Bethany Berger

After Pocahontas: Indian Women and the Law, 1830 to 1934

The story of Pocahontas, simultaneously celebrated and contained, presents the favored path for Native American women in the newer legal culture: absorption into the Euro-American race and ultimate disappearance of the non-European element. The alternative path was reserved for women whose assimilation did not reach this level of absorption and disappearance but retained their allegiance to both the Indian and white society. Federal and state legislatures and courts marginalized such women, denied them the treaty rights accorded their male companions, and denied them stable marriages, rights of descent, and the power within the family that they had had within Indian culture. As white people and white values encroached ever further into formerly untouched Indian communities, and as the standards for acceptable assimilation grew higher, this second category came to include virtually all Indian women. With few exceptions, no one has studied the ways in which the role of Indian women - as property owners, as wives, as heads of families, as members of their communities - was defined by American law throughout (and even before) the history of the United States. This article attempts to begin to fill this gap. Starting from the federal and state case law of the century preceding the Indian New Deal of 1934, it examines the ways judges and legislators perceived and treated Indian women in the century preceding this watershed in federal Indian law. It concludes with the ways tribes themselves forced Indian women from tribal land or otherwise diminished their power, and the extent to which nontribal policies may have influenced those actions.

Race, Descent, and Tribal Citizenship

What is the relationship between descent-based tribal citizenship requirements and race or racism? This question was a focus of debates about the 2013 Violence Against Women Act amendments securing tribal domestic violence jurisdiction over non-Indians, and reappeared a few months later in oral arguments in the “Baby Veronica” case about the Indian Child Welfare Act. This essay argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy. And while descent does affect multiple areas of federal Indian law and policy, citizenship requirements do not drive many of them. Descent as used in tribal citizenship criteria, moreover, only has a tenuous connection to race as it is commonly understood. More importantly, recognizing governmental authority in tribes that use descent-based citizenship criteria does not violate either federal law or federal norms.

The Anomaly of Citizenship for Indigenous Rights

Scholars often understand citizenship as a prerequisite to securing human rights, and describe the gradual extension of citizenship to broader segments of the population as the triumph of human rights in the United States. With respect to American Indians, this understanding overlooks an important ambiguity, one that highlights the deficiencies of a model of human rights that takes state and individual as its fundamental categories. The struggle for indigenous rights throughout history has not been only — or even primarily — to gain rights for native people as individuals separate from tribal communities, but importantly to secure their right to self-determination as political entities distinct from states. While some native people did sincerely seek citizenship, in U.S. history calls to provide citizenship to American Indians were repeatedly linked to efforts to deny them self-determination. The emergence of the concept of the fixed nation-state in international law furthered this dichotomy, by suggesting that Indians could not at once be members of tribes with powers of self-government, and have rights within non-Indian communities. This chapter first examines the history of extensions of citizenship to Indian people, showing how policymakers extended citizenship in an effort to destroy tribal sovereignty, and used tribal citizenship as a justification for ending tribal rights well into the twentieth century. It also considers the ways and reasons that native individuals sought citizenship, and sought to break the link between tribal affiliation and non-citizenship. It then turns to developments in both domestic and international human rights law, particularly the United Nations Declaration on the Rights of Indigenous Peoples, that begin to move beyond the citizen-state dichotomy to more effectively recognize the rights of indigenous peoples.

Reconciling Equal Protection and Federal Indian Law

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.