Manataka American Indian Council

 

 

 

 

 

 

TRIBES FORCED TO 

PROVE EXISTENCE 

 

First, European imperialists tried to exterminate them. Then, the United States government relegated them to reservations and forced them to sign one-sided Treaties, many of which were unilaterally abrogated.

Now, Native American tribes are enduring the ultimate insult - having to prove that they are indeed descendants of this continent's original inhabitants in order to keep from being obliterated from the pages of modern history.

This latest indignity being suffered by Native Americans at the hands of the U.S. government was detailed in the Fall 1993 edition of Muckraker, the magazine of the San Francisco-based Center for Investigative Reporting. According to CIR:

Since 1978, a division of the federal Bureau of Indian Affairs (BIA) has been forcing Native tribes to go through a lengthy and expensive "recognition" procedure in order to qualify for government economic and health-care assistance, protection of sacred burial grounds and other benefits.

Among the program's many problems is that a number of the more than 100 tribes currently classified by the government as "unrecognized" already signed treaties with the feds many years ago, but those agreements were never ratified by Congress. At least eight such "unrecognized" tribes are in Washington state: the Chinook, Cowlitz, Delawares, Duwamish, Snohomish, Snoqualmie, Snoqualmoo and Steilacoom.

Too date, the BIA has rejected 13 recognition applications while approving just eight. Seventy-two other "unrecognized" tribes have been waiting up to 13 years for a decision on whether, in the eyes of the government, they exist. With only 11 staffers reviewing the applications, the BIA won't finish their reviews until well after the year 2000.  [Ed. Note:  There are over 220 non-recognized tribes today - See Federally Non-Recognized Tribes]

""From my point of view, the process is absolutely ridiculous," said member of the Shasta tribe of California, which the government refuses to recognize despite the signing of a property-rights treaty in 1851. "I've been told to my face that I don't exist, that I'm extinct. It's demeaning and humiliating. It's degrading."

Then there's the Juaneno tribe of California, which received land-seizure settlements in 1950 and 1972 from the same government that now says the tribe has to prove it's real.

Needless to say, the government stands to save millions of dollars in benefits that won't have to be extended to tribes that aren't able to meet the strict BIA recognition standards, which require tribes to produce mountains of documentation, including anthropological data and genealogies from the mid-1800's, phone records, and guest lists from annual tribal picnics and funerals. One tribe, the 153-member Jena Band of Choctaws of Louisiana, has spent nearly a half-million dollars in research money to produce the material.

The government's recognition process also has worsened intertribal feuds by pitting the haves against the have-nots; some recognized tribes, such as the Cherokees of Oklahoma, want "unrecognized" tribes to stay that way so that benefits paid to recognized tribes will be preserved.

Bud Shapard, the former BIA official who helped set up what's called the "Federal Acknowledgment Process," calls the system a "monster".

"The fate of unrecognized tribes is totally in the hands of a ponderous bureaucracy that is antagonistic to unrecognized tribes," Shapard told Congress last summer. "[BIA] views newly recognized and restored tribes as additional, unwanted expense."   

And the recognition process is arbitrary, Shapard says. Documentation that's accepted for one tribe isn't good enough for the government when the same information is presented by another.  

But as they have done for the past 500 years, Native Americans are fighting back. The Miami and Samish nations are suing the BIA, at least one tribe has refused to file for recognition, and four tribes in California are bypassing the BIA entirely, choosing instead to ask Congress directly for recognition.  

Despite failures in Congress over the past three years to reform the recognition program, Rep. George Miller (D-CA) and Sen. John McCain (R-AZ) continue to push legislation that would change the system, which Miller says "has broken down, and tribes should not have to pay the price."

CREDITS: Washington Free Press, December/Jan, 1994.  Copyright 1993 WFP Collective, Inc.


 

THE RECOGNITION PROCESS

By Paula Giese

 

There are more than 300 federally recognized Indian tribes in the lower 48 states, and more than 200 Native entities in Alaska. About 250 tribes are on the list of federally non-recognized tribes, with about 150 of these petitioning for federal recognition.

Why does it make any difference to a tribe -- an indigenous native Nation with centuries, millennia, of existence -- whether or not it is "recognized" by the U.S. government? The answer in one word: MONEY.

