THE RIGHTS OF TRIBES IN DEFINING TRIBAL
MEMBERSHIP FOR IMMIGRATION MATTERS PREMISED
UPON INHERENT TRIBAL SOVEREIGNTY, AND ARTICLE
1, SECTION 8, CLAUSE 4, U.S. CONSTITUTION
1. Powers of self-government" shall include all governmental powers
possessed by an Indian tribe, executive, legislative and judicial, and all
offices, bodies, and tribunals by and through which they are executed . . . ."
25 United States Code, § 1301 (2).
2. “But had it been otherwise, and were the right and the propriety of
exercising this power now open to question, yet it is a question for the lawmaking and political department of the government, and not for the
judicial.” U.S. v. William Rogers, 45 U.S. 567, 4 How. 567, 11 L.Ed. 1005
(1846) .
Note: if it is a political question, WHY did the Supreme Court agree to hear
the merits of the case involving a white man, adopted by the Cherokee,
killing another white man, and claimed tribal jurisdiction to determine his
innocence or guilt.
3. a) A tribe’s right to define it’s own membership for tribal purpose has
long been recognized as central to it’s existence as an independent political
community. A tribe is free to maintain or establish its own form of
government. This power is the first element of sovereignty. Tribal
government need not mirror the U.S. government but, rather, may reflect
the tribe’s determination as to what form best fits its needs based on
practical, cultural, historical or religious considerations.
Smith v. Babbitt, 875 F.Supp. 1353,1360 (D. Minn. 1995);
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Santa Clara Pueblo v. Martinez 436 U.S. 49, 72, n.32 (1978);
United States v. Wheeler, 435 U.S. 313, 322 n. 18 (1978);
Roff v. Burney, 168 U.S. 218 (1897)
Cherokee Intermarriage Cases, 203 U.S. 76 (1906);
Native American Church v. Navajo Tribal Council, 272 F. 2nd 131 (10th
Cir. 1959)
Chapoose v. Clark, 607 F. Supp 1027 d. Utah 1985 aff’d 831, Fed 931
(10th Cir. 1987)\
b) A tribe may determine who are to be considered members by written law,
custom, intertribal agreement, or treaty with the United States:
Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904). In fact, the
concept of formal enrollment has no counterpart in traditional tribal views of
membership. See Carole Goldberg-Ambrose, Of Native Americans and
Tribal Members: The Influence of Law on Indian Group Life, 28 Law &
Society Rev. 1123 (1994);
In Waldron v. United States, 143 F. 413 (C.C.D.S.D. 1905), the Court held
that the decision of the Dept of Interior refusing to acknowledge a woman’s
tribal membership was contrary to law, which required deference to the
customs and usages of the tribe.
4. The power to take away tribal membership
Roff v. Burney, 168 US 218 (1897);
Estate of Antoine (Ke Nape) Hill, IBIA 78-15 (7 Indian L. Rep. 5075)
(1980)
5. The right to adopt and confirm membership and use of tribal property.
Cherokee Intermarriages cases, 203 U.S. 76 (1906)
6. Dual citizenship – U.S. citizenship and Indian citizenship requirement
accepted under our constitutional framework: US v. Nice, 241 U.S. 591
(1916) – however In re Heff, 197 U.S. 488 (1905) the Supreme Court held
otherwise. Nice overruled Heff.
7. Power of Congress over Federal Indian affairs is supreme. Federal Indian
treaties and statutes do not need state approval before becoming the supreme
law of the land.
Dick v. U.S., 208 U.S. 340 (1908);
Winters v. U.S., 207 U.S. 564 (1908)
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8. If a state did not exist when a treaty or law went into effect, that state must
obey the treaty or law. That state is mandated to honor hunting, fishing and
water rights given by the Federal government to Indians before a territory
became a state.
Puyallup Tribe v. Department of Game, 391 US 392 (1968)
If a tribe existed at the time the Constitution was adopted or was recognized
later, Congress can continue to legislate with regard to descendants of that
tribe, even if the tribe no longer continues to exist as a governmental unit for
federal purposes. Many federal laws are premised on this principle. United
States v. John, 437 U.S. 634, 649-650 (1978).
9. 25 U.S.C. Sec. 372(a) Mandates that adoption matters of a judge or
degree of an Indian court is acceptable and recognized and adoption by
Indian custom made prior to the effective date of this section is valid.
10. Tribal civil law is usually supreme in matters concerning the personal
and domestic relations of Indians such as guardianship inheritance and
testamentary disposition.
Woodin v. Seeley, 141 Misc. 207, 252 N.Y. Supp. 818, 823 (1931)
11. We have two sovereignties deriving power from different sources,
capable of dealing with the same subject-matter within the same territory...
each government, in determining what shall be an offence against its peace
and dignity, is exercising its own sovereignty, not that of the other.
