membership

Sarah Deer: The Muscogee (Creek) Nation's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Sarah Deer (Muscogee), Co-Director of the Indian Law Program at the William Mitchell College of Law, provides a brief overview of the Muscogee (Creek) Nation's unique approach to defining its citizenship criteria, which essentially creates two classes of citizens: those who run for elected office, and those who can't. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

People
Native Nations
Resource Type
Citation

Deer, Sarah. "The Muscogee (Creek) Nation's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"What I'd like to talk about just very briefly is...first of all, I'm a citizen of the Muscogee (Creek) Nation and I probably...by the way I look, you can tell I'm a lineal descendent as opposed to having a high blood quantum. And I want to talk a little bit about that because one of the things I think -- especially in Oklahoma -- they kind of joke about us. I'm not Cherokee, but they joke about the blonde-haired, blue-eyed Cherokees, and one of the things I think that's really important for someone like me to acknowledge is that I have privilege because of the way I look. I can walk into a store and I'm not treated as an Indian because people don't see me as an Indian.

And when I was talking to one of my mentors, an elder who works to help me try to learn my language, she talked a little bit about that with me recently, about...when she grew up in rural Oklahoma in the 1950s, the level of painful racism in her memory is still very palpable, being treated as second class because of her skin color and because of her name and so today when she sees people who can pass, who don't acknowledge their privilege, who say, ‘I'm a tribal citizen, but I'm just the same as you,' when I didn't go through the experience of racism is painful. And I think we have to talk about that when we talk about lineal descendency because I get the privilege of passing. I get to tell people I'm Indian if I want to and if we don't acknowledge that painful history, I think we're going to continue to have a lot of controversy about what this means to potentially open up citizenship. So I wanted to say that at the outset.

And the other thing that I think is interesting is that I'm asked often what my...how much Indian I am, my blood quantum. But the only people who tend to ask me that are non-Indian people. What Native people ask me is, ‘Who is your family?' So it's...the blood quantum itself is something that is of interest to people, but in my experience that's usually coming from outside the tribe.

Now, what I wanted to talk about was one particular facet of my own tribe's constitution when it comes to governance because we have two classes of citizens. One class is full citizens and the other class is citizens and I want to talk about the difference between the two in just a second. But typically, when we think about American citizenship, the American government really doesn't do much in terms of distinguishing between citizens. All citizens are treated the same. If you're naturalized, you have the same rights and privileges as people who were born here. The one exception that I think became I think a focal point of the election in 2008 was that the president must be a natural-born citizen and so to be the President of the United States you have to have been born here in the country.

So let me tell you about how this Muscogee constitution developed. We have a very complicated history as most tribes do. In Oklahoma in particular we governed...we had really no acknowledgement of our government between 1906 and 1977, 1978. We were still operating as a government, but the federal government didn't recognize us pursuant to the Curtis Act. So when we were able to fight and get recognized as having continuing governance throughout that time period, the federal court actually ordered a constitutional convention, which was interesting and sort of ironic that in terms of re-recognizing the tribal government, the federal judge says, ‘And we will tell you how to do this.' But we did end up ratifying and passing a new constitution in 1979, which governs us today, and citizenship in our nation is determined through lineal descent [from] the 1906 Dawes Roll.

One of the things that's interesting about that of course is that in 1906 during allotment, many traditional people refused the Dawes Roll. They refused to go and sign up for their allotment on principle because they never consented to breaking up the reservation and so you have a lot of traditional people in Oklahoma today who are not enrolled in any tribe because their ancestor stood their ground. So that's another interesting facet.

But what I want to talk about specifically is how the constitution distinguishes between full citizens and citizens, and this comes from Article 3, Section 4 of our constitution, and explains that full citizenship requires the one-quarter blood quantum and those folks are known as the 'full citizens.' And then all citizens who are less than a quarter blood shall be considered citizens and shall have all of the rights and entitlements as members of the Muskogee Creek Nation except the right to hold office. And I'm still doing some research to figure out exactly how this decision was made or what the dialogue in the community was, but to hold office under the constitution you have to have this quarter-blood requirement. So I can't run for office.

And so one of the things that happened is how do we interpret that language? So I just...I present this sort of as a cautionary tale as you're thinking about potentially designing language that would provide this kind of distinction, the kinds of ambiguities that can develop. So what does it mean to hold office? And this became the subject of a dispute in 1986 and the question of what is the right to hold office. So citizens of the nation elect a principal chief, a second chief and a tribal council. And justices and judges are appointed by the principal chief and confirmed by the council so they're not elected positions.

