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Matthew L.M. Fletcher


Excerpted from:  Matthew L.M. Fletcher, Tribal Membership and Indian Nationhood, 37 American Indian Law Review 1 (2012-2013)

American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. And yet, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Despite some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In rare circumstances, some non-Indians are eligible to become members as well. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

Membership rules are a tribal prerogative. As a matter of foundational federal Indian law, the United States Supreme Court has recognized that Indian tribes have a right to define tribal membership as each tribe sees fit. With relatively few exceptions, tribes robustly exercise this right to decide the criteria for tribal membership.

It is impossible to avoid the fact that racial ancestry is critical to tribal membership criteria. Indian tribes are tribes first and foremost, and tribal membership criteria must reflect this tribal character. An Indian tribe composed of a large percentage of non-Indian members is no tribe at all. Historically, federal, state, and tribal governments have struggled mightily with this key point. Moreover, the federal government played a key role in developing the membership criteria for many hundreds of tribes, leading to allegations that part of the government's interest was literally to breed Indians out of legal existence. Tribes with stringent membership rules limit their own population growth and, in some extreme instances, could shrink their membership down to nothingness, just as federal bureaucrats and policymakers may have envisioned decades or centuries ago.

The relevant question is when does an Indian tribe cease to exist as an Indian tribe and legally dissipate? Can it reconstitute itself after a time and how does it do so?

Meanwhile, federal Indian law's recognition of the anomalous character of Indian tribes as race-based entities appears even more anomalous and possibly illegitimate in the modern era of American constitutional law that strives to achieve the conflicting values of race and color-blindness. Commentators and courts struggle with the evolving paradox of government programs and legal doctrines that exist for the benefit (and occasionally to the detriment) of persons of a certain race and ethnicity.

What federal and state government programs and rules, applicable only to Indian tribes and individual Indians, are constitutionally viable in the current era of American constitutional law? How can a race-based, membership-oriented government hope to assert power over nonmembers who do not share the same race?

The purpose of this article is not to answer these questions. Much thought-provoking ink has already been spilled and will continue to be spilled by law professors and others about these questions. Instead, this article advances a conversation about how to avoid these questions. It is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. * * *

* * *

III. Indian Nations Defined

Indian tribes must evolve into Indian nations. “Nation” means a legal entity with membership criteria somewhat broader than the purely race and ancestral-based rules now in place. This would include at least some non-Indians in the mass of tribal people. But the Nation classification is not such a foreign concept to Indian communities; in fact, that is how as Indians were historically classified. With careful application, the Nation classification could preserve the best aspects of tribalism, and therefore Indian culture.

A. Historical Tribalism

Before blood quantum and lineal descendancy were used to define Indian tribes, there were traditional and customary ways of identifying Indians in a particular Indian political group, having more flexibility than modern tribal membership criteria. The story of Leopold Pokagon, the man who gave his name to the modern Pokagon Band of Potawatomi Indians, illustrates this system. Pokagon was the leading ogema for the St. Joseph River Indians during the early part of the nineteenth century. He helped negotiate treaties and other political agreements that preserved the right and ability of the Pokagon Band to remain on their land as the federal government removed other Potawatomi bands to the west. Pokagon was born and raised an Ottawa Indian (or perhaps Chippewa) in the territory of the Grand Traverse Band. He met a Potawatomi woman and moved in with her and her family in the St. Joseph River Valley. Over time, Pokagon became an ogema (leader or headman) for the community.
Pokagon's story could not be repeated in the modern era. Tribal membership criteria prohibit members of one tribe from acquiring membership in a second tribe. And, more importantly, Pokagon was an Ottawa or Chippewa from Grand Traverse and did not have the requisite blood quantum (or lineal descendancy) to qualify for membership at the modern day Pokagon Band.

Anishinaabe history is replete with Michigan Indian communities taking in outsiders as “members” regardless of blood quantum. Perhaps the most famous is the nineteenth-century capture of John Tanner, a white boy who grew up in Michigan Indian Country with the Anishinaabeg. We know a great deal about Tanner because he left the community after he grew up and wrote a book about his experiences. Tanner's captivity may have been typical in a time of great uncertainty and difficulty for Michigan Indians. Michigan Indian bands, especially after a military confrontation, occasionally took prisoners and incorporated those individuals into their own polity. There were pragmatic reasons for doing so - manpower being short at the time, Indian bands needed as many people as possible to hunt, fish, farm, trade, and defend. Every individual lost due to killing, disease, kidnapping, or other predicaments had to be replaced, or else the entire community's viability would be threatened. It appears that slavery was a solution to these threats.

In short, outsiders could become members of an Indian polity over time, regardless of their race or ethnicity. Modern tribal membership criteria, derived from the listing of individual Indians in treaty annuity or judgment award rolls, effectively put an artificial end to those practices. Now Indians are zealously protective of blood quantum and some even judge each other by blood quantum (“FBI: Full Blooded Indian” tee shirts abound) and skin color. Such is the irony of modern tribalism.

