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.
Here is today’s opinion in In re L.S.
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.