So in 1986, there was a district court case in our tribal court and the party who lost the case appealed to the Muscogee Supreme Court arguing that the judge, the district court judge in that case was not a quarter blood, he was an eighth and so the losing party challenged that decision saying that the judge was not qualified under the constitution because he was holding office with less than a quarter blood. And so what the tribal supreme court then had to do is to interpret what the constitution meant by hold office. And they ended up determining that the constitutional requirement for full citizens or quarter bloods applies only to elected officials. So in other words, the judge and the justices do not have to be full citizens under the constitution.

Now after that case, the Muscogee Tribal Council passed a law that required judges and justices to be full citizens. And this has never actually been litigated, although I suppose someone could challenge that as a question of whether or not the constitution saying hold office trumps the statute that says judges and justices are included in that. So we don't know for sure how the court would have ruled on that particular statute. But slowly, in recent years, I think what has happened is that the body of qualified judges and justices has somewhat shrunk in the sense that there's not a whole lot of quarter bloods practicing law in our tribal courts. And so how do you then find a judge or a justice who's qualified to sit on the court?

So in 2010, the tribal council passed new laws stating that the judges and justices must be full citizens unless there's a waiver passed by two-thirds of the council. And in 2012, they amended that again and now you must merely be a citizen of the tribe, which means there's no blood quantum requirement for the court, but still the quarter blood quantum requirement is for principal chief, second chief and council. So I can be a judge for my tribe, but I can't run for office is basically how that plays out for me; being not in Oklahoma, I suppose that I would not be in a position to run for office at any level.

So there's one other thing I wanted to say about that. Oh, so the other thing that may be important in thinking about this is that to be a district court judge or a trial court judge in our tribe you have to be an attorney. You have to have a JD, you have to have a license to practice law, and you have to have at least four years of experience practicing tribal law. For the justices of our Supreme Court, there is no requirement that you have a legal degree, you merely have to be appointed by the principal chief. And so we have elders on our tribal Supreme Court who are not attorneys and I think that's a really intriguing development where I see a mixture of attorneys and non-attorneys on the supreme courts of tribes where you can blend then traditional knowledge with sort of contemporary western legal traditions.

So I just wanted to give that as sort of a tale of being careful when you draft language, because I'm not sure that everybody agreed on what 'hold office' would have meant, but now it's pretty clear that judges and justices are exempt from the full citizenship requirement.

One other thing I just wanted to raise because we talk about the Veronica case and the Indian Child Welfare Act. One of the things that's interesting about ICWA is that it applies when a child is a member or eligible for membership. Can a tribal government distinguish between citizenship and membership? The reason I bring this up was partly based on a comment made this morning about the clumsiness of the English language and how the English language around the terms like 'citizenship' and 'members' is really incomplete or a mismatch for culture. But there is an English distinction between 'member' and 'citizen,' at least they're two different words, and so one of the questions that I would just pause at -- and I don't know that I have an answer to this is, could a tribal government distinguish between citizenship and membership specifically thinking about ICWA and expanding the body of children in which the tribe would have jurisdiction over? So that was just one piece that I wanted to leave you with and I think that's what I have to say. So thank you."

Native Leaders: The Purpose and Challenge of Redefining Citizenship

Producer
Native Nations Institute
Year

Several Native leaders share their thoughts on why their nations are deliberating potential changes to their citizenship criteria, and they discuss some of the many challenges that Native nations face in this complex area of governance. 

Citation

Beaulieu, Justin. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A session.

Hall, Chris. "Cultivating Constitutional Change at Crow Creek." Native Nations Institute for Leadership, Management, and Policy, The University of Arizona and the Bush Foundation. Spearfish, South Dakota. April 25, 2013. Interview.

Harjo, Suzan Shown. "Five Decades of Fighting for Tribal Sovereignty and Self-Determination." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 11, 2008. Interview.

Hill, Anthony. "Constitutional Reform on the Gila River Indian Community." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Wesley, Angela. "Constitutions and Constitutional Reform - Day 2 (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Q&A session.

Suzan Harjo:

"We have our rights of selecting citizens, setting citizenship criteria saying who we are and who we aren't, who is not part of us. That is an act of sovereignty. Citizenship is an act of sovereignty."

