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Enrollment Issues

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Tribal Sovereignty

Understanding the history of tribal enrollment

by Nora Livesay

"The question of my 'identity' often comes up. I think I must be a mixed-blood. I claim to be male, although only one of my parents was male."

Jimmie Durham
Cherokee, 1991


It's difficult to talk about tribal enrollment without talking about Indian identity. The two issues have become snarled in the twentieth century as the United States government has inserted itself more and more into the internal affairs of Indian nations.

Ask who is Indian, and you will get divergent responses depending on who's answering. The U.S. Census Bureau, state governments, various federal government programs and agencies, and tribal governments all have different definitions. The criteria vary from a specific amount of blood quantum and descendency to residency and self-identification.

But, the answers don't really tell you who is Indian. They tell you who can receive health care from the Indian Health Service (IHS), who can get eagle parts from the National Eagle Repository, who qualifies for educational assistance or who can vote in tribal elections. These artificial definitions don't come close to describing how it feels to sit with one's own people sharing a joke or a ceremony. They don't describe the cultural and historical bonds that guide one's life. Identity reaches into the intangible parts of ourselves. The rest are definitions with an agenda.

The agenda behind tribal enrollment is a sordid one, but one that continues. Indians are still defined as a "problem" for American progress, and manipulating tribal enrollment particularly through blood quantum is how federal and state governments have dealt with the issue.

As historian Patricia Nelson Limerick summarized in The Legacy of Conquest: The Unbroken Past of the American West, "Set the blood quantum at one-quarter, hold to it as a rigid definition of Indians, let intermarriage proceed as it had for centuries, and eventually Indians will be defined out of existence. When that happens, the federal government will be freed of its persistent 'Indian problem.'" This was particularly evident in federal relocation programs that encouraged Indians to leave their reservations and resettle in large metropolitan areas beginning in the 1950s through the 1980s.

And if it isn't enough that the government is subtly trying to terminate Indians and Indian nations, the recent popularity of Indian themes in pop culture has led many people to claim to be Indian. While many non-Indians are searching for spiritual validation, the real fight over who is Indian is centered on assets; spiritual and cultural assets, land assets and financial resources, which the federal government is obligated to provide based on treaties and subsequent federal trust responsibility.

In exchange for more than 95 percent of the land in what is now called the United States, the U.S. Government signed international treaties that promised goods and services to different Indian tribes. Commonly, these included education, health care, food and annuity payments. Nearly all the goods and services were promised to continue in perpetuity.

Unbeknownst to Indian leaders, the U.S. Government did not have serious intentions to abide by those treaties. But because it was a relatively new nation without much international clout, the U.S. couldn't abrogate its treaties with Indian nations without jeopardizing those with its European cousins. Instead the U.S. Government embarked on various plans to get rid of the Indians and thereby get rid of its treaty obligations. One method that the government began using in the 1800s and continues to use is federal involvement in tribal enrollment.

Determination of one's own citizenry is a universal principle of sovereignty. Every nation possesses the right to determine its members regardless of how powerful it is or how rich it is. The United States opted to unilaterally preempt the rights of many Indian nations to engage in this fundamental and internal decision-making process.

Federal officials began deciding on a person-by-person basis who qualified as a member of the tribe and therefore, qualified for treaty benefits. Eventually the federal government settled on the idea of blood quantum, similar to what was used to determine which African Americans could be enslaved.

In 1887, under the General Allotment Act (also known as the Dawes Act), Congress adopted the blood quantum standard of one-half or more Indian blood. This meant that if an Indian could document that he (women were excluded) was one-half or more Indian blood, then he could receive 160 acres of tribal land. All other Indians were excluded regardless of their standing within the tribe. After all the "blooded" Indians were parceled out land, the rest of tribal lands were declared "surplus" and opened up for non-Indian settlement.

Limiting the allotted land to 160 acres per qualified person ensured that there weren't enough Indians meeting the genetic requirements to retain the original land base of the tribe; land that was rightfully theirs by aboriginal occupancy and recognized as such by treaties with the U.S. Government. In this way, the aggregate Indian land base was "legally" reduced from 138 million acres to 48 million acres in less than 50 years. (John Collier, Memorandum, Hearings on H.R. 7902 Before the House Committee on Indian Affairs, (73rd Cong., 2d Sess.), U.S. Department of Interior, Washington, D.C., 1934, pp. 16-18).

From then on, the federal government began imposing various blood quantum eligibility requirements on Indians for commodity rations, education, annuity payments and health services.

"By the 1920s, it was also becoming increasingly apparent that much of the agriculturally worthless terrain left to Indians after allotment lay astride rich deposits of natural resources such as coal, copper, oil, and natural gas; later it the century it was revealed that some 60 percent of all "domestic" uranium reserves also lay beneath reservation lands. It was therefore becoming imperative, from the viewpoint of federal and corporate economic planners, to gain unhindered access to these assets. Given that it would have been just as problematic to simply seize the resources as it would have been to abrogate the treaties, another expedient was required. This assumed the form of legislation unilaterally extending the responsibilities of citizenship (though not all the rights; Indians are still regulated by about 5,000 more laws than other citizens) over all American Indians within the United States." (M. Annette Jaimes 1992, p. 127).

