Abstract

Excerpted From: Susie Shumaker, Beyond Race: The Political Classification of Native Americans and the Future of Affirmative Action, 63 Houston Law Review 917 (Symposium 2026) (197 Footnotes) (Full Document)

Native Americans face unique challenges at the intersection of education, sovereignty, and systemic inequalities. The Supreme Court's landmark decisions in Students for Fair Admissions v. Harvard2 and Haaland v. Brackeen could significantly impact Native American representation in higher education, reshaping admissions policies and tribal sovereignty considerations.3

In Students for Fair Admissions (SFFA), the Court struck down race-conscious admission policies, declaring them unconstitutional.4 The decision narrowed decades of precedent, including Grutter v. Bollinger, a landmark affirmative action case, and cast uncertainty over affirmative action policies designed to increase representation for historically underrepresented groups, such as Native American students.5 In Brackeen, the Court was presented with a challenge to the Indian Child Welfare Act (ICWA).6 The plaintiffs in this case challenged ICWA on four grounds: congressional power, the anticommandeering doctrine, equal protection, and nondelegation.7 The Court upheld ICWA; however, it declined to rule on the equal protection challenge.8 Brackeen resurfaced the question: When should Native American identity be considered a political classification rather than a racial one?9 This question, as seen in this Comment, has been a common one throughout history, dating back to the founding of the United States.10

While SFFA knocked down race-conscious admission policies, Native Americans have historically been recognized not only as a racial group but also as a distinct political entity.11 This Comment will examine how the SFFA ruling poses challenges for Native American students, given the special legal status of tribal nations and the federal government's trust responsibilities, and how the Court's silence on the equal protection issue in Brackeen fits into these challenges.

Part II focuses on SFFA v. Harvard and the pivotal affirmative action cases that shaped its outcome. Part III examines the unique political relationship between Native American tribes and the United States by exploring founding-era perspectives on tribal status. Part IV analyzes Morton v. Mancari, Haaland v. Brackeen, and ICWA to examine the Supreme Court's approach of classifying Native Americans as a political rather than racial group in the context of affirmative action, to explore how this framing subjects Native American admissions preferences to rational basis review instead of strict scrutiny, and to consider its implications for the future of affirmative action for Native Americans. Part V explores the future of affirmative action for Native Americans, examining the legal uncertainty left by SFFA and Brackeen, as well as the sustainability of political classification-based admissions policies. Additionally, it will examine alternative strategies for maintaining Native American representation in higher education and potential challenges to political classification in affirmative action.

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While race-conscious admission programs may be a thing of the past, tribal sovereignty is deeply rooted in American legal precedent. The U.S. government has long recognized its unique obligation to uphold tribal sovereignty, a responsibility that stems from centuries of treaties, congressional enactments, and judicial precedent.194 Additionally, Native American tribes have historically been classified as a distinct political group. This view dates back to the founding era and is embedded in congressional actions and judicial opinions.195

However, the Court's decision in SFFA raises concerns about the future of policies designed to ensure opportunities for Native American communities. While the political classification of tribes provides a critical legal safeguard, the ruling invites renewed scrutiny of how Native American identity is treated under the equal protection analysis. If courts begin to conflate political and racial classifications, the consequences could have significant consequences not only for Native American students in the admissions process but also for the broader framework of tribal self-governance.

The history and status of Native American tribes give them a unique political classification that differentiates them from other racial or ethnic groups.196 This status has historically provided an additional layer of legal protection against equal protection challenges.197 However, there is uncertainty regarding how far this classification can or should reach. Given the Supreme Court's decision in SFFA, there is a looming question of whether Native American identity, in the context of college admissions and beyond, will continue to be recognized as a political classification or if it will be increasingly scrutinized under the same framework applied to racial classification. Ultimately, the unanswered questions left in SFFA and Brackeen ensure that the legal treatment of Native American identity in affirmative action remains an open and pressing issue, one that will likely demand further judicial clarification in the not-too-distant future.

J.D. Candidate, University of Houston Law Center, 2026, and Senior Articles Editor of Board 63 of the Houston Law Review; B.A. in History and Anthropology from the University of Alaska, Anchorage, 2021. This Comment received the 2025 Houston Law Review Award for Best Paper in Social Justice. This Comment, and law school in general, would not have been possible without the unwavering support of my husband, Cheng. Thank you for being my partner in every sense, for cheering me on, picking up the slack, and making space for my dreams. And to our son, Enzo whose laughter and light has kept me going throughout this journey. Thank you to Board 62 of the Houston Law Review for your guidance and mentorship and thank you to Boards 63 and 64 for your hard work throughout the editing process.