Robert B. Porter

The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107-183 (1999)(citations  omitted).

Editor's note: This article has over 400 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Porter  provided in his footnotes.

V.  Redressing the Effects of Forcing American Citizenship upon Indigenous People

There is no significant evidence that many Indigenous people today believe that status as an American citizen promotes genocide or is otherwise problematic. Indeed, the recent trend seems to be the development of a deep appreciation for and acceptance of American citizenship and the rights associated with it. For most Indians, then, when it comes to questions about American citizenship, there is nothing in need of redress. Nonetheless, there remain Ongwehoweh and the descendents of Ongwehoweh who would believe that retaining exclusive Indigenous citizenship is critical to the preservation of sovereignty and a distinct way of life. Accordingly, for the treaties with the United States to have meaning, the United States must recognize this exclusive Indigenous citizenship. To give full effect to the right of all peoples to self-determination, corrective action must be taken.

If the United States ever decides to purge itself of its colonial and genocidal legacy toward Indigenous people, it should withdraw those policies and laws that continue to have a colonial and genocidal effect. Only if America remains committed to effectuating the destruction of the Indigenous nations should it refuse to take immediate efforts to decolonize its federal Indian control law. Given the relatively few numbers of Indigenous people that might be committed to the preservation of a distinct political existence, it is unlikely that America would suffer great harm by doing so.

A. Modified Repeal of the Citizenship Act of 1924

The decolonization of federal Indian control law should include the reconsideration and withdrawal of all laws enacted to force American citizenship upon Indigenous peoples without their voluntary consent. Thus, Congress should demonstrate its commitment to recognizing Indigenous sovereignty by repealing the Citizenship Act of 1924 and all other related citizenship legislation. Only by doing so will the corrosive effect of American citizenship upon Indigenous self-determination be eliminated.

While repealing the Indian Citizenship Act would be welcomed by some Indigenous people, most would likely resist this effort and seek to exercise their newly found power and status within the American political system to keep it from happening. Given the degree to which colonization has succeeding in incorporating much of the Indigenous population into American society, this would not be surprising or unexpected. Moreover, because of the way in which the United States has colonized Indigenous peoples--by transforming both heart and mind--most Indigenous peoples, in particular the Native Americans, may not even be cognizant of the fact that they are victims of a concerted colonial effort to transform their political identity.

In the face of such substantial objection, it would be a colonial and paternalistic act in and of itself to unilaterally repeal all legislation conferring American citizenship on Indigenous people. But remedying the wrongs of American colonial aggression requires that an equal and opposite act of colonial aggression take place. Failure to do so will ensure that any remedial action taken will be insufficient to redress colonialism's underlying corrosive effect. Colonialism's victims must be allowed to confront the reality of the political and societal transformation that has taken place. While this "tough love" approach may bring some pain, the fact that there are many Indigenous people today who have incorporated the American citizenship status thrust upon them should not mean that those Indigenous people who reject American citizenship should continue to fall prey to its destructive assimilating influence. Self-determination means the right to choose one's own political loyalties and one's own political identity, and if the United States truly respects that right, it should take action to ensure that it is available to all Indigenous peoples over which it has influence.

Nonetheless, because colonialism is simply not just "undone", the practical effects of transforming Indigenous political identity must be taken into account in the development of a fair and just citizenship policy for Indigenous people in the United States. Thus, humanity (as well as political reality) dictates that such a policy should include the choice to preserve one's American citizenship upon the repeal of the citizenship legislation. For this choice to have real meaning, however, no allowance can be made for preserving under American law the status of a dual citizen. Dual citizenship, like any system of concurrent authority or allegiance, cannot be preserved because its existence comes at the expense of the weaker of the competing powers. In federal-Indigenous relations, this will always mean a sacrifice of Indigenous nationhood. Preserving dual citizenship would simply maintain the status quo and thus perpetuate the assimilating influence of American citizenship on Indigenous peoples into the future.

Instead, the United States should end its recognition of dual citizenship and require that Indians choose between retaining either their American citizenship or citizenship in their Indigenous nation. Under this "Choice of Citizenship Act", Indians who chose to remain American citizens would no longer be recognized under federal law as citizens of an Indigenous nation. If such a choice is made, these Indians would have the same legal status as every other American and would not be afforded any special benefit or burden by virtue of being a person of Indigenous ancestry (except such special treatment that might be afforded minorities generally under American law). In short, an Indian making the choice to renounce his or her Indigenous citizenship would be treated just like any other American citizen. If an "Indian is considered to have manifested his consent to be governed under the Constitution of the United States, then he must join the ranks of the citizenry; his wardship status will have come to an end."

