The cultural rules in American Indian nations about who can marry whom to this day have the effect of maintaining diversity in the gene pool.

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The cultural rules in American Indian nations about who can marry whom to this day have the effect of maintaining diversity in the gene pool.

Disappearing Indians: Who Decides Who’s In and Who’s Out?

Julia Martinez is a full-blooded Tewa Indian, a citizen of the Santa Clara Pueblo that has bordered the Rio Grande since the 16th century. The Tewa peoples discovered Francisco Vásquez de Coronado’s expedition prowling the Rio Grande watershed for gold in 1541. The Spanish came back to collect souls and enslave the population in 1628, only to be ejected in the Pueblo Revolt, which touched off a struggle against Spanish, Mexican and U.S. hegemony that continues to this day.

One front in that struggle fundamental to peoplehood, let alone nationhood, is who defines people as within the tribal community or outside it? Julia Martinez, a resident of Santa Clara, had little reason to think in those terms when she married a Navajo. But then they had two children, and according to the patriarchal citizenship law of the Pueblo, those children could not be enrolled. The children would have no participation in Pueblo governance and, upon their mother’s death, could not inherit her house and would have no right to remain in Santa Clara.

If a male citizen of Santa Clara were to marry outside the Pueblo and have children, his children would be Santa Clara citizens, so Martinez filed suit under the Indian Civil Rights Act, claiming that she and her children were being denied equal protection of the law.

What was at stake for her children was citizenship in a tribal nation, but that question was contested in the courts of a different nation, one that was not yet a gleam in the eye of Thomas Jefferson when the Tewa came to live on the banks of the Rio Grande.

The Historical Context for Exogamy

Long before American Indians discovered Columbus, tribal nations had established methods of integrating persons from outside, just as European nations did. After all, trading routes crossed the Americas in all directions and we know that some genetic material moved along with trade goods. As in European nations, the more involved in trade a tribe was, the more diverse its gene pool. Inevitably, many of those relationships (which energized the gene pool) were formalized in exogamous (outside the tribe) marriages. Some tribes allowed prisoners of war to marry in. If these opportunities to reshuffle the genes had not been common, Indians would have quickly become as inbred as European royals.

The cultural rules in American Indian nations about who can marry whom to this day have the effect of maintaining diversity in the gene pool. Most Indian incest rules—whether referring to marriage or merely sexual relations—are much more complicated than the rules Europeans observe. In modern state laws, there’s a common dividing point at first cousins, with most states holding marriages with first cousins to be incestuous. European royals had their own rules, and marriages for the purpose of building political alliances were so common between first cousins in the royal families of Europe that the result was “royal diseases,” notably hemophilia. Whether Indians understood the cause and effect is an open question, but most tribal customs avoided such dire genetic consequences.

Modern nation-states that arose with the Treaty of Westphalia in 1648 did not have the border formalities limiting physical presence that concern us today. They had no immigration bureaucracy, let alone barriers to crossing. Still, like Indian tribes, they all had some method for outsiders to acquire citizenship, methods that often did not extend full citizenship rights to colonized peoples. In the United States, citizenship was extended on paper by act of Congress in 1924. Indian ex-GIs, like African-American ex-GIs, had to struggle for the rights that are supposed to go with citizenship after coming home from WWII.

Early European colonies in America contained a lot more men than women, with the predictable result that European traits began to appear in the indigenous genome. In spite of that, colonies often had rules against intermarriage with Indians, coupled with social and legal disadvantages for the offspring of such marriages. The Indians, by and large, maintained their customs of exogamous marriages without regard to color or “race.” This is not to say “half-breeds” never faced social disadvantages but rather those disadvantages seldom included expulsion from tribal relations.

Different Rules for Different Times

By the time the status of Julia Martinez’s children became a legal issue, the surviving Indian nations no longer were so accepting of outsiders. The problem had shifted from maintaining a rich genetic pool to limiting “tribal membership” in a principled way that was consistent with tradition.

My tribe’s tradition taught that Cherokee identity is tied to clan identity, which is only inherited through the mother. Since I am the product of three generations of Cherokee men marrying white women, I would by tradition have no clan, and therefore no Cherokee citizenship.

