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Copyright (c) 2002 Board of Regents of the University of Wisconsin System
Wisconsin Women's Law Journal

Fall, 2002

17 Wis. Women's L.J. 347

LENGTH: 12573 words


NAME: Francine R. Skenandore*

* J.D. 2002, University of Wisconsin Law School; Oneida Tribe of Indians of Wisconsin/Prairie Band Potawatomi of Kansas. Thank you to my husband, John Swimmer, and my family for their endless support. I would also like to thank my children, Liandra, Evi, and James, for their patience.

... Much has been written about tribal sovereignty. ... In my opinion, tribal sovereignty, a tribe's right to make its own laws and enforce those laws against its own members, transcends the equal rights aspect because a tribe's right to define its membership is important to maintaining cultural identity. ... Part II surveys the feminist problem of equal rights that exists in the case and discusses both the Indian feminist perspectives on tribal identity and sovereignty and mainstream feminist perspectives on equal rights. ... Santa Clara Pueblo v. Martinez, a 1978 United States Supreme Court decision, is a landmark case for tribal sovereignty in federal Indian law. ... In contrast to the mainstream feminist perspective, Indian feminists appear to have little problem with the Santa Clara case based upon their understanding of tribal sovereignty. ... This distrust in turn dismisses tribal sovereignty and questions the legitimacy of a tribe's membership rule and traditions in light of existing American equality values and laws. ... Some of these scholars bring another perspective that I consider to blend both Indian feminist ideals that respect tribal sovereignty with mainstream feminist ideals that strongly value equal rights. ...  


Much has been written about tribal sovereignty. If those words have any meaning at all, they must mean that a tribe can make and enforce its decisions without regard to whether an external authority considers those decisions wise. To abrogate tribal decisions, particularly in the delicate area of membership, for whatever "good" reasons, is to destroy cultural identity under the guise of saving it. n1

For practitioners, scholars, and students of federal Indian law, Santa Clara Pueblo v. Martinez is the most frequently cited case for upholding tribal sovereignty. n2 However, in upholding the sovereignty of the Santa Clara Pueblo, the United States Supreme Court did not consider the equal protection claim raised by Julia Martinez. Mainstream feminists n3 claim that the Court overlooked the equal protection claim and upheld tribal sovereignty at the expense of female equality. On the other hand, Indian feminists view tribal sovereignty from the perspective that it is crucial to the cultural survival of Indian women. n4 As a result, there exists an unresolved tension between mainstream feminists and Indian feminists on the issue of tribal sovereignty vis-a-vis equal rights.

As a woman, I acknowledge the gender discrimination aspect of the case and do not deny the legitimacy of the claim. However, as an Indian woman, the case represents far more than a wrongly decided equal rights case. In my opinion, tribal sovereignty, a tribe's right to make its own laws and enforce those laws against its own members,  [*348]  transcends the equal rights aspect because a tribe's right to define its membership is important to maintaining cultural identity. From that perspective, the case was properly decided. n5

Part I of the article discusses tribal membership within the context of the Santa Clara case and briefly reviews the case itself. Part II surveys the feminist problem of equal rights that exists in the case and discusses both the Indian feminist perspectives on tribal identity and sovereignty and mainstream feminist perspectives on equal rights. Part III highlights other perspectives that lead to a discussion of these perspectives in Part IV. Part IV also critiques the proposed solutions and illustrates that the proposals undermine tribal sovereignty and identity. Finally, Part V advances a recently proposed sovereignty-based solution that would best preserve tribal autonomy and identity.

I. The Case
Santa Clara Pueblo v. Martinez, a 1978 United States Supreme Court decision, is a landmark case for tribal sovereignty in federal Indian law. As a matter of sovereignty, Santa Clara Pueblo stands for a tribal nation's inherent authority to define its own membership. At a basic level, the case is about tribal enrollment and membership. The real heart of the case, however, is whether the tribe has the authority to define its membership based upon its own cultural values and norms.

A. Tribal Membership

1. Generally
As sovereign governments with the authority to regulate domestic relations, tribes have the authority to determine membership. Tribes generally define their membership based upon an adopted methodology such as blood quantum (expressed as a ratio), descendancy, residency, or whether a mother or father is an enrolled member. n6 It is important to note that if a person possesses the blood of more than one tribe, there is a general prohibition of dual membership; one membership must be chosen for political and legal purposes. Only a tribal government may define its membership through prescribed criteria in tribal codes and ordinances. No other governmental body, such as another tribe, an individual state, or the United States may  [*349]  decide who will become a member. Thus, membership is a fundamental attribute of sovereignty. n7

2. The Santa Clara Pueblo Membership Rule
The Santa Clara Pueblo is a federally-recognized tribe located in the northern part of New Mexico and has been in existence for hundreds of years. The Santa Clara Pueblo enacted a membership ordinance in 1935, shortly after adopting a constitution developed by the United States Department of Interior's Bureau of Indian Affairs in the 1930's. n8 According to the membership ordinance, four groups of individuals were eligible for tribal enrollment: 1) individuals whose name appeared on the 1935 census rolls and were of Indian blood; 2) "all persons born of parents both of whom are members of the Santa Clara pueblo"; 3) "all children of mixed marriages between members of the Santa Clara pueblo and nonmembers, provided such children have been recognized and adopted by the council"; and 4) "all persons naturalized as members of the pueblo." n9

The tribe revised its membership ordinance in 1939 to limit membership as follows: 1) "all children born of marriages between members of the Santa Clara Pueblo shall be members of the Santa Clara Pueblo; 2) "children born of marriages between male members of the Santa Clara Pueblo and non-members shall be members of the Santa Clara Pueblo"; 3) "children born of marriages between female members of the Santa Clara Pueblo and non-members shall not be members of the Santa Clara Pueblo"; and 4) "persons shall not be naturalized as members of the Santa Clara Pueblo under any circumstances." n10

B. Facts and Procedural History of the Case
Respondent Julia Martinez was a female member of the Santa Clara Pueblo who married a Navajo man with whom she had children. Since their father was not Santa Clara Pueblo, the children were not eligible for enrollment and therefore were ineligible for any tribally-provided services, including health care. After unsuccessfully attempting to have the tribe amend the membership rule, the Martinez family filed suit in federal district court under Title I of the Indian Civil  [*350]  Rights Act (ICRA), n11 asserting that the Santa Clara Pueblo ordinance discriminated on the basis of sex and ancestry. n12 Julia Martinez' federal claim against her tribe and its governor sought injunctive and declaratory relief against the enforcement of the tribal ordinance.

The district court rejected the equal protection claim and held in favor of the Santa Clara Pueblo, finding that the membership rule reflected the tribe's traditional patriarchal values and that the membership rule was also a mechanism of cultural survival and identity. n13 The district court stated that the tribe itself could best determine matters of membership. n14 At the same time, the district court concluded that Title I of the ICRA authorized an implied cause of action for declaratory and injunctive relief against the tribe and that the tribe was not immune from suit. n15 Julia Martinez appealed to the Tenth Circuit Court of Appeals.

