Native American recognition in the United States

American Indian tribal recognition in the United States most often refers to the process of a tribe being recognized by the United States federal government, or to a person being granted membership to a federally recognized tribe. There are 573 federally recognized tribal governments in the United States. Non-Acknowledged Tribes are tribes which have no federal designation as sovereign entities. This is not to be confused with recognition of Native Americans in the US which are defined by the BIA as any descendant of the Indigenous peoples of the Americas which is a US citizen. Federally Non-Recognized tribes refers to a subgroup of non-acknowledged tribes which had some sort of recognition by the British prior to the formation of the United States or by the United States but which were determined by the government to no longer exist as an Indian tribe or no longer meet the criteria for a nation to nation status.[1][2][3]

For state recognition in the United States, see State-recognized tribes in the United States.
President Coolidge stands with four Osage Indians at a White House ceremony.

The United States recognizes the right of these tribes to self-government and supports their tribal sovereignty and self-determination. These tribes possess the right to establish the legal requirements for membership.[4] They may form their own government, enforce laws (both civil and criminal), tax, license and regulate activities, zone, and exclude people from tribal territories. Limitations on tribal powers of self-government include the same limitations applicable to states; for example, neither tribes nor states have the power to make war, engage in foreign relations, or coin money.[5]

Legal definitions of Indian abound; according to a 1978 congressional survey, there were upwards of 33 separate definitions of "Indian" used in federal legislation. The number of definitions increased when tribal enrollment statutes were included.[6] U.S. Government agencies may have varied definitions of "Indian." For example, the National Center for Health Statistics currently assigns the mother's race to a child born to parents of different "races". When people give multiracial responses to questions of heritage, only the first race is entered.[7]

The 1978 American Indian Religious Freedom Act uses a two-part definition which is especially influential.[8] It defines an Indian as a person who belongs to an Indian Tribe, which in turn is a group that "is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

Historic judicial and legislative definitions
Bureau of Indian Affairs seal

Federal courts have not universally required membership in federally recognized tribes for a person to be classified as Indian. At times a person's membership in a federally recognized tribe was not sufficient for classification as Indian in the eyes of the courts.[9]

The Major Crimes Act of 1885 placed seven major crimes under federal jurisdiction if committed by a Native American in Native American Territory. The Department of Justice required that a defendant be an enrolled member of a tribe to be covered by the Major Crimes Act.[10][11]

In his 1935 Memorandum to John Collier, Commissioner of Indian Affairs, the Assistant Solicitor, Felix S. Cohen, discussed the rights of a group of non-tribal Indians under the Indian Reorganization Act. This Act defined a person as Indian based on three criteria, tribal membership, ancestral descent, or blood quantum. (Cohen said of the group now known as the Lumbee Indians, recognized by the state of North Carolina: "[Clearly this group is not a] federally recognized Indian tribe. Neither are the members of this group residents of an Indian reservation.")

In the 1930s when it was more involved in determining classification of American Indians, the federal government used five factors to certify individuals who claimed to be more than half-blood Indian: tribal rolls, testimony of the applicant, affidavits from people familiar with the applicant, findings of an anthropologist, and testimony of the applicant that he has retained "a considerable measure of Indian culture and habits of living." The attempt to use physical characteristics to define Indians created some paradoxical situations. In 1939, for example, the BIA sent Harvard anthropologist Carl Selzer to Robeson County, North Carolina to review the claims of the Lumbee, who were of mixed-race descent. Using methods of assessment then used in physical anthropology, but since discounted, "He measured their features and put a pencil in each Indian's hair, noting 'Indian' blood if the pencil slipped through and 'Negroid' if it did not. The absurd results of his study listed children as Indian while omitting their parents, and placing brothers and sisters on opposite sides of the half-blood line."[12]

Terminated recognition
Main article: Indian termination policy
Elderly Klamath woman by Edward S. Curtis, 1924

In the 1950s and 1960s, the federal government saw certain tribes as sufficiently capable of self-government, and thus "no longer in need of federal supervision." The government terminated its relationship with numerous tribes under this policy, including the Menominees of Wisconsin, and the Klamath of Oregon. Many tribes opposed this, and have sought restoration of recognition. Not all have received restoration and Brownell (2001) reports that the policy has "devastated" many of the groups.[13] In particular, the tribes in California have been heavily affected by the termination era. For example, the Taylorsville Rancheria was established and participated in the IRA, but during the termination era the tribe's land was sold to Plumas county to be used for a park and roping club. The government failed to officially terminate the tribe through an act of congress, but the tribe was not included on the Federally Recognized tribes list. The Taylorsville Rancheria has been in limbo since that time and continues to struggle for their restored status as a recognized tribe.

