In 1851 an exasperated Hugh Swinton Legare, the U.S. Attorney General, said "There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this government and those of the states." While a great deal has changed over the last century and a half, there is still a substantial amount of veracity to Legare's observations about the status of the 567 Native nations and their distinctive political, legal, and cultural relationships.
Nowhere does this ambivalence plague intergovernmental relations more these days than on the issue of Native citizenship. Outside Indian Country most don't realize that over the past 10 years, several thousand people have had their tribal citizenship status terminated. Most were not dismembered for wrongdoing or adopted by other Native nations. They were simply identified by their elected officials as allegedly no longer meeting revised citizenship criteria. One day they were Native citizens, the next day, they were not. This fate has befallen individuals on a case by case basis over the years, but the practice has now reached alarming proportions never before witnessed.
In California alone some 39 governments have, or are in the process of, legally terminating tribal members. In the Pacific Northwest, the Grand Ronde and the Nooksack are in the process of striking hundreds from their rolls. Some tribal governments are appropriately working to decipher their membership records and clarify their identities. Others are using the process to winnow out unrepentant criminals, or in some cases to silence political adversaries or avenge old grudges. The few who profit from gaming or other industries have been accused of shrinking their numbers to increase gains for those remaining. Whatever the motivation, those cast out are culturally adrift and politically uncertain as to their remaining rights as either tribal, state, or federal citizens.
Federally recognized Native nations are generally not subject to constitutional constraints because of their preexistence as separate sovereigns; and with their own structures of governance, are also mainly exempt from state jurisdictional authority. Several hundred treaties and accords have preserved these nations as bona fide sovereign governments with rights to hunt and fish, punish criminals, to inhabit and hold title to what little remains of their original homelands and, like all other sovereigns, to set their own citizenship criteria.
When Legare expressed his frustrations in the early 19th century very few Natives were American citizens. But in the decades following his observations the federal government pursued an aggressive policy of assimilation, culminating with the 1924 Indian Citizenship Act, which extended U.S. citizenship to all remaining Natives.
Although Native individuals had U.S. citizenship thrust upon them without their consent, they retained citizenship in their own tribal nations. Interestingly, many states were long reluctant to act in kind and only when Utah allowed the native vote in 1962 were Indians finally considered citizens by every state. So, incredible as it may seem, Natives have only been recognized as having citizenship in all three polities--their tribal nation, state of residence, and the U.S--for a mere 52 years.
It might be reasonable to assume that these folks, armed with three layers of citizenship, were entitled to more benefits and protections than non-Native citizens. This is not the case. In U.S. v. Nice (1916) the U.S. Supreme Court held that while Indians had acquired American citizenship in accepting the terms of the Allotment Act of 1887, because of their tribal status they remained subject to extraordinary federal power over their rights and their property. Thus, Natives were simultaneously "citizens" of and "subjects" to U.S. law.
This is the genesis of our modern day trouble over citizenship. Tribal nations, like the U.S., rightly have total authority to set and maintain citizenship requirements. But if those facing disenrollment are not provided adequate due process procedures and have limited appeal opportunities before their very own government or to the federal government wielding assumed plenary power, they find themselves in a purgatory where they are neither citizens nor subjects.
These thousands have, in effect, been declared not only tribeless, but also stateless, because having exhausted their meager tribal options they are allowed no recourse under federal or state law. They are U.S. citizens, but the Bureau of Indian Affairs, the principal federal agency overseeing federal obligations to tribal nations, citing the Supreme Court's 1978 decision in Santa Clara Pueblo v. Martinez, insists that it cannot weigh in because membership decisions are the sole province of tribal governments.
In theory, that is a sound decision and one that no rational tribal leader would dare challenge. Throughout Indian Country, while most know the disenrollment process is increasingly being abused, they also know any criticism could invite destructive interference in tribal decisions. The assertion of federal plenary power over tribal nations creates and sustains a permanent undercurrent of anxiety across nations. At any moment, the US could again renege on its treaty obligations and bloodlessly complete the processes of termination that began with the arrival of the first colonists. This shared insecurity has historically created the basis for strong cross-tribal alliances and it continues to unite them today.
And those fears are based on a very real threat. Racism, ethnocentrism, and stereotypes still abound in society, as evidenced by the persistent flap over the Redskins football team name. Perhaps even worse are those who think Indians are tragically fated to extinction. More comfortable with Indians as mascots and Hollywood sidekicks rather than as complex, powerful sovereign peoples, their romantic apathy stymies meaningful nation-to-nation work.
So, those with solid governments and clearer histories are looking the other way and waiting for the controversy to pass. This creates a surreal moral contradiction where, tribal leaders rightly rail against the colonizing power of the US while ignoring wrongs occurring within their own communities.
Many believe the answer must come from tribal nations themselves and have called for creation of an intertribal court to guarantee a measure of objective scrutiny. Others say US congressional hearings are needed; a course that would provide disenrolled individuals a forum but one which would most certainly would invite attacks on all nations. But, if it is true that Native disenrollees are, in fact, tribeless and stateless then it is time for the United Nations to open its doors and provide protection.
The 2007 Declaration on the Rights of Indigenous People, although not an internationally binding covenant, contains ample provisions that should be useful to dismembered tribal citizens, even against their own governments. Article 1, for instance, declares that “indigenous peoples have the right to the full enjoyment as a collective or as individuals, of all human rights and fundamental freedoms ….” And Article 6 asserts that “every indigenous individual has the right to a nationality.” For those disenrolled, nationality is first and foremost that of their own nation.
A Native citizen who has been unfairly and without adequate due process dismembered from her own tribal nation should be entitled to protections and due process. As a citizen of the world, she should also be entitled to the protections now made available under the United Nations. Such protections, if and when they come, may not save the Grande Ronde or Nooksack disenrollees from legal and political termination, but they will be of real value to Natives in the future.
At the same time, Tribal nations should not have to fear that acknowledgement of rights violations at home will leave them vulnerable to bigoted criticism or even termination.
Even Attorney General Legare would have found it hard to fathom that this far into the 21st century the whole compass of our laws would still have failed to bring tribal nations, states and the US government to a place of greater political clarity, cultural strength, and human rights protections. Instead, we seem saddled with a legacy of distrust that allows abuses to continue in the shadows cast by sovereignty's bright shield.
David E. Wilkins (Lumbee), holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota. His recent books include The Navajo Political Experience, 4th ed. (2013), Hollow Justice: Indigenous Claims in the U.S. (2013), The Legal Universe (with Vine Deloria, Jr.) (2011), and The Hank Adams Reader (2011).