If an Indian making such a choice were living outside of an Indian nation, there most likely would be no meaningful effect of having chosen American citizenship. Life as that person knew it would continue materially unchanged. Income would be earned, taxes would be paid and the same laws that protect other racial and ethnic minorities from discrimination would continue to apply. But if such an Indian were living within an Indian nation, however, their status would be changed markedly since they would now be treated by the United States as a non-Indian for such purposes as jurisdiction and taxation. Nonetheless, if some Indians choose to abandon their tribal citizenship in order to preserve their American citizenship, then they must be made to feel the full effects of this decision. If they truly desire to become "Native Americans"--Americans of Indigenous ancestry with unequivocal political allegiance to the United States--then the law should recognize and give life to that decision.

Making the choice to relinquish one's Indigenous citizenship may not necessarily have any effect as it relates to citizenship in one's Indigenous nation. Simply because the United States does not recognize dual citizenship does not mean that an Indian nation could not do so if it so desired. It may be entirely possible that an Indian nation may want to continue to recognize as citizens those of its members who choose to retain American citizenship. On the other hand, it might not be surprising if an Indigenous nation chose to punish these citizens by formally stripping them of Indigenous citizenship. This punishment, including such lesser used remedies such as denying citizenship but preserving membership status, are all within the realm of possibility. The ultimate decision, of course, would be up to that Indigenous nation alone.

Allowing Indigenous people to choose whether to retain American citizenship would recognize for the first time in seventy-five years the existence of a new class of persons within American society--citizens of Indigenous nations who owe no political allegiance to the United States. Relinquishing American citizenship, obviously, would result in the immediate loss of certain benefits and burdens of being an American citizen. Indians would not be allowed to vote in American elections, be candidates for American political office, or contribute funds to American political candidates and ballot initiatives. They would also be ineligible for any services that are available by virtue of being an American. Of course, they should also be exempt from many of the responsibilities, such as paying taxes or serving in the military.

Given the fact that the Indian nations are located within the United States and that life within said nations has become increasingly interrelated with the rest of America, the existence of this class of Indigenous citizens presents interesting questions of legal status that must be resolved. For example, if these Indians are not American citizens, could they live and work within the United States without special permission? Would they have to pay federal taxes for income earned in their own territories? Would they continue to be eligible for educational, social welfare, and other services provided by the states surrounding their territories?

Conceptually, the answer to these questions should be no. But the unique political relationship between the United States and the Indian nations--one founded upon treaties--should not preclude some unique formulations from being developed to address these questions. Already under American immigration law there is a class of non-citizens--permanent resident aliens--who are able to live and work in American society without being American citizens. Perhaps this model can serve as the backdrop for formulating a new legal status for Indigenous citizens who live in their own territories but otherwise enter the United States on a frequent basis. Because of the complexity and uniqueness of these questions, an entire article could be devoted to developing workable solutions. Lest anyone think the task too daunting, it is hard to imagine that resolution of the difficult questions that would arise from recognizing this class of non-citizen Indigenous people would be any more complicated than the existing body of federal Indian control law.

Regardless of what the ultimate answers to these questions are, they should not be resolved unilaterally by political or judicial declarations made by the United States government or its courts. If the United States were to take action to repeal its Indian citizenship legislation and recognize once again exclusive Indigenous citizenship, it should also be willing to resolve the myriad of questions that might arise through the medium of international relations--bilateral nation-to-nation negotiations and agreements. Under such a process, the answers to these and other questions can be negotiated and resolved in as fair, effective, and flexible a way as is humanly possible. Even under its colonial law, the United States has long recognized the sovereignty of the Indian nations. Surely a more unique and innovative solution can be developed for dealing with these difficult issues than simply continuing to destroy Indigenous political identity by paving it over with American citizenship.

B. Overcoming the Legal Barrier to Repeal of the Indian Citizenship Act

It could be argued that repealing the Indian Citizenship Act would be unconstitutional. In Afroyim v. Rusk, the Supreme Court struck down as a violation of the Fourteenth Amendment a federal law that provided for the loss of citizenship if an American voted in a foreign political election. The Court rejected the argument that the government possessed an inherent sovereign power to "sever its relationship to the people by taking away their citizenship" because "[i]n [the United States] the people are sovereign." The Court concluded that while the Constitution explicitly provided a mechanism for obtaining citizenship--by birth or naturalization--it gave no power to Congress to strip the people of it. The Court concluded that the Fourteenth Amendment did not provide for

a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship [is] not to be shifted, canceled or diluted at the will of the Federal Government, the States, or any other governmental unit.

The Court's conclusion that Congress has no power to tinker with citizenship was unequivocal:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.

On the basis of Afroyim, it might reasonably be concluded that any Congressional effort to repeal the Indian Citizenship Act of 1924 would violate the Fourteenth Amendment. This conclusion is supported by the Court's decision in Elk v. Wilkins, where the Court held that the Fourteenth Amendment of its own accord does not confer citizenship upon Indigenous peoples in the United States who desire it. The Court determined that for an Indian to become a citizen, Congress would have to consent to it by establishing some kind of naturalization process. It could be argued that the Indian Citizenship Act was just such a naturalization process. Accordingly, once American citizenship had been conferred upon Indians under the Act, Congress would be constitutionally prohibited from taking it away.

