Carole Goldberg: Designing Tribal Citizenship
Goldberg, Carole. "Designing Tribal Citizenship." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation.
"Thank you very much for that introduction. I've already extended my thanks to the Native Nations Institute for inviting me here. I also want to extend my thanks to the Pascua Yaqui people for hosting this very informative event.
I'm going to be talking about tribal 'citizenship' -- that already raises questions about terminology. You've often seen the word 'membership' used in lieu of 'citizenship.' The term 'membership' harkens back to something that Chairman Rocky Barrett of Citizen Potawatomi said in one of the earlier presentations you saw here today. There was in the development of tribal constitutions through the Indian Reorganization Act of 1934 a view of tribes as, in some respects, corporate entities that would have boards and members. There was also a view of tribes as something akin to private associations or even clubs that would have members. The terminology of 'citizenship' evokes sovereignty and nationhood. I think it's become more common for Native nations to use the terminology of 'citizenship,' but any constitution has to have, as you heard earlier, the legitimacy and acceptance of the people whose government it is and the terminology will have to fit comfortably for whatever community that is.
I want to make one other preliminary point and that is about citizenship and constitutions, because many nations that don't even have constitutions will have citizenship or enrollment provisions in their tribal laws. So what difference does it make to have it in a constitution as opposed to having it in a code or an ordinance? We've heard constitutions described as fundamental law, which they surely are. One of the characteristics of fundamental law in general is that it is more difficult to change. So if you want to have the citizenship or membership provisions for your government to be more stable, less subject to change with political variation over time, then you will want to have it locked into your constitution.
Now there are many different ways your constitution can specify how difficult or easy it is to change the constitution. I come from California, where it is actually really easy to change our state constitution. As a consequence of that, we've had some fairly zany provisions in our constitution, but I will also say that I do not think we would have tribal gaming today in California were it not for the fact that it is relatively easy to modify the constitution of the State of California. By contrast, the constitution of the United States is really, really difficult to change and we've been stuck as the United States nation with some very old -- and, I would argue, antiquated -- provisions in our constitution precisely because it's so difficult to change.
So when you think about putting a citizenship provision in your constitution, also be thinking about how easy or difficult it is to change your constitution. You might want to allocate some of the authority over citizenship to your lawmaking process apart from your constitution precisely because that may be easier to change over time. So that's just kind of preliminary and a more global set of considerations to think about.
So you've heard already about the considerable variety of tribal constitutions both in times past and in the present day, notwithstanding the unifying force of the Indian Reorganization Act. There's still quite a bit of variation and that variation can be seen in the range of citizenship provisions that exist in tribal constitutions. I have given you a list of some of the more typical forms of citizenship provisions that you can see with examples afterwards of Native nations where those kinds of provisions can be found. So you can find citizenship provisions that rely on lineal descendants from a base roll or list. So anyone who can trace ancestry to a person who is on that list would be someone who could qualify for tribal citizenship. And the Cherokee Nation of Oklahoma is a good example of that. As you know, there is quite a bit of legal controversy over which lists, but the descendants from lists is the foundation for citizenship there.
There is also quite a bit of tribal constitution making that includes what I'm calling here minimum percent of tribal or Indian descendance, often referred to as blood quantum. And the percentage can vary from very high to very minimal, but some percentage would be specified and in some citizenship provisions the percentage of descendance can actually vary depending on the person's other descendants. So there are actually tribal constitutions in California that say that the minimum descendance requirement from that particular tribe is less if the remainder of your descendance is from another California tribe or in some instances from another federally recognized tribe. And that is a recognition of the fact that there are sometimes rather arbitrary divisions that the United States imposed when treaties were made or reservations were established and they wound up breaking up communities that had previously been unified. And so sometimes the constitution provisions say that if you come from one of our sibling or related tribal communities, you don't have to have as much descendance from our tribe, but if you're a total outsider then you must have the higher minimum descendance. So that's another array of possibilities.
