Day 11: Race-Blindness on Stolen Land

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The Supreme Court last month said schools can’t consider race in making admissions decisions, reversing years of precedent.

Having read and written a lot lately about the removal of Indian tribes (particularly from the Upper Ohio Valley, where I work), I was struck by this comment from Angelique Albert, CEO of Native Forward Scholars Fund:

“The campuses that our students are going to — they were built on land that was stolen from our Native people,” Albert said. “The wealth of the institutions — they were built off of the land that was stolen from my Native ancestors, and, quite frankly, the wealth of this country was as well. So our Native students — they don’t have the generational access to education. They don’t have the generational wealth of my White ancestors, so we don’t have the same opportunities.”

The Trail of Tears Leads out of Chapel Hill

The Court’s decision seems especially tragic when you consider that one of the universities defending its policy was the University of North Carolina. North Carolina was one of several states from which the Cherokee and other tribes were brutally removed on the infamous Trail of Tears in 1838-39. Sixteen thousand Cherokee were forced to move, and four thousand of them died before reaching their destination in Oklahoma.

By comparison, thirteen U.S. service members were killed in the American evacuation of Afghanistan in 2021, and many in the media have called the evacuation a “disaster.”

If that’s true, are there any words to describe a government operation in which four thousand people - one quarter of those involved - perished?

Remedies for Past Race-Based Federal Actions

Race was certainly considered by Congress in passing the Indian Removal Act of 1830. It’s in the name.

In the Court’s view, the Equal Protection Clause ended all that in 1868.

The timeline is, shall we say, convenient.

The Court would read “equal protection of the laws” as precluding all race-conscious decision-making going forward. But justice doesn’t have to flow in one direction only.

The Court has begun to recognize this. In 2021, the Court in McGirt v. Oklahoma held that a large portion of eastern Oklahoma remains Indian reservation land for purposes of criminal jurisdiction. Justice Gorsuch’s opinion for the Court began, “On the far end of the Trail of Tears was a promise.” The Court gave legal effect to the treaty that promised land to the Creek Nation in exchange for moving west of the Mississippi River.

If McGirt stands for the proposition that the United States must respect a legally valid treaty, could this precedent also suggest that the United States may not recognize past treaties that were legally invalid?

Such a rule could invalidate (or at least force renegotiation over) state or federal sovereignty for millions of acres taken from native peoples under legally irregular or outright fraudulent treaty procedures. This would include undoubtedly, many acres on which colleges and university now stand.