Justin Beaulieu:

"I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That’s the only thing. So if we’re going to categorize ourselves into a category with animals because that…it’s always kind of been about resources. The federal government didn’t want to be babysitting a bunch of Indians so they said, ‘We’re going to make…if you have a kid with a white person, they’re half,’ and then eventually we’re going to be extinct before we’re dead. So that was good to them. That was good for them, and if that’s what we want to continue, that’s going to be our legacy, I guess that’s our choice.”

Anthony Hill:

"In our constitution, the blood quantum is in there and I’m sure many of you have blood quantum requirements for your membership. Despite all…there was a great emphasis on changing the blood quantum or addressing the blood quantum, but because we were so busy looking at everything else, at the end of this nearly five-year project we didn’t even touch blood quantum. And that was a great failure on our part because the membership of a community is the most important thing. It is literally the lifeblood of a community and if you can’t decide on who should be in your community, you’re not going to have a community in the future. So that was a failure on our part because we didn’t address that issue because we were so busy addressing the crisis that we…the time we were living in." 

Chris Hall:

“I think for me, philosophically, the government is a small supportive entity within a nation. I think the citizenry is the one who outwardly people see as the nation and they should be the ones that are producing. They should be the ones that are exercising that leadership, that autonomy that says that we’re standing on our own two feet. We are capable and we desire our future to be sustainable and we’re not going to give that over to a government institution and we’re not going to give that over to any large umbrella corporation that may or may not support our desires as citizens and define us differently than we choose to be defined. So yeah, it really comes down to the individual’s impetus of making the announcement and the statement, ‘This is who I am, this is what I stand for and this is what I’m willing to do to be a part of this nation.’ And you need people standing beside you that are like-minded.” 

Angela Wesley: 

"When we do go away and have regular meetings with our people who live away from home, that’s always the question is, 'How is this going to impact me?' It really comes down to the constitution gives us the ability to make decisions for ourselves and like this lady was saying, just because people live…our people have been forced to live away from home doesn’t mean they’re not a part of us anymore. But the way our funding structure was from the Department of Indian Affairs is we were only allowed to spend money for people who were living at home. So that was something that we thought was really critical to us governing ourselves is that we would be able then to earn some wealth with resources that we were getting through treaty and to develop our economy so that we could start to provide services to people who live away from home, whether that be housing, health, education, increased medical services or dental services, that kind of thing but we always said that’s up to us. So many of those things were up to us, and that we had to continue to have those conversations as we built our wealth so that the money is being put to where the people want it to be. In terms of reaching out to people and just talking to them and why we would do that, what they can bring, part of what we wanted to do -- with 85 percent of our people living away from home -- is to start to build that vision in our people that just because you live away from home doesn’t mean that your future generations aren’t going to come back. Like you said, those educated people that are out there that can come with different skills to bring into our community when we start to be able to rebuild our economy so we really wanted not just to make the linkage but also to encourage people to start thinking about coming home. Our vision talks about strengthening our culture, strengthening our language, trying to reincorporate our traditional way of governing ourselves. People have to be home for us to do a lot of those things, so we wanted to start to build that notion in people’s minds that yes, it will be possible. We don’t have schooling right now, we don’t have health care right in our community, but let’s work so that we can so that we can start to attract some of those people to come back home and live comfortably in our territories. That’s part of our vision is that our people are able to live at home. And we recognize that not everybody is going to do that but we want more people to be able to do it."

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

Scholar Carole Goldberg shares what she's learned about citizenship criteria from her extensive work with Native nations across the country, and sets forth the internal and external considerations that Native nations need to wrestle with in determining what their citizenship criteria should be.

Resource Type
Citation

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.

The Unintended Consequences of Disenrollment

Year

For most of the modern tribal self-determination era, American Indian nations have emphasized inclusion. Starting in the early 1970s, higher tribal membership numbers equated to higher federal self-determination dollars. As tribes otherwise redoubled their efforts to reverse the destruction caused by preceding federal Indian removal, assimilation, and relocation policies, tribes found strength in numbers through expanded membership. Once-terminated tribes that were restored over the last few decades were particularly aggressive about bulking up their membership rosters in order to rebuild everything that the United States destroyed in the 1950s. Because of the once normative nature of American indigenous kinship-based systems of inclusion, the Indian Nation rebuilding efforts were second nature...

Resource Type
Citation

Galanda, Gabriel S. "The Unintended Consequences of Disenrollment." Indian Country Today Media Network. February 2, 2015. Opinion. (https://ictnews.org/archive/the-unintended-consequences-of-disenrollment, accessed February 22, 2023)

Disenrollment Is a Tool of the Colonizers

Producer
Indian Country Today
Year

Our elders and spiritual leaders do not teach the practice of disenrollment. In fact, disenrollment is a wholly non-Indian construct. Indeed, when I recently asked Eric Bernando, a Grand Ronde descendant of his tribe’s Treaty Chief and fluent Chinook Wawa speaker, if there was a Chinook Wawa word or notion that means “disenrollment,” he unequivocally answered, “no.”...