Recent shift to "political" definition

Because continuing to determine Indian membership by racial criteria, such as blood quantum or Indian descent, would leave the government in a constitutionally indefensible position, it has attempted to change how its statutes and regulations provide for the distribution of benefits to Indians. Native American concerns over equal protection and tribal sovereignty have led the federal government to reduce its role as arbiter of race-based eligibility standards. This policy of allowing tribes self-determination on membership, as well as other aspects of their lives, has developed since the Nixon administration in the 1970s.[14] Nixon said the goal should be "to strengthen the Indian's sense of autonomy without threatening his sense of community. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support."

The pivotal legislation of the era was the Indian Self-Determination and Education Assistance Act of 1975. This act began the government's process of transferring authority for administering federal grants and programs for Indians to tribal governments. Senator Daniel K. Inouye, Chairman of the Senate Select Committee on Indian Affairs, said in 1994 that, "Sovereignty, the inherent right of self-government and self-determination, is the focal point in all Indian issues."[15]

The government has shifted to social constructs: "political" definitions by which legislation has defined Indians based on membership in federally recognized tribes.[16] The government and many tribes prefer this definition because it allows the tribes to determine the meaning of "Indianness" in their own membership criteria. Some analysts criticize the federal government's role even in this limited way, as still setting certain conditions on the nature of membership criteria.[8]

In some cases, an enrolled member of a federally recognized tribe may have no documented Native American "blood" (biological descent). Some of the Freedmen of the Cherokee Nation of Oklahoma used to be such members. Following the Civil War, the U.S. government's 1866 treaty with the defeated Cherokee, who had been Confederate allies, required them to free their slaves and to provide the freedmen with citizenship in the tribe. By recent referendum, the Cherokee Nation limited membership to only those people who could show descent from at least one Native American listed on the Dawes Rolls. This excluded nearly 2000 Cherokee Freedmen, who, with their ancestors, had been participating in the tribe for generations. Litigation on this matter continues.

The Indian Arts and Crafts Act of 1990 may be the only recent federal Indian legislation that was, at all stages of legislative deliberation, supported by Indians.[17] This law required that only Indians be allowed to market their handicrafts as "Indian made" and be sold at Indian crafts fairs. This was to halt the economic loss to Indians due to questionable and fraudulent claims of this sort, which was estimated between $400 and $800 million a year. In the Act, Indian was described as "any individual who is a member of an Indian tribe; or for the purpose of this section is certified as an Indian artisan by an Indian tribe." An Indian tribe was defined more broadly than just to tribes with federal recognition, but also to "any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority."[17] The broadness sought in part to protect the civil liberties of those who have Indian heritage and culture, but are not tribal members.[18] However, the definition was not broad enough to avoid disallowing many artists whose Indian background was not in doubt, including well-known Cherokee painter, Bert Seabourn.[19]

The 1994 federal legislation, the American Indian Religious Freedom Act, gives another common definition, defining an Indian as one who belongs to an Indian tribe, which is a group that "is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

The result of there being multiple legal definitions of Indian is that one may be eligible to receive educational grants, but not health benefits, one may be eligible to be chief of a tribe but not to obtain a Bureau of Indian Affairs loan or an Indian scholarship to a state university.[14]

Using federal laws to define "Indian" signals to some a continued government control over Indians, even as the government seeks to establish a sense of deference. Thus Indianness becomes a rigid legal term defined by the BIA, rather than an expression of tradition, history, and culture. Many groups claim descendants from tribes that predate European contact not federally recognized. According to Rennard Strickland, an Indian Law scholar, the federal government uses the process of recognizing groups to "divide and conquer" Indians: "the question of who is 'more' or 'most' Indian may draw people away from common concerns."[20]