B. Introducing Nonmembers into Modern Tribes

Nonmembers surround tribal members in most areas of Indian Country due to the impressive historic dispossession of Indian lands. In some reservations, non-Indians outnumber Indians and own most of the land. In most reservations, Indian and non-Indian land ownership is mixed, creating checkerboard land ownership patterns. Indian tribes and local units of government negotiate away the jurisdictional problems arising from checkerboard land patterns, with varying degrees of success. Despite a few setbacks from local courts in recent years, negotiating jurisdiction is the future.

Alongside this development, nonmembers continue to be excluded from tribal membership. Anti-tribal groups use this situation to attack Indian rights - tribal members are still American citizens after all, and so it appears to others they have “special rights.” This special status, and the perceptions that follow, generate continuing problems for Indian affairs.

There are few methods for incorporating non-Indians into the American Indian polity. For example, many Indian tribes already allow “adoption” of nonmembers into tribal membership, regardless of American Indian ethnicity. The Grand Traverse Band's adoption regime has a dramatic history relating to its federal recognition story. But more recently, the Grand Traverse Band tribal court held in Ance v. Grand Traverse Band of Ottawa and Chippewa Indians that a non-Indian by blood adoptee was legally a tribal member entitled to all tribal membership benefits.

Less dramatic, but probably more effective, will be the subtle incorporation of nonmembers into the tribal polity through economic and governance measures, such as employment and housing, and government services. Many nonmembers are already incorporated into tribal economies without dispute. Tribal employees agree to litigate wrongful termination and other employment or labor claims in tribal court. Tribal housing lessees agree to comply with tribal regulatory agencies and to litigate their claims in tribal court. Nonmembers just visiting Indian Country routinely comply - though maybe not comprehensively - with tribal civil regulatory jurisdiction (perhaps in response to threats of federal prosecution). Over time, Indian tribes could use these contacts to establish a codified form of tribal nationalization. Nonmembers could nationalize in the same way that non-citizens can nationalize into Americans.

C. Reimagining Indian Tribes as Indian Nations

Indian tribes and their advocates already use the rhetoric of nationalism. Discussions of “Indian nations” abound. Tribal leaders and advocates prefer using the term “nation” to describe their political entities over terms like “tribe,” “band,” or “community.” The preference for “nation” is symbolic, and perhaps derives from a throwaway line by then-Justice Rehnquist in the 1970s, where he described Indian tribes as “a good deal more than ‘private, voluntary organizations . . .

Tribal advocates describing Indian tribes as nations likely misread what it means to be a nation. The rhetoric of tribal nationhood focuses almost exclusively on the subjective notion of tribal sovereignty. Tribal sovereignty is a concept used as a mantra by tribal leaders and advocates and is in dire need of modernization. Tribal sovereignty, as described by tribal interests, aligns with Chief Justice Taney's description of southern states' sovereignty in Dred Scott. The modern understanding of sovereignty has moved beyond, and tribal leaders and advocates must as well.

First, Indian nationhood must have some big-picture limitations. Unless the American Constitution is amended dramatically, Indian tribes will never be equivalent to states or foreign nations. Indian tribes will not be forming treaties with foreign countries on significant geo-political subject matters absent congressional consent, or maintaining their own armies or militias. Indian tribes cannot legalize slavery or illegal drugs either. And Indian tribes will be unsuccessful when asserting the “dignity” of a constitutional sovereign before the Supreme Court in federalism cases.

Therefore, tribal sovereignty is robust, but limited by the preferences of the outside American culture. Expansions of tribal sovereignty - a key point to any discussion of Indian affairs - must be earned. Tribal advocates frequently point out that the federal government did not give tribal sovereignty to Indian tribes - it was retained in treaties with the federal government. They are right to do so, but there is more to tribal sovereignty than retained rights in our federal Indian law. Tribal sovereignty must be exercised by Indian governments in order to mean anything; and concomitantly, where outsiders have acted to limit tribal sovereignty, tribal governments must earn back that governmental power.

That is the essence of nationhood.

* * *

The evolution of Indian tribes into (domestic) Indian nations is a long-term project. Earning nationhood - that is, earning the presumptive right to govern all people and territory within Indian Country subject only to limitations necessitated by greater interests of the United States - will not be easy. The first step is a revolution in our understanding of tribal membership. Such a revolution is not possible in modern tribal governments because there is an enormous amount of reliance on political exclusion by tribal leaders and members. Many tribal members around the country have almost nothing but their tribal membership, and to allow nonmembers and non-Indians to share in that political right is not viable.

But some tribes can and should evolve. Some tribes, intentionally or not, are already doing it. Tribes that utilize a lineal descendancy tribal membership rule are already there to a large extent. Other tribes (White Earth Band of Ojibwe, for example) are considering how to introduce territorial and cultural requirements into their tribal membership criteria.

Tribes cannot - as a practical matter - allow everyone to meet tribal membership criteria. Tribalism, and the culture and language that tribalism protects, is the spirit that binds tribes together now and forever. A serious reconsideration of how tribal membership criteria can best protect and advance tribalism is necessary. Indian lawyers won't get it done. Neither will most tribal leaders, whose election chances depend on current tribal membership criteria. But is must be done.




. Professor of Law, Michigan State University College of Law.