Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation

I n 1941, Julia Martinez, a full-blooded member of the Santa Clara Pueblo tribe and a citizen of the United States who resided on the Santa Clara Reservation in Northern New Mexico, married a non-tribal husband and gave birth to a daughter named Audrey. Audrey was brought up on the Pueblo, spoke the Tewa language, participated in its life, and was culturally, for all practical purposes, a Santa Claran Indian. However, according to Pueblo personal status law, she was not an Indian by ``blood.'' Membership in the tribe was granted either to children whose parents were both Pueblo members or to children of male members who married outside the tribe; membership, however, was denied to children of female members who married outside the tribe. After unsuccessful efforts to persuade the tribe to change its gender-discriminatory membership rule, Julia and Audrey Martinez ®led a lawsuit in a federal court, seeking declaratory and injunctive relief which would enable Audrey and similarly situated children to acquire tribal membership. In 1978, the equal protection claim raised by Martinez was rejected by the US Supreme Court on the basis of a ``nonintervention'' rationale.1 Thus, while the Martinez case strengthened the autonomy of the Pueblo vis-aA -vis the state,2 it also, like many other instances of multicultural accommodation, perpetuated the systematic intra-group maltreatment of a particular category of insider (in this case, women who married non-tribal husbands and the children born of those unions) in accordance with their group's accommodated traditions. The Martinez case and other legal cases from countries such as Israel and India, which have already implemented accommodationist policies in the family The Journal of Political Philosophy: Volume 6, Number 3, 1998, pp. 285±305