Copyright (c) 2002 Board of Regents of the University of Wisconsin System
Wisconsin Women's Law Journal
17 Wis. Women's L.J. 347
LENGTH: 12573 words
COMMENT: REVISITING SANTA CLARA PUEBLO V. MARTINEZ: FEMINIST PERSPECTIVES ON TRIBAL SOVEREIGNTY
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
... 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.
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
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
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
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
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
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
[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
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
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
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
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.
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.
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
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
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
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
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
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
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
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.
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.
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
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.
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
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.
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
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
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
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.
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.
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.
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
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
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.
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.
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
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
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.
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.
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
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.
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
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.
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
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.
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.
"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
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.
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
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.
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.
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.
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.
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.
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.
For related research and practice materials, see the following legal topics:
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).
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.
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.
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).
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.
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).
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.
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.
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.
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.
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).
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).
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).
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
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.
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.
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.
n45. Resnik, supra note 8, at 671.
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.
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.
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).
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.
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.
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).
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.
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.
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.
Ayelet Shachar, Reshaping the Multicultural Model: Group Accommodation
and Individual Rights, 8 Windsor Rev. of Legal & Soc. Issues 83, 89
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.
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
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.
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.
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.
n93. Lee Maracle, Law, Politics and Tradition, in I Am Woman: A Native Perspective on Sociology and Feminism 37 (1996).
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.
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.").
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.
Frank Pommersheim, Democracy, Citizenship, and Indian Law Literacy:
Some Initial Thoughts, 14 T.M. Cooley L. Rev. 457, 466 (1997).