American affirmative action may seek to leverage Rice to argue that such policies constitute impermissible racial classification, the decision is distinguishable.[190] Unlike the Hawaii law in Rice, which applied to a group lacking federal recognition as a sovereign entity,[191] affirmative action programs for Native Americans align with long-standing federal policies recognizing tribes as distinct political entities.[192] Additionally, the decision in Rice acknowledges Congress’s broad authority to enact laws tailored to tribal needs, reinforcing the validity of educational policies designed to support Native American students.[193]

VI. Conclusion

While race-conscious admission programs may be a thing of the past, tribal sovereignty is deeply rooted in American legal precedent. The U.S. government has long recognized its unique obligation to uphold tribal sovereignty, a responsibility that stems from centuries of treaties, congressional enactments, and judicial precedent.[194] Additionally, Native American tribes have historically been classified as a distinct political group. This view dates back to the founding era and is embedded in congressional actions and judicial opinions.[195]

However, the Court’s decision in SFFA raises concerns about the future of policies designed to ensure opportunities for Native American communities. While the political classification of tribes provides a critical legal safeguard, the ruling invites renewed scrutiny of how Native American identity is treated under the equal protection analysis. If courts begin to conflate political and racial classifications, the consequences could have significant consequences not only for Native American students in the admissions process but also for the broader framework of tribal self-governance.

The history and status of Native American tribes give them a unique political classification that differentiates them from other racial or ethnic groups.[196] This status has historically provided an additional layer of legal protection against equal protection challenges.[197] However, there is uncertainty regarding how far this classification can or should reach. Given the Supreme Court’s decision in SFFA, there is a looming question of whether Native American identity, in the context of college admissions and beyond, will continue to be recognized as a political classification or if it will be increasingly scrutinized under the same framework applied to racial classification. Ultimately, the unanswered questions left in SFFA and Brackeen ensure that the legal treatment of Native American identity in affirmative action remains an open and pressing issue, one that will likely demand further judicial clarification in the not-too-distant future.

Susie Shumaker

  1. Haaland v. Brackeen, 143 S. Ct. 1609, 1661 (2023) (Gorsuch, J., concurring).

  2. The Supreme Court consolidated Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina due to their shared legal question: Whether race-based admissions policies violate the Equal Protection Clause of the Fourteenth Amendment. Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll. (SFFA), 143 S. Ct. 2141, 2154 (2023). While Harvard, a private institution, was challenged under Title VI of the Civil Rights Act of 1964, and UNC, a public university, was challenged under the Fourteenth Amendment, the Court treated the cases together because Title VI has been interpreted to impose the same constitutional standards on private institutions receiving federal funds. Id. at 2154–56, 2156 n.2; Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”). The Court issued a single opinion that broadly addressed the constitutionality of race-conscious admissions across both public and private higher education institutions. SFFA, 143 S. Ct. at 2175–76.

  3. See SFFA, 143 S. Ct. at 2175–76; id. at 2241 (Sotomayor, J., dissenting); see also Brackeen, 143 S. Ct. at 1627 (describing Congress’s power over Native American affairs as plenary and exclusive and superior to state authority, which, read alongside SFFA’s strict limits on race-conscious admissions, underscores a potential tension that may leave Native American students disadvantaged in higher-education access).

  4. SFFA, 143 S. Ct. at 2175.

  5. Grutter v. Bollinger, 539 U.S. 306, 343 (2003); Affirmative Action, NAICU, https://www.naicu.edu/policy-advocacy/issue-briefs/regulation/affirmative-action/ [https://perma.cc/4MBM-YSWC] (last visited Oct. 1, 2023). Although the Court did not explicitly overturn Grutter in the SFFA decision, its ruling marked a significant shift away from it, leaving minimal, if any, opportunity for educational institutions to continue affirmative action. See SFFA, 143 S. Ct. at 2207 (Thomas, J., concurring) (“The Court’s opinion . . . makes clear that Grutter is, for all intents and purposes, overruled.”).

