Indians and Equality
Notwithstanding the fact that section 2 of the Fourteenth Amendment (the very same amendment that is the source of our Equal Protection Clause) contains an express Indian classification, recently some have questioned how Indian law and special treatment of Indians can be reconciled with the western liberal paradigm of equal treatment of citizens within a state.
One answer that has occurred to me is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The United States Constitution and American law recognizes both equality of citizens through its equal protection and due process principles and equality of sovereigns through doctrines like full faith and credit, comity, the Equal Footing Doctrine, and the New Federalism. Both equality principles emerge from the western liberal paradigm. The importance of the historic treaty relationship with many indigenous peoples and of the express constitutional recognition of that relationship in both the Indian Commerce Clause, found in Article I, section 8, clause 3 of the Constitution, and in section 2 of the Fourteenth Amendment, are that they firmly situate the problem Indian affairs in the second, rather than the first, paradigm.
By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!