In an equal protection analysis, the Tenth Circuit Court of Appeals reversed the district court, concluding that the membership rule constituted a sex-based classification whose discriminatory effect was not justified by a compelling tribal interest. n16 The Santa Clara Pueblo petitioned the United States Supreme Court, claiming that Title I of the ICRA did not waive the tribe's sovereign immunity from suit. n17

C. Issue and the Supreme Court's Analysis
The Santa Clara case presented the threshold issue of whether a civil cause of action could be implied in the ICRA when it contains only a writ of habeas corpus provision. Justice Marshall held that Title I of the ICRA does not imply a civil cause of action for injunctive or declaratory relief against a tribe or its officers. n18 Important to this discussion was the Supreme Court's comment in response to the district court's suggestion that a contrary finding would "substantially interfere with a tribe's ability to maintain itself as a culturally and politically distinct entity." n19 The Supreme Court commented that

[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community. Given the often vast gulf between tribal  [*351]  traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters. n20

The Court used statutory canons of interpretation in analyzing the ICRA to determine if a civil cause of action could be implied. The Court found no evidence that Congress intended to provide a civil cause of action. In fact, the Court found that the ICRA "manifested a congressional purpose to protect tribal sovereignty from undue interference." n21

More specifically, the Court stated that "Congress' provision for habeas corpus relief, and nothing more, reflected a considered accommodation of the competing goals of 'preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people.'" n22 Most relevant to the Court was that "Congress considered and rejected proposals for federal review of alleged violations of the Act arising in a civil context." n23 In light of the legislative history and Congress' plenary power over Indian affairs, the Court held that

Congress retains authority expressly to authorize civil actions for injunctive or other relief to redress violations of 1302 ... but unless and until Congress makes clear its intention to permit additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent, we are constrained to find that 1302 does not impliedly authorize actions for declaratory or injunctive relief against either the tribe or its officers. n24

The Court did not reach Julia Martinez' sex discrimination claim, because it could not do so without first finding a cause of action. Most mainstream feminists interpret this to mean that the Court simply did not care to address a gender discrimination claim.

II. Feminist Perspectives: Tribal Sovereignty or Equal Rights?
The Santa Clara case represents a tension between Indian feminists and mainstream feminists who each subscribe to competing values: tribal sovereignty and equal rights. For most Indian women, myself included, equal rights of women are important and many Indian women face the same issues that women in general confront: domestic violence, childcare, education and health care, to name a few. However, where an Indian woman's tribe is involved, frequently the rights of the tribe as a whole tend to transcend the rights of the individual, to include the rights of the individual woman. Indian feminist Paula Gunn Allen discusses tribal identity, and Indian feminist Kate  [*352]  Shanley provides thoughts on Indian feminism and why mainstream feminist notions of equality do not mean the same thing for Indian women. n25

From the mainstream feminist point of view, well-known feminists and legal scholars Catharine MacKinnon and Judith Resnik take up the Supreme Court's failure to address the equal rights of Julia Martinez, concluding that it is the underlying American patriarchal values that explain the Santa Clara outcome. While such a position is arguable, it is certainly understandable from a perspective that does not take into account tribal sovereignty. In effect, such a position treats a sovereign tribal government as a private organization or club that should conform to mainstream feminist norms and ideas of equality.

A. The Feminist Problem
Santa Clara presents a serious problem to many mainstream feminists for the single reason that tribal sovereignty and the right to determine tribal membership are upheld despite a discriminatory membership rule that excludes women who marry outside the  [*353]  Pueblo. n26 In contrast to the mainstream feminist perspective, Indian feminists appear to have little problem with the Santa Clara case based upon their understanding of tribal sovereignty. n27

From the mainstream feminist perspective, this case amounts to a clear example of gender discrimination and is unacceptable even in the name of upholding tribal sovereignty. Therefore, for mainstream feminists what is clearly an example of gender discrimination within a tribe creates distrust of the tribe and tribal court structure where it concerns individual rights. n28 This distrust in turn dismisses tribal sovereignty and questions the legitimacy of a tribe's membership rule and traditions in light of existing American equality values and laws. n29 As a result, one may conclude, as mainstream feminists have, that sex and gender discrimination within a culture such as the Santa Clara Pueblo is simply an adoption and extension of the American patriarchy. However, such a conclusion is too simplistic because it dismisses cultural identity and requires the tribal culture to be consistent with American values and norms. Also, the conclusion presumes that the tribe's traditions and customs that arise from cultural identity are not sufficiently legitimate to warrant accord with American values of equality. Consequently, this calls into question tribal autonomy and sovereignty.

B. Indian Feminism: Sovereignty
"For Indian feminists, every women's issue is framed in the larger context of Native American people." n30 This means that an Indian woman is acutely aware of her tribal identity first, both as an Indian and  [*354]  as a member of a particular tribe. Indian feminist, author, and poet Paula Gunn Allen addresses tribal identity and why it matters to the Indian woman as much as it does. Indian feminist and scholar Kate Shanley explains why "feminism" takes on a different meaning for Indian women. While these women do not specifically discuss the Santa Clara case, their comments on tribal identity and sovereignty provide a basis for understanding why the case does not present a problem for Indian women.

These Indian feminists have captured the seemingly accepted belief among most Indian women, and in particular those women who have been raised in and near tribal communities, that tribal sovereignty underlies most ideas of feminism because an Indian woman's identity is inextricably connected to the existence of her tribe. As a consequence, "Indian feminists have rejected the Western feminist approach to gender equality by retaining the cultural framework and a commitment to the tribal nation's autonomy." n31 The result is a greater focus on tribal identity and less on gender equality, which ensures the continued existence of a woman's particular tribal culture and society.

Paula Gunn Allen writes that the "American Indian woman is primarily defined by her tribal identity. In her eyes, her destiny is necessarily that of her people ... ." n32 Allen notes that the central issue confronting Indian women is both cultural and biological survival, because "consciously or unconsciously ... every single government, right, left, or centrist in the western hemisphere is ... dedicated to the extinction of those tribal people who live within its borders." n33 Although a bold statement, such an assertion reflects the many policies of the United States government toward the Indian tribes over the decades, policies which nearly every Indian woman is aware of in one way or another. "We must strive to maintain tribal status; we must make certain that the tribes continue to be legally recognized entities, sovereign nations within the larger United States, and we must wage this struggle in many ways - political, educational, literary, artistic, individual, and communal." n34

Kate Shanley addresses how the Indian feminist perspective differs from the mainstream women's movement and other feminists where it concerns gender equality. n35 Shanley states that equality per se has a different meaning for Indian women and peoples because "that difference begins with personal and tribal sovereignty - the right to be legally recognized as peoples empowered to determine our  [*355]  own destinies." n36 Noting that tribal and communal values have survived (and continue to thrive) despite colonial oppression for hundreds of years, Shanley asserts that

the Indian women's movement seeks equality in two ways that do not concern mainstream women: (1) on the individual level, the Indian woman struggles to promote the survival of a societal structure whose organizational principles represent notions of family different from those of the mainstream; and (2) on the societal level, the People seek sovereignty as a people in order to maintain a vital legal and spiritual connection to the land, in order to survive as a people. n37

More importantly, though, Shanley emphasizes that the Indian women's movement differs most from the mainstream women's movement because of the importance placed upon tribal sovereignty as a result of the pressing political issues that tribes continually face. "Just as sovereignty cannot be granted but must be recognized as an inherent right to self-determination, so Indian feminism must also be recognized as powerful in its own terms, in its own right." n38 The reason mainstream feminism does not mean the same for Indian feminists is that cultural survival, through sovereignty, is more important than equal rights.

