Indigenous citizenship, tribal nations and settler states
Although the existence of settler states is often taken for granted, it is good to remember that the first British settlers only arrived in North America in the early seventeenth century and that the first enduring plantation was founded in 1607 in Jamestown, Virginia. The Spanish had in fact arrived in North America many decades earlier, and a considerable part of the American South – stretching from ocean to ocean – had been governed in the name of the Spanish king. Other continents were similarly colonized. For citizenship law, this raises the question how the indigenous populations that have survived the European conquest currently determine their membership criteria.
In her chapter on indigenous citizenship in the Oxford Handbook on Citizenship Kirsty Gover discusses the legal status of indigenous citizens as members of formally recognised tribal nations in four Western settler states: Canada, Australia, New Zealand and the United States. Tribal citizenship, which Gover stresses can also be obtained through naturalisation, is important because it ‘determines a person’s access to tribal land, resources, and services, rights to political and social participation in the tribal community, and increasingly, the capacity to benefit from public programs and services for indigenous peoples’.
According to Gover, the crucial difference between tribal and settler citizenship is as follows:
Settler states supplement jus sanguinis rules with jus soli principles that accord birthright citizenship to most people born in their territory and limit the intergenerational operation of descent rules. Tribes on the other hand, do not (with rare exceptions) include birthplace criteria in their allocation of birthright citizenship. When tribal nations limit their jus sanguinis rules to narrow the class of eligible birthright citizens, they do so by calculating ‘degrees of descent’ or ‘blood quantum’ to exclude descendants with too few indigenous (or tribal) ancestors … In many respects, then, legal and political disputes about tribal citizenship go directly to the core constitutive challenge faced by settler states; how to reconcile the equality-based principle of liberal democratic citizenship with the historic claims and entitlements of tribes as kinship-based polities.
Later she explains this even more clearly:
Thus, while jus sanguinis citizenship rules need not perpetuate an ethnic group, in the case of tribes, the correlation is much more difficult to deny, because of the way that tribes are constituted in settler law. The status categories of indigeneity and tribal citizenship therefore resonate in problematic ways with legal concepts of race and racial discrimination.
Despite the normative conundrum posed by indigenous communities and their descent-based citizenship transmission, Gover concludes that ‘in a colonial setting marked by a longstanding legal distinction between indigenous and non-indigenous persons, it is reasonable for tribes to decide that continuity is best secured through shared genealogy and indigeneity, and by citizenship rules that keep the tribal community intact by allocating birthright citizenship to members of the tribal diaspora’.
A paper by Kim Rubenstein examines indigenous communities in Australia, where 3 per cent of the total national population consists of the 155 officially recognised indigenous peoples (compared to 3,7 per cent in Canada; 1,7 per cent in the US; and 18 per cent in New Zealand). Deliberately leaving aside the role of citizenship as a legal status, she discusses the idea of ‘active citizenship’ by drawing on the Uluru Statement from the Heart. This one-page text, which refers to the indigenous communities’ 60,000 year history with the Australian continent, was the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. In her paper Rubenstein addresses the historical exclusion of First Peoples from the original Australian constitutional process in 1901. Despite having formal citizenship status at the time, both women and indigenous Australians did not have substantive citizenship rights. The key element in Rubenstein’s analysis is that the subject of the law only becomes a citizen when there is an acceptance by those being governed. Therefore, the Uluru Statement from the Heart is
an inspired step forward for a democratic Australia. It is the Indigenous community saying to those in power, ‘we stand here ready to be active citizens, ready to take on board an expression of citizenship that affirms our relationship with those in government - we are not merely subjects of the law (which we have been in law since 1901), but we are citizens in the fullest sense of the word’.
Author: Dr. Olivier Vonk