Abstract

Excerpted From: Jackson Gehrig Bednarczyk, From Wounded Knee to Carlisle to SFFA: An Indigenous Case for Affirmative Action, 66 Arizona Law Review 1067 (Winter 2024) (379 Footnotes) (Full Document)

Affirmative action is controversial. Multiple current Supreme Court justices view it with suspicion, if not outright disdain, and scholars have debated whether it is even successful in increasing effective opportunities for minorities. This Note has not attempted to provide a magic bullet for all criticisms of affirmative action, both normative and empirical. Instead, its purpose is twofold: (1) to highlight the problems with the Supreme Court's affirmative action jurisprudence and (2) to advance a unique Indigenous-centered case for race-conscious action in higher education admissions.

In doing so, this Note has relied on the singular history of Indigenous people in this country--a history marred by centuries of bloodshed, land theft, and forced assimilation. Specifically, it has emphasized the ways in which the federal government purposely attempted to--and to some extent did--erase Native cultures and identities through educational policy. While it is undoubtedly true that Indigenous history in its full context presents an even stronger case for affirmative action, the benefit of narrowing the aperture to education-based discrimination is that it distills the strict-scrutiny analysis to the effects of government action bearing the closest relationship to the specific method for employing affirmative action. This logic is rooted in some of humanity's earliest recorded laws--an eye for an eye remedies for education-based sins.

Other arguments can and should be leveraged to support affirmative action for Native people. Such arguments include the federal government's trust responsibility to tribes, the Indian Commerce Clause, and Native connections and entitlements to the stolen land upon which universities are built. Future works should also attempt to craft arguments relating to how states can directly support affirmative action without relying on a federal policy. Finally, SFFA's termination of the white-centered diversity rationale should push scholars to craft specific arguments for other racial and ethnic minorities.

This land's Indigenous people are resilient. After hundreds of years of concerted effort to erase their existence and culture, they have survived. To ensure that Indigenous people and culture not only survive but thrive in the future, the government has a duty to right its historical wrongs. A limited race-conscious remedy in higher education won't make up for generations of colonization and trauma, but it's a start.

[. . .]

Affirmative action is controversial. Multiple current Supreme Court justices view it with suspicion, if not outright disdain,  and scholars have debated  whether it is even successful in increasing effective opportunities for minorities.  This Note has not attempted to provide a magic bullet for all criticisms of affirmative action, both normative and empirical. Instead, its purpose is twofold: (1) to highlight the problems with the Supreme Court's affirmative action jurisprudence and (2) to advance a unique Indigenous-centered case for race-conscious action in higher education admissions.

In doing so, this Note has relied on the singular history of Indigenous people in this country--a history marred by centuries of bloodshed, land theft, and forced assimilation. Specifically, it has emphasized the ways in which the federal government purposely attempted to--and to some extent did--erase Native cultures and identities through educational policy. While it is undoubtedly true that Indigenous history in its full context presents an even stronger case for affirmative action, the benefit of narrowing the aperture to education-based discrimination is that it distills the strict-scrutiny analysis to the effects of government action bearing the closest relationship to the specific method for employing affirmative action. This logic is rooted in some of humanity's earliest recorded laws--an eye for an eye --education-based remedies for education-based sins.

Other arguments can and should be leveraged to support affirmative action for Native people. Such arguments include the federal government's trust responsibility to tribes, the Indian Commerce Clause, and Native connections and entitlements to the stolen land upon which universities are built. Future works should also attempt to craft arguments relating to how states can directly support affirmative action without relying on a federal policy. Finally, SFFA's termination of the white-centered diversity rationale should push scholars to craft specific arguments for other racial and ethnic minorities.

Candidate for 2025 Juris Doctor at the University of Arizona James E. Rogers College of Law. As a person of Native-Mexican (Otomí) descent,