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TRIBAL ALERT!
BIA PROPOSED RULE ON
CERTIFICATES OF DEGREE OF INDIAN BLOOD
October 17, 2000
The Bureau of Indian Affairs
recently published in the Federal Register a proposed rule that establishes
the documentation requirements and standards for filing, processing, and
issuing a Certificate of Degree of Indian Blood ("CDIB"). See
65
FR 20775-20787 (April 18, 2000). The proposed rule sets forth the policies
and standards that will allow the Bureau to issue, amend, or invalidate CDIBs.
The deadline for comments on the proposed rule is July 17, 2000.
We are concerned that the Bureau
has not scheduled a consultation session on the proposed rule in California
where it may, in fact, have its greatest impact. This appears to be a
consistent pattern on the Bureau’s behalf. California tribes are continually
placed in the position of either going out of state to comment on proposed
Bureau rules, or demanding that a separate consultation be conducted within
California.
CILS urges all California Tribal
Leaders to address this issue immediately. We have provided our clients with a
sample letter to the Bureau requesting that it conduct a separate consultation
session in California. Please send the letter as soon as possible. If you have
not received a copy of that letter and would like to receive one, please call
(800) 829-0284, Ext. 312, and leave your name and mailing address or fax
number. If you need further information on the proposed rule or assistance in
preparing comments, please contact your local CILS office.
Preliminary Analysis of
Proposed Rule
Based on our initial review
of the proposed rule, it appears that the Bureau intends
to use this rule as a means of limiting access to federal Indian programs and
services to only those Indians who possess the blood of federally recognized
tribes where some degree of Indian blood is either a stated or implied
requirement of program eligibility. Our initial concern is that adoption of
such a rule could result in many California Indians being treated as
non-Indians for federal purposes and is an indirect way of restricting
eligibility for federal Indian programs and services and therefore the
Bureau’s Indian service population in California.
We intend to conduct a more
searching analysis of the proposed rule and its implications for California
Indians and tribes and to submit comprehensive comments in response to the
proposed rule. In the meantime, the following is a brief summary of our
initial thoughts about the major issues raised by the proposed rule.
The Bureau appears to be using
the proposed rule as a means to unilaterally "amend" both federal
statutory and regulatory provisions without congressional oversight or formal
rulemaking with respect to specific programs and services.
The eligibility requirements for
a number of federal Indian programs are based on statutes or regulations
that include a stated degree of Indian blood (e.g., 25 CFR §40.1 – Higher
Education Grants, which has a one-quarter Indian blood quantum requirement;
Section 19 of the Indian Reorganization Act ("IRA"), 25 U.S.C. §
479 – "persons of one-half or more Indian blood") or imply that
some degree of Indian blood is required (e.g., the Snyder Act, 25 U.S.C. §13
– "Indians throughout the United States"; 25 U.S.C. §334 –
Allotment of public domain land to "any Indian not residing upon a
reservation"). In the past, the Bureau’s calculation of Indian blood
for purposes of Snyder Act programs, the IRA, the Allotment Act and other
purposes, was based on blood derived from both federally recognized and
non-federally recognized tribes. The proposed rule, which authorizes the
Bureau to "issue, amend, or invalidate" CDIBs, would allow the
Bureau to recalculate Indian blood degree based solely on the blood of
federally recognized tribes and effectively determine that individuals who
were Indians yesterday are no longer considered Indians for federal
purposes.
The Bureau’s recalculation of
the blood quantum of members of federally recognized tribes could raise
questions about the eligibility of such persons for tribal membership if the
recalculated blood quantum falls below the minimum tribal blood quantum
requirement.
A number of California Indian
tribes rely on the Bureau’s calculation of Indian blood degree in
determining eligibility for tribal membership. In some cases, the Indian
blood degree requirement for tribal membership (whether it be in a tribal
constitution or ordinance) may not specify whether the blood must be that of
a federally recognized tribe). As mentioned above, the Bureau’s Indian
blood quantum calculation underlying such determinations of membership may
well include Indian blood derived from both federally recognized and
non-federally recognized tribes. The likelihood of this is probably higher
in California than elsewhere because of the large number of non-federally
recognized tribes (both terminated and unacknowledged tribes) in California.
