Tribal Membership and Indian Nationhood

37 American Indian Law Review 1 (2012-2013)

MSU Legal Studies Research Paper No. 10-20

18 Pages Posted: 16 Aug 2012 Last revised: 25 Jan 2016

See all articles by Matthew L. M. Fletcher

Matthew L. M. Fletcher

Michigan State University - College of Law

Date Written: August 15, 2012

Abstract

American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.

I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.

Suggested Citation

Fletcher, Matthew L. M., Tribal Membership and Indian Nationhood (August 15, 2012). 37 American Indian Law Review 1 (2012-2013) , MSU Legal Studies Research Paper No. 10-20, Available at SSRN: https://ssrn.com/abstract=2129813

Matthew L. M. Fletcher (Contact Author)

Michigan State University - College of Law ( email )

648 N. Shaw
East Lansing, MI 48824-1300
United States

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