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tribal membership
New Student Scholarship on Tribal Citizenship and Blood Quantum
Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF
The abstract:
Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.
This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.
By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.
Fletcher on Tribal Customary Law and an Indigenous Canon of Construction
Check out “The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” on SSRN.
Abstract:
This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.
Gabe Galanda on Indigenous Kinship Renewal and Relational Sovereignty
Gabriel Galanda has posted “In the Spirit of Vine Deloria, Jr.: Indigenous Kinship Renewal and Relational Sovereignty” on SSRN. Here is the abstract:
This essay heeds Vine Deloria, Jr.’s inspiring call for the renewal of Indigenous kinship tradition and counsels for the development of relational sovereignty. The first part deconstructs the U.S. Supreme Court’s 1978 landmark decision in Santa Clara Pueblo v. Martinez to expose its distinctly economic underpinnings. That case exemplifies a steady erosion of Indigenous reciprocity, and concurrent rise of tribal per-capitalism and neocolonialism. The second part suggests five actions that Native nations could take to restore inclusionary, duty-based kinship systems and rules. First, Native nations should replace blood quantum with alternative citizenship criteria rooted in traditional kinship principles. Second, Native nations should renew kinship terminology to eliminate neocolonial identifiers. Third, Native nations should outlaw disenrollment and bring their relatives home. Fourth, Native nations should lift enrollment moratoria and welcome their lost generations. Lastly, Native nations should—after pausing to understand the colonial legacy of federally sanctioned monetary distributions to tribal individuals—cease per capita payments and reinvest in community revitalization. By drawing on Indigenous traditions of reciprocity and shared destiny, Native nations should reconcile their peoples’ modern individual rights with their customary obligations and duties to one another. Through these strategies, Native nations can engage in a new paradigm of relational sovereignty, whereby Indigenous human existence is exalted and protected over individual power and profit.
Maryland COA Affirms Decision Resolving Internal Political Dispute of State-Recognized Accohannock Indian Tribe
Here is the unpublished opinion in Hinmon v. Accohannock Indian Tribe:
ABC News Profile of Nooksack Disenrollments
Saginaw Chippewa Disenrollees Win Small Victory against Interior
Here are the materials in Cavazos v. Haaland (D.D.C.):
18-2 Saginaw Chippewa Motion to Intervene
21 Cavazos Motion for Summary Judgment
26 Saginaw Chippewa Cross Motion for Summary
29 Federal Cross Motion for Summary
40-1 Cavazos Proposed Surreply
An excerpt:
This administrative law case centers on a U.S. Department of the Interior’s (“Interior”) decision (“AS-IA Decision”), after an informal adjudication, to decline to intervene in tribal disenrollment proceedings by the Saginaw Chippewa Indian Tribe of Michigan (“Tribe”). Plaintiffs are former members of the Tribe who have since been disenrolled by Tribal leadership. Plaintiffs charge that a federal statute particular to the Tribe, the Judgment Funds Act, PL 99-346, 100 Stat. 674 (1986) (“JFA”), required Interior to intervene in and put a stop to Tribal disenrollment proceedings. In their only claim before the Court, Plaintiffs argue that Interior’s inaction was arbitrary and/or capricious within the meaning of the Administrative Procedures Act, 5 U.S.C. §§ 500 et seq. (“APA”). As a remedy, Plaintiffs seek not just a remand back to the agency, but an order from this Court mandating Interior’s intervention to reverse the Tribe’s disenrollment proceedings.
In support thereof, Plaintiffs focus primarily on statutory provisions in the JFA governing (1) antidiscrimination against tribal members enrolled after the JFA’s enactment and (2) Interior’s supervision of the JFA. Ultimately, the Court agrees with Interior that the plain meaning of the JFA: (1) does not classify disenrollment as discrimination and (2) grants Interior broad discretion to intervene in Tribal disputes related to the JFA. However, the Court holds that Interior incorrectly read the JFA to bar discrimination only against enrolled members of the Tribe. Because the JFA also bars the Tribe from discriminating against disenrolled members in access to benefits and services funded by the JFA, the Court shall remand the matter to Interior to reconsider whether it should exercise its discretionary authority to intervene in the alleged inequitable provision of such benefits and services.
Prior post here.
New Scholarship Shows Tribes with Gaming Operations are 30% More Likely to Disenroll Members
Anna Malinovskaya has posted “Understanding the Native American Tribal ‘Disenrollment Epidemic’: An IV Approach” on SSRN.
Here is the abstract:
Recently, over 80 Native American tribes have banned or disenrolled members of their tribes or denied citizenship to eligible individuals. This phenomenon has received media attention nationwide, and even the term the “disenrollment epidemic” was coined. Many speculate that at least some of it is driven by political struggles over multi-million dollar revenues of tribal casinos, which are sometimes distributed in per capita payments to all tribal members. In this paper, we test whether gaming has been driving disenrollments, and since a tribe’s involvement in gaming might be endogenous, we employ an instrumental variable approach. In particular, we use machine learning to select an optimal subset of instruments for a Native American tribe operating a casino from the set of potential instruments all plausibly meeting the exclusion restriction and associated with the geographical characteristics of reservations, such as their proximity to an MSA, an interstate highway, or a border of a neighboring state with no brick and mortar casinos. We find that a tribe’s involvement in gaming leads to a large and statistically significant increase in the probability of the tribe experiencing a disenrollment episode.
An excerpt:
This paper sought to understand if tribes’ involvement in the gaming industry, particularly wealth from per capita distribution of gaming revenues made possible by this involvement, has been the primary factor driving disenrollments and other types of dismemberment episodes. Both gaming and per capita distributions of gaming revenues are likely to be endogenous. Although we did not find an instrument for per capita distributions, we identified a set of instruments for gaming, and used them to understand, albeit indirectly, whether gaming has been driving disenrollments (the direct approach would be instrumenting for per capita distributions rather than gaming). Although this approach has its limitations
(as discussed in the Empirical Strategy section, it represents, to the best of our knowledge, the first attempt to identify a causal link between gaming and dismemberment in Indian tribes. Additionally, the consistency of results across our OLS and IV estimates, as well as across several sub-samples, is encouraging.
This research could be strengthened by instrumenting for per capita distribution of gaming revenues directly, though finding an appropriate instrument might be challenging. It could also be strengthened by finding instruments that would pass the Weak Instruments test for the full sample (327 tribes) that is likely to produce less biased IV estimates, or by using a different quasi-experimental empirical approach that would overcome the limitations associated with IVs when the sample is relatively small.
California Federal Court Rejects San Pascual Membership Challenges
Here are the materials in Alegre v. United States (S.D. Cal.):
193 Interior Reply in Support of 183
212 DCT Order Granting Interior’s Motion
Prior post here.
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