Federally-recognized tribes are eligible for a variety of federally-funded Indian services. these range from health care to housing assistance to education to economic development assistance. They may exercise certain rights over band members, and band members have certain rights regarding their own tribal governments. Federally-recognized tribes -- if large enough-- maintain their own law enforcement and courts systems. They may place a communally-owned land base in federal trust, so that it cannot be sold by individuals, lost to tax forfeiture, or even alienated by corrupt tribal governments -- although all those losses have happened to Native Nations' lands that have been in federal trust. Theoretically, however, the recognized tribe has a quasi-national status that gives it and its citizen-members greater control over their lands, lives, and long-term survival. Finally, they may start the only enterprise which has shown consistent success across about 40 tribes who've done it: a casino. (Many states bitterly oppose this. Tribal casinos have been successful because they provide what is evidently a desired form of entertainment to white communities that is otherwise forbidden by state laws.)

Non-recognized tribes have none of these advantages or powers.

All of these advantages and powers are in effect compensatory for the existence of the United States by swindling the indigenous inhabitants out of their land, or taking it by force when fraud wasn't enough. They are compensatory for centuries of poverty, suffering and despair. And most of them are essential for cultural survival, too, survival as Indians means tribal survival, which requires a land base, cultural and linguistic education, and ability to survive economically without turning into brown-skinned average Americans.

Other benefits are to individuals who are enrolled. For instance, after years of lobbying by Indian artists and their supporters, in 1990 the Federal native American Arts and Crafts Act was passed, to try to prevent huge profits from fake "Indian art" by making it illegal to market as Indian the products of anyone except members enrolled in a federally-recognized tribe. That's a clear-cut, unambiguous criterion, but it does an injustice to talented artists and craftspeople of unrecognized tribes. Or to recognized members of Indian communities who cannot qualify for various reasons for tribal enrollment. 

There are also scholarships, loans, grants, development assistance programs that enrolled tribal members may receive, but not others. So federal recognition, and being an enrolled member of a recognized tribe, are highly desirable not only to what I might call (without attempting to define it) " actual Indian people" and others. Those others have usually shown up (historically) when some kind of land claim settlement payments are to be made. Corruption has been endemic in recognizing (and paying) them. They take the money and run back to where they came from.

Why are there so many groups which believe they can and should qualify as federally recognized Indian tribes? There are many historical reasons for specific cases. I'll give some general examples.

(1.) Tribes in the east were effectively subdued before the United States existed. One of the proofs of "being a tribe" is that nation-to-nation treaties were made with your own government. But such treaties as may have been made with these tribes were with other nations, France or especially England. Too, the new United States rapidly made a number of treaties only to prove that it existed as a (new) nation on the international scene -- that is, to prove to European powers its own right of existence and nationhood. When this situation seemed to have been accepted, there was less zeal for treaty-making with Indian tribes. Treaties in any case generally confined Indian tribes to a small portion -- usually the least desirable -- of their former ranges or territories. If they were already so confined there was no need to treat with them for land cessions. Or if they were militarily weak, the land could just be taken. Congress ordained in 1871 that no further Indian treaties would be made.

(2.) As the new U.S. felt surer of itself, it began to remove Indian tribes to push them out of the way of its own economic and physical development. This meant forcing these tribes to leave their homelands and go to designated Indian territories (Oklahoma) or reservations, which were concentration camps. In Oklahoma, a great assortment of tribes were crammed into a small area, tribes of mutually incompatible cultures, and tribes who had long been enemies were shoved in side by side. On some reservations, this situation also exists. From 2 to 20 tribes -- often speaking different languages, and with little but shared victimization in common -- were forced to move there and told to share the land. In some t cases, not everyone removed, and some came back to their long-time homelands, where they lived in small groups inconspicuously in rural areas. Some of these groups have retained their Indian identity, some of course vanished. But the groups who evaded removal, or returned from it, tended to be made up of those who felt that identity -- and its connection with their original homelands -- most strongly, and continued to survive inconspicuously as Indian people and as tribes.

(3.) In California, tribes tended to be small and grouped in relatively small territories. Nowhere else is there such a great linguistic difference among the indigenous peoples in such small areas. At the end of the war with Mexico, when the U.S. took control of California, in the early 1850's, 18 treaties were made with a substantial number of tribes which would have reserved some land for them (less desirable land of course, but still some land). But these treaties were never ratified -- someone accidentally lost them for 50 years. Thus California Indians had a reservation situation that was essentially small plots of land called rancheros, hundreds of these little patches. Still, if they were federally recognized, they are eligible for some benefits that helped the residents -- until the 1960's.

