Bears Ears National Monument: Rethinking Citizenship for Native Americans?

(A tourist photographs petroglyphs on Bears ears Monument land)

President Obama designated 1.3 million acres of Bears Ears territory as a national monument. The five native tribes with jurisdiction over parts of the area were elated. Oil and gas and outdoor adventure companies plus ranchers were outraged. President Trump reduced Bears Ears to about 200,000 acres.

This background helps us understand the conflicted status of Indian citizenship. I say Indian because the Constitution mentions “Indian” in two places, and is thought to include these people in the 14^th Amendment (which created citizenship for freed slaves).

The consistent meaning of the specifically mentioned phrases is that Indians were citizens in their own sovereign nations. People born into these nations had citizenship there, not the U.S.

A 1924 law changed that understanding, explicitly making Indians U.S. citizens. This was largely motivated by their service in World War I.

However, no natives asked for this legislation; and among various tribes, there was disagreement.

This issue re-emerged in the 1990s as the federal government asserted control over fishing and hunting rights, gaming, oil and gas exploration and more. For 30 years, some legal scholars—native and other— have made the case that any federal regulation of land use is unconstitutional and the only constitutional mechanism is to negotiate treaties with tribes. This would increase the bargaining power of native peoples.

In the case of Bears Ears, a multi-tribal group states: “Protection of all these sacred sites is critically important to Native American people. Ongoing looting, grave robbing, vandalism, and destruction of cultural sites are acts that literally rob Native American people of spiritual connections, as well as a sense of place and history.”