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Identity and the Survival of Native America
By Eva Marie Garroutte
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2003 The Regents of the University of California
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Enrollees and Outalucks
"I am not a real Indian," writes the acclaimed Choctaw/Cherokee novelist Louis Owens. "Not a real, essential Indian because I'm not enrolled.... Because growing up in different times I naively thought that Indian was something we were, not something we did or had or were required to prove on demand. Listening to my mother's stories about Oklahoma, about brutally hard lives and dreams that cut across the fabric of every experience, I thought that was Indian." A childhood friend, Owens notes, was an enrollee — invested with formal citizenship in his tribe — and was "somewhat smug about that fact, though it meant little to me then. Now I know better."
Readers familiar with Owens's work — his popular novels that artfully and sensitively reflect familiarity with the cultural knowledge of both Cherokees and Choctaws, his intelligent contributions to American Indian literary criticism — may find themselves a bit taken aback at his disavowal of his Indian identity. The definitions of identity within which Owens sardonically locates himself are sets of legal rules that distinguish Indians from non-Indians. They create another category of people, as well. This is a group to which one historian refers, half-jokingly, as the "outalucks," people of Indian ancestry who are nevertheless unable to negotiate their identity as Indians within the available legal definitions.
These legal definitions are many. Some of them operate on an individual level, defining either who is a citizen in the eyes of a specific tribe, or who is an Indian person in the eyes of the federal government. Others operate at the collective level, defining what groups constitute an Indian tribe. The definitions Owens refers to are the rules that tribes use to determine citizenship, so I turn first to these.
Individual Legal Definitions: Contexts and Consequences
Many people imagine that the American government sets the legal criteria for tribal citizenship. However, tribes have the exclusive right to create their own legal definitions of identity and to do so in any way they choose. The most common tribal requirement for determining citizenship concerns "blood quantum," or degree of Indian ancestry, a concept that receives fuller treatment in the next chapter. About two-thirds of all federally recognized tribes of the coterminous United States specify a minimum blood quantum in their legal citizenship criteria, with one-quarter blood degree being the most frequent minimum requirement. (In the simplest instance, an individual has a one-quarter blood quantum if any one of her four grandparents is of exclusively Indian ancestry and the other three are non-Indian.) The remaining one-third of Indian tribes specify no minimum blood quantum. They often simply require that any new enrollee be a lineal (direct) descendant of another tribal member.
Tribal legal definitions may take into consideration other factors besides biological descent, however. Certain tribes require that citizens not only possess tribal ancestry but that this ancestry come from a particular parent. Thus, the Santa Clara Pueblo (New Mexico) requires paternal descent, and the Seneca tribe (New York) requires maternal descent. By contrast, the Tohono O'Odham (Arizona) consider residency definitive, automatically admitting to citizenship all children born to parents living on the reservation. The Swinomish (Washington) take careful stock of various indicators of community participation, ignoring blood quantum, while the Lower Sioux Indian Community (Minnesota) requires a vote of the tribal council. In still other tribes, community recognition or parental enrollment may also be a means to or a prerequisite for enrollment, and a few tribes only accept applicants whose parents submit the necessary paperwork within a limited time after their child's birth. Some tribes also require members to fulfill certain minimal duties, such as maintaining annual contact with the tribal council, for their citizenship to remain in good standing.
Legal definitions of tribal membership regulate the rights to vote in tribal elections, to hold tribal office, and generally to participate in the political, and sometimes also the cultural, life of the tribe. One's ability to satisfy legal definitions of identification may also determine one's right to share in certain tribal revenues (such as income generated by tribally controlled businesses). Perhaps most significantly, it may determine the right to live on a reservation or to inherit land interests there.
The tribes' power to determine citizenship allows them to delimit the distribution of certain important resources, such as reservation land, tribal monies, and political privileges. But this is hardly the end of the story of legal definitions of identity. The federal government has many purposes for which it, too, must distinguish Indians from non-Indians, and it uses its own, separate legal definition for doing so. More precisely, it uses a whole array of legal definitions. Since the U.S. Constitution uses the word "Indian" in two places but defines it nowhere, Congress has made its own definitions on an ad hoc basis. A 1978 congressional survey discovered no less than thirty-three separate definitions of Indians in use in different pieces of federal legislation. These may or may not correspond with those any given tribe uses to determine its citizenship.
