Who we ought to be: Tribal sovereignty and the historical development of mixed-blood Native identity

• In Event: Law and Settler Colonialism: Indigenous Sovereignty, Resistance, and Jurisdiction

Abstract

Federally, classification as an Indian determines access to constitutional rights, law enforcement jurisdiction and eligibility for federal programs and treaty obligation. Tribally, enrollment creates the right to vote, run for office, and access tribal services. While enrollment criteria are unquestionably a matter of tribal sovereignty, they are also heavily influenced by the colonial policies which played an extensive role itself in constructing, limiting, producing, and perverting tribal membership (Goldberg 2002). Tribes first gained the ‘right’ to constitutionalize, and define their membership, following the 1934 passage of the Indian Reorganization Act (IRA), yet considerable debate exists about how much freedom actually existed in these early constitutions, or whether they amounted to imposed constitutionalism, the drafting and adopting constitutions “in the shadow of the [imperial] gun” (Feldman 2005).

Since then, federal policy has not been uniformly assimilationist. Using the largest collection of tribal constitutions ever assembled (1,053 documents from 304 tribes), this paper leverages variation in federal policies, across time and between tribes, to trace the trajectory of tribal citizenship. Specifically, I examine consequences of: (1) treaty making before and after the Civil War; (2) allotment during the Dawes Era; (3) IRA constitutionalization; (4) termination by state governments; and (5) federal acknowledgment following Self-Determination.

Results show that tribes subjected to more strict colonial institutions have more restrictive and exclusionary memberships. But tribes are also strategic, shifting membership in advance of colonial reforms. When federal policies retract, blood quanta rebound fairly quickly. Together, these processes suggest that both proponents and detractors of the blood quantum may be correct: the blood quantum, as an external colonial imposition that drastically reduces the size of a tribe, but this reduction is often done proactively, possibly as a way to forestall or mitigate the more destructive federal interventions and ensure survival of the larger tribal structure.

Author

• Beth Redbird, Northwestern University