Bethany Berger is a first rate legal scholar who has done a great deal of useful work for Indians in academia. Before that, she paid her dues in the legal trenches of Dinébe’iiná Náhiiłna be Agha’diit’ahii. Because my respect for her work knows few bounds, I’m bound to pay attention when she engages persons like myself, who advocate cultural standards for tribal citizenship.

She asks, “…do you know who would become American Indians under such a test? Germans! In part because of the craze for the Native American adventure novels of turn-of-the-century German writer Karl May, Germans obsessively study elements of tribal cultures that many Native teenagers no longer practice. An anthropologist friend recalled sitting in a bar in Stuttgart and hearing a group of Germans next to him having a fluent conversation in Lakota. Despite efforts to reinvigorate tribal languages, not every patron of a diner in Lakota country could carry on such a conversation.”

She’s right, and she reminds me of some people in my tribe complaining that the Cherokee Nation was funding a language immersion program in the public schools that had, by their lights, too many non-Indian kids enrolled.

What, exactly, are we trying to protect, people or cultures?

In an ideal world, all Indian people would be bearers of distinctive cultures. We would be just a bit different from our yonega neighbors, such that if we suddenly got beamed up to the mother ship, the world would be poorer for the loss.

If you find that world, send me a postcard with the coordinates.

I maintain that the Indian wars are not over, except for the shooting. In our time, the only shootings are a few by police in border towns. The numbers say we shoot ourselves or each other more often. The main battleground of the Indian wars is the demand that the federal government be relieved of responsibility for our welfare, such that it is.

It flies under the flag of budget cutting or white people's new found love for colorblind policies, found when race-conscious policies began benefitting non-white persons rather than the converse.

The attack memes are that Indian policy is expensive and racist. What’s the reply?

Is it that your ancestors did injustice to my ancestors and therefore you owe me? If that’s the case, our task is to protect people, as few people as possible, so the amount owed will be divided into fewer slices. If that’s the case, then my assertion that the Indian wars continue is incorrect. There comes a time when such debts are either satisfied or repudiated, but they are gone.

Is it that our treaties require the US to support us forever? I’m familiar with a number of treaties that do require perpetual payments, but they hardly amount to “support” in terms of the 21^st century. Most of our treaties contain no perpetual payments at all.

Is it the guardian and ward paradigm that Chief Justice John Marshall pulled out of his nether regions? If that’s the case, we wards have a duty to move our education along. Since they quit shooting at us in 1890, haven’t we had over 100 years to learn how to cut the mustard?

When I ask what “we” are trying to protect, I mean the Indian nations. The colonists just want loose from what we say are obligations. Leaving aside the white-power crazies, it’s reasonable for a government bureaucrat to ask exactly what the government’s obligations are and to whom they are owed? Not to mention why and for how long?

My own view is that we are separate peoples with distinct cultures and our own governments. The US has no obligation to Indians beyond equal treatment before the law, but it has obligations to our tribal nations. As long as we are distinct peoples.

Case law and common sense tell us we determine our own standards for citizenship. Yet, it can’t be the law that a tribal government can anoint people at random to exist outside of great chunks of state law. Well, why not? Isn’t the power to define our citizens “plenary”?

Remember the Universal Life Church? The point of the ULC is to take advantage of the First Amendment protection for free exercise of religion. The perquisites of being a minister are extended to a church of one because the government lacks authority to inquire into the sincerity of religious belief.

Tribal citizenship can be like that, but good luck convincing the feds such a “nation” qualifies for government-to-government treatment. To the extent tribal citizenship lacks cultural significance, how is that kind of “Indian” more than a ULC minister?

This should not be about what the feds will tolerate but rather about what we will tolerate. Is the problem that white people learn our languages or that we don’t?

Can we exclude our families for lack of cultural competence? That’s not necessary. The 14^th Amendment (equal protection of the law) does not apply to Indian nations. We can have classes of citizens that are not equal in terms of voting, holding office, taxation, or working for tribal government based on residence in the homeland, language fluency, or whatever makes us distinct from other peoples in our own eyes.

 What about that white guy in the bar in Stuttgart? Do you seriously think he wants to come live on Pine Ridge? But if he did, and he was in fact more culturally competent in terms decided by the tribe than people carrying the blood, then what’s the harm? Before we caught the race disease from the colonists, marrying into a tribe was fairly common. Kevin Costner didn’t make that up.

Are we trying to protect distinct cultures or hereditary privileges, real and imagined? Bethany Berger’s critique of cultural standards for citizenship is spot on. Whether her observation matters depends on what we are trying to protect.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.