Recognition

Gaining federal recognition

Today there are 573 groups (bands and tribes) recognized as Native American by the government. Those tribes which have already achieved federal recognition do not want the process made easier. Some spokesmen discuss what other kinds of groups might be encouraged, without encroaching on the recognized tribes. Cherokee Nation spokesman Mike Miller suggests that people with an interest in Indian culture can form heritage groups.[21] Federally recognized tribes are suspicious of non-recognized tribes' efforts to gain acknowledgment, concerned that they may dilute already limited federal benefits. As casino gambling has raised tribal revenues dramatically, there is more competition by tribal groups to gain federal recognition and the right to operate gaming on reservations.[22] Gaining recognition also is a way for Native American groups to assert their identity, their Indianness.[23]

Tribes were originally recognized as legal parties through treaties, executive orders, or presidential proclamations. The 1934 Indian Reorganization Act played a major role in the development of the concept of federal recognition. It provided recognition to those tribes with which the government already had a relationship. Under its provisions, some non-federally recognized tribes were enabled to become federally recognized.[20]

During the 1960s and early 1970s, dozens of groups that lacked federal acknowledgment came forward to demand their rights as Native peoples. In the east, groups like the Mashpee Wampanoag filed suit for lands lost in preceding generations. In the west, groups sought fishing rights. In the southeast, others came to demand the government recognize them as surviving aboriginal peoples. As federal tribal status allowed groups standing to bring claims and many came to see the injustice of denying acknowledgment to indigenous peoples, many parties came to acknowledge the need for more consistent procedures for recognizing tribes left outside the circle. With tribal input, the BIA created its Federal Acknowledgment Process in 1978. Currently known as the Office of Federal Acknowledgment, this entity is the main body charged with deciding which groups are eligible to secure status.

Acknowledgment criteria have been created by regulation based on statute. They are set by the Bureau of Indian Affairs' Branch of Acknowledgment and Research. Since the mid-1970s, representatives of federally recognized tribes have consulted with BIA on these criteria.

To be federally recognized, a group must meet the following:

  • "[S]ince 1900, it must comprise a distinct community and have existed as a community from historical times;
  • it must have political influence over its members;
  • it must have membership criteria; and
  • it must have membership that consists of individuals who descend from a historical Indian tribe and who are not enrolled in any other tribe."[20] The existence of persistent political relationship as an aspect of tribal relations is also emphasized.[20]

Recognition for individuals

The United States Census allows citizens to check any ethnicity without requirements of validation. Thus, the census allows individuals to self-identify as Indian, merely by checking the racial category, "Native American/Alaska Native".[24] In 1990, about 1.8 million people self-identified in the census as American Indian. About 60 percent of those, or 1.14 million people, are enrolled in federally recognized tribes.[25]

People who self-identify as Indian but are not a part of a federally recognized group often wish to join a recognized tribe. The tribal government, in the absence of some legal obligation which stipulates otherwise, has final jurisdiction over who is a member of the tribe.[26] Holly Reckord, an anthropologist who heads the BIA Branch of Acknowledgment and Recognition, discusses the most common outcome for those who seek membership: "We check and find that they haven't a trace of Indian ancestry, yet they are still totally convinced that they are Indians. Even if you have a trace of Indian blood, why do you want to select that for your identity, and not your Irish or Italian? It's not clear why, but at this point in time, a lot of people want to be Indian."[27]

Recently, federally recognized tribes have seen the number of enrolled members increase. In some cases this has been because of a revival of interest in Native American heritage and culture. The number of people who self-identify as Indians has been growing even more rapidly.[28] Hastings Shade, the Cherokee Nation's deputy chief, talks of a Cherokee legend of a white snake that devours Indian land and people. Many generations later, a young Indian learns its ways and drives a stake through its heart. "In the end," the legend concludes, "only Indian blood will be left, and people will be lining up to try to prove they have Indian blood."[28]

Disenrollment
See also: Tribal disenrollment

An individual may be ejected by a tribe,[26] sometimes for serious offenses,[29][30][31] but sometimes, upon discovery that their claim is not well-founded.