C. Mainstream Feminism: Equal Rights
Mainstream feminism tends to approach women's issues in the context of how the individual woman is treated within the larger society. By its very name, equal rights means to treat every person the same. Because the Santa Clara case was initially based upon a gender discrimination claim (that Julia Martinez was not treated the same as other Santa Clara women who married Santa Clara men) and the Supreme Court failed to address that claim, the case stirred the passions of many equal rights feminists.

Respected feminists and legal scholars Catharine MacKinnon and Judith Resnik provide us with a mainstream feminist commentary and critique of the Santa Clara case based upon equality principles. Both women take a hard look at the membership rule and raise equally hard questions about tribal custom and tradition, questions which find no easy answers from an equality point of view. The result is skepticism and cynicism toward a tribal culture that adopts a discriminatory membership rule that appears to be modeled after American patriarchal norms. While their position is markedly different from Indian feminists, because they look exclusively at equal rights, it is important to include their comments as an example of how the Santa Clara case means different things to different women.

 [*356]  Catharine MacKinnon, who recognizes the tension between cultural survival and equality of the sexes within a particular cultural context, n39 appears to be the first feminist to squarely address the equality issues that exist in Santa Clara. She poses a series of questions that create doubt about the legitimacy of a membership rule that clearly discriminates against certain Santa Clara Pueblo women. Consistent with her dominant theory, MacKinnon concludes that it is more likely that male supremacy through patriarchy creates the inequality for Julia Martinez and other Santa Clara Pueblo women in the same situation. n40

I believe that for most women who belong to an ethnic or racial group, identity as a woman and as a member of that group are interconnected and cannot be separated from the other. However, MacKinnon poses the duality as a choice that must be made, either for equality as a woman or cultural identity as a tribal member. n41 While one is no less important than the other, forcing a choice between the two 'identities' presupposes that one is more important than the other. n42

By reducing Julia Martinez's identity to a singular choice, where MacKinnon would have her choose equality as a woman to the exclusion of her cultural identity, Julia Martinez' cultural identity disappears in the process. This basically reduces Julia Martinez to a culturally-neutral woman. This is the problem in looking at Santa Clara only as a gender discrimination case; it eliminates the cultural component.

While Julia Martinez's children are not officially recognized as Santa Clara Pueblo through no fault of their own, it is the consequence borne of a choice made by their parents prior to their births. This does not lay the blame or responsibility upon Julia Martinez or her husband. Rather, the statement must be made that many enrolled tribal members recognize that a marriage outside of their own tribe may bear consequences for their future children. It cannot be presumed that by virtue of a parent's enrollment in a tribe that his/her offspring are entitled to the same. The benefits and privileges of membership are not automatically conferred upon birth, but only upon a showing that membership criteria are met by each child born to an enrolled member. At that point, it can be said that a tribal member has vested rights.

Another problem is that MacKinnon treats membership as a right that is equivalent to rights that exist in American society at large. Tribal membership ordinances and codes may always seem arbitrary to the outside society that does not comprehend that membership is not  [*357]  a "right" per se but a privilege determined under a given tribe's sovereignty over its own internal affairs. It is not easy to characterize the conflict as a right of equality when there is a privilege that underlies the conflict; however, MacKinnon's treatment of membership is phrased as a right that should logically be carried into federal court.

As a result of her consideration of membership as a right, MacKinnon questions the validity of tribal tradition and custom. She believes that Santa Clara serves to perpetuate a male supremacist model of tribal membership. n43 MacKinnon asks whether male supremacy can be masked as a tribal tradition n44 when the inference is that the male members of the tribe are the ones defining equality between the sexes. For MacKinnon the Santa Clara case epitomizes the subjugation of Native women within the Santa Clara Pueblo in the name of tribal sovereignty and tradition, as established by the Santa Clara Pueblo ordinance.

Professor Judith Resnik picks up where MacKinnon ends and provides a lengthy discussion of the Santa Clara case in her article on federal jurisprudence and its relationship to federal Indian law through the federal courts. n45 From the outset, she acknowledges that neither the case nor the membership rule can be understood outside of the context of federal Indian law and then she proceeds to review the various federal policies toward Indian tribes as far back as 1887 to provide some coherence to the Santa Clara membership rule. n46

The discussion focuses on sovereignty, and in particular tribal sovereignty vis-a-vis the marginalized individual rights of someone like Julia Martinez. Through these federal policies, Professor Resnik shows the influence of the federal government and its possible role in shaping the Santa Clara membership rule. Viewing federal involvement as an extension of the American dominant society's tradition of keeping American women at an inferior status, Professor Resnik finds a simple explanation for the Santa Clara outcome. Considering tribal governments to be heavily influenced by the federal government, n47 Professor Resnik infers that the Santa Clara membership rule is reflective of the federal government's subjugation of women throughout history. n48 Professor Resnik ultimately questions the sovereignty and authority of a tribe on the same grounds as MacKinnon does, that is gender discrimination exercised under the guise of tribal tradition and custom.

 [*358]  Underlying Professor Resnik's inquiry is skepticism of the legitimacy of a tribe's sovereignty when its government owes its political structure, perhaps even its 'existence', to a creation of the federal government. n49 This in turn questions the tribe's social and political structure and decision-making authority by wondering whether other factors (meaning dominant American patriarchal values) influenced the membership rule. n50 Since she considers the membership rule too "intertwined with United States rules and culture," Professor Resnik seems to question whether the tribe can even be considered a "culturally and politically distinct entity." n51 This skepticism is supported by her agreement with the statement that "modern Indian lives - lived within and against the dominant culture and state - are not captured by categories like tribe or identity." n52

Professor Resnik seems to imply that the tribe has assimilated itself, as opposed to forced assimilation, by having a membership rule that reflects American patriarchal norms. By this logic, because of this assimilation, the tribe is no longer a distinct cultural and political entity. This in turn reduces the tribe to a private organization of individuals who might 'claim' an Indian identity. Accordingly, there is no longer a tribe a person can claim to be a member of, reducing the tribal member to an ordinary American citizen who is culturally-neutral (this is similar to MacKinnon's reduction of Julia Martinez to a culturally-neutral woman). Without any cultural or political distinctions to consider, Resnik circumvents the sovereignty issue.

Contrary to Resnik's implication that tribes have assimilated themselves, many tribes actively resist assimilation and go to great lengths to assert their cultural and political distinctiveness from the American society at large (as well as from tribe to tribe). In the struggle to resist assimilation, tribes seek only to be recognized for what they are - culturally and politically distinct entities. This is what Indian feminists recognize, and, unfortunately, what mainstream feminists tend to overlook.

My response to the above commentaries is that mainstream feminism is very limited in its ability to comprehend the cultural components of women's issues. What the above inquiries demonstrate is an attempt to understand those attributes of tribal culture, such as membership, that are very difficult to comprehend from a non-Indian point of view. Unless one is a member who is a part of that community,  [*359]  it will always be difficult to understand where a given tribal custom or tradition comes from and to fathom the reasons and motivations for its existence. To second-guess these reasons amounts to a presumption that a tribe such as the Santa Clara Pueblo does not know how to act in its best interest, much less define its membership in a manner that non-Indians find acceptable.

