American Indian Sovereignty and Naturalization: It's a Race Thing

• Publication year: 2021
• Citation: Vol. 80

80 Nebraska L. Rev. 171. American Indian Sovereignty and Naturalization: It's a Race Thing

171

American Indian Sovereignty and Naturalization: It's a Race Thing

John Rockwell Snowden
Wayne Tyndall
David Smith(fn*, **, ***)

TABLE OF CONTENTS

I. A Sketch of Naturalization in the United States . . . . . . . 176 R
A. The Historical Background of Naturalization
in the United States . . . . . . . . . . . . . . . . . . . 176 R
1. English Roots: The Theory of Natural
Allegiance . . . . . . . . . . . . . . . . . . . . . . 176 R
2. The Colonial Experience: The Theory of
Volitional Allegiance Emerges . . . . . . . . . . . . . 179 R
3. Defining the Qualifications for Naturalization
After Independence . . . . . . . . . . . . . . . . . . 181 R
B. Current Naturalization Criteria . . . . . . . . . . . . . 184 R
C. Values and Justifications of the Naturalization
Process . . . . . . . . . . . . . . . . . . . . . . . . . 186 R
1. The Concepts of Ascription and Consent . . . . . . . . 186 R
2. Normative Justifications of the Naturalization
Process . . . . . . . . . . . . . . . . . . . . . . . . 188 R
II. Indigenous Naturalization . . . . . . . . . . . . . . . . . . 191 R
A. Tribal Sovereignty and "Membership Selection":
Blood Quantum as Fiction Among the Sovereign
Umonhon Nation . . . . . . . . . . . . . . . . . . . . . . 191 R
1. Origins and Treaties . . . . . . . . . . . . . . . . . 191 R
2. Adoption as a Kinship Practice . . . . . . . . . . . . 194 R
3. Blood and Proportionality . . . . . . . . . . . . . . . 195 R
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . 196 R

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B. Winnebago Naturalization . . . . . . . . . . . . . . . . . 197 R
III. Vampire Law . . . . . . . . . . . . . . . . . . . . . . . . 200 R
A. The Origins of Federal Blood Law . . . . . . . . . . . . . 200 R
B. The Rogers Legacy-Racial Jurisdiction . . . . . . . . . . 212 R
1. Federal Criminal Cases . . . . . . . . . . . . . . . . 212 R
2. State Criminal Cases . . . . . . . . . . . . . . . . . 214 R
C. The Disappearance of the Non-Racial Naturalized
Indian . . . . . . . . . . . . . . . . . . . . . . . . . . 216 R
D. Blood Beyond Jurisdiction . . . . . . . . . . . . . . . . 220 R
IV. Now: Looking to the Past; Stepping to the Future . . . . . . . 230 R

There's a predator that came, like a disease, with the European to the tribes that were here on this land. Columbus was a virus representing a diseased spirit that affects human perceptions.

. . . .

We need to evolve past the disease. There is an antibiotic to it. It is us. It's our minds and how we use our thought processes. It's what we create with our energy.(fn1)

John Trudell

The people that fled a ravaged Europe brought to America an unhealthy belief that it was permissible to involuntarily exploit or annex the lands of another people (usually of another deeper color) and to take without consent political control over those people, displacing their way of life and governance.(fn2)

This belief and its manifestation in the colonization of one people by another is the foundation of federal Indian law and it is perpetuated in the current law that distributes legal power, sovereignty, or jurisdiction between the Indian nations, the federal government, and the states.(fn3)

This Article will not explore in depth the assertion that federal Indian law is rooted in colonialism and racism. Other scholars have made this argument and the reader should look to them to consider

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the truth of the matter.(fn4) Here the focus will be on the power to determine membership in the Indian nations, particularly what Anglo law calls naturalization. The power to determine membership is at the heart of sovereignty. What is found in this heart will most likely be spread throughout the body.

"The courts have consistently recognized that one of an Indian tribe's most basic powers is the authority to determine questions of its own membership."(fn5) The Native nations may seemingly grant, deny, revoke, or change the rights and obligations of membership at will.(fn6) As with every legal proposition, however, there are exceptions.

