In the United States v. Antelope et al., 1976, the Supreme Court ruled that federal jurisdiction over crimes committed by Native Americans on reservations did not violate their Fifth Amendment rights to equal protection under law. The defendants, members of the Coeur d'Alene Tribe in Idaho, were charged with murder and robbery committed on a reservation. They argued that they were subjected to discriminatory treatment because non-Indians committing similar offenses would be prosecuted under state laws which carried lesser penalties than federal laws. However, the court held that this difference in prosecution was based on tribal status rather than racial distinctions and thus did not constitute unconstitutional discrimination.

In the dissenting opinion for United States v. Antelope et al., Justice Brennan, joined by Justices Marshall and Stewart, argued that the majority's decision upheld a discriminatory application of federal law based on race or tribal affiliation. They contended that this was in violation of the Equal Protection Clause of the Fourteenth Amendment. The dissenters believed that it was unconstitutional to subject defendants who are members of federally recognized tribes to harsher penalties under federal law than those faced by non-Indigenous individuals committing similar crimes within state jurisdictions. They asserted that such differential treatment constituted racial discrimination as it subjected Native Americans to different legal standards solely because they were born into a particular tribe or race.