  6. See Brackeen, 143 S. Ct. at 1622–23.

  7. See id. at 1626; Crystal Pardue, Looking Beyond Haaland v. Brackeen, ACLU (July 11, 2023), https://www.aclu.org/news/racial-justice/looking-beyond-haaland-v-brackeen [https://perma.cc/XC6Z-JJDQ]. Although the plaintiffs challenged the ICWA on four grounds, this Comment will be focusing on the equal protection issue.

  8. See Brackeen, 143 S. Ct. at 1641.

  9. Transcript of Oral Argument at 26–27, Brackeen, 143 S. Ct. 1609 (No. 21-376).

  10. See infra Section III.A.

  11. See infra Part III.

  12. Shelby A. D. Moore, Moving Forward While Reaching Back: How Private Law Schools Can Help Public Law Schools Navigate Diversity, Equity, Inclusion, and Access in Challenging Times, 55 U. Tol. L. Rev. 241, 247 (2024).

  13. Transcript of Oral Argument at 5, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 20-1199).

  14. Id.

  15. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314, 319–20 (1978) (holding that while race can be considered as one factor in admissions, rigid racial quotas violate the Equal Protection Clause); Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (holding that a narrowly tailored use of race in admissions to achieve a diverse student body is permissible under the Equal Protection Clause); Fisher v. Univ. of Tex. at Aus. (Fisher II), 579 U.S. 365, 380, 388 (2016) (holding that the University of Texas’s consideration of race as part of its holistic admissions process met strict scrutiny and was constitutional).

  16. Bakke, 438 U.S. at 276–77.

  17. Id. at 277–78, 277 n.7.

  18. Id. at 317–18, 320.

  19. Id. at 314–15.

  20. Id. at 297–98, 307, 309–313.

  21. Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

  22. Id. at 318.

  23. Id. at 329–30.

  24. Id. at 342.

  25. Fisher v. Univ. of Tex. at Aus. (Fisher II), 579 U.S. 365 (2016). This should not be confused with the Fisher v. Univ. of Tex. at Aus. (Fisher I), 570 U.S. 297 (2013). The 2013 decision is often referred to as Fisher I and the 2016 decision is referred to as Fisher II.

  26. Fisher II, 579 U.S. at 382–83.

  27. Fisher I, 570 U.S. at 303.

  28. Fisher II, 579 U.S. at 379.

  29. Id.

  30. Ellen Whitehair, From College Campus to Corner Office: The Impact of SFFA v. Harvard on Voluntary Affirmative Action Programs, 92 U. Cin. L. Rev. 1287, 1298 (2024).

  31. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299, 318–19 (1978); Grutter v. Bollinger, 539 U.S. 306, 333–34 (2003); Fisher II, 579 U.S. at 379.

  32. See supra text accompanying notes 4–5.

  33. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170 (2023).

  34. Grutter, 539 U.S. at 328.

  35. Id. at 342.

  36. Id. at 341. Justice Ginsburg and Justice Breyer concurred to address the majority’s statement that race-conscious admissions “must have a logical end point.” Id. at 344 (Ginsburg, J., concurring). The concurrence emphasized the “current reality that many minority students encounter markedly inadequate and unequal educational opportunities.” Justice Ginsburg argued that the majority should have mandated sunset provisions, requiring race-conscious admissions policies to be phased out as racial discrimination in higher education diminishes. Id. at 346. Justice Thomas held a very different view. He concurred in part and dissented in part, arguing that “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Id. at 349–50, 353 (Thomas, J., concurring in part and dissenting in part).

  37. About, Students for Fair Admissions, https://studentsforfairadmissions.org/about/ [https://perma.cc/K6W4-Y4CV] (last visited Jan. 9, 2026).

  38. Complaint at 4, Students for Fair Admissions, Inc. v. President of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019) (No. 1:14-cv-14176).

  39. See supra Section II.A.

  40. See Whitehair, supra note 30, at 1300.

  41. Justice O’Connor wrote for the majority explaining, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Grutter, 539 U.S. at 343.

  42. See Whitehair, supra note 30, at 1300.

  43. Transcript of Oral Argument, supra note 13, at 78–79, 101.

  44. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2166 (2023) (citing Fisher v. Univ. of Tex. at Aus., 579 U.S. 365, 381 (2016)) (alteration in original).