III. Other Perspectives
Indian law scholars and commentators come out on both sides of the Santa Clara case. Some of these scholars bring another perspective that I consider to blend both Indian feminist ideals that respect tribal sovereignty with mainstream feminist ideals that strongly value equal rights. Representative of this perspective is Indian law Professor Robert Laurence who believes that Julia Martinez should be allowed to take her discrimination claim into federal court. n53 For purposes of this article, commentator Carla Christofferson also falls within this perspective, because she believes that Julia Martinez deserves further protection from the discriminatory actions of her tribe. n54

Professor Laurence's and Christofferson's comments bring a familiarity of tribal sovereignty which provides for an analysis that more adequately recognizes and understands the tension that exists between a tribe's sovereign exercise of power and the equal rights claim of Julia Martinez. Without this foundation, one can easily find great injustice with the Santa Clara holding and lose sight of what sovereignty means to a nation of tribes struggling to maintain autonomy. Professor Laurence's and Christofferson's comments and proposals illustrate the tension that exists between upholding sovereignty and the individual rights that are at stake.

Despite Professor Laurence's and Christofferson's background knowledge of tribal sovereignty, and the uncertain ground upon which it exists, they find themselves drawn to the equal protection argument because it is difficult to accept any outcome that does not uphold the rights of an individual. Professor Laurence chooses the equal rights position because he strongly believes in Julia Martinez's right to be heard in a federal forum and cannot rationalize the denial of a federal forum under the exercise of sovereignty. Christofferson chooses individual rights because she believes Julia Martinez's rights will not be protected by her tribe. Professor Laurence also illustrates how the two feminist positions cannot be reconciled because a choice must be made to support one or the other.

Professor Laurence proposes a legislative overruling of Santa Clara by congressional amendment of the ICRA to protect Indian women's civil rights and provide a federal forum. Similarly, Christofferson  [*360]  proposes to expand the scope of the ICRA in order to protect Indian women from membership discrimination by their tribes. However well-meaning the legislative proposals are intended to be, they are exactly what undermine sovereignty. Implicit in removing a case to federal court is the idea that a tribe or its tribal court is incompetent to handle internal matters whose context is foreign to all non-members. This relates back to the distrust alluded to earlier, where it may be inferred that tribes and tribal members cannot properly adjudicate the civil rights claims of their members. A federal forum thus operates as a limitation upon tribal autonomy and authority.

IV. The Equal Rights Solution: ICRA Amendment Proposals
For mainstream feminists and others like Professor Laurence and Christofferson who advocate for the equal rights of Indian women like Julia Martinez, the simple solution to the equal rights problem is to amend the ICRA and allow civil causes of action to be brought against tribal governments in a federal forum.

A. Legislative Overruling of Santa Clara Pueblo
Professor Laurence aptly notes that "Indians <elip> can rarely attack the existence of their tribe's power, but only its exercise under the ICRA or tribal law." n55 Congress did not provide tribal members civil cause of action in the ICRA, and as a result tribal members have no federal forum for civil complaints against their tribes, which arguably it could have done under its plenary power authority. n56 As the ICRA is constructed, with only a habeas corpus provision and no civil cause of action, Julia Martinez had only a tribal forum available to her as a plaintiff.

Professor Laurence believes that Julia Martinez deserves recourse beyond tribal authorities, despite his respect and admiration for tribal sovereignty and governance, because "in the end she has a complaint that must be heard outside the jurisdiction of the entity alleged to be discriminating against her." n57 This position seeks a legislative overruling of Santa Clara under the ICRA and Congress' plenary power in order to assure a measure of protection to those who encounter sex discrimination.

Professor Laurence suggests a legislative overruling of Santa Clara under a number of guidelines in order to protect Indian women against discriminatory actions by their tribes. The guidelines in effect would limit federal government involvement, yet allow a plaintiff to seek relief in federal court. The proposed guidelines are briefly summarized  [*361]  as follows: (1) exhaust all tribal remedies first, including the tribal council (governing body), which would serve to minimize federal involvement; (2) limit the amount in controversy to major tribal actions, thereby protecting extremely limited tribal resources except in instances where a tribe has acted flagrantly; (3) allow no recoverable money damages against the tribe, instead allowing for declaratory and injunctive relief; (4) provide federal court review of a tribal court record where available; (5) liberally apply the political question doctrine to avoid federal involvement in political matters; and (6) construe the ICRA's substantive provision with respect to tribal traditions and for modern adaptation. n58

On the whole, Professor Laurence comments that the "respect should continue, and the federal courts should be reluctant to strike down tribal tradition in the name of Anglo-American legal philosophy." n59 However, respect should dictate that federal courts have no role whatsoever in the internal matters of a tribal government. The very fact that the last guideline recommends construing the ICRA with respect to tribal tradition and modern adaptation means a federal court will have to undertake an analysis of tribal traditions with which there is no familiarity nor understanding. The guideline implies that a tribal tradition may be struck down if in conflict with predominant norms, which is contrary to respecting a tribal tradition. If there is any truth to Professor Laurence's statement that respect for tribal traditions should continue, it brings us right back to the outcome in Santa Clara where Justice Marshall declined to permit federal court interpretation on an internal tribal matter. n60

B. Expanding the Scope of the ICRA
Along the same lines as Professor Laurence, commentator Carla Christofferson proposes amending the ICRA to expand protection to Indian women because denial of a federal forum under the ICRA fails to protect Indian women from tribal discrimination. n61 At the outset, Christofferson recognizes that the ICRA limits tribal sovereignty by imposing an Indian Bill of Rights upon all Indian tribes since the Bill of Rights under the United States Constitution does not apply on Indian reservations. n62 By framing the Santa Clara case as a conflict between Indian autonomy and gender discrimination, Christofferson asserts that the denial of federal protection to Indian women under the ICRA amounts to gender discrimination because Indian women are frequently the target of ICRA violations. n63 In this regard, the Santa Clara decision "expanded" sovereignty (implying a grant of  [*362]  power) n64 at the expense of women's rights, by in essence holding that Indian women cannot rely upon the protection of state and federal courts. n65 The logical solution under this interpretation, as posed by Christofferson, would be to expand the scope of the ICRA to secure equal rights for Indian women.

Following principles set forth in the 1967 United Nations Declaration on the Elimination of Discrimination Against Women, Christofferson's proposed ICRA amendment would focus on membership exclusively. n66 Any tribal laws that restrict membership on the basis of sex would be prohibited, and if violated would waive sovereign immunity. n67 Additionally, all federally-funded tribes would have two years to bring membership codes and rules into compliance. n68 Furthermore, the amendment would protect three groups, to include: "(1) Native American women subject to discriminatory membership laws, (2) Native American women who are denied tribal membership due to gender-based laws, and (3) children of groups (1) and (2) who are denied membership." n69 Moreover, under the amendment a plaintiff could bring suit in federal court for declaratory or injunctive relief after exhausting all tribal remedies.

