Native American recognition in the United States

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Native American recognition in the United States almost always 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 561 federally recognized tribal governments in the United States. 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^[1] (as well as form their own government), to enforce laws (both civil and criminal), to tax, to license and regulate activities, to zone and to 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).^[2]

Legal definitions of Indian abound; according to a 1978 congressional survey, there are upwards of 33 separate definitions of "Indian" used in federal legislation, increasing dramatically if one includes tribal enrollment statutes.^[3] The 1994 American Indian Religious Freedom Act uses a two part definition which is especially influential.^[4] In this case, an Indian is 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." U.S. Government agencies also have varied definitions of "Indian." For example, the National Center for Health Statistics currently assigns the mother’s race to a child born to a white and a Native American parent, while when people give multiracial responses, only the first race is entered.^[5]

Contents 1 Past judicial and legislative definitions 2 Recent shift to "political" definition 3 Recognition 3.1 Gaining recognition for individuals 3.2 Gaining recognition for tribes 3.3 Terminated recognition 3.4 State recognized Indians 4 Footnotes 5 Bibliography

[edit] Past judicial and legislative definitions

Federal courts have not universally required membership in federally recognized tribes in order that a person be Indian. Nor is it the case that membership in a federally recognized tribe guarantee that one is Indian in the eyes of the courts^[6]. The Major Crimes Act of 1885 places seven major crimes under federal jurisdiction if they are committed by a Native American in Native American Territory. The Department of Justice does require that a defendant be an enrolled member of a tribe in order to fall under the Major Crimes Act^[7][8]. A 1935 Memorandum to John Collier, Commissioner of Indian Affairs, from the Assistant Solicitor, Felix S. Cohen, discussed the rights of non-tribal Indians (from a group now known as the Lumbee Indians) under the Indian Reorganization Act. This Act defined Indian based on three criteria, tribal membership, ancestral descent, or blood quantum. "[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, five factors were sometimes used 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." Using physical characteristics made for some situations that may be considered ridiculous and contradictory. Indian's whos blood quantum was one half or more were considered incompetent by the government and placed under guardianship. This was an effort to take their land away. An example occurred in 1939 when the BIA sent Harvard anthropologist Carl Selzer to Robeson County, North Carolina to review the claims of the Lumbee there, who were of mixed Indian descent. "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 placed brothers and sisters on opposite sides of the half-blood line."^[9]

[edit] Recent shift to "political" definition

The government has recently attempted to end using potentially unconstitutional racial criteria of blood quantum and Indian descent in how its statutes and regulations provide for the distribution of benefits to Indians. Racial criteria such as these were permissible and seen as essential in the nineteenth and twentieth century. Concerns over equal protection and tribal sovereignty have led the federal government to reduce its role as arbiter of race-based eligibility standards, a policy which has developed since the Nixon administration in the 1970s.^[10] 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 process of transferring authority for administering federal grants and programs for Indians from the government to tribal groups. 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."^[11]

The shift has been to "political" definitions where legislation has identified Indians based on their membership in federally recognized tribes.^[12]. The government and many tribes prefer this definition because it allows the tribes to determine the meaning of "Indianness" in their own membership criteria. However, some still criticize this as the federal government's historic role in setting certain conditions on the nature of membership criteria means that this definition does not transcend federal government influence.^[13]

The 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.^[14] 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."^[15] The broadness sought in part to protect the civil liberties of those who have Indian heritage and culture, but are not tribal members. ^[16] 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.^[17]

The 1994 Federal Legislation 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.^[18]

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."^[19]

[edit] Recognition

[edit] Gaining 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," ^[20]. In 1990, about 60 percent of the over 1.8 million identifying themselves in the census as American Indian were actually enrolled in a federally recognized tribe^[21].

People who self-identify as Indian but are not a part of a federally recognized group often wish to join one of these tribes. 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."^[22] 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. Most in this situation are not successful, "Outalucks", so to speak. Kent Carter's 1988 article, "Wantabes and Outalucks," discusses getting started with finding Native Americans in their family history.

Recently, enrollment in the federally recognized groups has been growing, although self-identification is growing even more.^[23] 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."^[24]

[edit] Gaining recognition for tribes

Many groups have sought recognition by the federal government as Native American tribes, but today there are only 561 groups recognized by the government. Cherokee Nation spokesman Mike Miller has discussed that some groups, which he calls heritage groups, are encouraged.^[25] Others, however, are controversial for their attempts to gain economically through their claims to be a tribe, a claim which is disputed by the federally recognized groups, who assert themselves as the only groups having the legal right to present themselves as Indian Tribes.^[26] However, gaining recognition becomes for many a way to assert their identity, their Indianness.^[27]

Originally, tribes became legally recognized through treaties, executive orders, or through presidential proclamations. The 1934 Indian Reorganization Act played a large role in the development of the concept of federal recognition, providing recognition to those tribes with whom the government already had a relationship and allowed some non-federally recognized tribes to become federally recognized under its provisions.^[28] However, acknowledgment criteria are not statutory, but rather are set by the Department of the Interior through the BIA Branch of Acknowledgment and Research. Currently, the criteria for a group to be federally recognized are: "since 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."^[29] The existence of persistent political relationship as an aspect of tribal relations is also emphasized.^[30] Although attempting to be clear and fair, University of New Mexico anthropologist W. Les Field (2003) discusses some of the perceived problems with the BIA Branch of Acknowledgment and Recognition in his article supporting the recognition of a not yet recognized tribe.

[edit] Terminated recognition

Main article: Indian termination policy

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.^[31]

[edit] State recognized Indians

Some groups which are not federally recognized are state-recognized.^[32] Various states, most in the East have a recognition process independent of federal recognition.^[33] One example of a state-recognized tribe that has failed to gain federal recognition on many occasions is the Lumbee Tribe of North Carolina^[34].

[edit] Footnotes

[edit] Bibliography