There are yet other Native nations that specify that in addition to descendance, whether it's lineal or percentage, that you must also have your descendants be through your father's or your mother's line and we've got examples on both sides because there are matrilineal and patrilineal traditions in many Native nations and I've given examples of Santa Clara Pueblo in New Mexico where it is patrilineal and the Seneca Nation of Indians in New York where it is actually through your mother's line.
Still another form of citizenship provision focuses not just on descendance, but where your parents were living at the time you were born, and this has to do in many instances with places like California where reservations were assemblages of peoples from that general area who had been scattered even though they weren't all part of a single community, but they were gathered together on a single reservation. So the place mattered a lot. So in order to be a member for example of the Tule River Indian Tribe in California, you must be born to parents who are living on the reservation. As you can imagine, this creates a huge premium on being able to live there and when your population grows and you don't have more places for people to live, it puts a lot of pressure on your citizenship rule. This by the way was a type of provision that was favored by the Bureau of Indian Affairs at the time of the Indian Reorganization Act in the 1930s.
And the last example I'll give in this list -- and I'm confident that I'm not exhaustive and there may be other examples you can all point me to -- but are provisions for citizenship by adoption or in the international sense we would call it naturalization. How do you become a citizen when you were not born as one? And here the variations are very great. So there are places like Nez Perce in Idaho where anyone can be adopted or naturalized as a citizen of the tribe. You don't have to have any other prerequisites other than the tribe is willing to have you. But there are other places where naturalization is limited, maybe limited to people who are not eligible for citizenship because they don't have a sufficient percentage of descendance or blood quantum or you might have to be a member of some other federally recognized tribe and give up that other citizenship in order to be adopted. Or you might have to be related to an existing citizen of the tribe. There are many variations that one can have and again, the process for adoption or naturalization is going to matter a lot if you have one of these provisions, because the process can make it extremely difficult or it can facilitate the adoption or naturalization of people into the tribe.
So there are all these choices out there. That doesn't mean that you can just put them all in a hat and pick one and say, "˜Okay, this one's ours,' or just deliberate for a little while and say, "˜Oh, this one sounds right.' There are a lot of important considerations that are going to go into thinking about which kind of citizenship provision matters and you're going to get a very specific case of those deliberations, but let me try in a more abstract way or general fashion to suggest what some of these considerations might be. So I'm going to divide them into external and internal. And by the way, I think the internal are more important, but the external are not irrelevant.
So do you have to worry about direct federal controls? My answer here is no. The federal government through the United States Supreme Court decisions through the pronouncement of the Bureau of Indian Affairs says, "˜We're totally hands off.' Now, does that mean they're totally hands off? No, it does not. They find ways to insinuate themselves. In the past, it was because if you had an Indian Reorganization Act constitution, the Secretary of the Interior had to approve the constitution. So they used that leverage to strongly recommend, if I may say as an understatement, that certain kinds of provisions be in there, and that's how places like Tule River were strongly encouraged to include these requirements that the parents be living there at the time the child is born. And the BIA's interest was in keeping tribal citizenship numbers low because the BIA was concerned about the burden on the federal government because certain financial benefits were to be distributed to tribal members. The federal government also gets involved in situations where there are contests over whether a particular tribal government should be recognized for dealing on a government-to-government basis and this is how the federal government has become embroiled in all the controversies at the Cherokee Nation of Oklahoma. But in general, this is your decision. The federal government should not be dictating and if they try they should be resisted.
There are however, some indirect ways in which the federal government has some influence on the choices you make. So to the extent that federal benefits and the applicability of federal laws turn on tribal citizenship, it will matter greatly how you define that citizenship. The federal government has increasingly made its laws turn on citizenship rather than on your descendants as a Native person and the reason they've done that is because they are fearful that they will be carrying out racially discriminatory legislation if they do otherwise. I would argue that they're not, but that's another story. My point is that for things like applicability of the Indian Child Welfare Act, can you have control over your children? Your citizenship provisions are going to make a huge difference because the law only applies to children who are members or eligible for membership. And there are many other benefits -- employment with the preferences within the Bureau of Indian Affairs, federal benefits for scholarships and other forms of federal disbursements that will turn on citizenship.
