June 2006, Volume 92, Issue 4|
An Argument for the Partial Abrogation of Federally-Recognized Indian Tribes' Sovereign Power Over Citizenship
92 Va. L. Rev. 793 (2006)
For many Native Americans, membership in a federally-recognized Indian tribe represents an affiliation as fundamental as American citizenship to Americans generally. Tribes are not only crucial conduits of economic and social services, but also tangible and vital connections to ancient racial and national affiliations. Yet as important as they are, in most tribes these connections may be summarily severed without appeal.
Unlike either the state or federal governments, most Indian tribes retain the right to disenfranchise members from specific benefits, or simply to disenroll (forcibly expatriate) and banish from tribal lands even native born members. Federal case law suggests that these abuses are almost wholly irremediable both within the tribe and in the federal courts. Despite strong arguments to the contrary, the federal courts have consistently held that the powers provided to them under the Indian Civil Rights and Indian Gaming Regulatory Acts are essentially incapable of reaching tribal membership disputes.
This is not just an issue that affects scattered individuals. The nature of expatriation power is such that even if unexercised, it has the potential to significantly curb the political life of the tribe. Even a small number of instances can educate a large population on the costs and benefits of political dissent. Thus it is not just Indians as individuals who suffer when tribes abuse citizenship rights, but the tribe as a whole, as well as the legitimacy of the federal-Indian system of which it is a part. The power to disenroll removes from tribes the democratizing burden of working to compromise, stifling the development of populist values and participatory government. This Note first describes the historical and jurisprudential background of tribal citizenship, before arguing on the basis of individual civil rights and tribal republican development that the federal-Indian system would be well-served by affirmative Congressional action to remove from tribes the power to disenroll, disenfranchise and banish their members.
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