(4.) After World War II, the U.S. decided it was time to stop bothering about Indian tribes. A policy of termination of tribal status was made law, and this was coupled with a policy of relocating Indian people from their rural reservations -- which were impoverished and lacked such ordinary amenities as roads, electricity, phones, modestly decent housing -- and of course presented no economic opportunities at all for residents. Indian people were supposed to move into the 20th century -- in cities, a number of which (Los Angeles, Portland, Chicago, Minneapolis) were designated "'relocation centers". In these cities the people were given minimal and inadequate training for employment, and occasionally told about things like light switches, and then dumped. Indian ghettoes and welfare dependencies were created by the relocation policies in all relocation city centers. Family, clan and intra-tribal political and spiritual relationships broke down. Indians tended to marry one another, but not necessarily from the same tribes. The poverty of reservation life continued, but the style was different. In California, a major effort was made to terminate all the small bands.

These general reasons produced considerable scatterings of Indian groups who tried to stick together as best they could, for a tribal life of poverty in small bands and patches of land here and there that no one else wanted, for good reasons usually.

In 1978, the Department of Interior (which contains the Bureau of Indian Affairs) established an agency known as the Federal Acknowledgement Project (FAP), now known as the Branch of Acknowledgement and Research (BAR) to allow groups that had been terminated as tribes, or that had never been acknowledged as tribes to petition for federal recognition. The criteria are supposed to demonstrate social solidarity (which includes cultural), political authority (some kind of quasi-official functioning in a manner recognized by all members of the group), and a demonstration of ancestry of the group's members. 

Here are the 7 criteria groups must meet as set forth in federal law:

  1. Be identified from historic times until the present on a substantially continuous basis as 'American Indian' or 'aboriginal'.

  2. Prove that a substantial portion of members lives in a specific area or lives as a community viewed as American Indian and distinct from other populations of the area; and prove that members of this community are descendants of an Indian tribe.

  3. Prove that it has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present.

  4. Provide a copy of a governing document or statement describing in full the membership criteria and procedures through which this group currently governs its affairs and its members.

  5. Provide evidence of membership consisting of individuals who have established decadency from a tribe which existed historically, or from historical tribes which combined and functioned as a single autonomous entity.

  6. Demonstrate that its membership consists principally of persons who are not members of any other tribe.

  7. Show that it is not expressly terminated or forbidden to participate in the federal-Indian relationship by statute.

It was also ruled that prior federal recognition of a tribe -- whether by treaties or by later forms of acknowledgement such as supervision by the BIA -- should have no relevance, since the point was for a tribe to prove it now existed under those present standards. The prior tribal status of groups may be challenged by state or local governments.

Congress has in some instances determined the recognition process -- which is difficult, time-consuming and very expensive -- is flawed, and has acknowledged a few tribes by its own laws. the best known of these Congressionally federalized tribes is the Mashantucket Pequots, of Connecticut, whose casino is the biggest moneymaker in the western hemisphere. They were acknowledged by Congressional law in 1983. Congressional law also acknowledged the following tribes: Pascua Yaqui (near Tuscon, AZ), 1978; Ysleta del Sur Pueblo (near El Paso, TX), 1987. Texas Band of Traditional Kickapoos (1987). Cow Creek Band of Umpqua Indians (Oregon), 1982. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (Oregon), 1984. Lac Vieux Desert Band of Lake Superior Chippewa Indians (Michigan), 1984. Arrostock Micmac Tribe of Maine, 1991.

Meanwhile, the BIA process acknowledged about 10 tribes between 1978 and the present. (insert them).

This has had little effect on the large backlog of petitions for acknowledgement. Denials or rulings that the tribe is ineligible to petition never result in an end of the matter, because the benefits of acknowledgement are so (comparatively) great. Department of Interior did propose some new rules in 1991, but these don't seem to make much of a change, except a possibly expedited process for "previously recognized" tribes.

It is a not too well-kept secret that recognized federal tribes quietly -- and sometimes not so quietly -- oppose many of these recognitions. The reason is obvious: the size of the federal pie, the financial benefits, is not unlimited. It does not necessarily expand to meet the needs of new tribes who can present entitlements; it doesn't really even keep pace with population growth in acknowledged tribes. If a great many more tribes are recognized, that means diminishing shares of a federal pie. This is a quite realistic appraisal.

The Navajo tribe very overtly opposed recognition of the San Juan Paiutes, whose land they (the Navajo tribe) had won in a land claim case, where the Navajo lawyers had argued this land had been inhabited by "Indians" since time immemorial. So it had, been, but they weren't Navajos. The lawyers argued that the San Juan Paiutes were really Navajos, and should not be independently recognized, because that recognition gives them a basis to try to get back their land base. 