Most federal legal definitions of Indian identity specify a minimum blood quantum — frequently one-quarter but sometimes one-half — but others do not. Some require or accept tribal citizenship as a criterion of federal identification, and others do not. Some require reservation residency, or ownership of land held in trust by the government, and others do not. Other laws affecting Indians specify no definition of identity, such that the courts must determine to whom the laws apply. Because of these wide variations in legal identity definitions and their frequent departure from the various tribal ones, many individuals who are recognized by their tribes as citizens are nevertheless considered non-Indian for some or all federal purposes. The converse can be true as well.
There are a variety of contexts in which one or more federal legal definitions of identity become important. The matter of economic resource distribution — access to various social services, monetary awards, and opportunities — probably comes immediately to the minds of many readers. The legal situation of Indian people, and its attendant opportunities and responsibilities, are the result of historic negotiations between tribes and the federal government. In these, the government agreed to compensate tribes in various ways for the large amounts of land and other resources that the tribes had surrendered, often by force. Benefits available to those who can satisfy federal definitions of Indian identity are administered through a variety of agencies, including the Bureau of Indian Affairs, the Indian Health Service, the Department of Agriculture, the Office of Elementary and Secondary Education, and the Department of Labor, to name a few.
Legal definitions also affect specific economic rights deriving from treaties or agreements that some (not all) tribes made with the federal government. These may include such rights as the use of particular geographic areas for hunting, harvesting, fishing, or trapping. Those legally defined as Indians are also sometimes exempted from certain requirements related to state licensure and state (but not federal) income and property taxation.
Legal identity also determines the applicability of a number of protections available to individual Indians from the federal government. Notable among these are an Indian parent's rights under the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.). Before the passage of this act, as many as 25 to 35 percent of Indian children in some states were being removed from their homes and placed in the care of non-Indians through such means as adoption and foster care. In one state (Wisconsin), the likelihood of such an eventuality was 1600 times greater for an Indian than a non-Indian child. Many commentators have suggested that a number of Indian families lost their children less because they were genuinely unsuitable parents and more because they refused to abandon traditional cultural values in favor of those enforced by the essentially white, middle-class, social service bureaucracy. A 1974 Senate subcommittee hearing revealed another reason why social workers were sometimes overactive in removing Indian children: testimony suggested a "gray market" for Indian infants, fueled by white couples' inability to secure white infants for adoption and their lack of interest in black infants. The Indian Child Welfare Act was passed to stem the wholesale transfer of children out of their families, tribes, and cultures. It requires that, where Indian children must be removed from their homes, efforts be made to place them with another family member, or at least with another Indian family, rather than a non-Indian one.
Just as importantly, federally specified legal definitions provide for certain religious freedoms. For one thing, they allow Indian people to seek protection from prosecution for the possession of specific ceremonial objects, otherwise restricted by law. For instance, many Indian people own eagle feathers, which they use in prayer and ceremonies, although non-Indians are not permitted to possess any part of this endangered species. Similarly, Indian members of the Native American Church ingest peyote, legally classified as a hallucinogen, as a sacramental substance in closely controlled worship settings. Non-Indians are forbidden to possess it. Since the passage of the Native American Graves Protection and Repatriation Act of 1990, federal legal definitions also allow Indian people to claim sacred ceremonial objects, as well as to receive and rebury the remains of their ancestral dead, if these are being held in federally funded museums for display or study (as they very frequently are).
Federal legal definitions of Indian identity can even affect some individuals' ability to pursue their livelihood. A particularly controversial protection that has recently become available to those legally defined as Indians revolves around the Indian Arts and Crafts Act of 1990. Arguments for this legislation started from the recognition that many buyers consider artwork more desirable and valuable if it is created by an Indian person and that a great deal of art was therefore being falsely labeled as Indian-made. The same arguments concluded that such misrepresentations were seriously reducing the revenues of artists who were, in fact, Indian. The cartoon in figure 1.1 satirizes the attempt to pass off cheaply manufactured, foreign goods as Indian-made. The Arts and Crafts Act forbids any artist who is not a citizen of a federally recognized or state-recognized tribe to market work as "Indian produced." Penalties for violation of the act include large fines and imprisonment. Certain galleries and organizations have also voluntarily chosen to restrict exhibitions and art commissions to people who can demonstrate that they are Indians by reference to formal, legal criteria.
