Native American recognition in the United States
Encyclopedia
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. They may form their own government, enforce laws (both civil and criminal), tax, license and regulate activities, zone, and exclude persons 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.
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. U.S. Government agencies may have varied definitions of "Indian." For example, the National Center for Health Statistics
National Center for Health Statistics
National Center for Health Statistics is a division of the United States federal agency the Centers for Disease Control and Prevention . As such, NCHS is under the United States Department of Health and Human Services...
currently assigns the mother’s race to a child born to parents of different "races". When people give multiracial
Multiracial
The terms multiracial and mixed-race describe people whose ancestries come from multiple races. Unlike the term biracial, which often is only used to refer to having parents or grandparents of two different races, the term multiracial may encompass biracial people but can also include people with...
responses to questions of heritage, only the first race is entered.
The 1978 American Indian Religious Freedom Act
American Indian Religious Freedom Act
The American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 , codified at , is a United States federal law and a joint resolution of Congress that was passed in 1978. It was enacted to protect and preserve the traditional religious rights and cultural practices of American...
uses a two-part definition which is especially influential. 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
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..The Major Crimes Act
Major Crimes Act
The Major Crimes Act is a law passed by the United States Congress in 1885. It places 7 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory....
of 1885 placed seven major crimes under federal jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
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..
In his 1935 Memorandum to John Collier
John Collier (reformer)
John Collier was an American social reformer and Native American advocate. He served as Commissioner for the Bureau of Indian Affairs in the President Franklin D. Roosevelt administration, from 1933-1945...
, Commissioner of Indian Affairs, the Assistant Solicitor, Felix S. Cohen
Felix S. Cohen
Felix Solomon Cohen was an American lawyer and scholar who made a lasting mark on legal philosophy and fundamentally shaped federal Indian law and policy.- Biography :...
, discussed the rights of a group of non-tribal Indians under the Indian Reorganization Act
Indian Reorganization Act
The Indian Reorganization Act of June 18, 1934 the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, including Alaska Natives...
. 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
Robeson County, North Carolina
Robeson County is a county in the U.S. state of North Carolina. As of 2010 it had a population of 134,168. Since then, it has been one of the 10% of United States counties that were majority-minority; its combined population of American Indian, African American and Latino residents comprise over...
to review the claims of the Lumbee
Lumbee
The Lumbee belong to a state recognized Native American tribe in North Carolina. The Lumbee are concentrated in Robeson County and named for the primary waterway traversing the county...
, 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 results of his study were absurd, listing children as Indian while omitting their parents, and placing brothers and sisters on opposite sides of the half-blood line."
Terminated recognition
Menominee
Some placenames use other spellings, see also Menomonee and Menomonie.The Menominee are a nation of Native Americans living in Wisconsin. The Menominee, along with the Ho-Chunk, are the only tribes that are indigenous to what is now Wisconsin...
s of Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, and the Klamath of Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
. 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. 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 NixonRichard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
administration in the 1970s. Nixon said the goal should be "to strengthen the Indian's sense of autonomy
Autonomy
Autonomy is a concept found in moral, political and bioethical philosophy. Within these contexts, it is the capacity of a rational individual to make an informed, un-coerced decision...
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
United States Senate Committee on Indian Affairs
The Senate Committee on Indian Affairs is a committee of the United States Senate charged with oversight in matters related to the American Indian, Native Hawaiian, and Alaska Native peoples. A Committee on Indian Affairs existed from 1820 to 1947, after which it was folded into the Committee on...
, said in 1994 that, "Sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, the inherent right of self-government and self-determination, is the focal point in all Indian issues."
The government has shifted to social constructs: "political" definitions by which legislation has defined Indians based on membership in federally recognized tribes.. 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.
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 US 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. 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." The broadness sought in part to protect the civil liberties of those who have Indian heritage and culture, but are not tribal members. 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.
The 1994 Federal Legislation American Indian Religious Freedom Act
American Indian Religious Freedom Act
The American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 , codified at , is a United States federal law and a joint resolution of Congress that was passed in 1978. It was enacted to protect and preserve the traditional religious rights and cultural practices of American...
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.
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 which 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."
Gaining federal recognition
Today there are 565 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. 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. Gaining recognition also is a way for Native American groups to assert their identity, their Indianness.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.
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 recogning 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 Affair's 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." The existence of persistent political relationship as an aspect of tribal relations is also emphasized.
Recognition for individuals
The United States censusUnited States Census
The United States Census is a decennial census mandated by the United States Constitution. The population is enumerated every 10 years and the results are used to allocate Congressional seats , electoral votes, and government program funding. The United States Census Bureau 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," . 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.
People who self-identify as Indian but are not a part of a federally recognized group often wish to join a recognized tribe. 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." Sometimes such persons are called "Wantabes", searching their family history and attempting to find records of Native Americans in their family history, often by matching names with persons on Indian census records, such as the Dawes Rolls
Dawes Rolls
The Dawes Rolls were created by the Dawes Commission. The Commission, authorized by United States Congress in 1893, was required to negotiate with the Five Civilized Tribes to convince them to agree to an allotment plan and dissolution of the reservation system...
. Most in this situation are not successful, and can be called "Outalucks".
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. 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."
State recognized Indians
Some groups that are not federally recognized have still achieved state recognition. Various states, most in the East, have a recognition process independent of federal recognition. Some examples of state-recognized tribes are the LumbeeLumbee
The Lumbee belong to a state recognized Native American tribe in North Carolina. The Lumbee are concentrated in Robeson County and named for the primary waterway traversing the county...
Tribe of North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
and the Houma Tribe
Houma Tribe
The Houma people are a Native America tribe. They belong to the United Houma Nation, a state recognized tribe in Louisiana. They primarily live in East and West Feliciana, and Pointe Coupee Parishes, about 100 miles north of the town of Houma named for them, west of the mouth of the Mississippi...
of Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
.