  45. Id. at 2175.

  46. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 265 (1978); Grutter, 539 U.S. 306, 306 (2003); Fisher II, 579 U.S. 365, 365 (2016).

  47. See Affirmative Action, supra note 5.

  48. Matthew L.M. Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 St. John’s L. Rev. 153, 157 (2008).

  49. Id. at 157–58.

  50. See infra Part III.

  51. Fletcher, supra note 48, at 164.

  52. Id. at 165.

  53. U.S. Const. art I, § 8, cl. 3.

  54. Id.

  55. See Fletcher, supra note 48, at 172.

  56. Id.

  57. Act of July 22, 1790, ch. 33, § 1, 1 Stat. 23, 137 (codified as amended at 25 U.S.C. § 177).

  58. Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 530–31 (2017).

  59. Act of July 22 § 1.

  60. Fletcher, supra note 48, at 170.

  61. Id. at 171–72.

  62. Id. at 172; see generally Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) (recognizing tribes as distinct political communities whose land rights could be extinguished only by the federal government).

  63. The other two cases in the trilogy include Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) and Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Eric Eisner, The Law-of-Nations Origins of the Marshall Trilogy, 133 Yale L.J. 998, 1005–06 (2024).

  64. Johnson, 21 U.S. (8 Wheat.) at 574–75, 587, 592–93; Eisner, supra note 63, at 1005.

  65. Johnson, 21 U.S. (8 Wheat.) at 550, 555.

  66. Id. at 572.

  67. Id. at 587–88.

  68. Id. at 574, 576.

  69. Fletcher, supra note 48, at 173.

  70. Johnson, 21 U.S. (8 Wheat.) at 587.

  71. Fletcher, supra note 48, at 173.

  72. Johnson, 21 U.S. (8 Wheat.) at 587.

  73. Fletcher, supra note 48, at 174.

  74. Id.

  75. Id. at 175–76.

  76. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832).

  77. Id. at 561.

  78. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 2 (1831).

  79. Fletcher, supra note 48, at 175.

  80. Worcester, 31 U.S. (6 Pet.) at 557.

  81. Cherokee Nation, 30 U.S. (5 Pet.) at 2.

  82. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27 (1866) (codified as amended at 42 U.S.C. § 1981) (“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .”).

  83. George Beck, The Fourteenth Amendment as Related to Tribal Indians: Section I, “Subject to the Jurisdiction Thereof” and Section II, “Excluding Indians Not Taxed”, Am. Indian Culture & Rsch. J., Sep. 1, 2004, at 37, 38.

  84. Id. (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)); Fletcher, supra note 48, at 176.

  85. Beck, supra note 83, at 38 (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)).

  86. Id. at 40 (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)).

  87. Id. at 39–40 (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)).

  88. Id. at 44 (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)).

  89. Id. (quoting Cong. Globe, 39th Cong., 1st Sess. 498 (1866)).

  90. Elk v. Wilkins, 112 U.S. 94, 102 (1884).

  91. Id. at 120–21 (Harlan & Woods, JJ., dissenting).

  92. The Indian Citizenship Act of 1924, which is codified in Title VIII of the United States Code, established that a person born in the United States to a member of a Native American tribe shall be “nationals and citizens of the United States at birth.” 8 U.S.C. § 1401(b); Frequently Asked Questions: Citizenship Under 14th Amendment, ACLU: Ariz., https://www.acluaz.org/frequently-asked-questions-citizenship-under-14th-amendment/ [https://perma.cc/8VAQ-JPUU] (last visited Feb. 10, 2026). This Act granted Native Americans the right to be included in the protection of the Fourteenth Amendment. 8 U.S.C. § 1401(b).

  93. Fletcher, supra note 48, at 175–76.

  94. Frequently Asked Questions, U.S. Dep’t of Interior: Indian Affs., https://www.bia.gov/frequently-asked-questions [https://perma.cc/6WBL-N5YW] (last visited Jan. 7, 2026).