Christofferson argues for the expansion of the ICRA because she believes the equal protection benefits extended to Indian women would outweigh any impact to tribal sovereignty. However, she is under the false pretense that any encroachment would be minimal. n70 Christofferson attempts to justify further federal encroachment into the internal affairs of Indian tribes by using the women's suffrage movement and the historical experiences of African-Americans in the South to illustrate the displacement of cultural norms and imposition of American values and laws. n71 But her examples illustrate sex-based and racially-based classifications to prove her point, which are irrelevant when it concerns tribes. Indians and tribes are distinguishable  [*363]  from other racial and minority groups because tribes hold a political classification (being separate units of government) rather than a racial or gender classification. n72

C. The Sovereignty Problem: A Critique of the ICRA Amendment Proposals
A consideration of the two ICRA amendment proposals reveals a two-fold problem that cannot be avoided. First, tribal sovereignty and the exercise of that power over members is limited when an outside forum is allowed to step in. Second, tribal autonomy and the ability to define a tribe's identity and culture, based upon custom and tradition, is compromised when outside norms prescribe who will be a member.

1. A Further Limitation Upon Tribal Sovereignty
The ICRA amendment proposals are intended to benefit female members without compromising or impacting tribal sovereignty. Instead, they further limit tribal sovereignty because of the implied presumption that tribal forums are incompetent to adjudicate individual civil rights claims. n73

This implied presumption is the reason the proposal includes a federal forum as a back-up mechanism when the tribal forum fails to adequately adjudicate the civil rights claim. The presumption stems from the distrust that a tribal forum will not properly apply commonly accepted norms and standards of law as understood by the larger American society. Further underlying this distrust is the fear that a tribal forum may not adopt or follow the predominant legal norms and standards. Many tribes are still in the primacy of developing their legal norms and standards, which may be a blend of mainstream norms combined with tribal traditions and values. This fosters the belief that a tribal forum cannot or will not protect individual rights as well as a federal forum. n74 Basically, judicial competence is the issue without being stated as such.

The presumption of incompetence amounts to a limitation because it means that a tribe's authority to make, apply, and enforce its own laws within its membership is not good enough. It implies that tribal norms and standards are not adequate because American norms and standards as embodied in American laws are better. Professor Laurence remarks that "it goes without saying, then, that Ms. Martinez is entitled to an effective forum to challenge the discrimination.  [*364]  That she must turn to a white male judiciary, under a statute enacted by a white male Congress, is unfortunate, but better than nothing." n75

Such an assertion implies that tribal forums are ineffective and are "nothing." What this says to a tribe is that it may apply its laws and act as if it were a real and competent forum, but if the larger society is not satisfied with the adjudication, it will step in and apply its own laws as it should properly be done by its own standards. The rationale prefers that the tribal forum adopt the dominant norms, but in the event the tribal forum does not, the larger society will then impose those norms by judicial fiat. This is judicial imperialism seeking to replace perceived inferior tribal norms with what are considered superior American norms.

Taken further, this imperialism also encompasses a paternalism that considers those same American norms and standards to be what is best for the tribe and its members. If this position is justified in the name of protecting individual rights, then one assumes the role of the Good Samaritan who views the individual member like Julia Martinez as a victim who needs to be saved from her tribe. Taken as a whole, the incompetency presumption and its underlying tones of imperialism and paternalism are insulting to tribes and indicate a general disrespect of tribal sovereignty.

Moreover, this presumption of incompetency ultimately limits the tribe's authority to define its membership and regulate its membership through its own laws because an outside forum can step in and define the tribe's membership. Defining and regulating tribal membership is a fundamental attribute of tribal sovereignty (by creating and maintaining the tribe's identity), and that sovereignty is compromised by Professor Laurence's and Christofferson's proposals which interfere with the tribe's ability to determine membership.

2. Interference With Tribal Autonomy: Defining Tribal Membership
The Supreme Court recognized tribal autonomy in the Santa Clara case when it stated that "[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." n76 What this statement implies is that tribal membership has no bearing upon mainstream society nor any federal interest. Despite this fact, equal rights supporters propose to alter a tribal societal structure like membership under the guise of protecting individual rights.

Although the proposals to secure civil rights for women within their tribes are well-intended, the end does not justify the means if tribes cannot determine for themselves who will comprise their membership. The weakness of any proposed legislative change is that it  [*365]  simply amounts to another forced solution which alters tribal structure and autonomy by changing how a tribe will define its identity. n77

Group identity may be considered as possessing "a unique history, a set of shared customs, norms and practices, collective memories, or an experience of maltreatment by mainstream society." n78 Tribes and their members recognize these qualities, and further recognize that other tribal groups likewise possess distinctly different sets of the same qualities that comprise each tribal group's identity. Many tribes seek to perpetuate their respective identities, and one mechanism by which that is accomplished is through tribal membership rules.

While tribes today certainly follow formalized membership rules as part of their tribal laws and ordinances, it can be surmised that tribes previously possessed informal membership rules that they and their members recognized throughout their history. However, these informal rules likely have no recorded history as is common with many aspects of tribal histories. This makes it difficult to analyze any changes to membership rules, as the Santa Clara case illustrates. For example, the period between the informal rule and the adoption of the formal rule may have involved changes to a culture that are not so easy to quantify as to their effects and influences. n79 As a result, the "history" of a membership rule and whether it follows long-standing traditional practice and custom is open to challenge. This is reflected in the mainstream feminist challenge to the Santa Clara Pueblo membership rule and its history.

Professor Laurence points out the relevance of distinguishing "whether the Santa Clara Pueblo in its discrimination against Julia Martinez was reflecting long-standing tribal traditions of patriarchy or, on the other hand, was implementing a newfangled Anglo-American patriarchal regulation." n80 MacKinnon noted that the Supreme Court omitted the rule's history from its opinion, n81 while Professor Resnik  [*366]  wondered whether any federal statutes influenced the membership rule. n82 As soon as the question is raised, the legitimacy of the rule is doubted because the "vintage" of the rule provides the grounds upon which the challenge is mounted.

Mainstream feminists deeply question the customary and traditional values the tribe holds as part of its identity. They imply that the tribe was not always patriarchal, but had become so at some point in their history due to colonial influence. n83 Mainstream feminists therefore conclude the membership rule does not reflect a patriarchal tradition. n84 This critique diminishes the societal values of the tribe, and under the claim of equal rights, assumes overtones of cultural imperialism: dismissing the other culture's values, which are reflected in its laws and rules to the point of marginalizing its identity as well. n85 The effect of this critique is to call into question the entire tribal culture.

To state it more succinctly, it is as if mainstream feminists are telling the tribe, "We think you have changed your values and they no longer hold the same meaning they once held. Because you have changed them, they can no longer be considered customary and traditional as you claim. Therefore, upon what customary and traditional grounds can you say your rule is based? None, we think." This is why the culture itself is called into question, because if the traditional and customary value has changed, and it appears to reflect American values and culture, then the tribe no longer has a culture it can claim as its own. n86 If a tribe has no culture to claim as its own, by this logic, I would argue that assimilation by default has occurred. Further, assimilation is the goal of and the mechanism by which imperialism operates because no longer is a culture with its customs and traditions a factor to consider any longer. All that is left to consider is a gender discrimination claim that should be evaluated under "traditional" (i.e., American) norms and standards of equal rights doctrine. Therefore, it appears that the mainstream feminists pose the rule's vintage as an issue because it allows their position to sidestep the real issue: the tribe's authority to define and regulate its own membership as a means of cultural identity.

