HUMAN RIGHTS IN THE UNITED STATES: BEYOND EXCEPTIONALISM, Hertel & Kathryn Libal, eds., pp. 217-233, Shareen, Cambridge University Press, 2011
17 Pages Posted: 2 Dec 2011 Last revised: 15 Sep 2013
Date Written: November 28, 2011
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.
Keywords: Indian law, history, international human rights, citizenship
JEL Classification: K10, K33, B30
Suggested Citation: Suggested Citation
Berger, Bethany, The Anomaly of Citizenship for Indigenous Rights (November 28, 2011). HUMAN RIGHTS IN THE UNITED STATES: BEYOND EXCEPTIONALISM, Hertel & Kathryn Libal, eds., pp. 217-233, Shareen, Cambridge University Press, 2011. Available at SSRN: https://ssrn.com/abstract=1965592
By Jacob Levy
By John Finnis