Race and American Indian Tribal Nationhood |
Race and American Indian Tribal Nationhood
February 2009
44 pages
Matthew L. M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center
Michigan State University
Forthcoming in a 2011 University of Wyoming Law Review issue.
American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation—mired in the politics and law of disenfranchising the Cherokee Freedmen—continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe in Rhode Island on an important land case, perhaps, because the tribe’s citizens did not have significant blood quantum collectively.
But in most other cases, the Court is skeptical of tribal government authority because tribal citizenship is based at least in part on race. This means for the Court, especially Justice Kennedy, that non-Indians by blood or ancestry can never be citizens of an Indian tribes. And the Court worries that a tribal government seeking to assert jurisdiction over these persons somehow violates the social contract.
I argue, perhaps for the first time, that Indian tribes must move beyond race and ancestry as the single most important means of determining tribal citizenship. It will not be easy for Indian tribes to move beyond race and ancestry, but it is necessary if Indian nations wish to move beyond their status as an afterthought in the American constitutional structure and develop into more complete sovereign nations. I suggest several ways for Indian tribes to alter their citizenship criteria and recommend an incremental solution based on immigration law and policy.
Read the entire paper here.
Tags: Cherokee Freedmen, Cherokee Nation, Matthew Fletcher, Matthew L. M. Fletcher