Numerous disenrollments by small tribes with casino income are suspicious.[32][33][34][35][36][37][38]

Several Native American communities have prohibited disenrollment.[39][40][31][41]

Examples of disenrollment
  • Confederated Tribes of the Grand Ronde-in 2013 86 descendants of Tumulth disenrolled because ancestor is not on the restoration roll-he was executed by the US Army in 1855[45][46]{Note:Disenrollment reversed August 6, 2016}[47][48]
  • Elem Promo Indian Colony - 132 members proposed for disenrollment[49] (Note: Disenrollment action withdrawn March 30, 2017)[50]
  • Hopland Band of Pomo Indians - 74 fully documented and legitimate descendants of a Hopland Distributee (Marian and William Wilder) were disenrolled for "errors in processing enrollment applications".
  • Luiseno Nation of California-9 disenrolled[51]
  • Modoc Tribe of Oklahoma-15 disenrolled[52]
  • Muscogee Creek Freedmen -filed suit July 2018 to regain citizenship[53]
  • Narragansett Nation of Rhode Island[54]
  • Nooksack-306 members "disenrolled" because of ancestor Anne James {George}[55][56][57][58][59][60]
  • Omaha Tribe of Nebraska-15 members disenrolled for blood quantum[61]
  • Pala Band of Misson Indians-8 members disenrolled for blood quantum June 1, 2011[62] total of 154 disenrolled[63][64][65][66]
  • Pechanga-236 disenrolled[67][68]
  • Picayune Rancheria of the Chukchansi over 50 descendants of Jack Roan "disenrolled"[69][70][71]
  • Redding Racheria-formal Tribal Chairman Edward Foreman and descendants "disenrolled" 2004 over question of mother's lineage[72][73]
  • Saginaw Chippewa-230 members disenrolled on grounds of collateral descent[74][75]
  • San Pasqual Band-60 disenrolled in 2011[76][77]
  • Snoqualmie-9 banished and 80 disenrolled[78]
  • St Croix Chippewa-10 disenrolled for Blood quantium[79]

In 2016 a website called "Stop Disenrollment" was set up by Native Peoples.[80][81]
In 2017 it is reported that an estimated 9,000 members of 72 native tribes have been disenrolled[82][41]
In 2020 it is estimated that nearly 10,000 members of 85 [out of 574 federally acknowledged tribes] have been disenrolled over 15 years. [83]

State-recognized Indians

Some groups that are not federally recognized have still achieved state recognition.[23] Various states, most in the East, have a recognition process independent of federal recognition.[84] Some examples of state-recognized tribes are the Lumbee Tribe of North Carolina and the Houma Tribe of Louisiana.[13]