  95. McGirt v. Oklahoma, 140 S. Ct. 2452, 2477 (2020) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832)).

  96. See supra Section III.A.

  97. See supra Part III.

  98. Haaland v. Brackeen, 143 S. Ct. 1609, 1648, 1655, 1660 (2023) (Gorsuch, J., concurring).

  99. Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974).

  100. Id. at 539.

  101. Id. at 538.

  102. Id.

  103. Id. at 539.

  104. Id. at 553–55.

  105. Id. at 554.

  106. See id. at 553 n.24.

  107. Fletcher, supra note 48, at 158.

  108. Morton, 417 U.S. at 553 n.24.

  109. Id.

  110. Id.

  111. See Fletcher, supra note 48, at 158–59.

  112. See id.

  113. Id. at 159; Fisher v. District Court, 424 U.S. 382, 390–91 (1976) (per curiam) (holding that under Mancari, the tribal court’s exclusive jurisdiction over a Native American child’s adoption case is not impermissible racial discrimination because the exclusive jurisdiction derives from the tribe’s quasi-sovereign status, and any disparate treatment is justified by congressional policy of Indian self-government).

  114. See 25 U.S.C. § 1902.

  115. Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 207 (2016).

  116. See 25 U.S.C. §§ 1911, 1913.

  117. Id. § 1911(b).

  118. Sovereignty Under Attack, Native Governance Ctr. (June 13, 2023), https://nativegov.org/news/sovereignty-under-attack/ [https://perma.cc/2XES-2P89].

  119. Onalee R. Chappeau, Trusting the Tribe: Understanding the Tensions of the Indian Child Welfare Act, 64 St. Louis U. L.J. 241, 242 (2020).

  120. Id.

  121. Id. at 243; What Is ICWA?, NICWA, https://www.nicwa.org/what-is-icwa/ [https://perma.cc/4QNZ-MLRV] (last visited Jan. 21, 2025).

  122. What Is ICWA?, supra note 121.

  123. 25 U.S.C. § 1901.

  124. Id.

  125. Chappeau, supra note 119, at 244–45.

  126. See, e.g., Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 48–50 (1989) (holding that ICWA applies to custody proceedings involving Indian children, even if the children were voluntarily placed for adoption off-reservation to ensure tribal jurisdiction and protect tribal interests); Adoptive Couple v. Baby Girl, 570 U.S. 637, 641 (2013) (holding that ICWA’s provisions preventing the involuntary termination of parental rights did not apply where the Native parent had never had legal or physical custody of the child).

  127. Haaland v. Brackeen, 143 S. Ct. 1609, 1609 (2023).

  128. See Brackeen v. Zinke, 338 F. Supp. 3d 514, 519, 525–27 (N.D. Tex. 2018), rev’d sub nom., Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), on reh’g en banc sub nom., Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021), aff’d in part, vacated in part, rev’d in part, Haaland v. Brackeen, 143 S. Ct. 1609 (2023).

  129. In addition to the Brackeens, the plaintiffs also included two other adoptive couples seeking to adopt Native American children, a birth mother who placed her child up for adoption and whose biological father is a member of a Native American tribe, and states of Texas, Louisiana, and Indiana. Brackeen, 994 F.3d at 288–89.

  130. Eloise Melcher, Five Times More Likely: Haaland v. Brackeen and What It Could Mean for Maine Tribes, 75 Me. L. Rev. 369, 383 (2023).

  131. Haaland, 994 F.3d at 288.

  132. Id. at 288–89.

  133. Zinke, 338 F. Supp. 3d at 530–31. The plaintiffs in this case challenged the ICWA on four grounds: congressional power, the anti-commandeering doctrine, equal protection, and nondelegation. Id. However, this Comment will focus solely on the equal protection argument. See Brackeen, 143 S. Ct. at 1622–23, 1626.

