Or, Blood Quantum:
Native America’s Dirty Little Secret
By Jim PathFinder Ewing (Nvnehi Awatisgi)
THE KNOT
In Greek mythology, the king of Phrygia had the pole of his wagon fastened to the yoke with a knot that defied efforts to untie it. An oracle stated that he who untied this Gordian knot would rule Asia. According to legend, many tried to unravel the knot to no avail until Alexander The Great simply pulled his sword and cut the knot, going on to fulfill the prophecy.
American Indians and Native American Spirituality are caught in a Gordian knot that began before America’s colonization, tightened with the founding of this country and exists to this day.
Bound within it like interlocking links of chain are the issues of sovereignty, tribal recognition, blood quantum and, at its heart, the free exercise of religion. If this knot is not unraveled, the chains unbound, American Indians and those who follow traditional teachings will never be able to freely exercise their religion. The future is one of increasing restrictions, deepening divisions and, ultimately, the death of Native America.
Those who practice Native American spiritual beliefs are guaranteed free expression of their religion under the U.S. Constitution, under First Amendment rights, but this does not mean there aren’t considerable barriers placed in their way to make those rights in many ways almost meaningless.
THE ROAD TO RIGHTS
Freedom of expression is undeniably guaranteed both as a First Amendment issue and under specific federal statutes, regulations and executive orders. Many Americans don’t realize this was not always the case. Until 1978, American Indians on reservations had no religious rights and were specifically barred from practicing traditional ceremonies. These efforts were driven by fear of uprisings by Native populations, most notably epitomized by the massacre at Wounded Knee, Dec. 29, 1890, when Lakota men, women and children were gunned down while gathering for a Ghost Dance, a spiritual practice.
Historically, the federal government sought to eradicate all forms of traditional spiritual practice and belief on reservations through use of boarding schools (separating children from parents), prohibiting use of Native languages, and making gatherings for ceremonial purposes illegal. The expressed intent was to “civilize” Native peoples; a policy begun under treaties well before The Trail of Tears forced removal marches in the 1830s with Cherokee and other Eastern tribes. The result was a sustained federal policy of social and cultural annihilation.
The justification for this denial of religious freedom, inexplicably enough, was that Native peoples were sovereign nations by treaty and not granted the freedoms that American “citizens” claimed as fundamental rights. Under “sovereignty,” the U.S. government occupied the reservations, kept control of the populations through military might, imposed arbitrary civil orders and prevented them from exercising freedoms guaranteed Americans under the U.S. Constitution, including the First Amendment freedom of religion that is bedrock to the Bill of Rights.
This changed in 1978 with The American Indian Religious Freedom Act, and subsequent amendment.
It states, that, by act of Congress, Aug. 11, 1978 (U.S. Code, Title 42, Chapter 21, Subchapter I, 1996) it is “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise {their} traditional religions . . . . including but not limited to . . . . use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” See:
www.cr.nps.gov/local-law/...lFreAct.pdf Flowing from the right to worship freely is the recognition that sacred sites, lands taken and/or controlled by the federal government that are traditionally held holy by Native Americans, should not be barred from access. This also includes objects, artifacts and human remains.
From this consideration, more legislation was passed, including:
-- Native American Graves Protection and Repatriation Act -- 104 STAT. 3048 Public Law 101-601 -- NOV. 16, 1990 (
www.cr.nps.gov/nagpra/MAN...1etseq.htm) -- Archaeological Resources Protection Act of 1979 -- Public Law 96-95; 16 U.S.C. 470aa-mm (
www.cr.nps.gov/local-law/FH...srcsProt.pdf) -- Various executive orders, including Executive Order 13007, May 24, 1996, designating “Sacred Sites.”
INTERNATIONAL LAW
The statutes, orders and rules issued by Congress, presidents and federal rule-making bodies give specific directions and remedies so Native Americans have recourse to government to ensure religious freedoms. Religious freedom is also well grounded in international law, with the United States a signatory to more than a dozen conventions.
They include:
-- Draft United Nations Declaration on the Rights of Indigenous Peoples (UN 1994) Article 13: "Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains.”
-- Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN 1981)
Article 1(1): “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in pubic or in private, to manifest his religion or belief in worship, observance, practice and teaching.”
Article 1(2): “No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.”
Article 4(1): “All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief.”
BLOOD QUANTUM
As the international conventions and agreements amply outline, religious freedom is to be broadly interpreted and fundamentally ensured. As a signatory to these agreements, with its promulgation and support of democracy in the world, as well as its pronouncements of adherence to constitutional mandates, the United States would seem to be a premier international champion of religious rights and foremost in ensuring them. Yet, such is not the case, at least when it comes to Native American Spirituality upon these shores. Where the United States falls short is intrinsically woven in its very history with Native Americans from the start.
Most federal policies directing efforts to ensure religious rights are confined to lists of federally recognized tribes, which specify blood quantum for federal recognition.
This poses several dilemmas. First, if a tribe’s authorization is removed by the Bureau of Indian Affairs (BIA) for whatever reason, members of that tribe are no longer covered by federal rules and regulations protecting their religious rights. Second, even if members of a tribe are historically and demonstrably members of a tribe, the tribe itself determines membership according to federally prescribed guidelines on blood quantum. In recent years, tribes increasingly have tightened blood quantum restrictions as a result of casino revenues, delisting even longstanding tribal members. Third, if an individual is denied tribal enrollment for blood quantum reasons, that person is no longer recognized as “Native American” under federal law and, hence, no longer falls within the scope of federal authority and protection of religious rights as specifically defined for Native Americans.