However, when my great-grandfather married out, the Cherokee Nation had become a constitutional republic with laws that bestowed equal citizenship rights on those of us who get our Cherokee blood from fathers rather than mothers. As is true for so much tribal custom and law, however, one size does not fit all.

The Santa Clara Pueblo based its citizenship criteria on patriarchy. While some Santa Clara citizens dispute the claim that this was traditional, nobody could question that it was Santa Clara law. Julia Martinez attacked the Santa Clara law based on the promise of “equal protection of the law” in the Indian Civil Rights Act.

Her challenge was turned away in the U.S. District Court, even though there was no question that women were denied equal protection of the law when a male could marry outside the Pueblo without the children of his marriage losing citizenship. The court considered the question to be one of tribal self-definition, cutting to the core of sovereignty:

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.

The Court of Appeals disagreed, finding that equal protection of the law as between women and men trumped sovereignty. The Pueblo appealed to the U.S. Supreme Court, giving birth to the opinion that will be familiar to many readers, Santa Clara Pueblo v. Martinez.

The average American, Indian or non-Indian, does not know that the U.S. Bill of Rights does not apply to Indians on Indian land unless they are prosecuted in federal court. When informed of this, Indians quickly understand that we are not parties to the U.S. founding documents because our governments antedate the Constitution and we never agreed to be bound by it. Non-Indians are left scratching their heads, because they believe the protections of the Bill of Rights to come from sacred text, applicable to all human beings who call themselves free.

The Indian Civil Rights Act of 1968 was a compromise between tribal governments and the head-scratchers. Those parts of the Bill of Rights that could work within tribal government were applied, but the only remedy for a denial of those rights was a writ of habeas corpus, which only applies to people in custody. Tribal governments can step on the Bill of Rights all they like as long as they have sense enough not to lock somebody up in the process.

Julia Martinez was never in custody and therefore she could not breach her tribal government’s sovereign immunity by suing it in federal court. Recognizing this, the Supreme Court reversed the Court of Appeals and Santa Clara came to stand for the proposition that Indian nations have an absolute right to decide qualifications for tribal citizenship. In fact, Santa Clara stands for the more limited proposition that the Indian Civil Rights Act does not poke a hole in sovereign immunity except in federal habeas corpus.

What Santa Clara Did Not Say

Indian lawyers, and Indians generally, are ambivalent about the Indian Civil Rights Act and therefore about Santa Clara. It’s a standing joke that whenever a proposal comes up in Congress to expand the remedies for violation of the Indian Civil Rights Act, you can predict individual opinions by adding a question to your poll: When was the last time you were screwed by your tribal government?

For purposes of explaining the disappearance of Julia Martinez’s offspring as Indians (unless the Navajo Nation will enroll them), it’s enough to notice that Santa Clara did not say the Pueblo was correct to practice sex discrimination. It said sovereign immunity prevented Julia Martinez from doing anything about it in court.

If Santa Clara appears to be an endorsement of the absolute right of tribal nations to set citizenship standards, remember that the issue was whether the tribe could recognize fewer Indians. This is a convergence of interests with the colonial government, because Indians have stubbornly failed to disappear on the schedule contemplated by much Indian policy. It’s worth pondering what would have happened if the Santa Clara government had been trying to recognize more Indians rather than fewer, such as by naturalizing persons with no Santa Clara blood at all—like most nations do now and most Indian nations did before Europeans showed up.

Santa Clara said nothing about the politics or the law of race. The husband who was not a citizen of the Pueblo was a citizen of the Navajo Nation, so if “Indian” is a race, the marriage was only exogamous to the political unit known as Santa Clara Pueblo. The marriage of a Santa Clara woman to a Navajo man leaves the Indian race pure.

RELATED: Disappearing Indians, Part II: The Hypocrisy of Race In Deciding Who’s Enrolled

RELATED: Disappearing Indians III: Carving Up the New Buffalo

RELATED: Disappearing Indians, Part IV: When is Enough Too Much?

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