tribal membership criteria

New Student Scholarship on Tribal Citizenship and Blood Quantum

Matthew L.M. Fletcher

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.

News Profile of Snoqualmie Leadership/Membership Fight

Matthew L.M. Fletcher

Here.

Fletcher on “Tribal Membership and Indian Nationhood”

Matthew L.M. Fletcher

I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).

Here is the abstract of the new paper:

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. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.

I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.

South Dakota SCT Decides ICWA Doesn’t Apply to Children Not Eligible for Membership

Matthew L.M. Fletcher7 Comments

Here is today’s opinion in In re L.S.

An excerpt:

In the circumstances here, however, the Crow Creek Sioux Tribe requires an application for membership. See Constitution and By-Laws of the Crow Creek Sioux Tribe of Fort Thompson, South Dakota, Art. II, Membership. An Indian tribe’s determination of its membership and eligibility for membership is binding and conclusive in an ICWA proceeding. In re Adoption of C.D., 751 N.W.2d 236, 241-42 (N.D. 2008). C.S. has not taken the necessary steps to enroll in the Crow Creek Sioux Tribe, even though she had sixteen months to do so from the time L.S. was removed. Therefore, L.S. is not a biological child of a member of an Indian tribe.