References

Anderson, R., Berger, B., Krakoof, S., & Frickey, P. (2020) American Indian Law: Cases and Commentary, Ed. 4th

As the notes following Santa Clara Pueblo v. Martinez suggest, the case alerted the broader legal community to the Pueblo's differing treatment of male and female members, and it triggered much controversy. An important element of this case and the Freedmen membership cases discussed thereafter is a genuine tension between competing values within and without tribes.

An essential aspect of sovereignty is the tribes' right to determine their own membership. At the same time, tribal membership is a core aspect of individual identity, including significant cultural, psychological, and economic values. Such an individually precious right as citizenship ought not be lightly taken, forcing us to consider how to balance the rights of the individual with the community. In political terms, the exercise of tribal authority may seem illiberal and, therefore, contrary to notions of individual liberty so popular in the United States. Discuss the tension between the tribal right to determine its membership and citizenship and the individual right to retain citizenship absent extreme circumstances.

Also, when one faction denies or terminates citizenship of another, particularly for provocative reasons or without genuine process (such as the California or Freedmen disenrollment cases*), the stakes are high, as is the potential for injustice and outrage. In addition to harming individuals and creating disharmony within the tribe, such an exercise of power in one tribe has the potential to establish a backlash in Congress or federal courts that may result in limits on the sovereignty of all tribes. How should this be considered?

*Cherokee Nation v. Nash, 267 F.Supp.3d 86 (D.D.C. 2017)