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Hastings Race and Poverty Law Journal

Authors

Lori Bable

Abstract

This article implements the framework of whiteness of property to articulate the ways in which holdings of the Supreme Court of the United States (SCOTUS) have limited Tribal Nations’ sovereignty because of the illegibility and correlative dispossession of inherent sovereignty itself. This article also highlights how these past SCOTUS opinions, especially recently, threaten to further reduce tribal sovereignty insofar as Tribal Nation citizenship remains based upon blood quantum. The case studies examined herein were selected because of the ways they strategically diminished Tribal Nation sovereignty via rhetorical precarity created using equivocations on the meaning of “Indian.” Through articulating how SCOTUS opinions shifted the meaning of sovereignty from a basis in Tribal Nations’ territory, i.e., property, towards one based on membership, blood quantum as another mechanism for dispossession and disappearance becomes clearer. This article argues that SCOTUS’s blind spots with regard to tribal sovereignty are mechanisms of whiteness as property that make invisible the rights of Tribal Nations so as to dispossess sovereignty as another de-evolutionary tactic of de juro federal common law resulting in de facto property dispossession in the modern era. Through SCOTUS opinions reshaping the meaning of who counts as “Indian,” sovereignty is further threatened because of increased precarity linked to blood quantum as a supposed racist qualifier for citizenship. Most simply, if SCOTUS can enumerate that blood quantum serving as a basis for tribal sovereignty is racist, Tribal Nation sovereignty itself might be delegitimated, and the otherwise persistent debt owed to its citizens as first-in-time, first-in-right owners is erased; the debt owed then can be forgotten. That is, the U.S. fiduciary obligation may also disappear.

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