4 Tribal Constitutionalism and Historic Claims: The Impact of Claims Settlement on Tribal Membership Governance in Australia and New Zealand

In Australia and New Zealand, the official recognition of tribes occurs alongside the settlement of land claims. This chapter investigates the scope of tribal autonomy in membership governance in Australia and New Zealand, based on the membership rules contained in institutions established to manage tribal rights to land and territory: New Zealand Treaty Settlement Entities (TSEs) and Australian Registered Native Title Bodies Corporate (PBCs). Claims settlement processes impact on tribal membership governance by requiring a legal definition of the class of beneficiaries, and by prescribing formal membership criteria. Thereafter tribes have the capacity (within certain limitations) to alter their membership criteria to exclude legal beneficiaries from tribal membership. The result is a distinction between the class of people entitled to benefit from a settlement or determination, and persons entitled, as a matter of tribal law and custom, to be recognized as members of the tribe. The categories are imperfectly aligned. This chapter examines the strategies used by tribes and states to overcome the resulting impasses.

3 Descent and Genealogy: The Changing Landscape of Tribal Membership Governance in the United States

In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and repair continuity during shifts in federal Indian policy and tribal demography. Tribes are increasingly likely to use lineal descent and blood quantum rules after 1970, in place of apparently ethnically-neutral rules, such as parental enrolment or residence. Tribes also increasingly prefer tribe-specific measures of blood quantum, in contrast to the pan-tribal concept of Indian blood quantum used in federal law and policy. Together these changes suggest that tribes are becoming more ‘genealogical’ in their approach to membership governance, favouring descent rules over racial measures.

1 Tribal Membership Governance and the Cultural Production of Indigeneity: Reflecting Inter‐indigenous Recognition in Public Policy

In the settler states, recognition of indigenous peoples has traditionally proceeded on one of two models: the race model (prioritizing indigenous ancestry) and the nation model (prioritizing tribal membership). This chapter suggests that both models are inadequate, because neither acknowledges inter-indigenous recognition. By reference to tribal constitutions and codes, it shows that many tribes use a concept of indigeneity in their membership criteria. Many allow the enrolment of non-descendants and prefer indigenous persons when they do so. This shows that when they self-constitute, tribes position themselves within a broader cultural association of indigenous communities, enclosed by an indigenous non-indigenous boundary of their own making. Existing models of tribalism, indigeneity, culture, and recognition in political theory and public policy do not adequately account for the relationships between tribes and indigenous persons.

2 Tribalism Constitutionalized: The Tribal Governance of Membership in Australia, Canada, New Zealand, and the United States

This chapter takes an explicitly comparative approach to tribal constitutionalism by examining the mechanisms used by tribes to regulate membership, and explaining important regional variations evident in the findings. North American and Australasian tribal approaches to membership governance differ substantively in three areas of membership governance: the governance of descent (including the use of blood quantum rules), multiple membership, and disenrollment. The chapter reports on the methodology used to collect tribal documents and construct the datasets. It explains the variation in the publicity rules applied to tribes that determine the accessibility of their governing documents. It then explains the differences and commonalities evident in the study by reference to the type and divisibility of the resources held by tribes in each state, the content of public law on indigeneity, and the law and policy governing the recognition of tribes.