In Minnesota, the Sandy Lake Ojibwse Band was forcibly consolidated to the Mille Lacs band by the Bureau of Indian Affairs in 1934, under the Indian Reorganization Act. the two bands have very different histories, and Sandy Lake's remaining bit of land is even in a different treaty area than that of Mille Lacs. But the opposition from the Minnesota Chippewa Tribe (all Ojibwe bands in Minnesota except Red Lake) proved decisive.

(The paragraph below was submitted by Charlie L. of the Mille Lacs Band of Ojibwe to help clarify the issues)

[In Minnesota, the Sandy Lake Band of Ojibwe was forcibly consolidated with the Mille Lacs Indians to form the Mille Lacs Band of Ojibwe by the Bureau of Indian Affairs in 1934, under the Indian Reorganization Act.  The Mille Lacs Indians were already a patch-work Band consisting of a union of Mille Lacs Band of Mississippi River Chippewas with the Mille Lacs Band of M'dewakanton Dakota, joined together with smaller Non-Federally Recognized Ojibwe Bands located along the Wisconsin/ Minnesota border. The two bands, though sharing a common history as Mississippi River Chippewa, have very different histories ever since the establishment of the Wisconsin Territories in 1836 -- Sandy Lake and Rice Lake Bands in LaPointe County, Mille Lacs Indians in St. Croix County -- only to be further divided from each other with their respective Reservations that were created under the 1855 Treaty -- Sandy Lake and Rice Lake Bands having their Reservations within the 1855 Ceded Territory Area while the Mille Lacs Indians having theirs placed in the 1837 Ceded Territory Area.   While Mille Lacs Indians and the Sandy Lake Band became "Non-Removable" after the Dakota Wars, Rice Lake Band, along with many other Mississippi River Chippewas, lost their Federal Recognition in 1864 and subsequent Treaties, encouraged/ forced onto the White Earth Reservation, but Sandy Lake retained their recognition until the Reorganization.  Despite the appeals, the opposition from the Minnesota Chippewa Tribe (all Ojibwe bands in Minnesota except Red Lake) proved decisive for the Sandy Lake Band. The Bureau's official position is that the contemporary Mille Lacs Band of Ojibwe is the "Successor Inherent" of the "historical" Non-Removable Mille Lacs Indians, Non-Removable Sandy Lake Band of Ojibwe, Rice Lake Band of Ojibwe, Snake River Band of Ojibwe, Kettle River Band of Ojibwe, and the St. Croix Band of Ojibwe (those located west of the St. Croix River).] 

In part, recognition of Sandy Lake would mean reduction of some funding that is per capita, head count. But the real reason seems to be Mille Lacs' fear of competition for their successful casino from another tribe that would certainly be started not so far away as the other Minnesota tribes' casinos are. (All tribes in Minnesota operate casinos; they are the only economically significant revenue sources other than government funds.)

It is a complex and difficult situation. Existing tribes often feel that many of the small groups who are seeking recognition are not really Indian; they are scornfully referred to as "casino tribes" in casual conversations. The other tribes feel they have a long history of continued existence and real Indian-ness, for which they paid in blood, suffering and poverty they are just beginning to pull out of. They believe the small groups who want to be acknowledged as tribes are mostly non-Indian people who are fully assimilated, who are really white people, but now hope to gain benefits that will come at the expense of the other tribes, since the pie is not unlimited in size. And of course the concept of nationhood, of national sovereignty, which has always been important and only recently is beginning to be really acknowledged for established tribes, becomes quite diluted, ridiculous, when applied to a group of a few hundred people, including all children, and that's something that worries the larger tribes, too.

But there's one case -- the only one I know -- where the tribe seems to have been denied federal recognition because it was too big. This is the Lumbee Tribe of North Carolina, which has about 40,000 members. They almost all live in their traditional homeland (Robeson County), have a continuous history, and perhaps better education than many tribes even now, because they started for themselves and maintained from the late 19th century on what was the only college for Indian people -- Pembroke (now a state University). The Lumbee Tribe was acknowledged (sort of) by Congress in the 1950's, but in a very peculiar way, the legislation explicitly forbade them to seek acknowledgement any other way. Because this acknowledgement came right when Congress had passed termination legislation, the acknowledgement barred them from Bureau of Indian Affairs administrative recognition -- no funding, no programs. This amounts to a ruling -- upheld ih the 1970's -- that the Lumbees can call themselves a tribe if it makes them feel better about themselves, but they won't get any of the tribal assistances that other recognized tribes do.

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