U.S. citizenship was conferred in 1924, whether it was wanted or not. The resulting dual citizenship of Indians served to confuse the issue and allowed government and corporate representatives to negotiate with individual U.S. citizens and prevail with arguments about the "greater good," thereby bypassing Indian governments.

In 1934, the federal government interposed itself one step deeper into internal tribal affairs with the Indian Reorganization Act (IRA) also known as the Howard-Wheeler Act.

The ultimate goal of the IRA was to dissolve native nations and absorb Indians into the dominant culture. A committee selected by the secretary of the interior had determined that Indians comprised an unbearable financial burden for the federal government and advocated their dissolution by humane means.

The IRA used a model for tribal governance based on a corporate structure with a governing council and constitutional bylaws or charters. The Bureau of Indian Affairs developed a boilerplate constitution that was distributed to all the tribes. All constitutional bylaws and all council actions were made subject to the approval of the secretary of the interior. The government model put forth by the BIA ignored traditional and more democratic consensus governing models already in use by tribes.

The act had to be approved by a majority vote of "eligible" tribal members before it could be completely implemented. How the IRA was railroaded through is familiar to many people. Tribes who didn't hold referendums were automatically included. Tribes where most people refused to participate and didn't vote, were included because a non-vote was interpreted by the BIA as a yes vote. There were also cases of more blatant election fraud.

"On the Pine Ridge (Oglala Lakota) Reservation in South Dakota, there weren't enough abstentions to carry the day against those voting against the IRA. It was subsequently discovered that a sufficient number of dead people had cast ballots to provide a pretext for ratification. Even after this was established to have been the case, the ratification was described as 'binding' on the Oglalas." (M. Annette Jaimes, p 117; see also Graham Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934-45)

With these tactics, the BIA brought nearly every Indian nation under IRA provisions. Provisions for tribal enrollment were part of the boilerplate constitutions forced on tribes. A reading of a number of tribal constitutions today will show that most have not been significant changed since the 1930s. Enrollment provisions can usually be found under Article II or Article III and most are identical.

Enrollment as laid out under the IRA constitutions, starts with a base roll for defining membership. The base roll is usually a U.S. Census roll, an allotment roll or another BIA-compiled roll, such as the Durant Roll of 1910. Because the U.S. government determined who was included on the rolls, many have argued that the process was biased from the start. Today, the BIA is still responsible for compiling and maintaining rolls. When there is a "federal election" on a reservation to deal with constitutional issues or the election of tribal officials, the BIA runs the elections and uses the rolls to determine who is eligible to vote. (The list of those eligible to vote may or may not be the same list as those enrolled in the tribe.)

From the base rolls, most constitutions include as members anyone who at the time of the adoption of the constitution could prove descendency from someone on the rolls. After adoption of the constitution, future generations often have to meet a number of criteria usually relating to descendency from the rolls, their own residency or that of their parents when they were birth, blood quantum or membership of one or both parents. One-fourth degree blood quantum of the particular tribe in question is a nearly universal requirement. Almost all constitutions prevent people from being enrolled in more than one tribe, regardless of their actual blood quantum. These provisions inherently lead to problems of fractional heritage.

The history of tribal enrollment has caused some Indians to refuse participation in the federally-sponsored enrollment process. Leonard Peltier expressed a representative sentiment, "This is not our way. We never determined who our people were through numbers and lists. These are rules of our colonizers. I will not comply with them." (quoted by Churchill 1991, p. 12).

But, refusing to participate can also be seen a leaving a void in tribal affairs. Often this void has been filled by people whose interests are not in sync with protecting tribal sovereignty and empowering the Indian community, but rather in enriching themselves.

Many Indians would like to become enrolled with their tribes, but find the process excruciatingly difficult. Often it is difficult to obtain a copy of the tribal constitution and then to find a copy of the base roll. A significant amount of genealogical research is required even before an applicant can meet other criteria.

Although constitutions provide that tribal councils can pass ordinances to govern the enrollment process and establish enrollment committees to review applications, most have not. This leaves potential tribal members without a clear starting point or explicit procedures, and opens the door for real and apparent abuse of the process.

Tribal enrollment raises thorny issues in Indian communities, not the least of which is identity. Should federally-imposed blood quantum requirements be thrown out? If they are, how does one ensure that only "real" Indians are enrolled? If they aren't thrown out, how can Indians avoid fulfilling the federal government's original objective of defining themselves out of existence?

What about future generations of Indians? How can tribes ensure that Indian children being adopted outside of the Indian community are not lost? How can tribes address the issues of fractional heritage and the continuing trend toward intermarriage with non-Indians?

Perhaps it is time for Indians to take back the issue of tribal enrollment. As sovereign nations, tribes can and should determine their own citizenry without interference or approval by any federal or state government or agency. Ultimately, tribal enrollment policies will influence the future of tribal governments and the future of Indian nations. At the very least, Indians need to educate themselves about their own constitutions and unique set of circumstances. Becoming informed is the first step toward thoughtful community discussions and avoiding the failures of past policies.


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