Abstract

Excerpted From: Gabrielle Kolb, Students for Fair Admissions, Inc. v. University of North Carolina and Haaland v. Brackeen: Lessons on the Future of Affirmative Action for Native American College Applicants, 20 University of Saint Thomas Law Journal 511 (Spring, 2024) (94 Footnotes) (Full Document)

In the summer of 2023, the United States Supreme Court decided two cases that may change the legal landscape for Native Americans hoping to benefit from affirmative action programs or tuition waiver programs in higher education. In the first case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court overruled Grutter v. Bollinger, a landmark affirmative action case, which held that colleges and universities may consider race as a factor in admissions decisions. The second case, Haaland v. Brackeen, presented the Supreme Court with a challenge to the Indian Child Welfare Act (hereinafter ICWA). In Haaland v. Brackeen, the plaintiffs urged the Supreme Court to chip away at Morton v. Mancari and hold that ICWA is built upon impermissible racial classifications, not political classifications. The Court, while declining to rule on the equal protection claim, upheld the validity of ICWA.

Despite the attention that both cases have independently received, there is little conversation regarding where these cases intersect. Native Americans are frequently included as a group that benefits from affirmative action, alongside African American, Latino, and Asian applicants. While Native Americans are included as a racial group in affirmative action conversations, Haaland v. Brackeen presents questions regarding when being Native American should be regarded as a political, not racial, classification. Although race-based affirmative action in higher education has fallen, affirmative action for Native American applicants may still be defensible as a political-classification-based preference. This Note will examine the current legal landscape for Native Americans seeking to attend institutions of higher education by providing an overview of the arguments in Students for Fair Admissions, Inc. and Haaland v. Brackeen. Ultimately, it will argue that affirmative action programs and tuition waiver programs for enrolled-member Native Americans entering college may continue, in some form, based on the political nature of Native American tribal membership and the importance of attaining higher education to maintain political sovereignty.

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While traditional affirmative action schemes for higher education are no longer permissible, the Court has affirmed the status of tribes as distinct political bodies for the purposes of ICWA. The successful functioning of any political entity requires a diverse set of educated leaders. As tribes continue to evolve and innovate, their members' education is vital. The federal government should enact a federal policy of granting admissions preferences to enrolled tribal members, and states should continue their practice of making college more affordable through tuition waivers for Native students to support the development of future tribal leaders.

Gabrielle Kolb, J.D., University of St. Thomas School of Law.