A "tribal nation's ability to define membership, its qualifications, benefits and responsibilities is explicitly connected to the customary values of a tribe." n87 What logically follows from this is that a tribe also  [*367]  retains the ability to redefine and reinterpret its traditional customs and practices by conserving those values and incorporating other values that may further complement the existing tribal structure. n88 The goal of tribal redefinition and reinterpretation of cultural values is to allow for cultural development and maintenance of tribal identity within a larger society. Tribal communities are dynamic; they change their values and norms in response to various factors and influences as they see fit. n89 A culture, a tribe, does not remain static as if it were untouched by the outside world. Such thoughts are too romanticized. We would be fooling ourselves to think that any Indian tribe will not change some aspect of its cultural norms at some point. n90

"The components that constitute ... group [identity] are never as fixed or stable as they may seem at any given moment. Rather, they are over time, negotiated, contested, transformed, defined and redefined by group members as an ongoing outcome of interactions with conditions both 'inside' and 'outside' the identity group." n91 Not only are groups undergoing this evolutionary process, but "identity groups are constantly redefining their essential traditions and boundaries in relation to 'inside' or 'outside' challenges." n92 Although external influences and interactions are continuously present and inevitable, their effects upon tribal customs and traditions do not diminish tribal identity any less. The problem with the Santa Clara criticisms are that they come from non-members, who are not in a position to judge the validity of tribal customs and traditions. That judgment should properly be reserved to the tribal group itself.

V. The Sovereignty Solution: The Cultural Sovereignty Paradigm

Culture is the great separator that decides which direction an [Indian] person will go when faced with a fork in the road. As a people, we have come to the fork many times. Some of us went one way and others went in a different direction. Those who held fast to the essential principles of their culture went in the direction of sovereignty;  [*368]  those who became alienated from their communities trod in the direction of sub-normal integration. n93

Santa Clara is a very difficult case to reconcile from both a sovereignty perspective and an equal rights perspective. Ultimately, the two positions cannot be reconciled, and it is this reason the case, two decades later, still provides a backdrop for critical analysis. I believe that one's cultural identity is what makes the difference in understanding the case. Thus, many Indians will continue to view the case from a sovereignty standpoint, as I do, while most non-Indians will assess Santa Clara from an equal rights perspective.

While equal rights supporters propose to amend the ICRA as a means of protecting the equal rights of Julia Martinez and other women within their tribes, the above discussion identifies the problems associated with the ICRA amendment proposals. The proposals, which I consider outsider solutions, contain limitations not acceptable to tribes and are more harmful than beneficial to Indian tribes and people. The proposals do not take the various distinctive cultural norms and customs into consideration and in effect treat all tribes as the same. As a result, the equal rights solution is not workable within a tribal context.

The better solution to Julia Martinez's situation is one that is developed from within the tribal community. The solution in mind is the cultural sovereignty paradigm recently proposed by Indian law Professor Rebecca Tsosie and tribal advocate Wallace Coffey. n94 According to Professor Tsosie and Coffey, "it is time to reconceptualize Native sovereignty from a model that treats sovereignty as a strategy to maintain culture to a model that analyzes culture as a living context and foundation for the exercise of group autonomy and the survival of Indian nations." n95 Under this new cultural paradigm, sovereignty is neither undermined nor compromised, and a tribe may be responsive to its members while maintaining cultural norms and values.

Until now, the discussion of sovereignty has been within the framework of what Professor Tsosie and Coffey call a politically-based paradigm. Contained within this framework are federal policies and caselaw that have worked primarily to diminish tribal sovereignty and eliminate tribal culture. n96 The proposed ICRA amendments embody  [*369]  the very same values as the federal policies, despite the claim of preserving or minimally impacting sovereignty. n97 As an alternative to the existing framework, Professor Tsosie and Coffey propose a culturally-based model of sovereignty that moves away from the politically-based framework that does not seek to preserve cultural norms and customs.

Cultural sovereignty can be defined as "the effort of Indian nations and Indian people to exercise their own norms and values in structuring their collective futures." n98 "The concept of cultural sovereignty is valuable because it allows [tribes] to chart a course for the future. In that sense, cultural sovereignty may well become a tool to protect [tribal] rights to language, religion, art, tradition, and the distinctive norms and customs that guide [each society]." n99 Additionally, cultural sovereignty does what politically-based sovereignty cannot do, which is to empower tribes to define who they are in accordance with their respective values and norms, not the values and norms of the larger society that are reflected in federal policies and case law.

The replacement of tribal norms with dominant norms is the ultimate weakness of the ICRA proposals. The danger is failing to recognize that a replacement of norms not only undermines tribal sovereignty, but also alters the culture of the tribe in the process. The proposals represent an example of the unintended consequences that result from a well-meant intention. These unintended consequences are precisely the reason why it is better for any changes to tribal structure and culture to come from within the tribe itself. This would especially be the case with a membership rule, which is directly connected to tribal culture and identity.

The cultural sovereignty model is ideal for tribes because in the process of exercising tribal customs and traditions, this model also allows tribes to protect the cultural norms and customs that define a tribe. The importance of this is that a tribe continues its existence with the norms and customs it has always known. n100 In holding tight to respective cultural customs and traditions, tribes are allowed to perpetuate their distinct identities and cultures.

More importantly, the model allows tribes to be responsive to its members and allows for solutions to be developed within a tribal context. Although the sovereignty solution is not a quick fix, the process allows tribes to weigh and consider what will be best for the membership as a whole. What the tribe determines to be best for the tribe  [*370]  may not be what the outside larger society considers to be best for the tribe, but the distinct norms and customs of each tribe are what guide that determination. In this sense, it is the tribal judgment that controls and determines, thus allowing for continuity of tribal existence consistent with tribal values.

I believe the strength of the cultural sovereignty model is allowing tribes to define for themselves the meaning of autonomy and the relationships that exist within a given tribe (the relationships being the membership), and then redefining the same when it finds the need to do so. Tribes themselves are best situated to evaluate the needs of their members, to determine what is best for their members, and to do what is best for their members, because the solution of who will ensure the existence of the group as a whole rests within the tribe. To understand this concept is to understand why proposals such as the ICRA amendments are not really solutions for Julia Martinez or other similarly situated women.

Ultimately, sovereignty necessitates "trying to think through in terms of what the tribe thinks is best for itself ... because if sovereignty means anything, it means the ability of tribes to talk about very serious issues and to choose from the array of choices which are available." n101 Cultural sovereignty is maintaining the customs, traditions and values that define one tribe from another while simultaneously creating change from within to ensure an existence that the tribe defines itself. It necessarily implicates autonomy because the tribe's envisioned existence may not be consistent with the values of the larger society, and autonomy requires independence from the larger society. From autonomy emanates the freedom to define and maintain tribal identity, including the use of membership rules the larger society may disagree with but the tribe considers necessary when it envisions its continued existence in an ever-changing world.