If, for example, a tribe requires one-quarter blood through genealogy to be an enrolled member, what happens to succeeding generations of descendents? They automatically are disenfranchised, are no longer considered “Native American” as defined by law, and therefore are no longer covered by the statutes, regulations and acts passed by Congress to ensure their rights.
CRAZY SYSTEM
How crazy is this blood-quantum system when used to determine federally recognized tribes?
As one example: "The Osage Nation of Oklahoma has just four members -- all older than 96 -- who are recognized by the federal government. More than 20,000 Osage descendants in several states, including Kansas, Oklahoma, Arizona, California, Colorado, New Mexico and Texas, aren't. A 1906 law gave all those on the rolls before June 30, 1907, a portion called a headright. Those 2,229 people are the only federally recognized members of the Osage Nation. Those members have about 4,000 descendants, 3,000 of whom have voting rights in what is similar to a corporation with shareholders. Only when a person inherits a headright or a portion of a headright does he or she have voting rights. However, those rights don't make those descendants members." (See:
www.americanindiansource.com)
Even now, varying from tribe to tribe, there are such anomalies as a non-tribal woman having certain privileges, such as healthcare, while carrying a tribal member’s child, but none before or after the baby is born. The baby will have tribal privileges after it is born if blood-quantum is sufficient.
While some point to the fact that there are over 500 BIA tribes, many if not most are composed of few members; plus, federal recognition is constantly changing. Even traditional, long-standing historic tribes (such as the Delaware, which was the first tribe to sign a treaty with the newly formed United States) have had their recognition removed, for various reasons, leaving their descendents in a quandary.
Lawsuits involving recognition and the revocation of recognition are constant and unrelenting, leading to tribes to care more about BIA rules (to keep federal dollars flowing) than their “sovereignty.”
CASINO CULTURE CLASH
Casinos have accelerated the dis-enrollments, with tribes tightening blood-quantum requirements so that fewer people share more of the profits, even if hundreds of members, even elderly and long-standing families, are summarily wiped off the rolls. Not only are these people no longer eligible for federal protections, but they are no longer legally “Native American.” With casinos, in addition, the imposition of non-traditional ways of thinking and alien social structure are as damaging as the federally imposed tribal government system itself.
Traditional ways are inclusive, the tribe and family first, care of the elderly, women and children. With casinos, greed comes foremost: inequality of the distribution of resources, every one for him or herself first, profits rule, and with it comes graft with government (such as the Abramoff scandal), influence-peddling, cronyism. Whereas the traditional tribal structure (throughout time, among all groups, bands, tribes) has been communal with "giveaway" and shared decision-making, the casino culture promotes separation, fracturing of families, promotion of self-interest and favoritism on reservations that already are fragmented and rife with social ills. Whereas traditional tribal communities were spirit-based, with leaders chosen for the wisdom and the retention of practices favorable to keeping communities together, inclusive and healthy for generations to come, with spiritual values at their core, the modern reservation/casino culture promotes only material values that are, at heart, the worst of short-sighted Western culture.
FEDERALLY IMPOSED ‘BIA TRIBES’
Adding to the confusion is what constitutes a "tribe" legally. Most "tribes" today are a lumping together of bands, in some cases, even separate groups that had warred against each other. Tribal governments reflect federal requirements, not traditional practices either in selection of leaders or administration.
In effect, they are BIA-Tribes, that is, groups of individuals who hold a federal franchise on a legally recognized status designated as a Tribe for legal purposes, defined by treaty, and overseen and held to rules of accountability outlined by the BIA.
In 1978, the BIA enacted administrative procedures governing the administrative process for federal acknowledgment (Title 25 of the Code of Federal Regulations, Part 83) of what it would consider to be a “tribe.”
From 1935 to 1974, the BIA determined tribal existence based on one or more criteria: a) had treaty relations with the U.S.; b) had been denominated a tribe by act of Congress or executive order; c) had been treated as having collective rights in tribal lands or funds; d) had been treated by a tribe or band by other tribes; or e) had exercised political authority over its members through a tribal council or other governmental forms.
The 1978 regulations set seven criteria:
1. The tribe has been identified by reliable external sources on a substantially continuous basis as an Indian entity since 1900.
2. The tribe has maintained a continuous community from historical times to the present day.
3. The tribe has maintained political authority or influence over its members on a substantially continuous basis from historical times until the present day; and
4. Has a governing document which it must submit, or if it does not have a formal governing document, a statement describing its government operations and membership criteria over its affairs and members; and
5. The current members of the tribe, as a whole, descend from a historic tribe or tribes that amalgamated; and
6. Tribal members are not principally members of an already recognized tribe; and
7. The tribe was not terminated by legislation.
This has led to a proliferation of "tribes," but not to what constitutes an American Indian other than defined by BIA-Tribe rules or offering any protection for non-tribal Indians (people of Native descent who have no federal BIA-Tribe affiliation; for example, people who have left the reservation or family group and cut ties for a generation or more; or married outside the tribe and skipped a generation; or cannot document their genealogy). For these individuals, even if practicing Native American Spirituality, and "Indian," by belief, custom, or origin, there is no specific legal protection. The guarantee of religious freedom is not specified and falls under general laws and First Amendment freedoms. While that should be enough to guarantee freedom of expression, in practice it has proven problematic, which led to (among other discrepancies) a move over a decade ago to the writing of the Native American Free Exercise of Religion Act of 1993.
MORE:
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