U.S. v. Canza, 260 U.S. 377, 382 (1922);
12. Indians have the right to withdraw from their tribe and live apart.
Standing Bear v. Crook (1879); Zarr v. Barlow, 800 F.2d 1484 (9th Cir.
1986) – invalidating BIA’s regulations requiring one-fourth ancestry
requirement for eligibility for higher educational funds as not authorized by
applicable laws); Malone v. BIA, 38 F.3d 433 (9th Cir. 1994) (invalidating
BIA formal rule on eligibility for lack of compliance with formal notice and
proper procedures).
13. Duro v. Reina, 495 U.S. 676, (1990): Indian tribes have no authority to
try non-Indians for criminal acts. 1991 Congress amended ICRA (25 USC
Sec. 1301) and gave Indians the right and authority to try non-Indians for
crimes. The “Duro Fix.”
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14. “They were, and always have been, regarded as having a semiindependent position when they preserved their tribal relations; not as states,
not as nations, not as possessed of the full attributes of sovereignty, but as a
separate people, with the power of regulating their internal and social
relations, and thus far not brought under the laws of the Union or of the state
within whose limits they resided.” Native American Church v. Navajo
Tribal Council, 272 F. 2nd 131 (10th Cir. 1959);
Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., 8 Cir., 231 F.2d 89; Ex
parte Crow Dog. 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030; Barta v. Oglala
Sioux Tribe of Pine Ridge Res., 8 Cir., 259 F.2d 553; United States v. United
States Fidelity & Guaranty Co., 300 U.S. 506. 60 S.Ct. 653, 84 L.Ed. 894;
Toledo v. Pueblo De Jemez, D.C., 119 F.Supp. 429; Talton v. Mayes, 163
U.S. 376, 377, 16 S.Ct. 986, 41 L.Ed. 196; Adams v. Murphy, 8 Cir., 165 F.
304; Thebo v. Choctaw Tribe of Indians, 8 Cir., 66 F. 372
15. “[F]ederal legislation with respect to Indian tribes, although relating to
Indians as such, is not based upon impermissible racial classifications. Quite
the contrary, classifications expressly singling out Indian tribes as subjects
of legislation are expressly provided for in the Constitution and supported by
the ensuing history of the Federal Government's relations with Indians.
16. [S]uch regulation is rooted in the unique status of Indians as a separate
people with their own political institutions. Federal regulation of Indian
tribes, therefore, is governance of once-sovereign political communities; it is
not to be viewed as legislation of a racial group consisting of Indians.
“United States v. Antelope, 430 U.S. 641, 646 (1977)
17. Unlawful aliens have long been recognized as persons guaranteed 5th &
14th Amendments due process of law:
Yick Wo v. Hopkins, 6 S.Ct. 1064 (1886)
Wong Wing v. U.S., 16 S.Ct.977 (1896)
Shaughnessy v. Mezei, 73 S.Ct. 625 (1953)
Mathews v. Diaz, 96 S.Ct./ 1883 (1976)
Plyler v. Doe, 102 S.Ct. 2382 (1982)
18. These “unlawful aliens” can be adopted or admitted as Enrolled Tribal
Members under the Indian Civil Rights Act of 1968; and the Indian SelfDetermination Act of 1994. When federal courts pretend to tax their minds
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over this issue they usually shove it aside and say this is a “political
question” which only the legislature or the president can solve. But, in
hundreds of cases, these federal courts, and the U.S. Supreme Court, have
interfered in political matters. As Associate Justice Stephen Breyer says in
his book Making Our Democracy Work, “ a court that acts “politically”
plays with fire.” (at page 45)
19. If an individual is recognized as an Indian by the individual’s tribe or
community, he satisfies the criterion of being an Indian.
United States v. A.W.L. 117 F. 3d 1423 (8th Cir. 1997); Ex parte Pero, 99
F.2d 28 (7th Cir. 1938); United Stets v. Rogers, 45 U.S. 567, 572-573 (1846).
20. Act of 2 June 1924, 43 Stat. 253 (Indian Naturalization Act) –
Citizenship is not inconsistent with continued tribal self-government – U.S.
v. Nice, 241 U.S. 591, 598 (1916; Winton v. Amos, 255 U.S. 373, 391-92
(1921); Board of Commissioners of Creek County v. Seber, 318 U.S. 705
(1943); Hallowell v. U.S., 221 U.S. 317, 324 (1911).
21. STOP PRESS: After Sergio Garcia, an “illegal undocumented alien”
was allowed to practice law in the State of California after having passed the
California bar examinations, I think we have great hope and promise for
issuing qualified persons with Enrolled Tribal Membership status. See the
judgment from the California Supreme Court ISSUED IN JANUARY
2014.
Prepared by Judge Silver Cloud Musafir (Navin-Chandra Naidu) of the
Yamassee Muscogee Tribe, January 7, 2014.
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