Note: This article originally appeared in The Circle, Volume 22, Issue 11, November 2001
By Robert DesJarlait
"How much Indian are you?" In a list of fifteen questions to be used in interviewing Indian people, an Indian student had placed it as third on the list. Although a seemingly innocuous question, it underscores the racial qualifiers initiated through federal acts and policies that define American Indian identity.
These federally imposed qualifiers have strongly influenced Indian Country's perceptions of racial acceptability within tribal communities. The result is a eugenic tribal pecking order that has deeply scarred and fragmented the Indian community.
At the center of current controversy is lineal descent - a process that eliminates blood quantum requirements. Regina Parot, who is spearheading a petition to change to lineal descent in the Confederated Salish and Kootenai Tribe, says, "We know there will be controversy about this. It's worth it, because we want to put our families back together. We don't want them split because of blood degree, or because they weren't born on the reservation."
Parot's opponents see enrollment changes as having far-reaching consequences in tribal culture and values.
"This is expedient genocide," say Rhonda Friedlander, a Kootenai traditionalist. "We have descendants of our own who have a mixture of other Indian tribes who are excluded from enrollment, yet who are practicing our culture and traditions. It is my belief they are more deserving of enrollment because they are going to help us survive as an Indian culture."
Traditionally, tribes did not have blood quantum criteria for membership in a tribal community. Birth in the community was sufficient evidence for tribal membership. Other criteria was also used. For example, among the Ojibwe-Anishinaabe people, membership criteria included clan membership, namesake ceremony, recognition for an outstanding feat or achievement, and intermarriage. Through this criteria individuals who were non-Ojibwe or non-Indian were adopted into sovereign social structures.
However, treaties began a process of the disfranchisement of a "peoplehood" that was an inherent aspect of tribal sovereignty. The 1825 Treaty with the Osage provided the schemata of a federal Indian policy in which a specific blood degree defined Indian identity, and initiated the concept of land allotment.
Although the term "half-breed" was in common use before the Osage treaty, it is the first document that specifically delineates a racial separation in blood lineage. In what was to become a standard formula in the treaty-making process thereafter, Osage "half-breeds" were provided with one-hundred and sixty acre allotments within the tribal land base ceded through the treaty.
These land allotments was referred to as "half-breed reservations" since the allotments were next to each other in the ceded lands. Despite the Osage treaty provisions, subsequent treaties with the Osage eliminated the establishment of a separate "half-breed reservation. "
Once the government had effectively separated and divided the outer fringes of mixed-heritage people from the central core of tribal entities, treaty-making ended and new policies were initiated to further dissolve the notion of sovereign tribal nationalities. The main policy used to accomplish this was the General Allotment Act (the Dawes Act) of 1887.
"The function of this piece of legislation was to expedite the process of lndian 'civilization' by unilaterally dissolving their collectively - that is, their nationally - held reservation land holdings," says M. Annette Jaimes. "Each Indian, one-half or more Indian blood, was entitled to receive title in fee, and all others were simply disenfranchised. "
Those defined as "Indian" under the Dawes Act received a one-hundred and sixty acre allotment, and the "surplus" tribal land base was opened for non-Indian occupancy. Most important, tribal membership was no longer based on traditional criteria; rather, a federally imposed requirement of one-half blood degree became the determining factor in who was Indian.
The "one-half rule" withstood the changes indoctrinated through the Indian Reorganization Act (IRA) of 1934. Although the IRA transformed tribal governments into modem tribal entities with the right to establish their own tribal constitutions and by-laws, the term "Indian" included all persons of one-half or more Indian blood.
In the 1970s, congressional acts that focused on Indian education programs redefined blood quantum by lowering requirements to one-fourth degree. A number of tribes, in revising their tribal constitutions, adapted the one-fourth degree rule as criteria for tribal membership. Although the one-fourth degree rule was beneficial in that it covered a broader segment of tribal populations, it began a system of eugenics that led to racial disparage within tribal communities.
Who is Indian?
The confusion of who is Indian is exemplified in the B.I.A.’s FAQ's. "No single Federal or tribal criterion establishes a person's identity as an Indian. Government agencies use differing criteria to determine who is an Indian eligible to participate in their programs... to be eligible for BIA services, an Indian must (1) be a member of a Tribe recognized by the Federal Government; (2) be one-half or more Indian blood of tribes indigenous to the United States; (3) or must, for some purposes, be of one-fourth or more Indian ancestry."
Thus, under certain federal programs, an Indian person of one- fourth blood quantum may be considered Indian and is entitled for certain benefits, yet under a different program that requires one-half blood quantum, the same person would not be considered Indian since they would be ineligible for that program's benefits.
On the other hand, a member of a federally recognized tribe, regardless of whether they were 1/8th, 1/4th, or 1/2, could benefit from certain programs since they would all be considered Indian.
However, the racial disparage deepens under the BIA's Certificate of Indian Blood (CDIB) guidelines. 13/32nd, 17/128th, 49/128th are not unusual fractions used to obtain CDIB cards. Although CDIB cards do not signify tribal membership, they do identify an individual of having Indian heritage based on lineal descent.
Lineal descent is based on tribal rolls that were drawn up to determine eligibility for treaty annuities. Under CDIB guidelines, if an individual can trace their ancestry to a grandparent four times removed on a tribal roll, they can obtain a card that, in addition to recognition as an Indian, provides certain limited benefits such as Indian Health Services medical assistance. And in some cases, a CDIB card provides a stepping stone to full fledged membership in a federally recognized tribe provided that the individual meets blood quantum criteria.
