By Professor David E. Wilkins
Two options may be available to native disenrollees who seek to restore, at the very
least, their federally-recognized status as natives, if not their tribally-derived
citizenship. A provision in the Indian Reorganization Act (IRA) of 1934 provides the
first potential route. Section 19 of the act provided three definitions of the term
“Indian.” First, it included “all persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction.”
Second, it applied to all individuals who were “descendants” of those members who,
as of June 1, 1934, resided within a given reservation’s borders. And third, and of a
special importance for our purposes, the term included “all other persons of one-half
or more Indian blood.”
While the IRA has been amended several times since 1934, the definition of “Indian”
has not changed appreciably. In Title 25 of the Code of Federal Regulations (2011 ed.),
the term “Indian” is defined in two ways: “all persons who are members of those
tribes listed or eligible to be listed … as recognized by and receiving services from the
BIA … and “any person not a member of one of the listed tribes … who possess at
least one-half degree of Indian blood” (25 CFR 81.1 (i)).
I am familiar with the one-half blood category because some of my own people, the
Lumbee, who were not formally recognized by the U.S. as a nation in 1934, did apply
for individual federal recognition under this provision and, after many years,
eventually compelled the BIA to recognize them in the 1970s. They received some
financial benefits as a result.
Current disenrollees who believe they meet the scientifically and politically
problematic one-half blood quantum threshold, might consider invoking this
provision as a way of forcing the Department of the Interior and the BIA to meet their
political and economic, if not their cultural needs. Such a challenge might also allow
an assault on the very notion of “blood quantum” itself—a phrase of dubious
scientific and social credibility.
The second process that might prove useful also stems from the IRA period. The IRA
did not initially apply to most Native nations in Oklahoma. But tribal complaints led
Congress to enact a law two years later, the Oklahoma Indian Welfare Act (OIWA),
which extended the principles of the act to the native peoples in Oklahoma, if they
voted for it. The act allowed recognized tribal nations or bands to organize and to
adopt constitutions and bylaws if they so desired.
Article 4 of the OIWA laid out an organizational path that a group of Native
disenrollees might be able to follow to meet their needs and provide for a restoration
of federal services and benefits. It declares that ten or more Indians “who reside
within the state of Oklahoma in convenient proximity to each other may receive from
the Secretary of the Interior a charter as a local cooperative association for any one
or more of the following purposes: Credit administration, production, marketing,
consumers’ protection, or land management.”
By organizing thus, a culturally and politically-related group of disenrollees, living
in “convenient proximity,” of course, would be able to avoid the rigorous and highly
politicized federal acknowledgment process since they would not be pursuing
recognition as a “tribe,” but would instead be asserting their right to organize as an
economic or political entity in order to receive needed benefits and rights.
Neither path is ideal, but until and unless native governing officials return to the
values that once precluded such egregious violations of their citizens’ own
identities, and until and unless Congress or the courts step in and provide a fair
process that disenrollees can participate in to have their grievances heard, it
behooves the disenrollees, the Department of the Interior, and the federal
government to consider alternative arrangements to support the inherent civil rights
of these put upon individuals.
Professor David E. Wilkins holds the McKnight Presidential Professorship in
American Indian Studies at the University of Minnesota. His recent book
publications include American Indian Politics and the American Political System, 3rd
ed (co-authored with Heidi Stark) (2010), Documents of Native American Political
Development: 1500s-1933 (2009), and On the Drafting of Tribal Constitutions (by
Felix Cohen) (2006).
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