Legal Topics:

For related research and practice materials, see the following legal topics:
GovernmentsNative AmericansAuthority & JurisdictionGovernmentsNative AmericansIndian Civil Rights ActLabor & Employment LawDiscriminationGender & Sex DiscriminationCoverage & DefinitionsStereotypes


n1. Martinez v. Santa Clara Pueblo, 402 F. Supp. 5, 18-19 (D. N.M. 1975).

n2. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

n3. For purposes of this article, mainstream feminism may generally be understood as encompassing a westernized, individualistic, Anglo-American, middle-and upper-class perspective as distinguished from the Indian feminist perspective represented in this article.

n4. For this article, I will refer to women who claim a tribal affiliation as "Indian" rather than "Native American" or "American Indian." No offense is intended toward any women with a tribal affiliation.

n5. I do not claim to speak for a tribal culture such as the Santa Clara Pueblo. I also do not claim to speak for any individuals who are members of tribes, nor for any Indian women or Indian feminists. My perspective reflects my experiences as a tribal member and advocate who believes strongly in the preservation of tribal sovereignty and autonomy. Therefore, I claim all opinions and assertions as my own when no authority is cited.

n6. See Sharon O'Brien, American Indian Tribal Governments 200 (1989).

n7. Membership allows an individual to enjoy certain rights, benefits, and privileges which tend to be exclusive. Id. Examples include the right to vote, run for elected positions, or receive governmental program and service benefits established only for tribal members (such as health care, housing, or education) upon which many members rely.

n8. Constitution & Bylaws of the Pueblo of Santa Clara, New Mexico art. I, 1(a)-(d) (approved Dec. 20, 1935); see also Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Chi. L. Rev. 671, 704 (1989).

n9. Id.

n10. Constitution & Bylaws of the Pueblo of Santa Clara, New Mexico art. I, 1(a)-(d) (amended Dec. 27, 1939); see also Santa Clara Pueblo, 436 U.S. at 52 n.2.

n11. See Indian Civil Rights Act, 25 U.S.C. 1301-1303 (1968) (The ICRA imposes upon tribes statutory provisions very similar to the Bill of Rights and Fourteenth Amendment, intended to protect the rights of tribal members from arbitrary acts by their governments. The only remedy provided is a writ of habeas corpus under 1303; there are no civil causes of action contained within the language of the statute.).

n12. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 51 (1978).

n13. Martinez v. Santa Clara Pueblo, 402 F. Supp. 5, 15 (D. N.M. 1975).

n14. Id. at 5.

n15. Id.

n16. Martinez v. Santa Clara Pueblo, 540 F.2d 1039, 1047-48 (10th Cir. 1976).

n17. Santa Clara Pueblo, 436 U.S. at 58.

n18. Id. at 72.

n19. Id.

n20. Id. at 72 n.32 (internal citations omitted).

n21. Id. at 63.

n22. Id. at 66-67.

n23. Id. at 67.

n24. Id. at 72.

n25. Where appropriate, a tribal affiliation will follow an individual's name in parentheses. While the terms "American Indian" or "Native American" or "Indian" can be considered a broad racial category, the terms in and of themselves do not capture the meaning of what it is to be an enrolled member of a federally-recognized tribe who identifies a tribal affiliation. Indian tribes were first recognized as politically sovereign entities with whom the United States entered into treaties. See Worcester v. Georgia, 31 U.S. 515 (6 Pet.) (1832). Tribes were later recognized to hold a political classification, as opposed to a racial classification, based upon their relationship with the United States as existing quasi-sovereign entities. See Morton v. Mancari, 417 U.S. 535 (1974).

Indian tribes retain the inherent authority to determine their membership. See Montana v. United States, 450 U.S. 544 (1981); see also Red Bird v. United States, 203 U.S. 76 (1906). During the 1970's, a line of cases began to draw a distinction between member Indians and non-member Indians of tribes. See McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164 (1973) (a state cannot impose an income tax on an enrolled member of a tribe who resides and works on their own reservation); Washington v. Confederated Tribes of Colville, 447 U.S. 134 (1980) (state may impose sales tax upon non-member Indians on the reservation of another tribe); Duro v. Reina, 495 U.S. 676 (1990) (tribe does not have criminal jurisdiction over non-member Indians).

What these cases suggest is that there is a significance to being an enrolled member of a tribe who can claim an affiliation. It is this particular fact that distinguishes Indian tribes and their members from other racial classifications and categories because the status of an enrolled member entitles that individual to certain rights and privileges as a member, not as an Indian, of a federally-recognized tribe. Those rights and privileges generally do not extend beyond one's tribe of membership. Therefore, it is meaningless to claim being an "Indian" unless a showing of enrolled membership can be made. Ethnicity as an Indian does not confer rights and privileges, only membership within a tribe can do so. This significance explains why Indians identify the tribes of which they are members; it signifies a political relationship to a tribal government which extends to a political relationship with the United States, thus implicating tribal sovereignty. See LaRock v. Wisconsin Dep't of Revenue, 621 N.W.2d 907 (2001).

n26. See Robert Laurence, Martinez, Oliphant and Federal Court Review of Tribal Activity Under the Indian Civil Rights Act, 10 Campbell L. Rev. 411, 415 n.15 (1988).

n27. See Marie Anna Jaimes Guerrero, Civil Rights Versus Sovereignty: Native American Women in Life and Land Struggles, in Feminist Genealogies, Colonial Legacies, Democratic Futures 101-02, 107 (M. Jacqui Alexander & Chandra Talpade Mohanty eds., 1997) (Indigenous perspective asserts that "sovereignty must be understood in its cultural context," yet criticizes the Santa Clara case on the same patriarchal grounds as mainstream feminists, arguing that patriarchal norms force the women of their communities to bear the disproportionate burden of those values).

n28. See C.L. Stetson, Tribal Sovereignty: Santa Clara Pueblo v. Martinez: Tribal Sovereignty 146 Years Later, 8 Am. Indian L. Rev. 139, 152 (1980) ("Anglo-American reluctance to appreciate the Santa Clara Pueblo concept of order and control may stem from a distrust of alien norms and from a belief that United States law is the only applicable law ...").

n29. See Gloria Valencia-Weber & Christine Zuni (Isleta/San Juan Pueblo), Symposium: Women's Rights as International Human Rights: Domestic Violence and Tribal Protection of Indigenous Women in the United States, 69 St. John's L. Rev. 69, 88-90 (1995) ("A non-Indian's lack of appreciation for tribal autonomy and its importance in Native American communities is reflected in the articles written about Martinez ... [and these] responses overlook the unique status of American Indian tribes as sovereigns ...").

n30. Rayna Green, Native American Women, 6 Signs 248, 264 (1980) (Rayna Green is Cherokee/German).

n31. Valencia-Weber & Zuni, supra note 29, at 91.

n32. Paula Gunn Allen, The Sacred Hoop 43 (1986) (Paula Gunn Allen is Laguna Pueblo/Sioux/Lebanese).

n33. Id. at 190.

n34. Id. at 193.

n35. Kate Shanley, Thoughts on Indian Feminism, in A Gathering of Spirit 213 (Beth Brant ed., 1984) (Kate Shanley is Assiniboine Sioux/Irish).

n36. Id. at 214.

n37. Id.