However, the politics of Indian identity have gone beyond CDIB guidelines and led to fierce factionalism in a number of federally recognized tribes facing constitutional issues of lineal descent.
The case of the Lac Courte Orielles Band of Ojibwe
In the late 1980s, some Lac Courte Orielles (LCO) band members began considering a possible amendment to their tribal constitution that would alter the standards for tribal membership. In 1988, LCO member Sandra Thomas was named chairperson of a committee to explore the issue.
On November 5, 1991, the B.I.A. approved two of the petitions, one of which was lineal decendency - submitted by Thomas, and called an election.
In 1992, LCO voters passed a constitutional amendment that changed the membership criteria from blood quantum to lineal descent. The amendment was carried by a margin of 542 to 105.
The LCO Tribal Governing Board (TGB) at that time voted not to recognize the amendment. At the urging of TGB Chairman Gaiashkibos, the B.I.A. overturned the election.
Sandra Thomas, her daughter Tina, Robert Sander Sr., and Mike Nalewaja filed suit in U.S. District Court. U.S. District Court Judge Barbara Crabb, believing that the tribal government was a party without whose presence the case could not go forward under the standards of Federal Rule of Civil Procedure 19, dismissed the action when the TBG refused to join the suit voluntarily and asserted its sovereign immunity to ward off involuntary joiner.
The Seventh Circuit Court later reversed Crabb's decision. As a result, LCO members Sandra Thomas et al. proceeded with their lawsuit in U.S. District Court in 1996. Crabb once again presided.
The plaintiffs argued that (1) federal defendants exceeded their statutory authority; (2) challenged the B.I.A.'s action as arbitrary and capricious; (3) federal defendants breached the general trust relationship between the United States and Indian people.
In 1999, in a decision with implications for who may be a member of an American Indian tribe, Crabb upheld the plaintiffs -Thomas et al. - and ruled that the B.I.A. had acted improperly in the 1992 elections.
Gaiashkibos issued a moratorium on admitting new members on the tribal roll. In a press statement, the TGB said, "First, Judge Crabb's decision is not final until all appeals are exhausted...It should be emphasized that, according to Chairman Gaiashkibos, any membership ordinance that is not approximately implemented could have devastating impact on the Tribe's economy."
In a last ditch effort, the TGB filed a writ of certiorari with the V.S. Supreme Court. In the petition, the TGB cited that the V.S. District Court of Appeals "ignored the right of Tribe to the continuity of its constitutional government... and did not adequately consider the well-settled sovereign right of an Indian tribe to conduct its internal affairs." In October, 2000, the Court denied the petition.
In July, 2001, a newly-installed TGB unanimously passed a resolution accepting lineal descent with full membership rights. The action is expected to expand current LCO membership by 50 percent.
TGB vice-chairman, Mic Isham, says, "To me, the blood quantum is 'ethnic purity,' and no nation determines its membership on ethnic purity. That is what Hitler and Milosevich wanted."
"We signed the treaties with the U.S. as government-to-government, not as a race," Isham says.
Nevertheless, opposition continues despite the appeal victory. LCO Enrollment Committee member Iris Anderson says, "When you vote for lineal descendency, consider that we can be abolished. "
Anderson cites three tribes who went to lineal descent and are now dissolved, "They have no federal funds and are in chaos. They no longer have a reservation."
Eugene Begay, a well-known LCO traditionalist, favors lineal descent. Begay said the tribe needs to "do away with trying to define who is a member by how long they have lived here, or
where they came from, or whether they have blue eyes and blond hair. In its place, let's bring back the old spirit of Anishinaabe living and being. It's running through our veins."
The future of Indian identity
The issue of blood quantum vs. lineal descent has become a fervent issue in regional and urban Indian communities. In 1996, Frank Dickenson ran for the Red Lake Tribal Chairman position on a platform of lowering blood quantum from 1/4 to 1/16. In 1999, the Lac du Flambeau tribal council considered changing the tribe's constitution on membership based on blood quantum from 1/4 to lineal descendency. Dickenson failed to make the primaries and Lac du Flambeau's consideration remained on the table.
Last year, the Minnesota Indian Council on Elders (MICOE) took a different approach. MICOE passed a resolution asking tribal governments to take into consideration all blood when determining blood quantum for enrollment. The resolution states, "American Indian Elders have seen the blood quantum of our children and grandchildren decrease as a result of strict, nonsensical, non-Indian pedigree policies which do not recognize or take into account our recognition of the tribe or band they are enrolled in; whereas, American Indian Elders believe our children and grandchildren should have all their Indian blood recognized as Indian."
Although the issue was addressed by elders, it was left to be resolved by individual tribes. At this point, tribes have failed to respond.
On the federal level, the BIA has proposed changes in its CDIB guidelines. The new regulations state that blood degree will be calculated only from members of federally-recognized tribes. A number of tribal leaders have opposed the proposal.
"The problem is that this is a shift in Indian self-determination," says Steve Quesenberry, director of litigation for California Indian legal services. "We see this new recognition process as incompatible with congressional acts. "
"W.E.B. DuBois predicted that the twentieth century would be dominated by 'the problem of the color line,'" says Endaso-Giizhik, an Ojibwe-Anishinaabe cultural consultant from Red Lake, "For Native Americans, the twenty-first century will be dominated by the problem of the red color line."