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Monday, June 18, 2012

Rewriting the End of a Sovereignty Story: Santa Clara Pueblo Members Vote to Change Patrilineal Membership Rule

When people ask what I teach, my answer - Indian law - probably rivals admiralty law as a conversation stopper. It’s so unknown to most people that they can’t even think of a follow-up question. They usually assume my work has something to do with casinos (it rarely does). But every once in a while, an Indian law case echoes outside the narrow academic confines of Indian law. One of the most famous is Santa Clara Pueblo v. Martinez, a 1978 case in which the Supreme Court let stand a tribe’s decision to deny membership to children of enrolled mothers and non-member fathers (while granting it to the children of enrolled fathers and non-member mothers). The decision – the first interpreting the Indian Civil Rights Act – rested on two grounds, both of which prevented federal review of the tribe’s action: the Act did not create a right of action or authorize federal jurisdiction for non-habeas review of tribal actions, and it did not waive the tribe’s sovereign immunity.

The tribe’s members recently voted by a margin of 2-1 to change the membership rule. The vote is under review by the Council now, which will determine how to implement it (the Santa Fe New Mexican gives an interesting account of what has and has not been decided). But if the vote results in an official change in the tribe’s membership rules, extending membership to the children of male and female members equally, it will rewrite the ending of one of the most controversial stories in Indian law.

My perspective on the case has changed over time.

I can talk about it academically, but I have also seen a different side now that I have two daughters who are enrolled at Santa Clara through their father. Several of their cousins, though, cannot enroll under the Martinez rule because it is their mothers who are Santa Claran, not their fathers. I can see how formal enrollment is important and unimportant at the same time. Non-enrolled members lack certain political rights within the tribe and – if they are not eligible for enrollment in another tribe – may also lack Indian status under federal law, which means losing access to a range of rights and benefits, including health care, employment preferences, and educational assistance. But I can also see the ways in which it is unimportant: unenrolled members live in the community, participate in ceremonies, and live in every way except for formal enrollment as Santa Clarans.

By way of legal background, Indian tribes, as sovereign entities, have the right to govern themselves according to their own values, even if those values are illiberal. When a case arises in which tribal sovereign rights appear to be in tension with individual rights, the public sits up and pays attention to Indians, especially when the tribe wins, as it did in Martinez. The case has generated a great deal of scholarly attention in the last three decades, both within Indian law (it is one of the Supreme Court’s most forceful statements in favor of tribal sovereignty and protection of tribal culture) and outside of it (it appears to pit gender equality against cultural group rights). Its shadow looms today as questions arise about whether and to what extent the federal government should intervene in tribal enrollment disputes (see here and here for opposing views in a California tribe’s recent disenrollment), as well as in debates that pit cultural relativism against women’s rights (Madhavi Sunder invoked the case in her 2003 critique of law’s failure to intervene on behalf of women in religious communities in Africa and the Middle East).

When advocating for tribal sovereign rights, it’s always hardest to defend the rights of tribes to make decisions that might seem objectionable from a liberal standpoint. I know there are so many critics (including some on the Supreme Court) looking for evidence that tribal governments and courts are biased, corrupt, backward, or otherwise cannot be trusted to ensure equality. And the pervasiveness of this view has placed tribes on different footing than most sovereigns, always fighting to prove that their sovereignty exists and that it would be inappropriate for the U.S. government to second-guess every decision they make. But the easiest way for me to explain sovereignty is that it includes the right to make mistakes and bad decisions. Nations who do so are certainly not immune from criticism or pressure (internal or external), but a superior governmental power generally cannot come in and reverse or rethink a controversial decision. Instead, the community must reckon with its decisions and, if necessary, change them from within.

This is precisely why the Martinez decision and its aftermath are so important. Justice Marshall’s opinion underscores the importance of exclusive tribal control over internal matters and matters involving determinations of tribal custom, particularly decisions about membership in a tribe. It recognizes that federal courts are not in a position to determine “real” Santa Clara custom (as evidenced by the disagreement between lower courts on whether the law accurately reflected Santa Clara tradition). And it reaffirms a core principle of Indian law that is often overlooked today: Indian tribes are inherently sovereign. In the eyes of federal law, they have lost some aspects of this sovereignty (such as the right to enter into treaties with foreign nations and the right to exercise criminal jurisdiction over non-Indians who commit crimes within their borders), but the default is that they retain all powers inherent in sovereignty unless those powers have been clearly taken away by Congress. The ICRA limited sovereignty by imposing Bill of Rights-like rules on tribal governments. But it did not authorize federal review of tribal court matters (besides habeas corpus) and it did not waive tribes’ sovereign immunity from suit. The Supreme Court didn’t approve the ordinance or decide whether it was or was not sexist. It held that the tribe was the only appropriate body to make those determinations, including interpreting the equal protection guarantees provided by ICRA and by tribal law.

