Notice & Comment

Native Americans and Discriminatory Administration with Facially Neutral Rules, by Victoria Sutton

The rule of law applies to all government actions, and the promulgation of regulations and the administration of those rules must also strictly follow the rule of law to have “a government of laws not of men.”[1] With the administration of these rules, a sense of selective enforcement based on prejudices can creep into a system that works based on the principle that justice is blind.

In 1886, in Yick Wo v. Hopkins,[2] Chinese-owned laundry shops challenged the administration of a licensing ordinance in San Francisco, where licenses were issued only for laundries built of brick, not wood, due to the fire hazard. It was well known that almost all Chinese laundries were made of wood, and all others were made of brick. Thus, the law on its face was rationally related to a clear governmental purpose—to prevent fires—yet it was administered in a way that targeted Chinese laundry owners.  The U.S. Supreme Court reversed a conviction under the ordinance and opined, 

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[3] 

Ninety years later, in Village of Arlington Heights v. Metropolitan Housing Development Corp., the U.S. Supreme Court affirmed this holding, describing that “sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”[4]

In 2001, in Estate of Amos v. City of Page, Arizona,[5] the court denied the defendant’s motion to dismiss the plaintiff’s Section 1983 claim for an equal protection violation because of a racially discriminatory policy that selectively abandoned searches for Native Americans in automobile accidents. The Court’s opinion includes the following description of the policy:

Trustee next contends that the City violated the Equal Protection Clause by selectively withholding protective services from Amos because they believed he was a Native American. [Amos was not Native American.] Trustee’s complaint alleges that it is standard practice for the City of Page not to search for runaway drivers because the City believes that most runaway drivers are Native Americans who bolt to the Navajo Reservation after an accident and call the police shortly thereafter, reporting their car as stolen. Further, Trustee alleges that the City does search for runaway drivers when they have reason to believe that they are white.[6]

This was a rare glimpse into discriminatory administration of government rules that would likely never have come to light had the plaintiff been a Native American. (The plaintiff was non-Native American, and thus the disclosure of the policy was a defense, rather than an admission, for the defendant government. That is, the logic went something like this: We thought he was a Native American so we acted consistently with our police policy to discriminate against Native Americans by not searching for him. Had we known Amos was white we would have applied the white policy. Thus no liability.)

Native Americans are also more likely to be killed by police than any other group, including African Americans. Looking at data the Centers for Disease Control and Prevention collected from medical examiners in 47 states between 1999 and 2011, a senior researcher compared the percentage of people killed by police according to their race. When compared to their percentage of the U.S. population, Native Americans in age groups 20-24, 25-34 and 35–44 were three of the five groups most likely to be killed by police. (The other two groups were African Americans 20-24 and 25-34.) An analysis of CDC data from 1999 to 2014 shows that Native Americans are 3.1 times more likely to be killed by police than white Americans.[7],[8]

Text Box:  
Rate of law enforcement killings, per million population per year, 1999-2011.
Source: Centers for Disease Control and Prevention, National Center for Health Statistics.

The numbers continued to increase with an estimated 13 and 24 Native Americans killed, respectively, in 2015 and 2016.[9]

Meanwhile, Congressional preemption of tribal sovereignty institutionalizes the administration of injustice for Native Americans, preventing Tribes from enforcing criminal law against murderers, rapists and kidnappers when they are non-Native American. You may want to read that sentence again, because it seems so out of place for our 21st century society and indeed it is. Congress enacted the Major Crimes Act[10] in 1885[11] out of outrage for the outcome of the way a tribal government handled the murder of another Native American.[12]By 1976, several courts had determined this law violated  constitutional due process and could not be explained by the unique relationship[13] of Native tribes to the U.S. government because the law was often extended to individuals with Native American ancestry who did not meet the definition of Indian required for this unique relationship.[14] Consider for a moment: in the case that inspired this law, the “civilized” colonizers demanded a murder trial where presumptively someone hangs by the neck to death at the end, whereas the “uncivilized” Indian tribe settled the murder peacefully between the families of the perpetrator and the victim with the exchange of blankets. This means that a federal agent (the FBI) is required to travel to a reservation to prosecute rapes and murders and other felonies on the list, sometimes hundreds of miles away, when the suspect is white, because Tribes are not allowed to prosecute non-Native Americans who commit serious crimes on their sovereign territory. 

Yick Wo and its oft quoted “evil eye and an unequal hand” description of discriminatory administration of the law is still an apt description of the injustice that results when justice is not blind to race and ethnicity.

Victoria Sutton is the Paul Whitfield Horn Professor and Associate Dean for Digital Learning and Graduate Education at Texas Tech School of Law. Follow her on Twitter here.

[1] Attributed first to Aristotle (300s BCE), then John Adams (18th century), then Prof. Dicey (19th century) . Introduction to the Study of the Law of the Constitution (Univ. of Oxford, 1885) (No man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”).

[2] 118 U.S. 356 (1886).

[3] 118 U.S. 356, 373-4 (1886).

[4] 429 U.S. 252, 266 (1977) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).

[5] 257 F.3d 1086 (9th Cir. 2001).

[6] Id. at 1093.

[7] Stephanie Woodard, “The Police Killings No One is Talking About,” In These Times (October 17, 2016) at .

[8] Mike Males, “Who Are Police Killing?” Center on Juvenile and Criminal Justice, Centers for Diseases Prevention and Control (August 26, 2014) at .

[9] Lynn Cordova, “Police Shoot, Kill Native Vet Ivan Wilson – Dragswolf in Mandan, North Dakota,” Indian Country Today (Apr. 26, 2017)

[10] The Major Crimes Act, 18 U.S.C. § 1153 (2019).

[11] 28 U.S.C. § 1360 (2012); 83 Pub. L. No. 280 (1953).

[12] Ex parte Crow Dog, 109 U.S. 556 (1883).

[13] Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

[14] See Alexander Tallchief Skibine,  “Indians, Race, and Criminal Jurisdiction in Indian Country,” 10 Alb. Govt. L. Rev. 49 (2017) at .

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