Despite this potential legal barrier, there are a number of approaches that could be taken to effectuate the results of the Choice of Citizenship Act described above. One approach would be to directly attack the constitutionality of the Citizenship Act itself. As discussed above, the Citizenship Act may be an unconstitutional naturalization act because it confers citizenship upon an entire class of people without their consent.

Another way to carry out the Choice of Citizenship Act would be to modify the proposed legislation by requiring Indians to choose whether the federal government would continue to recognize their Indigenous citizenship. Failure to make any choice at all would be construed as a choice in favor of retaining American citizenship. Thus, an Indian would have to affirmatively decide to relinquish their American citizenship in order for it to be lost. This should not raise any Constitutional complications because federal recognition of citizenship in one's Indian nation is not a constitutionally protected right. Indeed, in the past, the United States has even engaged in a Termination Policy of denying federal recognition of entire Indian nations without running afoul of the Constitution.

In some respects, this modified Choice of Citizenship Act is just an indirect way of restating the only constitutionally protected method of losing one's American citizenship--voluntary relinquishment. The Court in Afroyim held that every American has "a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship." This right to voluntarily relinquish American citizenship has been acknowledged by statute and case law. In Vance v. Terrazas, the Court was called upon to decide the appellant's nationality, which was in controversy because he was a dual citizen of both Mexico and the United States and had sworn an oath of allegiance to Mexico and renounced his American citizenship. The Court held that the federal government must prove intent to surrender American citizenship and not just rely upon the voluntary commission of an expatriating act. It concluded that "[i]n the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." As a result of the Court's analysis in Vance and Afroyim, any Indian could regain exclusive citizenship in his or her Indigenous nation simply by voluntarily relinquishing his or her American citizenship.

The difference between the existing statutory scheme allowing for voluntary expatriation and the proposed Choice of Citizenship Act is obvious. The latter forces the question of whether an Indian will retain their dual citizenship status. While it might be said that this proposal poses a cruel choice--whether to retain American citizenship or Indigenous citizenship--it does so in a way that brings the issue of consent back into the equation. The Indian Citizenship Act of 1924 denied the opportunity for Indigenous people to consent to the conferral of American citizenship. The proposed Choice in Citizenship Act would simply restore this element of choice.

C. Reassertion of a Distinct Indigenous Political Status

Redressing the problem of continued assimilation of Indigenous peoples through American citizenship need not be limited to federal government action. There are a number of different measures that can be taken by Indigenous peoples and their nations to help strengthen a distinct Indian political status. While many of these options may seem wholly impractical to some, they all have been utilized in the past by one or more Indian nations and should be reconsidered if there remains is a strong desire to maintain Indigenous nationhood.

First, Indigenous people should consider foregoing the opportunity to participate directly in the American political process through voting, funding candidates and issues, and running for office. To do so is not to say that Indigenous people living within an Indigenous nation should not exercise political power with respect to relations with the federal, state, or local governments. Rather than seek to assert influence through the ordinary and normal channels available to all Americans, however, Indians can and should interact with the American political process through the collective voice of tribal government. Doing so will help ensure maximum influence of any particular Indian nation on its governmental neighbors. Much of the problem today with Indian political influence arises out of the cacophony of tribal and individual Indigenous voices that abound. Consolidating tribal political power and directing a unified voice toward American political officials through diplomatic channels will help reorient the political influence of the Indigenous people away from the weak government-citizenship relationship to the much stronger government-to-government relationship.

Second, Indian nations should minimize the role that non- Indian lawyers play in representing their interests in Washington and appoint citizens of their own nations as ambassadors to represent them in diplomatic relations with the United States and its governmental subdivisions. It is very easy to deny the governmental stature of an Indian nation when the primary governmental representative is a non-Indian lawyer simply paid to represent that nation's interests. Indeed, there is already some evidence "that the slickness of Indian lobbying is creating a political backlash." Some Indian nations now appear to be in a situation in which they are paying considerable sums of money to be advised by their own lobbyists that they themselves should be doing their own lobbying. If Indigenous nations genuinely seek to perpetuate their nationhood, then they should consider engaging with the outside world in a manner befitting the traditional diplomatic protocols common to the world community.

Third, Indigenous nations should press vigorously for changes in federal Indian control law to ensure that mutual consent, rather than federal plenary power, is the foundation principle of American-Indigenous relations. Since 1871, the United States has refused to enter into treaties with the Indian nations and in doing so has denied and disrespected Indigenous nationhood. Indian nations should press hard for changes in the federal government's current Self-Governance Policy to further expand the matters of mutual concern that are addressed by agreement rather than colonial edict.