n38. Id. at 215.

n39. Catharine MacKinnon, Feminism Unmodified 65, 66 (1987).

n40. Id. at 68.

n41. Id. at 67.

n42. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 594 (1990).

n43. MacKinnon, supra note 39, at 68.

n44. Id.

n45. Resnik, supra note 8, at 671.

n46. Id. at 703. Professor Resnik also examines the available ethno historical and anthropological data in an effort to better understand the membership rule. Id. at 706.

n47. Id. at 718.

n48. Id. at 725.

n49. Id. at 704. ("The IRA provided for the creation of tribal constitutions and laws, but required that such enactments be submitted to the Secretary of Interior for approval."). The Santa Clara Pueblo is one of nearly two hundred tribes that accepted a constitution created by the United States government under the Indian Reorganization Act of 1934, 25 U.S.C. 476. See Santa Clara Pueblo, 436 U.S. at 66 n.22.

n50. Resnik, supra note 8, at 723.

n51. Id. at 726 (quoting Santa Clara Pueblo, 436 U.S. at 72).

n52. Id. (quoting James Clifford, The Predicament of Culture: Twentieth Century Ethnography, Literature and Art 277 (1988)).

n53. Laurence, supra note 26, at 411.

n54. Carla Christofferson, Note, Tribal Courts' Failure to Protect Native American Women: A Reevaluation of the Indian Civil Rights Act, 101 Yale L.J. 169 (1991).

n55. Laurence, supra note 26, at 421 (emphasis added).

n56. Plenary power may be characterized as Congressional authority over Indian tribes and their affairs by virtue of the guardian-ward relationship. See United States v. Kagama, 118 U.S. 375 (1886); see also Lonewolf v. Hitchcock, 187 U.S. 553 (1903).

n57. Laurence, supra note 26, at 429-30.

n58. Id. at 430-36.

n59. Id. at 437.

n60. See Santa Clara Pueblo, 436 U.S. at 72 n.32.

n61. Christofferson, supra note 54, at 170.

n62. Id. at 171.

n63. Id. at 175.

n64. Christofferson considers the case to be an expansion of sovereignty, implying a grant of power. Id. at 173. Most tribal advocates would point out that tribes were not "granted" sovereign powers but rather reserved all those powers not expressly ceded by treaty or federal statute. See United States v. Winans, 198 U.S. 371, 381 (1905) ("The treaty was not a grant of rights to the Indians, but a grant of rights from them, - a reservation of those not granted."). While the ICRA limits sovereignty to the extent that habeas relief is provided, the statute should be interpreted to mean that the right to regulate tribal membership remains within the tribe's exclusive powers, as recognized by the Supreme Court in the Santa Clara case. See Santa Clara Pueblo, 436 U.S. at 72 n.32 ("A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.").

n65. Christofferson, supra note 54, at 173-74.

n66. See id. at 181-82 n.92.

n67. Id. at 182.

n68. Id.

n69. Id. at 183-84.

n70. See id. at 182.

n71. Christofferson, supra note 54, at 176.

n72. Morton, 417 U.S. at 554 n.24 (1974).

n73. There is another implied presumption that exists as well, that individual rights operate as a limitation upon tribal sovereignty. This implicates the sovereign immunity holding, an aspect of the case which is beyond the scope of this article.

n74. United States law is relatively young in comparison to the many English common and statutory laws that have existed for centuries, and from which early America borrowed for its own law before developing its own legal norms and standards based upon American values.

n75. Laurence, supra note 26 (emphasis added).

n76. Santa Clara Pueblo, 436 U.S. at 72 n.32.

n77. It is worth noting that another fundamental problem not addressed by the mainstream feminist commentators is what standard a federal forum would adopt and apply if such a case were allowed. The mainstream feminists appear to be comfortable with an equal rights standard, but such a standard cannot adequately consider tribal customs and traditions that underlie internal matters like tribal membership. This inadequacy operates as a limitation which the Supreme Court properly recognized: "Given the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters." Id.

n78. Ayelet Shachar, Reshaping the Multicultural Model: Group Accommodation and Individual Rights, 8 Windsor Rev. of Legal & Soc. Issues 83, 89 (1998).

n79. Examples are the federal removal policies that forcibly removed tribes during westward expansion, and assimilationist policies that attempted to destroy tribes' and members' cultural identity in an effort to integrate them into mainstream society. See Vine Deloria, Jr., & Clifford M. Lytle, American Indians, American Justice 8-12 (1983)

n80. Laurence, supra note 26.

n81. MacKinnon, supra note 39, at 66.

n82. Resnik, supra note 8, at 723.

n83. MacKinnon, supra note 39, at 69; see also Resnik, supra note 8, at 715, 723.

n84. MacKinnon, supra note 39, at 69, see also Resnik, supra note 8, at 726.

n85. Mainstream feminists try to avoid appearing imperialistic, but to challenge the rule on any ground assumes the risk. See Harris, supra note 42 (arguing that to take up Julia Martinez's claim at all on her behalf, as an outsider of her tribal community, assumes the risk of appearing as a white cultural imperialist even when trying to avoid that appearance).

n86. MacKinnon infers this in the title of her essay on the case, "Whose Culture?" See MacKinnon, supra note 39, at 63.

n87. Valencia-Weber & Zuni, supra note 29, at 94.

n88. Id.

n89. Although the colonial argument may have some merit, colonial influence does not and cannot explain the varying cultural/societal norms a given tribe may hold. Each tribe is too distinctive to be characterized generally as "patriarchal/patrilocal/patrilineal" or "matriarchal/matrilocal/matrilineal." Many tribes are too diverse to rely upon colonization as the reason for patriarchal values, because if such were true, all tribes would be patriarchal under that reasoning.

n90. Valencia-Weber & Zuni, supra note 29, at 94 (remarking that "it is foolhardy to think that American Indians can be unchangingly defined by a historically set point"). Ironically, this seems precisely what MacKinnon and Resnik do.

n91. Shachar, supra note 78, at 100.

n92. Id.

n93. Lee Maracle, Law, Politics and Tradition, in I Am Woman: A Native Perspective on Sociology and Feminism 37 (1996).

n94. Wallace Coffey & Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 Stan. L. & Pol'y Rev. 191 (2001).

n95. Id. at 209.

n96. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (the Supreme Court identifying tribes as "domestic, dependent nations" within the United States); see also United States v. Kagama, 118 U.S. 375 (1886)(the Court characterized Indian tribes as dependent upon the United States for political rights); Oliphant v. Suquamish, 435 U.S. 191 (1978) (the Court stated that tribal sovereignty can only be exercised to the extent consistent with tribes' dependent status); United States v. Wheeler, 435 U.S. 313, 323 (1978) (the Court stated that sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance.").

n97. While federal policies and cases have failed to destroy tribal custom and traditions over the centuries and decades, there is no doubt various efforts will continue to attempt to define who and what tribes are from the politically-based model of sovereignty.

n98. Coffey & Tsosie, supra note 94, at 196.

n99. Id. (emphasis added).

n100. Id. at 197.

n101. Frank Pommersheim, Democracy, Citizenship, and Indian Law Literacy: Some Initial Thoughts, 14 T.M. Cooley L. Rev. 457, 466 (1997).