B. Overcoming the Legal Barrier to Repeal of the Indian Citizenship Act
It could be argued that repealing the Indian Citizenship Act would be unconstitutional. In Afroyim v. Rusk, the Supreme Court struck down as a violation of the Fourteenth Amendment a federal law that provided for the loss of citizenship if an American voted in a foreign political election. The Court rejected the argument that the government possessed an inherent sovereign power to “sever its relationship to the people by taking away their citizenship” because “[i]n [the United States] the people are sovereign.” The Court concluded that while the Constitution explicitly provided a mechanism for obtaining citizenship--by birth or naturalization--it gave no power to Congress to strip the people of it. The Court concluded that the Fourteenth Amendment did not provide for
a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship [is] not to be shifted, canceled or diluted at the will of the Federal Government, the States, or any other governmental unit.
The Court's conclusion that Congress has no power to tinker with citizenship was unequivocal:
We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.
On the basis of Afroyim, it might reasonably be concluded that any Congressional effort to repeal the Indian Citizenship Act of 1924 would violate the Fourteenth Amendment. This conclusion is supported by the Court's decision in Elk v. Wilkins, where the Court held that the Fourteenth Amendment of its own accord does not confer citizenship upon Indigenous peoples in the United States who desire it. The Court determined that for an Indian to become a citizen, Congress would have to consent to it by establishing some kind of naturalization process. It could be argued that the Indian Citizenship Act was just such a naturalization process. Accordingly, once American citizenship had been conferred upon Indians under the Act, Congress would be constitutionally prohibited from taking it away.
Despite this potential legal barrier, there are a number of approaches that could be taken to effectuate the results of the Choice of Citizenship Act described above. One approach would be to directly attack the constitutionality of the Citizenship Act itself. As discussed above, the Citizenship Act may be an unconstitutional naturalization act because it confers citizenship upon an entire class of people without their consent.
Another way to carry out the Choice of Citizenship Act would be to modify the proposed legislation by requiring Indians to choose whether the federal government would continue to recognize their Indigenous citizenship. Failure to make any choice at all would be construed as a choice in favor of retaining American citizenship. Thus, an Indian would have to affirmatively decide to relinquish their American citizenship in order for it to be lost. This should not raise any Constitutional complications because federal recognition of citizenship in one's Indian nation is not a constitutionally protected right. Indeed, in the past, the United States has even engaged in a Termination Policy of denying federal recognition of entire Indian nations without running afoul of the Constitution.
In some respects, this modified Choice of Citizenship Act is just an indirect way of restating the only constitutionally protected method of losing one's American citizenship--voluntary relinquishment. The Court in Afroyim held that every American has “a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” This right to voluntarily relinquish American citizenship has been acknowledged by statute and case law. In Vance v. Terrazas, the Court was called upon to decide the appellant's nationality, which was in controversy because he was a dual citizen of both Mexico and the United States and had sworn an oath of allegiance to Mexico and renounced his American citizenship. The Court held that the federal government must prove intent to surrender American citizenship and not just rely upon the voluntary commission of an expatriating act. It concluded that “[i]n the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.” As a result of the Court's analysis in Vance and Afroyim, any Indian could regain exclusive citizenship in his or her Indigenous nation simply by voluntarily relinquishing his or her American citizenship.
The difference between the existing statutory scheme allowing for voluntary expatriation and the proposed Choice of Citizenship Act is obvious. The latter forces the question of whether an Indian will retain their dual citizenship status. While it might be said that this proposal poses a cruel choice--whether to retain American citizenship or Indigenous citizenship--it does so in a way that brings the issue of consent back into the equation. The Indian Citizenship Act of 1924 denied the opportunity for Indigenous people to consent to the conferral of American citizenship. The proposed Choice in Citizenship Act would simply restore this element of choice.