Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy
Fletcher, Matthew. "Defining Citizenship: Blood Quantum vs. Descendency." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.
"So this session will highlight the major issues that arise in this debate about whether to require a minimum blood quantum for tribal citizenship or base citizenship decisions on lineal descendancy and understanding that there's many other factors that a tribal nation can use to define citizens. We're going to focus on these two issues for the remainder of the morning. We have two speakers, both tribal members.
We have Matt Fletcher from the Grand Traverse Band. He's a professor of law and Director of the Indigenous Law and Policy Center at Michigan State University. He's Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He's a member of the Grand Traverse Band of Ottawa and Chippewa Indians and in 2010 he was elected to the American Law Institute.
Dr. Jill Doerfler, Associate Professor at the University of Minnesota Duluth grew up on the White Earth Reservation in Western Minnesota. She earned her B.A. in History from the University of Minnesota-Morris and her Ph.D. in American Studies from the University of Minnesota. Her areas of focus were literature, historiography and politics. She has extensive credentials that you can read in your materials, but I'll note that in 2011 Dr. Doerfler was awarded a faculty fellowship from the Institute for Advanced Study, University of Minnesota. In 2010 she won the Beatrice Medicine Award for Scholarship in Native American Studies. So please join me in welcoming our two speakers for this panel."
"Good morning everyone. [Anishinaabe language]. My name is Matthew Fletcher and I teach at Michigan State University School of Law and though 'Sparty' pays the bills, I have to say too [Anishinaabe language], which means 'Go Blue!' And I have a lot of relatives going back to the 1890s who have been going to Michigan so I have to recognize them as well. I'm going to be talking to you a little bit about some of my experiences in working in Indian Country on tribal membership issues. I will touch upon certainly questions of blood quantum and lineal descendancy, although I think it's pretty clear if you were at the morning session that Steve [Cornell] in particular really covered sort of the foundations there, and so I may jump off a little bit from what he had to say and I'll certainly jump off from what John Borrows had to say. So let's just kick in right now.
I'm a member of the Grand Traverse Band of Ottawa and Chippewa Indians, which is located in the center of the universe, Peshawbestown, Michigan, and I am also a descendant, a Potawatomi descendent and eligible for membership at three Potawatomi tribes in Michigan, which is Pokagon Potawatomi, Gun Lake, and Nottawaseppi Huron. Most of my relatives frankly are Potawatomi...Pokagon Potawatomi descendants and so I'm going to talk a little bit about one of my ancestors who's a guy named Leopold Pokagon. He's I think great...three great-grandfathers ahead of me and he is the...actually for whom the Pokagon Band of Potawatomi Indians is named in many ways though he is actually not a Potawatomi guy. The story goes is that he is from the Grand Traverse Bay area so there's double my Grand Traverse Bay lineage there to some extent. It's not totally clear if he was Ottawa or Chippewa, but let's assume he was Ottawa and he moved down state. Either as a young person, he may have been adopted as a young person, as a child or married into the family down state. He married a Potawatomi Ogama who's name was Topenabe, married his daughter and I don't remember her name. And eventually in the 1820s and 1830s, after his father-in-law passed away, he became the Ogama for what would become the Pokagon Potawatomi, the St. Joseph River Potawatomi group and negotiated treaties on behalf of the tribe. And in fact, one of the...they were the...this Potawatomi band was one of the only Potawatomi bands able to escape removal out to the west into Kansas and later on into Oklahoma. You may have heard of the Prairie Band Potawatomi and Citizen Potawatomi, they're from southwestern Michigan, northern Indiana area. The Pokagons were able to stay back and were able to avoid removal.
What's important about our story here is that as I said before, Leopold was an Ottawa guy so the real question is, if he's Ottawa, how the hell did he become the chairman of an entirely different tribe, if not just the chairman, the member of that...a member presumably of that tribe? And it really goes to the Three Fires Confederacy in the Great Lakes, especially Michigan, the Ottawas, Potawatomis and Chippewas, very close-knit communities at the same with individualized leadership structures and geographic entities. We call them 'bands' or 'tribes' or 'communities' now and in many ways they had some of the same political distinctions between them in the 18th, 19th and early 20th centuries as well. I think it's important to note that one of the reasons Leopold did not stay back at Grand Traverse Band is a very pragmatic one, it would have been -- if it were him and definitely in my own experience it is with me -- you hang around your own village and you're a young man growing up, it's very likely that you're going to have to leave. Otherwise, you'll end up marrying one of your own cousins and so that is why people move around, why there's a lot of intermarriage between the Anishinaabe communities in Michigan and elsewhere. And this is a perfectly reasonable and culturally justifiable way of measuring and determining, I guess, what we would call 'membership' or 'citizenship' now. Again, I'm going to have to use those words because I don't speak very much at all of the Anishinaabemowin and I am an English-language speaker and I've obviously been taught in the English language for my whole education including my law degree. So I just mentioned Leopold because I think it's important that how far away we've moved from what would have been very non-controversial, relatively speaking, membership or citizenship decisions made in the 19th century to where we are now. There's no way Leopold could ever become a member of his own tribe, the Pokagon band, at this time and it's a very strange, long road as to how we've gotten to that part.
