Morton v. Mancari

Mancari was the first time the Supreme Court considered the question of how Native Americans, who commonly are treated as ethnic groups in many circumstances in U.S. society, could receive special treatment by the government without that treatment being considered racial discrimination. In applying a newly created "rational basis" test to Native American preference, the Court unanimously found that Native American preference in hiring and promotion was not racial discrimination. In order to withstand this test, a law being challenged must be rationally related to a legitimate government interest. In this case, the fostering of Native American self-government and making the BIA more responsive to the needs of Native Americans were found to be legitimate government interests. The preferences also were not violations of the Due Process Clause. As long as the special treatment of Native Americans could be rationally tied to the fulfillment of Congress' unique legal obligations toward Native Americans, the Court gave Congress the benefit of any doubt and did not rule against such laws. If the Native American preference laws were only designed to help Native Americans as individuals, then they could be determined to be racial discrimination.

The primary distinction drawn by the Court in preference policies between Native Americans and non-Natives was political, not racial, since only members of tribes recognized by the U.S. government would benefit. However, the promise Mancari held to advance the rights of Indians was not fully realized. Ironically, Mancari's creation of political distinctions exempted persons from equal protection violations which made Native Americans quite vulnerable to adverse treatment. In United States v. Antelope (1977) the Court held that in some cases tribal members could be subjected to harsher penalties under the law than non-Native Americans since constitutional equal protection did not apply.

Americans are taught from childhood that "all Americans are equal." Many viewed the unique right of tribes to govern their reservations and enjoy certain government preferences as clear evidence that Native Americans have "more rights" than regular U.S. citizens. The special status of Native Americans continued to raise outcries of "reverse discrimination" even though the Court held such preference was not racial at all, but a federal-tribal relationship, "governmental" in nature. Despite this distinction, opposition grew in the 1990s to eliminate the special status of Native American tribes. In defense, Native Americans viewed their ability to make and enforce laws of a certain territory as essential to preserving a geographic and cultural identity. Having Native Americans in positions of authority in the BIA was a necessary part of enhancing self-government. The Supreme Court showed its willingness to continue supporting this right in County of Oneida v. Oneida Indian Nation (1985). The Court further emphasized Congress' unique legal obligations toward Indians. By the 1990s about 80 percent of BIA employees were tribal members and most high level Native American policymaking positions within both the Department of Interior and the BIA were held by Native Americans.

Aside from Native American issues, another very important result of the Mancari case was that the Court expressed its unwillingness to support arguments that laws had been repealed merely by implication of later laws being passed. As emphasized in Traynor v. Turnage (1988), the Court again asserted that Congress must clearly express such an intent for repeal to exist.