Avoiding Extinction, Preserving Culture: Sustainable, Sovereignty-Centered Tribal Citizenship Requirements

Abstract

Current tribal citizenship practices will ultimately lead to the extinction of tribes. The accompanying article presents suggestions to avoid that outcome. It also fills a fundamental gap in current scholarship that may be contributing to the problem.The legal scholarship about tribal citizenship has never grounded its analysis in the rich body of citizenship theory and history that exists outside the tribal context. Tribal issues, including citizenship, are regularly treated as if they exist in a vacuum. Scholars, practitioners, and tribal leaders often seem to assume that exclusive use of minimum blood quantum and lineal descent are the only legitimate available alternatives. This myopia not only forecloses a host of useful, sustainable alternatives, it has Indian people misconstruing their own history, or worse, disregarding it as illegitimate.The discussion of tribal citizenship needs to make a direct connection to the broad architecture of citizenship theory and history. Doing so supports assertions that tribal citizenship concepts and standards are as valid as those of other sovereigns. Failing to do so leaves tribes in a Wonderland where the agreed intuitive ethics of prior resolutions becomes alien to Indian law. Without that direct connection, tribes and individual Indians are left in a contrived, results-oriented carnival fun house, where ideas like citizenship are continually manipulated by non-Indian authorities in self-serving ways, unmoored from any unifying ethical principle. One goal of this article is to reconnect the topic of tribal citizenship with fundamental citizenship principles.Using this revived foundation, this article makes three further points. First, the exclusive use of minimum blood quantum and lineal descent to determine citizenship is fatally flawed, likely resulting in the extinction of tribes, “legally” or “practically.” The assertion that exclusive use of lineal descent is fatally flawed is an important new idea on the subject. Second, tribes must abandon exclusive use of minimum blood quantum and lineal descent as a means of determining citizenship and instead combine lineal descent with other non-genetic citizenship criteria historically used by tribes, including residency, historical knowledge, governmental knowledge, or civil service. These additional criteria represent valid, historically based tribal analogues of commonly accepted citizenship criteria used by other sovereigns throughout history. Third, tribes need to expand their citizenship laws in at least four ways: 1) grant citizenship to spouses and non-member Indians that live on the reservation, 2) create a category of citizenship that includes reservation resident non-Indians, allowing them to participate in reservation governance issues unrelated to other tribal interests, 3) retain tribal control of tribal benefits, such as casino revenues, access to tribal programs, treaty rights, and management of sacred sites by restricting access and participation in those programs to tribal citizens, and 4) restrict access to portions of the reservation where tribal ownership, authority, and character would be complete, similar to what was done on the Yakima Reservation prior to Brendale v. Confederated Tribes and Bands of Yakima Indian Nation. 492 U.S. 408, 414-22, 432-42 (1989). These four expansions seek to address so called “democratic deficits” used by non-Indian courts to limit tribal authority on reservations while creating reservation areas that will have more exclusive tribal character and jurisdiction. T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, The State, and American Citizenship 115 (2002); Matthew L.M. Fletcher, Reviving Local Tribal Control in Indian Country, 53 Fed. Law., Mar./Apr. 2006, at 38, 40; Kristy Gover, Genealogy As Continuity: Explaining The Growing Tribal Preference For Descent Rules In Membership Governance In The United States, 33 Am. Indian L. Rev. 243, 250 (2009).