  134. Zinke, 338 F. Supp. 3d at 534.

  135. Id. at 535–36.

  136. Brackeen v. Bernhardt, 937 F.3d 406, 425–29 (5th Cir. 2019).

  137. Id. at 426 (quoting Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (omission in original)).

  138. The equal protection ruling did not differ from the Fifth Circuit’s initial 2019 decision stating “[a]n en banc majority . . . holds that ICWA’s ‘Indian child’ classification does not violate equal protection.” Brackeen v. Haaland, 994 F.3d 249, 267–68 (5th Cir. 2021). However, the Court failed to reach a majority on multiple issues. Id. at 267–69.

  139. See Haaland v. Brackeen, 143 S. Ct. 1609, 1627 (2023).

  140. See Transcript of Oral Argument, supra note 9, at 4.

  141. Brackeen, 143 S. Ct. at 1638.

  142. Mikayla Jones, Heads Held High and Hands Holding Hope: The Victory and Vulnerabilities of the Indian Child Welfare Act After Haaland v. Brackeen, 103 Neb. L. Rev. 65, 97 (2024).

  143. Transcript of Oral Argument, supra note 9, at 44; see also Gabrielle Kolb, Students for Fair Admissions, Inc. v. University of North Carolina and Haaland v. Brackeen: Lessons on the Future of Affirmative Action for Native American College Applicants, 20 U. St. Thomas L.J. 511, 519 (2024) (noting Justice Kavanaugh’s inquiry during Brackeen oral arguments about the constitutionality of Native American preferences in college admissions).

  144. Transcript of Oral Argument, supra note 9, at 150.

  145. Kolb, supra note 143, at 519.

  146. See supra Section IV.A.

  147. See supra Section IV.C.

  148. See Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2176 (2023) (striking down race-conscious admissions while leaving unresolved whether tribal-membership preferences receive rational basis of strict scrutiny); James G. Dwyer, The Real Wrongs of ICWA, 69 Vill. L. Rev. 1, 22 (2024) (noting that issues remain unresolved).

  149. See supra Part III.

  150. See Haaland v. Brackeen, 143 S. Ct. 1609, 1640 (2023).

  151. See supra Part III.

  152. See supra text accompanying notes 74–78.

  153. See supra Part III.

  154. See Jessica Mitten et al., Equal Protection, 23 Geo. J. Gender & L. 267, 271 (2022). Strict scrutiny is considered the most demanding standard of judicial review, applied when a government action targets a suspect class or restricts a fundamental right. See id. To withstand strict scrutiny, the government must demonstrate that the action serves a compelling governmental interest and is narrowly tailored to achieve that interest. Id. “This standard is often thought to be ‘strict in theory, but fatal in fact,’ because government actions subject to strict scrutiny are likely to be held unconstitutional.” Id.

  155. See id. at 271–72.

  156. See supra Part III.

  157. See Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2239 (2023) (Sotomayor, J., dissenting) (“It is a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis.”).

  158. See supra Part III.

  159. See supra Section IV.A.

  160. See supra Part III.

  161. See supra Section III.A.

  162. See Addie C. Rolnick, Indigenous Subject, 131 Yale L.J. 2652, 2667–68, 2754 (explaining that protections for Indigenous peoples are “confused with racial classifications, or labeled as ancestry-based classifications,” and therefore challenged under race jurisprudence).

  163. Rice v. Cayetano, 528 U.S. 495, 517 (2000). Rice is discussed in more detail below. See infra Section V.C.

  164. Rolnick, supra note 162, at 2689, 2718, 2720.

  165. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2166 (2023).

  166. Rolnick, supra note 162, at 2664, 2755.

  167. In the SFFA oral arguments, much of the SFFA’s argument centers on the idea that colleges could achieve some of the same diversity-related goals as race-conscious admissions programs through race-neutral means, such as increasing socioeconomic preferences or eliminating legacy preferences. Transcript of Oral Argument, supra note 13, at 22, 30–31 (“We presented an alternative to Harvard that would achieve socioeconomic diversity for the first time, that would boost underrepresented minority representation, that would lower the number of white students on campus.”).

  168. Don Beyer, Joint Econ. Comm. Democrats, Native American Communities Continue to Face Barriers to Opportunity That Stifle Economic Mobility 5, 12 (2022) https://www.jec.senate.gov/public/_cache/files/9a6bd201-d9ed-4615-bc32-9b899faf5627/nativeamericanscontinuetofacepervasiveeconomicdisparaties-final.pdf [https://perma.cc/HN7P-F8MK].

