Citizenship
By Paige Pattison
Citizenship, in many ways, determines the course of one’s life. It dictates what laws an individual must follow and whether a particular government will grant certain rights and privileges to the individual. And while citizenship undoubtedly acts as a means of protection for some, it can conversely be used as a tool to exclude and withhold from others. Unfortunately, tribal citizenship in the United States has largely been defined by the latter. Native American history is colored by repeated assaults to tribal self-governance, on the basis of tribal citizenship. Despite these attempts, the U.S. Supreme Court’s recent decision in Haaland v. Brackeen is a hopeful one—it suggests that tribal citizenship is fluid and capable of being redefined. For those invested in the future of Native American tribes, Brackeen illustrates that tribal citizenship can be a powerful means to reclaim tribal sovereignty.
Origins of Citizenship
The concept of “citizenship” finds its roots in Ancient Greece.[1] In Athens, a citizen was primarily defined as an individual “capable of self-governance and therefore of the legal and military governance of the city.”[2] From the beginning, self-governance was an essential element of citizenship. In exchange for swearing allegiance to the city-state, citizens were extended the right to vote and hold office.[3] Thus, citizenship operated as a means of granting self-governance to some and withholding it from others—namely women, slaves, and the poor.[4] It is on this foundation that notions of citizenship developed over time, with a continued link to self-governance.
United States Citizenship
Until recently, citizenship was generally understood as a fixed status that simply defined one’s “standing within the law.”[5] It was seen as stagnant and nonrelational, existing within its own space.[6] The United States system of federalism—in which individuals simultaneously hold both federal and state citizenship—significantly complicates and challenges this understanding of the term. While “US citizenship has always involved tensions between federal and state systems,”[7] tensions further increase with the addition of tribal citizenship. With each of these different entities making laws, circumstances can arise in which the laws and obligations that govern a particular citizen are diametrically opposed.
Tribal Citizenship
All too often, tribal citizenship has been disregarded when it challenges the authority of the federal government or the states. In 1831, the state of Georgia attempted to extend its laws into Indian Territory.[8] The Cherokee Nation sought a federal injunction against the state laws, as they attempted to undermine tribal governance.[9] In Cherokee Nation v. Georgia, the Court ruled that the federal government did not have the authority to regulate disputes between tribes and states.[10] As justification, the Court argued that tribes were dependent nations, like “a ward to his guardian.”[11] Even though the decision in Cherokee Nation was eventually reversed, the framing of tribes as “wards” would plague federal Indian law for years to come. In labeling tribes as wards, the Court set the stage for tribal citizenship to become tertiary to federal and state citizenship in the swoop of a pen.
As the Court continued to equate tribal citizenship to wardship, such language eventually culminated in United States v. Kagama (1903). The Kagama Court held that Congress has power over the jurisdiction of crimes committed between tribal citizens.[12] In doing so, the Court stripped tribal citizenship of full self-governance by broadening congressional power in Indian affairs. As justification for this encroachment on tribal citizenship, the Court described tribes as “wards of the nation” that “from their very weakness and helplessness…there arises the duty of protection, and with it the power.”[13] Kagama opened the floodgates, allowing Congress to manipulate tribal citizenship however it saw fit.
It is important to note, however, that the use of citizenship as a political weapon should not be viewed as “denials of state protected rights” but rather “the contradiction between the sovereignty of the abstract citizen and the everyday lives of embodied subjects.”[14] Since Kagama, tribal citizenship has consistently been used as justification to deny certain rights to Native Americans that other Americans enjoy. In United States v. Sandoval (1913) the Court upheld a federal law that denied tribal citizens the right to enjoy liquor on their land.[15] Importantly, this prohibition on tribal lands came prior to the 18th Amendment.[16] At the time of Sandoval, other Americans could enjoy liquor on their land. The Sandoval Court opined that “[t]he fact that Indians are citizens is not an obstacle to the exercise by Congress of its power to enact laws for the benefit and protection of tribal Indians as a dependent people.”[17] Because tribal citizenship equated to being “a dependent people,” according to the Court, federal law could trump tribal law. After all, tribal citizens “requir[ed] the guardianship and protection of the United States."[18]
Similarly, in Oliphant v. Suquamish Indian Tribe (1973), the Court held that tribes do not have inherent criminal jurisdiction over crimes committed by non-Indians in Indian territory.[19] While tribes retained the authority to prosecute tribal citizens, the laws by which they chose to govern their own lands no longer applied to non-Indian citizens.[20] Thus, citizenship determined whether tribes could prosecute crimes and punish lawlessness on their own reservations. In doing so, the Court used citizenship as a mechanism to further limit tribal self-governance.