The impending change, after 30-plus years of internal debate and disagreement, provides one of the most important success stories about sovereignty. It is a decades-long story of a community shaping and reshaping its customs, of measured resistance by Santa Clara women (and men), of citizens (formal and informal) expressing concern to their government from within. As with any sovereign, such a sweeping change in law takes a long time (too much time for the 1978 plaintiff, Julia Martinez, who passed away several years ago). But, if the Council ratifies the vote, the change won’t be one that required the heavy hand of the federal courts. And it won’t be one that happens because of the interventions of feminist academics and legal scholars. It will be a change that happens because the members of Santa Clara Pueblo wanted it to happen.

The background of the case is also more layered than many recognize. Santa Clara’s Constitution, adopted in 1935 from a template provided by the BIA, actually provides that all children of mixed marriages will be members of the Pueblo as long as they are “recognized and adopted by the Council.” It also contemplates that Indians from other tribes who marry tribal members may become members via naturalization. In 1939, the Council passed the ordinance challenged in the Martinez case, which provides that children of male members who marry outside the tribe are members, but children of female members who marry out are not. The ordinance also forbids naturalization.

Making a quick assumption that patrilineal membership reflects patriarchal values (whether viewed as imposed or traditional to American Indian cultures) would be taking too simplistic a view. Membership in Santa Clara’s religious moiety system is patrilineal (children typically follow their fathers), and the tribe argued that its rule simply reflected this. There are many tribes whose clan system is matrilineal; the political membership rules of some reflect that, while the membership rules of others are broader. The balance of power between genders in most tribes has long been determined by a complex interplay between religious lineage, religious leadership, land ownership, and different levels of political leadership. On the other hand, the introduction of formal enrollment as the most important matrix of belonging can upset this balance. The Martinez challenge presented a difficult three-tiered question about the relationship between Pueblo cultural tradition and tribal citizenship: did it truly reflect Santa Clara tradition? If so, was that a tradition worth preserving? These first two are questions only the community can decide, which the Supreme Court recognized, and their resolution is no doubt complex and time-consuming.

Yet the academy weighed in on them anyway. Catharine MacKinnon suggested that the membership rule did not really reflect Santa Clara tradition, but that it was intended to guard against potential loss of tribal lands during the allotment era to white men who married Santa Clara women, essentially defending against sexism with more sexism. (MacKinnon’s take on the case is thoughtfully critiqued by Angela Harris.) Joanne Barker pointed out that Santa Clara women who married out were mostly marrying other Indians, not whites. But like MacKinnon, she viewed the rule as reflecting inherited patriarchal values, characterizing the ordinance as a reversal of what she interpreted as “matrilineal and matrilocal” customs.

But the public quickly leapt to the third question: Should the Pueblo’s decision to preserve a facially discriminatory rule be protected from intervention by federal law? After the Supreme Court’s decision, many were left with a bitter sense that tribes frequently make unfair decisions and that those aggrieved by tribal government action are left with no recourse at all.

My purpose in writing this is not to express my opinion about Santa Clara tradition, about the wisdom of patrilineal or matrilineal membership rules, or about whether formal enrollment can or should be a static statement of who belongs. I’m writing this to draw attention to the end of the story, which is about the community of Santa Clara Pueblo wrestling with these questions for decades out of the view of the non-Indian public. The Supreme Court was absolutely correct to stay its hand, but that doesn’t mean that there was “no remedy.” The remedy comes at the tribal level, whether in the form of a court striking down the law or, as here, a vote to change it that is the product of decades of introspection and dialogue among community members.

The final outcome is still unclear. But if it results in a change in Santa Clara’s membership rule, it will stand as a testament to the living and growing nature of sovereignty practiced by tribal governments, a sovereignty that can protect bad decisions, but can also provide the bedrock for positive community-driven change.

In addition to the articles linked above, I recommend Robert Laurence, Judith Resnik, Gloria Valencia Weber (including her contribution to the Indian Law Stories book), Angela Riley, Ann Tweedy (for a recent survey of tribal laws addressing sex discrimination), Rina Swentzell, and the Fall 2004 issue of the Kansas Journal of Law & Public Policy, which reproduces a reargument and decision of the case before the mock American Indian Nations Supreme Court.

Posted by Addie Rolnick on June 18, 2012 at 05:58 PM in Article Spotlight | Permalink


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The latest draft of my bibliography for American Indian Law (books only) was posted at the Turtle Talk blog should your students and/or any readers be interested (Professor Fletcher kindly formatted it into a PDF doc. for me): http://turtletalk.wordpress.com/2012/06/01/patrick-odonnells-basic-bibliography-of-indian-law/

Posted by: Patrick S. O'Donnell | Jun 18, 2012 6:20:29 PM

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