I want to talk about a second story, which is a case I litigated as in-house counsel for the Grand Traverse Band, a case we'll call En re M. And M. was a young kid. He was a descendent of Thames Band Oneida. His mom was Thames Band Oneida. She claimed to be full blood. And as a tribal attorney for an American Indian tribe, we are -- and the enrollment office will tell you this, too -- we are taught that when just because a Canadian Indian says they're full blood doesn't necessarily make it so because of the Canadian Indian Act where either you're full blood or you're no blood whatsoever, at least that was the paradigm under which so many Canadian Indians were forced to live under. And so he claimed to be Thames Band Oneida, which didn't do him much good in trying to become an enrolled member of the Grand Traverse Band, but his father was one-eighth Grand Traverse Band. And if we were able to count any of his Canadian Indian blood -- at least one-eighth -- he could have gotten bumped up to a quarter and therefore be eligible for membership under our criteria at that time. And it was my job to fight this young kid's application. It was not a fun case in any way. It was quite a disturbing case frankly. Easily the hardest case I'd ever had to do. Most of my work as in-house counsel litigating cases in tribal court -- and I did enjoy litigation a great deal -- was mostly litigating against tribal members or in this case someone who wanted to be a tribal member -- a kid, basically a kid who was in high school at that time, and I had two arguments in objection to his claims. Number one, the Canadian Indian blood was indeterminate, we couldn't know for sure as a matter of law and number two, we couldn't count Canadian Indian blood anyway because it was from Canada. Both of these rules, both of my arguments, are as a matter of law, Grand Traverse Band law, were the prevailing arguments. I won. The tribe won the case. We were able to keep this young kid out, but I will tell you now that I have moved on from my job as in-house counsel that both of those arguments are horse sh**, and I think everybody in this room realizes that this kid probably was...had more blood quantum in him than the vast majority of our own tribal membership, although it's hard to say, who knows what that means.
So I bring these two questions to you, these two anecdotes or cases to you as examples of how far we have gone wrong to some extent when we talk about tribal membership criteria in American Indian tribes. You know that there are some tribes who -- and Steve again, thank you, great job putting up the PowerPoint talking about the wide variety of membership criteria -- but I think it's safe to say the two paradigms of tribal membership in the United States are blood quantum and lineal descendency. And sometimes there's a combination, but generally speaking the main criteria for tribal membership is one or the other. And as we often say in law schools, these criteria are over- and under-inclusive. Blood quantum includes people who may or may not have any connection whatsoever to the tribe and excludes people who may live from the reservation, who speak the language perhaps even as their first language. They may even dream in the language and participate in the ceremonies and participate in the cultural life of the community and the polity of the community, but for whatever reason are not tribal members. And then lineal descendency, as you all well know, may include people who have never been to the state in which the tribe is located or it may include people who just have no connection whatsoever. There are anecdotal stories in Michigan of members of the tribes who are of lineal descendency who, for example, in Upper Peninsula of Michigan, there's the Sault Ste. Marie Tribe -- which is a tribe of lineal descendency -- participated in the fishing wars of the "˜60s and "˜70s. The tribal members fought against a bunch of people trying to stop them from exercising their treaty rights and then after the treaty rights wars are over, treaty rights survived and became regulated and more predictable, the tribe suddenly was inundated by some of the same people who had fought against them demanding an application for membership and some of them were eligible for membership and so they were brought into the tribal community and recognized as treaty, card-carrying fishers. I'm not saying that's a good or a bad thing. It is obviously a bit ironic, but it gives you a sense of how some of these membership criteria can be very arbitrary. Although I won't say capricious, I won't go that far.