The list of similar offenses is quite long. For a time, Native American women underwent forced sterilization.[21] Tribes were forced from their homelands because tribal citizenship did not carry with it the legitimate claim to land that state citizenship did—nor did treaties with the federal government, apparently. Indigenous people were even forced into redefining tribal citizenship according to the federal government’s blood quantum preferences—thus undergoing a sort of “paper genocide.”[22]
Haaland v. Brackeen
Perhaps one of the most devastating attacks on tribal citizenship, however, was the forced separation of Native American children from their homes. In the late 1960s and early 1970s, approximately seventy-five to eighty percent of Indian families living on reservations lost at least one child to the U.S. foster care system.[23] Because federal and state authorities lacked cultural competency, they often removed Indian children from their parents into the foster care system without legitimate grounds.[24] Many of these removals were part of the federal government’s attempt to assimilate tribal citizens.[25] The impact of losing so many members was devastating for tribes. Without children, the longevity of Native American tribes was jeopardized.
Finally, in 1978, the Indian Child Welfare Act (ICWA) was passed.[26] ICWA was a significant win for tribal citizenship. The act codified protections for indigenous children, restricting their removal and ensuring that foster care placements with tribal citizens were prioritized.[27] Thus, the maintenance and cultivation of tribal citizenship was elevated as being paramount in the adoption process. Because future leaders are essential to self-governance, by increasing the likelihood that Indian children were placed with tribal citizens, ICWA helped to ensure at least some degree of tribal self-government.
Over the years, the legality of ICWA has been challenged. What seemed to be the most threatening challenge, however, came in a recent case—Haaland v. Brackeen. Several families seeking to adopt Indian children filed a lawsuit challenging ICWA. The lawsuit argued that ICWA was unconstitutional on multiple grounds, but namely that it violated the Tenth Amendment.[28] The Tenth Amendment states that all powers not delegated to the federal government are reserved to the states.[29] Traditionally, family law has been viewed as the sole purview of the states.[30] Therefore, petitioners argued that, by the federal government elevating tribal citizenship, ICWA upset the constitutional understanding that state authority preempts in matters of family law.[31] As such, Brackeen reveals the increased complications surrounding citizenship that arise in a system in which multiple sovereigns (federal, state, and tribal governments) coexist.
While lower courts were convinced by the merits of the Tenth Amendment argument, the Supreme Court was not. The Brackeen Court held that the states’ traditional authority in family law did not create a “constitutional carveout” that could severely diminish tribal citizenship.[32] Rather, ICWA necessarily and constitutionally “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.”[33] As Justice Gorsuch wrote in his concurring opinion, the decision “goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned.”[34] By upholding ICWA, the Court in turn affirmed the supremacy of tribal citizenship in Indian affairs, at least to some degree.
The Future of Tribal Citizenship
The Court’s decision in Brackeen reveals an important truth—despite the prolonged weaponization of citizenship against Native Americans, tribal citizenship can, at any moment, be reshaped and redefined. This fluid dimension of citizenship brings with it, and rightfully so, cause for great concern.[35] As the aforementioned cases illustrate, citizenship can be hijacked at the drop of a pin and used as a political weapon.
When European settlers first encountered tribes, tribal citizenship, as we understand today, was virtually nonexistent. Rather, colonialist understandings of power and authority constructed the systems in which our current understandings of citizenship came to exist and operate. From the inception of the United States, tribes were labeled as being like “a ward to his guardian” because colonialists—ignorant to indigenous ways of life—deemed tribes “uncivilized.” It is on this foundation that the entire body of federal Indian law, and thereby the legalities of tribal citizenship, was constructed.
To the individual first stumbling upon the field of Native American Studies, and even to those quite familiar with its ins and outs, this reality can feel quite daunting—even defeating. But cases like Brackeen reveal the secret tucked beneath the fabric of colonialism: for every instance in which citizenship has been exploited toward colonialist ends, there is an opportunity to reclaim tribal citizenship and to use it as a means to secure tribal self-governance. And while this sentiment is quite comforting, one is left with the burning question—how? The first step toward finding an answer is acknowledging the legacy of colonialism, as Lakota poet Nicole Montclair-Donaghy eloquently does below, and recognizing that citizenship is not merely a fixed status on paper that defines one’s “standing within the law.”[36] Rather, the history of tribal citizenship reveals just how mutable and powerful citizenship can be. Upon this recognition, one is properly oriented to ask—how?
You’re a citizen now, ward of the state
Children at boarding schools, learning a trade
Be a good citizen, stay in your place
Our religion will save your hellish fate
Be a good American, for your own sake
This is how we assimilate.[37]
[1] Lauren Berlant, “Citizenship,” Keywords for American Cultural Studies, Third Edition, November 24, 2020, 44, https://doi.org/10.18574/nyu/9781479867455.003.0015.