Native Nations
Resource Type
Citation

Galanda, Gabriel S. "Disenrollment Is a Tool of the Colonizers." Indian Country Today. January 16, 2015. Opinion. (https://ictnews.org/archive/disenrollment-is-a-tool-of-the-colonizers, accessed April 4, 2023)

Oglala Sioux Tribe to issue IDs at tournament

Year

For the first time in its history the Oglala Sioux Tribe will bring its enrollment office to the public.

During this year’s Lakota Nation Invitational in Rapid City the tribe will have a booth set up to issue tribal IDs to enrolled members who may not have the opportunity to travel to Pine Ridge to get them...

Native Nations
Resource Type
Citation

Ecoffey, Brandon. "Oglala Sioux Tribe to issue IDs at tournament." Native Sun News. November 25, 2014. Article. (http://indianz.com/News/2014/015762.asp, accessed November 25, 2014)

Winnebago Tribe expands member definition

Author
Year

Members of the Winnebago Tribe of Nebraska have overwhelmingly voted to expand their definition of tribal membership.

Previously, the tribe required at least one-quarter Winnebago blood relationship to qualify as an enrolled member. Now, those who have a parent or grandparent that belongs to the tribe can count blood relationship with other federally recognized tribes to meet the one-fourth "blood quantum" criteria...

Resource Type
Citation

Dreeszen, Dave. "Winnebago Tribe expands member definition." Sioux City Journal. February 07, 2009. Article. (http://siouxcityjournal.com/news/state-and-regional/winnebago-tribe-expa..., accessed October 25, 2013)

Two Possible Paths Forward for Native Disenrollees and the Federal Government?

Year

Disenrollment, a seemingly innocuous term when used outside Indian country, has become a loaded word that rivals, if it does not surpass, “termination” as a concept that invokes fear and trembling in those natives who suffer its consequences. While the federal policy of termination in the 1950s was the formal repudiation of numerous Native nations’ recognition and benefits and constituted an abrupt cessation of the trust relationship; tribes that have instituted disenrollments effectively repudiate an individual tribal citizen’s recognition and benefits and crush the nation’s trust relationship with that person. Federal termination of Native nations was the intentional destruction of the political and economic identity of an indigenous people; tribal termination via disenrollment of bonafide native individuals is the purposeful destruction of the political and economic identity of a tribal citizen...

Resource Type
Citation

Wilkins, David. "Two Possible Paths Forward for Native Disenrollees and the Federal Government?" Indian Country Today Media Network. June 4, 2013. Opinion. (https://indiancountrymedianetwork.com/news/opinions/two-possible-paths..., accessed June 4, 2013)

'We'll Always Be Nooksack': Tribe Questions Ancestry Of Part-Filipino Members

Author
Producer
KUOW Puget Sound Public Radio
Year

About 300 members from the Nooksack Tribe, near Bellingham, provide their perspective of being disenrolled by Nooksack Tribal Council because of their Nooksack and Filipino ancestry.

Native Nations
Resource Type
Citation

Jones, Liz. "'We'll Always Be Nooksack': Tribe Questions Ancestry Of Part-Filipino Members." KUOW Puget Sound Public Radio. Seattle, Washington. December 16, 2013. Radio Interview. (http://kuow.org/post/we-ll-always-be-nooksack-tribe-questions-ancestry-p..., accessed February 22, 2023)

Nipissing First Nation passes first Ontario Aboriginal constitution

Producer
CBC Radio Canada
Year

The Nipissing First Nation has passed a constitution that’s believed to be the only First Nations constitution in Ontario. But there are questions about what this document actually does for the community.

The constitution was passed by the Nipissing First Nation with a vote of 319 to 56. Chief Marianna Couchie said the vote count was “empowering.”

“It took more than 10 years to create this law,” she said. “It's a major step towards self-government."

Native Nations
Resource Type
Citation

CBC Radio Canada. "Nipissing First Nation passes first Ontario Aboriginal constitution." CBC Radio Canada. January 21, 2014. Audio. (http://www.cbc.ca/news/canada/sudbury/nipissing-first-nation-passes-firs..., accessed March 11, 2014)