A second area where it can matter a lot is in the authority of a government to carry out its powers, so for purposes of criminal jurisdiction not only by the tribe, but by the federal government it will matter whether someone is enrolled. Now for federal criminal jurisdiction purposes, there's actually a little bit more leeway even if you're not formally enrolled. If you're recognized by the community as belonging there, the federal government rather than the state may have authority if some wrongful act is committed, but that's a very fuzzy area and it's a whole lot more secure to get out from under the authority of the state if a person is a tribal citizen. And these days, now the recent reauthorization of the VAWA act may make it less relevant for some purposes, but still for quite a few purposes, if the tribe wants to exercise its authority, both criminal and civil, it's going to be a lot easier to defend that in outside courts if someone is a tribal member. So there are other ways in which the federal government does this indirectly, but I'm going to move onto the more internal matters because I think these are the ones that deserve the most attention. So what are some of the things to think about from within your own community?
Well, as we've said many times already in this brief amount of time this morning, constitutions need to have legitimacy within your community, which means they have to have continuity within the values and beliefs within your community. That's not to say that those are static, that they never change, but there must be some organic sense that this reflects our community. So what does your community understand to be the expectation for someone to belong to that community? There's a lot that's been written by people in my academic world about whether kinship and descendants and blood quantum are new constructs for tribal citizenship that don't really fit historical ways of understanding, of belonging for tribal communities. And they point to the fact that hundreds of years ago individuals who were not biologically related to members of a community might be incorporated through a variety of means -- through marriage, through captivity in warfare, through political alliances. For a lot of reasons people might be brought into a community even though they're not biologically related. So why should native nations today care about descendants?
Well, I think there is an argument to be made that kinship has always been a fundamental component of belonging in tribal communities and how outsiders were viewed 200 or 300 years ago may not be the same way that outsiders would be viewed today. There is not the same concern 200 or 300 years ago about being overwhelmed by a population of immigrant colonizers from across the ocean. That wasn't an issue 200 or 300 years ago and so maintaining some expectation of kinship may very well accord with foundational beliefs in a community. How that kinship is understood is going to vary from place to place, blood quantum may or may not capture that, but the idea that kinship matters I think is something to be considered from an internal perspective.
At the same time, another important consideration is going to be maintaining numbers, I suggest, and maximizing political impact. So I've worked with a number of native nations, and you heard from some even earlier today, who were concerned about reductions in their citizenship numbers over time if they maintain very high percentage descendants requirements.
One interesting example is the Otoe Missouria of Oklahoma, who just a few years ago reduced their percentage descendants requirement from one-fourth to one-eighth. And here's what their leaders had to say. They said that, "˜Before the change there were about 1,400 enrolled members and only 129 of them were below the age of 18.' Today, since they changed their requirements there are over 2,500 members, 479 of those are minors and what the chair said at that time, this was announced two years ago, is that, "˜The future of the tribe is more secure both physically and financially.' The chair noted that a majority of the departments and services offered through the tribes are funded by grants and the higher the number of tribal members served by the grant, it means that the grant funding is generally higher. So there are many political, financial and other reasons. The chair also said, "˜Our tribe has gotten younger. A majority of our new members are younger people. This ensures a strong future for the Otoe Missouria Tribe. With a larger membership we should be able to obtain additional funds from government agencies and maintain and pass on strong traditional values to the growing tribal membership.' So this was some of the thinking behind increasing the numbers by decreasing descendants' requirements.
At the same time, Native nations have been concerned that if they expand their citizenship numbers too greatly, they may jeopardize cultural cohesion and they may be jeopardizing those who have shown their loyalty over time by maintaining affiliation. How do you at the same time sustain your numbers over time and at the same time not disburse your citizenship so widely that you lose connection to your home community. You saw from the depiction of the Citizen Potawatomi Nation, with their 27,000, how widespread their population is. How do you ensure that you don't have a citizenship so large that the people are not vested in protecting their land and their home community? So that's another issue to consider. And protecting the tribal land base is going to be very important, because if you have lots and lots of citizens who do not reside or feel a connection to that land base, you may very well be in a position where the majority of your citizens are willing to see it despoiled because it will provide benefits to folks who are not present. And that is a danger that one must anticipate in thinking about the design of citizenship and related provisions.