I've passed out a couple of law review articles and I haven't really been able to take the time to really write down all of my thoughts about tribal membership. These are very incomplete articles, but I have a couple of ideas when it comes to tribal membership, what I would like to see more tribes think about. I want to second something that Steve said, which is, 'Don't let the federal government tell you what to do.' That was part of my problem with the En re M. case. I was actually able to persuade the tribal court that if he recognized this Canadian kid that the federal government would come swoop in and take our federal recognition away from us and the reason I was able to persuade the court of that is because we had multiple letters from the 1980s from a guy named Scott Keep in the Department of Interior who said exactly that. "˜I will make sure that if you accept these other people in that Congress will strip you of your federal recognition.' So there's that, and I want to second a whole lot of what John Borrows said about recognizing that the law is in the heart of the language. That's the most important part, really the most important talk I'm sure you will hear today, but a couple of other things. And I come to you and I say these things, these recommendations with my very incomplete and superficial understanding of [Anishinaabe language], which I think is an encapsulation of the natural law of the Anishinaabeg communities. And something that I think that I would like to think more about in terms of incorporating how we take these concepts that John called vague and make them into legitimate and real legal concepts and legal structures. And I think the first place we can go is immigration law.
Immigration law in the United States is highly controversial, but the structure of the thing isn't really all that confusing. Basically, when somebody comes into your community, you take to them and maybe you stop them at the border or maybe you go up to them at some point later on at some entry level and say, "˜So, what do you plan on doing here?' and "˜How can you contribute?' and "˜What are you going to do for this community?' And so we have things like visas and green cards, people can come here and work, they can come here and go to school, many people come here and they go into the military. They don't always become citizens, they don't always have complete voting rights, but they participate in the economy and in the social structure and in the polity of the community, or in this case, of the nation. And I don't see any reason why Indian tribes can't do the same thing with people that come into their reservations, even on fee land owned by non-Indians, they can still exercise some governance authority over them. And the way to do that frankly isn't really all that difficult, much different than what some tribes are already doing.
Somebody comes into your reservation and says, "˜I want a job,' and you hire them. They probably have entered into a contractual relationship with the tribe. There's no reason that the tribe can't then say, "˜Well, now that you're here, when you're on the reservation you're subject to our laws.' It's really nothing more than what a visa is. Or when somebody comes onto the reservation who's a non-member or a non-Indian who's perhaps married or attached to our tribal members and they want to live in tribal public housing or they want to take advantage of tribal governmental services, whatever might be available, those individuals should also be aware and be considered at least 'semi-citizens' of the tribe. That doesn't mean that just because somebody works for the tribe or somebody receives governmental services or lives on trust property that they are full voting members of the tribe. Lots of tribes have differing citizenship classifications. I live off the reservation at the Grand Traverse Band, outside of the six-county service area, I'm not eligible to vote in most elections, but I'm still a citizen of the tribe. So there's no reason why these people who are not blood Indians cannot be brought into the tribal polity. And I think it's important that we consider the possibility that we broaden our scope of citizenship and membership and we can call it whatever we want. We can call them the Anishinaabeg word for 'immigrant' if we can come up with a good respectful name for that. All of these people are something...are people that we should try to bring within the grasp of the tribal community and of the tribal government and in a good way and in a way that is consistent with [Anishinaabe language].
I think there are a couple of different reasons for that. One is very...they're both very pragmatic reasons and the reality of our modern issues arising from Indian Country governance. Number one is, the outside world perceives Indian tribes as being race-based nations. That is the absolute perception. Unless, with incredibly narrow and few exceptions, people cannot be full members or citizens of an Indian tribe unless they have a racial ancestry. And for those of you who know anything about American constitutional law or our history, that is quite a problem even in the United States. There are a whole series of constitutional amendments designed to prevent states and the federal government from doing the exact same thing that Indian tribes do as a normal matter of course. Now, we all recognize there are perfectly legitimate reasons and perfectly understandable reasons why tribes move in this direction, why tribes use ancestry, they use blood quantum, or lineal descendency to articulate and define citizenship. And I'm not saying actually that should change whatsoever, but what I am saying leads into the second major pragmatic point which is, there are people within Indian Country that the tribe cannot control. These people in some instances know that. In context like sexual predators, in the context of environmental dumpers, Indian Country is a target for people like this, people who are non-Indians who know they can get away with it because it's Indian Country and the reason they can get away with it is because the courts and the politicians in D.C. and in state legislatures believe that Indian tribes are less than when it comes to acceptable governments. And one of the main reasons they consider that and they believe that is because of this racial ancestry requirement to tribal citizenship.