Footnotes
  1. National Register: List of 564 recognized tribes, Oct. 1, 2010
  2. Federal Register: Supplement, Listing of one additional tribe, Oct. 27, 2010
  3. Federal Register 2012 list of 566 federally-recognized tribes.pdf Archived 2013-02-19 at the Wayback Machine
  4. This right was upheld by the US Supreme Court in Santa Clara Pueblo v. Martinez in 1978, which is discussed in Ray (2007) p403
  5. "The U.S. Relationship To American Indian and Alaska Native Tribes". america.gov. Archived from the original on May 19, 2009. Retrieved February 8, 2006.
  6. Brownell (2001) p278, Garroutte 2003, 16
  7. Peroff (1997) p487
  8. Brownell (2001) p299
  9. United States v. Antelope, 430 US 641, 646-47 n.7 (1977) stated that enrollment in a recognized tribe was not an absolute requirement for federal jurisdiction where the Indian defendant lived on the reservation and "maintained tribal relations with the Indians thereon." Alberty v. United States, 162 US 499, 500-01 (1896) held that neither a former black slave who had been granted membership in the Cherokee nation nor the illegitimate son of a Chocktaw and a black woman who had married a Chocktaw Indian, were Indians, discussion in Brownell (2001) p283
  10. 137 Cong. Rex. 23,673 (1991) discussed in Brownell (2001) p283
  11. As an aside, the Indian Civil Rights Act uses the Major Crimes Act to define Indian, which provides consistent jurisdiction. This prevents a person from seeking to be Indian for the purposes of tribal jurisdiction and then denying his status as an Indian for the purposes of federal jurisdiction, and vice versa, a person cannot claim to be an Indian for the purposes of federal jurisdiction and then try to use another definition for the purposes of avoiding tribal jurisdiction as discussed in Brownell (2001) p284
  12. Brownell (2001) p288
  13. Brownell (2001) p303
  14. Brownell (2001) p277
  15. Brownell (2001) p300
  16. Most often given is the two-part definition: an "Indian" is someone who is a member of an Indian tribe and an "Indian tribe" as any tribe, band, nation, or organized Indian community recognized by the United States
  17. Brownell (2001) p313
  18. Brownell (2001) p314
  19. Bordewich (1996) p67
  20. Brownell (2001) p302
  21. Glenn 2006
  22. Official Statement Cherokee Nation 2000, Pierpoint 2000
  23. Horse (2005)
  24. Brownell (2001) p276-277 notes that much of the $180 billion dollars a year in federal for the benefit of Indians are apportioned on the basis of this census population
  25. Thornton 1997, page 38
  26. "SANTA CLARA PUEBLO v. MARTINEZ, 436 U.S. 49 (1978)". Supreme Court of the United States. May 15, 1978. Retrieved December 12, 2011. Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559 (1832); see United States v. Mazurie, 419 U.S. 544, 557 (1975); F. Cohen, Handbook of Federal Indian Law 122-123 (1945). Although no longer "possessed of the full attributes of sovereignty," they remain a "separate people, with the power of regulating their internal and social relations." United States v. Kagama, 118 U.S. 375, 381 -382 (1886). See United States v. Wheeler, 435 U.S. 313 (1978). They have power to make their own substantive law in internal matters, see Roff v. Burney, 168 U.S. 218 (1897) (membership); [436 U.S. 49, 56] Jones v. Meehan, 175 U.S. 1, 29 (1899) (inheritance rules); United States v. Quiver, 241 U.S. 602 (1916) (domestic relations), and to enforce that law in their own forums, see, e. g., Williams v. Lee, 358 U.S. 217 (1959).
  27. Bordewich (1996) 66
  28. Morello, Carol. (2001) "Native American Roots, Once Hidden, Now Embraced". Washington Post, April 7, 2001
  29. Indian Country Today October 7, 2014
  30. Indianz.com December 9, 2015
  31. Indian Country Today March 1, 2016
  32. Dao, James (December 12, 2011). "In California, Indian Tribes With Casino Money Cast Off Members". The New York Times. Retrieved December 12, 2011. Tolerance is a European thing brought to the country. We never tolerated things. We turned our back on people.
  33. Indianz.com
  34. Marty Two Bulls cartoon on Disenrollment June 8, 2013
  35. Indian Country Today 2015 October 5
  36. Native News online
  37. Marty Two Bulls cartoon on Disenrollment March 6, 2016
  38. Marty Two Bulls cartoon on Disenrollment July 10, 2016
  39. Spokane Tribe bans Disenrollment
  40. Indian Country Today August 11,2015
  41. Indian Country Today March 28,2017
  42. Native American Calling April 16,2016
  43. Indian Country today July 28, 2015
  44. http://lalosttribe.com/louisianas-lost-tribe-our-story.html
  45. Indian Country Today 12/09/2013
  46. Indianz.com July 28,2014
  47. Indian Country Today August 9, 2016
  48. Indianz.com OCt 10, 2016
  49. Indian Country Today May 3, 2016
  50. Indian Country Today April 26, 2017
  51. Indian Country Today February 9,2020
  52. Indian Country Today February 9,2020
  53. Indianz.com.News July 26,2018
  54. Disenrollment
  55. Indian Country Today 3/3/2014
  56. Indian Country Today June 29, 2016
  57. Indian Country Today August 11, 2016
  58. Indianz.com Oct 14, 2016
  59. Indianz.com December 22,2016
  60. Indianz.com May 8, 2018
  61. Indian Country Today February 9,2020
  62. Turtle Talk
  63. native american roots
  64. Indianz.com news 2015
  65. Indian County Today January 2017
  66. Indianz.com Feb 27, 2017
  67. people disenrolled
  68. Tribal disenrollment reaching epidemic levels March 3,2017
  69. Sierra Starr Sept 28, 2011
  70. The Chukchansi casino faces closure in 2014 for non-submission of audits
  71. Indian Country Today February 9,2020
  72. remembering rancheria chairman 2012
  73. even dead cant escape disenrollment 2015
  74. Central Michigan Life July 26, 2014
  75. Indian.com News Sept 24 2015
  76. Dept of Interiors
  77. Indianz.com Today Feb 27, 2017
  78. Indian Country Today 10/14/2011
  79. Indianz.com June 28, 2016
  80. Indian Country Today February 8, 2016
  81. Stop Disenrollment
  82. Indian Country Today January 2017
  83. Indian Country Today February 7,2020
  84. The National Council of State Legislatures notes 14 states, although Sheffield (1998, p63-64) mentions that Florida, Maryland, and New Mexico have legislative or constitutional systems in place to grant state recognition, but that no groups currently have this status in those states.

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