Whatever the Indian sovereign may decide as to the membership rights of any particular person for purposes of the Native nation, federal Indian law usually requires some quantum of Indian blood or descent before recognition of the person as a citizen or member of the nation for purposes of questions of Indian sovereignty. That is, there is a racial criteria at the center of federal recognition of membership in an Indian nation whenever that membership is raised in the context of which nation's law shall apply to a controversy. Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress.(fn7)

At the center of sovereignty is the power to define the criteria of national citizenship and its rights and obligations. Currently there is considerable discussion about this matter within the United States.(fn8)

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And, in recent years the number of people seeking naturalization has reached new heights.(fn9) In this context the chair of the U.S. Commission on Immigration Reform, Barbara Jordan, called for programs to "Americanize" new immigrants hoping to reclaim the word and the process of its manifestation from the racists and xenophobes who had tarnished its reputation in the 1920s.(fn10)

Several scholars from a variety of disciplines discussed the implications of the notion of Americanization of naturalized citizens and the meaning of American national identity in a recent collection of essays, Immigration and Citizenship in the Twenty-First Century.(fn11) Professor Charles Kesler argued for a conception of citizenship that stresses agreed upon concepts such as a work ethic, affection for the Constitution, and a common language which might overcome the threat of division in multiculturalism by consolidated public opinion expressed in broad principles.(fn12) For Professor Kwame Anthony Appiah, less may be more. He seemed to believe that balkanization is a less serious threat than the coercion of moral sentiment and that the liberal vision of making up your own life should trump a requirement to know the plot of Moby Dick.(fn13) And so it went as a dozen scholars batted around the plate of citizenship issues.

None of the essays, whether seeking more or less in the process of naturalization, a thinner or thicker notion of national identity, dual or single citizenship, argued for any explicit racial criteria. Nevertheless, such criteria may be implied in the statements of others in the citizenship debates. For instance, Professor Pickus quoted Peter Brimelow: "[A] nation-state is 'a sovereign structure that is the political expression of a specific ethno-cultural group.'"(fn14) And, Pickus referred to the remarks of Patrick Buchanan asking whether a million Zulus or Englishmen would more easily assimilate into Virginia.(fn15) If

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these statements urge explicit racial criteria for United States citizenship, then the authors, at least, believe their refutation is self-evident in current American political speech even if not in habits of mind and action. They will not be further discussed here.

What will be discussed is whether or not federal Indian law would or should recognize an adopted or naturalized member of an Indian nation, particularly one who is without any Indian blood or descent, as a citizen thereof when the question arises in the context of Indian sovereignty. And, a foundational question of sovereignty is jurisdiction; which nation's law shall apply? Descent and blood quantum are a particularly European fascination used most often to justify and maintain the oppression of others.(fn16) Like colonialism, its hand-maiden, racism is generally prohibited among the world's nations. As a result:

[S]ubterfuge designed to create false appearances are an essential aspect of maintaining and perfecting the order of colonial rule. Hence, it is necessary for the colonizer not merely to preempt the sovereignty of the colonized, but to co-opt it, inculcating a comprador consciousness among some segment of the subaltern population in which the forms of dominion imposed by colonization will be advocated as a self-determining expression of will emanating from the colonized themselves.(fn17)

The United States would not refuse to recognize a citizen of France because that citizen was of Asian descent, nor refuse to recognize a person with African blood as a citizen of China, nor a person of European ancestry as a citizen of Kenya. If, in matters of American Indian sovereignty, federal Indian law refuses to recognize an adopted or naturalized member of a Native nation who is without some Indian blood or descent, then one should ask whether this disrespect of sovereign power is anything more than a mask for colonialism and racism.

This Article will proceed in four parts. Part I will recount the history of naturalization in England, its American colonies, and the United States. Part II will describe historical naturalization processes in Native nations as told by historians of the nations. Part III will examine the federal Indian law that responds to questions of Indian citizenship in matters of sovereign jurisdiction. It will be seen that race and blood are at the center of federal Indian jurisprudence in a way that the United States has outgrown in other contexts and that

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was never a part of original Indigenous understanding. Part IV will consider signs of the future.

I. A SKETCH OF NATURALIZATION IN THE UNITED STATES

Angela and Boniface Eguzouwa came to America from Nigeria eight years ago, seeking freedom

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