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From the Myth of Formal Equality to the Politics of Social Justice: Race and the Legal Attack on Native Entitlements


  • The authors wish to thank the organizers of the 2008 “Paradoxes of Race, Law and Inequality Conference”—University of California, Irvine Center in Law, Society and Culture and the Law & Society Review—and the attendees for providing us with an opportunity to share our research and receive valuable feedback. We would also like to thank LSR Editor Carroll Seron, Laura Gómez, and the three anonymous reviewers for their suggestions. Please direct all correspondence to Courtenay W. Daum and Eric Ishiwata, Colorado State University, Political Science Department, Campus Delivery 1782, Fort Collins, CO 80523; e-mail: or


This article examines how the conservative legal movement's successful countermobilization of the politics of rights enables U.S. Supreme Court outcomes that exacerbate racial and ethnic inequities while solidifying the privileged position of others in the name of equality. A comparison of two pivotal Supreme Court cases involving native entitlements—Morton v. Mancari (1974) and Rice v. Cayetano (2000)—illustrates how appeals to formal, as opposed to substantive, equality work in effect to support existing hierarchies. At the same time, the conservative legal movement's success provides progressive social actors with opportunities to reframe the discourse. We suggest that a critical questioning of strategies predicated on appeals for equal rights may be necessary to advance the interests of native populations in the current environment, and we identify an alternative way of working for native interests, one that escapes the constraints of equality doctrine by appealing to broader claims of social justice.