Now, I recognize that there is a bit of a hole in my analysis that I'm arguing, on one hand, racial ancestry as a criterion for citizenship leads us into a bad place and limits us as Indian tribes, as tribal leaders and tribal government entities from exercising our jurisdiction. On the other hand, I'm also saying let's not do away with tribal membership criteria that is based on ancestry and so there is a distinction there, there is a problem and I can't pretend to resolve it in this moment. But I do think that a well thought out and creative immigration policy, immigration rules, finding a way to get those non-Indians, those non-members to consent to tribal government, as many as possible, is a way to legitimize tribal governments, to exclude people is actually a paradigm we should move away from. But to be more inclusive is a place we should consider going, more inclusive with practical limitations. Now I've given this talk before and one of our prior presenters, I don't know if she was listening to me, but she gave the exact response that I expected to get, which is, "˜Well, if we do that, then Indian tribes will just become German.' What she went by that -- this is Bethany Berger -- is sort of joking was that there are a lot of German people apparently who would love to be members of Indian tribes. And if you know anything about German hobbyists, you'll know exactly what I'm talking about. That doesn't...actually that's not a very good response to my comment or to my suggestion. I really think that tribes can be much more creative in how they define who is within their polity, who is within their government control.
And the last thing I want to say and this may be, depending on, because of our audience, may be the most controversial thing. I don't know that major change in creativity on the question of tribal membership and citizenship and the questions of inclusion and exclusion can be fulfilled without a major and important reconsideration of our tribal leadership structures. So many times I've read about histories of Indian tribes and especially in the Great Lakes -- because that's what I really focus on -- and also the traditional stories on the question of leadership really give me the sense that Indian leaders in the Great Lakes area, the western or the upper Great Lakes, were not elected leaders. They were appointed for a particular purpose and some leaders are really good at negotiating agreements or treaties with other leaders from other nations or even within the tribe. They have incredible skills and I've seen leaders from lots of tribes, my own tribe -- which I frequently criticize, I will tell you -- who are amazing diplomats, who speak in a way that I would never be able to do. I just don't have that skill. And then there are leaders who are incredible business people who can see through and have a vision about how to make an organization work and how and creative ways to develop an organization and to generate governmental revenue. And then there are leaders who are just amazing at taking the views of their constituents and moving forward with those views and trying to take the issues constituents bring up, it could be anything from employment to housing to anything and find a way to react to those issues and solve those issues going forward.
But too many times, I see people being elected for four years who are good at some of those issues and not so good at other of those issues and we always joked -- and believe me this is a great lawyer joke, a lawyer joke not directed at lawyers by the way. You can make those jokes as well, I'm asking for it. But we used to say at Grand Traverse Band, the only thing you needed to be to be a leader was electable, to have a big family, and sometimes that isn't really the kind of leadership you're looking for. Sometimes it is, but sometimes it isn't and I think we need to reconsider exactly what it is that tribal leaders are good at. We had this proposal at Grand Traverse Band that the tribal council shot down, not because they weren't tempted by it, but because it was too obvious what we were trying to do.
The other lawyer joke we had, and again not one directed at lawyers, but us lawyers directed at our clients basically was, every council member was one-seventh tribal chairman because we had seven council members one of whom was the chair and they all thought they were the chairman. And we always joked about that, so one day we wrote up how to reorganize the tribal government so that they actually would all be one-seventh tribal chairman. And the government is this system of departments that could actually be structured in such a way as to give each of the seven elected officials control, chairman-like responsibility over a discrete amount or a discrete listing of departments, very much like the Secretary of Interior is in charge of the whole series of agencies within what is the Department of Interior. And we thought this was a fantastic proposal, we knew exactly where people would go. One person, one of our council members, our clients was really, came from the housing department. She was elected because of issues relating to the housing department. She should be the secretary of housing and on down the line. Obviously it was shut down, it didn't go anywhere, but I think that more generally speaking a reconsideration of the rules and of the appointment of tribal leadership is also in play and also may actually be a prerequisite to serious reconsideration of tribal membership issues.
Now that I've said that, I'm going to sit down and let Jill [Doerfler] speak and I'm sure she's going to give a much more peaceful presentation. But I want to thank you all and say [Anishinaabe language] to the Anishinaabe people who are here and also to the Dakota and others who...anybody who is from this area or who has listened to me today and I thank you very, very much."