  169. In 2019, nearly 80% of Native Americans over the age of twenty-five held less than a bachelor’s degree. Id. at 5, 12. “In Fall 2022, Native American students made up 0.7% of all postsecondary enrollment.” Native American Students in Higher Education, Postsecondary Nat’l Pol’y Inst. (Apr. 2025), https://pnpi.org/wp-content/uploads/2025/05/NativeAmerican_FactSheet_Apr25.pdf [https://perma.cc/V5RF-CWFC].

  170. Deanna Kennedy, Daniel Stewart & Joseph Scott Gladstone, How to Attract More Native American Students, AACSB (July 27, 2022), https://www.aacsb.edu/insights/articles/2022/07/how-to-attract-more-native-american-students [https://perma.cc/22L3-V962].

  171. Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2161 (2023). Chief Justice Roberts, writing for the majority, expressed that “[e]liminating racial discrimination means eliminating all of it.” Id. He further emphasized that the Equal Protection Clause applies universally, stating, the Fourteenth Amendment’s “Equal Protection Clause . . . applies ‘without regard to any difference of race, of color, or of nationality’” and thus must apply to every person. Id. at 2161–62 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). This language highlights the Court’s intent to prohibit the use of racial classifications in admissions policies and aligns with a broader interpretation of constitutional colorblindness. For more discussion on constitutional colorblindness, see generally Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161 (2024) (arguing that the Supreme Court’s rejection of race-based admissions signals a broader push for “colorblindness,” potentially jeopardizing even race-neutral diversity policies); Randall Kennedy, The Robert L. Levine Distinguished Lecture Series: Colorblind Constitutionalism, 82 Fordham L. Rev. 1, 6–8 (2013) (discussing the meaning of constitutional colorblindness and its history dating back to Brown v. Board of Education).

  172. The majority in SFFA did speak about one alternative to affirmative action: “[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” SFFA, 143 S. Ct. at 2176. However, the ruling also suggests that attempts to maintain racial diversity through indirect means may be legally contested, stating “universities may not simply establish through application essays or other means the regime we hold unlawful today. . . . ‘[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows[.]’” Id. at 2176 (quoting Cummings v. Missouri, 71 U.S. (1 Wall.) 277, 325 (1867)) (second and third alteration in original).

  173. See Starr, supra note 171, at 234–35.

  174. Id. at 234.

  175. Id. at 234–35.

  176. Id.

  177. SFFA, 143 S. Ct. at 2161–62.

  178. Transcript of Oral Argument, supra note 9, at 2, 44.

  179. Id. at 21–22.

  180. See, e.g., id. at 44.

  181. Id. at 24–25, 45; Morton v. Mancari, 417 U.S. 535, 554 (1974).

  182. Transcript of Oral Argument, supra note 9, at 26.

  183. Id. at 22. Rice v. Cayetano was a Supreme Court case that struck down a Hawaii law restricting voting for trustees of the Office of Hawaiian Affairs to Native Hawaiians. Rice v. Cayetano, 528 U.S. 495, 498, 524 (2000). The Court ruled that the voting restriction was a race-based classification that violated the Fifteenth Amendment, which prohibits racial discrimination in voting. Id. at 517.

  184. Rice, 528 U.S. at 518.

  185. See supra Part III.

  186. Kolb, supra note 143, at 521–22.

  187. Rice, 528 U.S. at 519–20.

  188. Id. at 519.

  189. Kolb, supra note 143, at 522.

  190. See supra notes 180–86 and accompanying text.

  191. Rice, 528 U.S. at 498–99, 519–20, 534.

  192. See supra Part III.

  193. Kolb, supra note 143, at 522.

  194. See supra Part III.

  195. See supra Part III.

  196. See supra Part III.

  197. Morton v. Mancari, 417 U.S. 535, 553, 555 (1974); Haaland v. Brackeen, 143 S. Ct. 1609, 1648 (2023).