Tuesday, June 15, 2021

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A. Modified Repeal of the Citizenship Act of 1924

The decolonization of federal Indian control law should include the reconsideration and withdrawal of all laws enacted to force American citizenship upon Indigenous peoples without their voluntary consent. Thus, Congress should demonstrate its commitment to recognizing Indigenous sovereignty by repealing the Citizenship Act of 1924 and all other related citizenship legislation. Only by doing so will the corrosive effect of American citizenship upon Indigenous self-determination be eliminated.

While repealing the Indian Citizenship Act would be welcomed by some Indigenous people, most would likely resist this effort and seek to exercise their newly found power and status within the American political system to keep it from happening. Given the degree to which colonization has succeeding in incorporating much of the Indigenous population into American society, this would not be surprising or unexpected. Moreover, because of the way in which the United States has colonized Indigenous peoples--by transforming both heart and mind--most Indigenous peoples, in particular the Native Americans, may not even be cognizant of the fact that they are victims of a concerted colonial effort to transform their political identity.

In the face of such substantial objection, it would be a colonial and paternalistic act in and of itself to unilaterally repeal all legislation conferring American citizenship on Indigenous people. But remedying the wrongs of American colonial aggression requires that an equal and opposite act of colonial aggression take place. Failure to do so will ensure that any remedial action taken will be insufficient to redress colonialism's underlying corrosive effect. Colonialism's victims must be allowed to confront the reality of the political and societal transformation that has taken place. While this “tough love” approach may bring some pain, the fact that there are many Indigenous people today who have incorporated the American citizenship status thrust upon them should not mean that those Indigenous people who reject American citizenship should continue to fall prey to its destructive assimilating influence. Self-determination means the right to choose one's own political loyalties and one's own political identity, and if the United States truly respects that right, it should take action to ensure that it is available to all Indigenous peoples over which it has influence.

Nonetheless, because colonialism is simply not just “undone”, the practical effects of transforming Indigenous political identity must be taken into account in the development of a fair and just citizenship policy for Indigenous people in the United States. Thus, humanity (as well as political reality) dictates that such a policy should include the choice to preserve one's American citizenship upon the repeal of the citizenship legislation. For this choice to have real meaning, however, no allowance can be made for preserving under American law the status of a dual citizen. Dual citizenship, like any system of concurrent authority or allegiance, cannot be preserved because its existence comes at the expense of the weaker of the competing powers. In federal-Indigenous relations, this will always mean a sacrifice of Indigenous nationhood. Preserving dual citizenship would simply maintain the status quo and thus perpetuate the assimilating influence of American citizenship on Indigenous peoples into the future.

Instead, the United States should end its recognition of dual citizenship and require that Indians choose between retaining either their American citizenship or citizenship in their Indigenous nation. Under this “Choice of Citizenship Act”, Indians who chose to remain American citizens would no longer be recognized under federal law as citizens of an Indigenous nation. If such a choice is made, these Indians would have the same legal status as every other American and would not be afforded any special benefit or burden by virtue of being a person of Indigenous ancestry (except such special treatment that might be afforded minorities generally under American law). In short, an Indian making the choice to renounce his or her Indigenous citizenship would be treated just like any other American citizen. If an “Indian is considered to have manifested his consent to be governed under the Constitution of the United States, then he must join the ranks of the citizenry; his wardship status will have come to an end.”

If an Indian making such a choice were living outside of an Indian nation, there most likely would be no meaningful effect of having chosen American citizenship. Life as that person knew it would continue materially unchanged. Income would be earned, taxes would be paid and the same laws that protect other racial and ethnic minorities from discrimination would continue to apply. But if such an Indian were living within an Indian nation, however, their status would be changed markedly since they would now be treated by the United States as a non-Indian for such purposes as jurisdiction and taxation. Nonetheless, if some Indians choose to abandon their tribal citizenship in order to preserve their American citizenship, then they must be made to feel the full effects of this decision. If they truly desire to become “Native Americans”--Americans of Indigenous ancestry with unequivocal political allegiance to the United States--then the law should recognize and give life to that decision.

Making the choice to relinquish one's Indigenous citizenship may not necessarily have any effect as it relates to citizenship in one's Indigenous nation. Simply because the United States does not recognize dual citizenship does not mean that an Indian nation could not do so if it so desired. It may be entirely possible that an Indian nation may want to continue to recognize as citizens those of its members who choose to retain American citizenship. On the other hand, it might not be surprising if an Indigenous nation chose to punish these citizens by formally stripping them of Indigenous citizenship. This punishment, including such lesser used remedies such as denying citizenship but preserving membership status, are all within the realm of possibility. The ultimate decision, of course, would be up to that Indigenous nation alone.

Allowing Indigenous people to choose whether to retain American citizenship would recognize for the first time in seventy-five years the existence of a new class of persons within American society--citizens of Indigenous nations who owe no political allegiance to the United States. Relinquishing American citizenship, obviously, would result in the immediate loss of certain benefits and burdens of being an American citizen. Indians would not be allowed to vote in American elections, be candidates for American political office, or contribute funds to American political candidates and ballot initiatives. They would also be ineligible for any services that are available by virtue of being an American. Of course, they should also be exempt from many of the responsibilities, such as paying taxes or serving in the military.

Given the fact that the Indian nations are located within the United States and that life within said nations has become increasingly interrelated with the rest of America, the existence of this class of Indigenous citizens presents interesting questions of legal status that must be resolved. For example, if these Indians are not American citizens, could they live and work within the United States without special permission? Would they have to pay federal taxes for income earned in their own territories? Would they continue to be eligible for educational, social welfare, and other services provided by the states surrounding their territories?

Conceptually, the answer to these questions should be no. But the unique political relationship between the United States and the Indian nations--one founded upon treaties--should not preclude some unique formulations from being developed to address these questions. Already under American immigration law there is a class of non-citizens--permanent resident aliens--who are able to live and work in American society without being American citizens. Perhaps this model can serve as the backdrop for formulating a new legal status for Indigenous citizens who live in their own territories but otherwise enter the United States on a frequent basis. Because of the complexity and uniqueness of these questions, an entire article could be devoted to developing workable solutions. Lest anyone think the task too daunting, it is hard to imagine that resolution of the difficult questions that would arise from recognizing this class of non-citizen Indigenous people would be any more complicated than the existing body of federal Indian control law.

Regardless of what the ultimate answers to these questions are, they should not be resolved unilaterally by political or judicial declarations made by the United States government or its courts. If the United States were to take action to repeal its Indian citizenship legislation and recognize once again exclusive Indigenous citizenship, it should also be willing to resolve the myriad of questions that might arise through the medium of international relations--bilateral nation-to-nation negotiations and agreements. Under such a process, the answers to these and other questions can be negotiated and resolved in as fair, effective, and flexible a way as is humanly possible. Even under its colonial law, the United States has long recognized the sovereignty of the Indian nations. Surely a more unique and innovative solution can be developed for dealing with these difficult issues than simply continuing to destroy Indigenous political identity by paving it over with American citizenship.

 

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