Finally, the invocation of legal definitions has allowed Indian people, collectively, to claim certain privileges that other minorities do not enjoy. One such privilege is the right to benefit from "Indian preference" in federal employment. More specifically, the Bureau of Indian Affairs and the Indian Health Service are permitted a bias in favor of Indian applicants. This policy has helped to ensure a significant presence of Indian employees in those government bodies that are primarily responsible for administering tribal programs.
The courts have ruled that Indian preference does not imply racial discrimination because "Indian" refers, in this context, to a political rather than to a racial status. That is, it refers to rights and obligations vis-à-vis the United States that an individual possesses not by virtue of his specific biological characteristics but by virtue of his meeting a particular set of legal criteria. (In the case of Indian preference, these criteria include being enrolled in a federally recognized tribe, showing descent from an individual who lived on a reservation in 1934, or demonstrating a blood quantum of at least one-half.)
Negotiating Individual Legal Identities
All the legal rights and protections sketched earlier offer their significant advantages only to those who can successfully claim Indianness within particular definitions of identity. However, many Indian people cannot meet the definitions of identity imposed by the federal government or even by their own tribes. (As noted before, there is no guarantee that those definitions correspond.) By what process is the legitimacy of claims to Indian identity asserted and evaluated within the definitions of law? Who is able to negotiate a legal identity and who is not? How is it that people with seemingly identical characteristics can meet with very different outcomes within legal definitions? The answers to such questions are frequently astonishing.
Let us begin with a consideration of tribal citizenship requirements in relation to the most common criterion, blood quantum. This apparently straightforward measure of Indianness runs aground quite quickly when it comes to the common phenomenon of intertribal families. Consider, for instance, the hypothetical case of a child possessing one-half Indian ancestry and one-half white ancestry, meaning that she has one parent who is exclusively white and one parent who is exclusively Indian. Her identity claim will likely get a green light from both the federal government and her tribe — so long as her Indian ancestry comes from a single tribe.
But compare her potential fortunes with those of a child whose half-Indian heritage derives from several different tribes. Let us say that this second child, in addition to her one-half white ancestry, is also one-eighth Lower Brule Sioux, one-eighth Cheyenne-Arapho, one-eighth Blackfoot, and one-eighth Turtle Mountain Chippewa. She is, like the first child, one-half Indian. But each tribe of her ancestry requires its citizens to document a one-quarter blood degree from that tribe only. From the perspective of each of her tribes, therefore, this child is ineligible for citizenship; she is simply non-Indian.
Indeed, even children of exclusively Indian ancestry can find themselves denied citizenship due to similar circumstances. The repeated intertribal marriages implied by the foregoing example of a child with fractionated blood quantum are not even necessary. A mother with exclusively Indian ancestry in one tribe and a father with exclusively Indian ancestry in another tribe can produce legally non-Indian children when the two tribes reckon descent differently. In such cases, legal criteria can tear apart families by pushing certain members off the reservation while allowing others to stay.
For instance, in 1997, an Indian Country Today article reported the following family scenario: "Mr. Montoya has lived at Santa Clara Pueblo, his mother's home, his whole life. He raised his four children at the pueblo and now has grandchildren there." But Mr. Montoya cannot be enrolled at Santa Clara because, since 1939, the pueblo has operated by a tribal law that allows for enrollment only on the basis of paternal descent — and his father was not from Santa Clara but from the nearby Isleta Pueblo. Montoya has inherited rights to his mother's property in Santa Clara, but his ability to exercise those rights remains uncertain.
Families in the Montoyas' situation sometimes cannot tolerate the tenuousness of their position and choose to abandon the community, their relatives, and their intimate participation in the culture in which they were born and raised. And in some cases family dissolution by legal definition has occurred by force; that is, mixed-race children have been actively expelled from the reservation, even though the children had been living there under the care of a relative enrolled in the tribe.
Excerpted from Real Indians by Eva Marie Garroutte. Copyright © 2003 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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