[2] Berlant, “Citizenship,” 44.
[3] Prak, Maarten. “Citizenship Among the Historians.” Citizenship Studies 26, no. 4–5 (June 27, 2022): 611-12. https://doi.org/10.1080/13621025.2022.2091245.
[4] Prak, “Citizenship Among,” 611-612.
[5] Berlant, “Citizenship,” 44; Charles Tilly, “Citizenship, Identity and Social History,” International Review of Social History 40, no. S3 (December 1995): 1–17, https://doi.org/10.1017/s0020859000113586.
[6] Tilly, “Citizenship, Identity and Social,” 4-5.
[7] Berlant, “Citizenship,” 45.
[8] Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
[9] Cherokee Nation, 30 U.S. 1 (1831).
[10] Ibid., 1.
[11] Ibid., 2.
[12] United States v. Kagama, 118 U. S. 375 (1886).
[13] Kagama, 118 U. S. 384 (1886).
[14] Berlant, “Citizenship,” 46.
[15] United States v. Sandoval, 231 U. S. 28 (1913).
[16] U.S. Const. amend XVIII.
[17] Sandoval, 231 U. S. 29 (1913).
[18] Ibid., 231 U. S. 46 (1913).
[19] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
[20] Oliphant, 435 U.S. 191 (1978).
[21] Berlant, “Citizenship,” 46.
[22] Cecily Hilleary, “Some Native Americans Fear Blood Quantum Is Formula for ‘Paper Genocide,’” Voice of America, July 24, 2021, https://www.voanews.com/a/usa_some-native-americans-fear-blood-quantum-formula.
[23][23] “ICWA History and Purpose,” Montana DPHHS, accessed March 5, 2024, https://dphhs.mt.gov/cfsd/icwa/icwahistory.
[24] “ICWA,” Montana DPHHS.
[25] Ibid.
[26] Haaland v. Brackeen, 599 U.S. 2 (2023).
[27] Brackeen, 599 U.S. 3 (2023).
[28] Ibid., 14.
[29] U.S. Const. amend X.
[30] Brackeen, 599 U.S. 14 (2023).
[31] Ibid., 14.
[32] Ibid., 15.
[33] Haaland v. Brackeen, 599 U.S. 1 (2023) (Gorsuch, J. concurring).
[34] Brackeen, 599 U.S.1-2 (2023) (Gorsuch, J. concurring).
[35] Linda K. “The Meanings of Citizenship.” The Journal of American History 84, no. 3 (December 1997): 833. https://doi.org/10.2307/2953082.
[36] Berlant, “Citizenship,” 44.
[37] Nicole Montclair-Donaghy, “The New Assimilated American ,” LRINSPIRE, accessed March 5, 2024, https://lrinspire.com/2016/04/28/the-new-assimilated-american-by-nicole-montclair-donaghy/.
Bibliography
Berlant, Lauren. “Citizenship.” Keywords for American Cultural Studies, Third Edition, November 24, 2020, 44–48. https://doi.org/10.18574/nyu/9781479867455.003.0015.
Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
Haaland v. Brackeen, 599 U.S. ___ (2023).
Hilleary, Cecily. “Some Native Americans Fear Blood Quantum Is Formula for ‘Paper Genocide.’” Voice of America, July 24, 2021. https://www.voanews.com/a/usa_some-native-americans-fear-blood-quantum-formula-paper-genocide/6208615.html.
“ICWA History and Purpose.” Montana DPHHS. Accessed March 5, 2024. https://dphhs.mt.gov/cfsd/icwa/icwahistory.
Kerber, Linda K. “The Meanings of Citizenship.” The Journal of American History 84, no. 3 (December 1997): 833. https://doi.org/10.2307/2953082.
Montclair-Donaghy, Nicole. “The New Assimilated American .” LRINSPIRE. Accessed March 5, 2024. https://lrinspire.com/2016/04/28/the-new-assimilated-american-by-nicole.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
Prak, Maarten. “Citizenship Among the Historians.” Citizenship Studies 26, no. 4–5 (June 27, 2022): 608–14. https://doi.org/10.1080/13621025.2022.2091245.
Tilly, Charles. “Citizenship, Identity and Social History.” International Review of Social History 40, no. S3 (December 1995): 1–17. https://doi.org/10.1017/s0020859000113586.
U.S. Constitution. Amendment X.
U.S. Constitution. Amendment XVIII.
United States v. Kagama, 118 U. S. 375 (1886).
United States v. Sandoval, 231 U. S. 28 (1913).