Do you want to secure future generations? What I've heard so often in working with Native nations on their citizenship provisions is they want to make sure that their future generations are not left out, that they are able to pass on that tradition and culture and they are able to pass on that sense of belonging. And finally, I want to make sure that I mention, because I'm a lawyer, sorry, that you want citizenship provisions that are not going to be too complicated. You want ones that are not going to turn into huge arguments over time about what they mean. Okay.
So the last thing I'm going to talk about before I let you move onto the next presentation is what are some of the design options that you can be thinking about to try to balance some of these, especially these internal considerations, because sometimes they point in opposing directions and you have to be able to accommodate them. So one thing to be keeping in mind is that citizenship and voting provisions can be considered to some degree on separate tracks. You have to be very careful that you not have classes of citizens. We all know that there... until 1919 women were citizens of the United States, but they could not vote. And certainly those in the 18- to 21-year-old range who were being drafted in Vietnam were pretty unhappy that although they were citizens they could not vote on whether they were even going to be involved in a war. So that there is a powerful force that moves towards the convergence of citizenship and voting, but still there are ways to design voting provisions so that you can both expand numbers and at the same time protect your core community and land.
So one of the ways you could do it is you could say, "˜Fine, everybody who's a citizen can vote, but you must be living in the tribal community in order to have voting privileges.' In other words, anybody is entitled to come and live there so anybody who makes that choice can be a voting member. That way you can be ensured that those who actually make the decisions are the ones who are invested in that community. Or you could simply say, "˜No absentee voting,' meaning that you have to really care about this community in order to vote and make the journey. 'Come on voting day, but we will not let you sit in the comfort of your home in Anchorage and vote for what's going to happen in Citizen Potawatomi.' Or what you could do is what Citizen Potawatomi and Cherokee Nation have done, both of them places with large off reservation populations, and in the case of Cherokee Nation even contested whether there is a reservation, and what they've said is, "˜We are going to structure our voting by districts. There will be districts within our territory and then we will construct districts outside our territory that will not have an equal voice, but they will have a voice.' So the Cherokee Nation actually created a bunch of districts within their territory and then they said, "˜There is a separate voting district that will elect a representative for the off-reservation Cherokees.' And that way they are not excluded, but they are not given overwhelming influence.
Two other suggestions for design that can help you start to accommodate some of these considerations. One is the idea of the right of return and this idea is the idea that anyone who is a lineal descendant would have special privileges to become a citizen if they so chose. So they would have to make an active effort. They would not automatically as a lineal descendent be a citizen, but they would have to make the affirmative effort to affiliate and if they did they would be allowed to do so. It's not that they would have to be subject to someone else's decision about it, but they would still have to make the active choice. That way you can ensure that there is some real connection that that person has to the community.
And finally, you can think about doing what Fort Peck did back in the 1980s. They created a category that they called associate members and these were people who were given the...belonging to the community because they had members by their title, but it was specifically presented that they would not be voting members and they would not be entitled to the distribution of tribal assets. So these were folks who had a lesser percentage of descendance or blood quantum, but they still were descendants of the nation. They just didn't qualify for the percentage required under their constitution.
What I want to emphasize is that there are a lot of choices available, in theory. That doesn't mean that all of these choices are available just because they sound intriguing. You have the hard work, the hard work of political process and I've worked with communities that have tried to develop consensus on what should be the criteria for belonging. It's not easy. They did everything from holding coloring contests for the preschoolers in order to get the parents involved, to surveying the elders, to holding meeting after meeting after meeting. There was somebody on that screen who said, "˜This is not a three year maybe not even a six year process.' It takes time and commitment, but the possibilities are there. Thank you."