The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship


This Article explores the dynamics of U.S. citizenship and indigenous self-determination to see whether, and how, the two concepts are in tension and how they can be reconciled. The Article explores the four historical frames of citizenship for indigenous peoples within the United States—treating indigenous peoples as citizens of separate nations, as wards of the federal government, as American citizens, and as members of a racial minority group—as well as a fifth frame, which emerges through recognition of the right to self-determination. Taken in historical context, the doctrines defining eligibility for U.S. citizenship have created an overarching view of nationality that supports the political identity of the nation-state. Today, this approach continues under the rubric of “birthright citizenship” and efforts to deploy immigration law to restrain the transnational movement of people across borders. This approach clearly affects indigenous groups that are divided by an international border, but it also affects other indigenous peoples because of its implicit understandings about the nature of their rights. The U.N. Declaration on the Rights of Indigenous Peoples specifies that nation-states should accommodate the spiritual, social, and cultural needs of indigenous peoples divided by an international border. Yet, that right is challenged by a domestic politics about immigration that is often racialized and discounts the political identity of transborder peoples. This Article posits that the dynamics of inclusion and exclusion have always served as the twin pillars of American equality—and oppression. Today, this binary extends beyond U.S. domestic law to affect the rights of indigenous peoples under international law; there is a growing tension between multiculturalism and multinationalism within the realms of domestic and international policy. In this Article, I argue that a human rights framework requires the development of coherent theories about citizenship, sovereignty and self-determination, and I outline an approach for this work.

About the Author

Professor Tsosie is a Regent’s Professor at the James E. Rogers College of Law at the University of Arizona, where she also serves as a Special Advisor to the Provost on Diversity and Inclusion.

By uclalaw