60 Children’s Legal Rights Journal [Vol. 37: 1 2017]
ICWA obviously treats Indian children and families differently from non-Indian children
and families. Whether this is constitutional or not depends on whether it is regarded as race-
based or as based on the nature of tribes as political units. In the former case, the distinction
would be regarded as suspect, and subjected to strict judicial scrutiny, which it certainly could
not survive. But if the distinction is based on political identity rather than race, it is only subject
to lenient rational basis review.
In Morton v. Mancari, the Supreme Court upheld the constitutionality of a law that gave
preference to Indian tribal members in hiring for positions with the BIA.352 That preference was
“political rather than racial in nature,” the Court held, and therefore did not trigger strict scrutiny,
because it “applie[d] only to members of ‘federally recognized’ tribes,” and was “not directed
towards a ‘racial’ group consisting of ‘Indians.’”353 Three years later, in United States v.
Antelope,354 the Court relied on Mancari when it upheld a conviction under a criminal statute
that differentiated between Indians and non-Indians. As before, the Court ruled that the statute
was not based on the fact that a person was “racially to be classified as ‘Indian.’”355 Instead,
the parties involved were enrolled members of a tribe, and had committed a crime in Indian
country. Thus although Mancari is frequently cited as standing for the proposition that all laws
that treat Indians differently from non-Indians are subject to the forgiving standard of rational
basis scrutiny—an argument Justice Sonya Sotomayor made in her dissent in Adoptive
Couple356—Mancari is actually far narrower than that.
352 417 U.S. 535 (1974).
353 Id. at 553 n. 24.
354 430 U.S. 641, 646–47 (1977).
355 Id. at 647 n. 7.