If the proposed rule is adopted, the Bureau’s recalculation of Indian
blood quantum could raise questions about the eligibility of such
individuals for tribal membership if the recalculated blood quantum falls
below the minimum tribal blood quantum requirement. Although the Bureau’s
calculation would not be binding on the tribe in determining tribal
membership, it could jeopardize the membership status of such individuals
and their lineal descendants.
The proposed rule attempts to
restrict the scope of the United States’ trust obligations to Indian people
to only those individuals who possess the blood of a federally recognized
tribe in violation of numerous federal statutes and regulations, as well as
the Bureau’s own policies and practices.
The Allotment Act, the Snyder
Act, the Indian Reorganization Act, and other federal statutes and
regulations spanning more than a century, as well as the Bureau’s own
policies and practices, confirm that the trust obligations of the United
States to Indian people are not restricted to members of federally
recognized tribes. Notwithstanding these authorities, the Bureau has used
its administrative authority in the area of Indian affairs to
"reinterpret" these authorities and effectively disenfranchise
Indians who are not members of federally recognized tribes. The most
disturbing aspect of this major shift in Bureau policy is that much of it
has been accomplished through indirect means that attract little or no
congressional scrutiny or tribal opposition because the real issue – the
scope of the United States’ trust obligation to Indian people, especially
as to Indians who are not "federally recognized" – is never
dealt with in a direct, forthright manner. Instead, the Bureau has used
methods, such as this proposed rule on CDIB, to indirectly resolve the issue
without specifically addressing it.
By restricting the CDIB to the
blood of federally recognized tribes, the proposed rule will serve to
perpetuate the Bureau’s underfunding of Indian programs and services in
California.
Because of the unique history of
Federal-Indian relations in California, many California Indians are not
members and do not possess the blood of those tribes that the Bureau lists
as federally-recognized. This unique history includes the unratified
treaties and dispossession of California tribes of their aboriginal
homelands; the widespread use of public domain allotments as a
"substitute" for tribal homelands; the acquisition of tribal trust
lands ("rancherias") for "homeless California Indians";
the termination of the rancherias under the Rancheria Act; the subsequent
restoration of the federally recognized status of many of the affected
tribes and their members; and the use of a plaintiff class consisting of the
"Indians of California" in the California Indian Claims cases.
These historical events spawned federal laws, policies, and internal Bureau
practices that shaped and determined the contours of the Federal
Government’s dealings with the California Indians. All too often these
authorities have blurred and confused issues of tribal and individual Indian
status in California. For years the California tribes (both federally
recognized and non-federally recognized) have contended that the Bureau
significantly undercounts its service population in California because it
excludes California Indians who are rightfully included within the scope of
the Bureau’s trust obligations, including California Indians who meet the
broad definition of "California Indian" in 25 U.S.C. §1679, which
defines those Indians who are eligible for Indian health care benefits. See
also, Malone v. Bureau of Indian Affairs, 38 F.3d 433 (9th
Cir. 1994). By restricting the CDIB to the blood of federally recognized
tribes, the Bureau is taking the position that it can ignore any Indian
blood derived from a California tribe that is not federally recognized for
purposes of determining the eligibility of individuals for federal Indian
programs and services based upon their status as American Indians or Alaskan
Natives. This position, if unchallenged, will serve to perpetuate the
Bureau’s underfunding of Indian programs and services in California by
illegally restricting the numbers of Indians included in the California
Indian service population.
The proposed rule ignores the
findings and recommendations of the Advisory Council on California Indian
Policy regarding the need for a uniform definition of "California
Indian" for purposes of determining eligibility for federal Indian
programs and services.
The Advisory Council on
California Indian Policy Act of 1992, Pub. L. 102-416 (October 4, 1992), as
amended by P.L. 104-109 (February 12, 1996), established a statewide Indian
Council consisting of representatives of California’s federally
recognized, terminated and unacknowledged tribes. Section 5(3) of the Act
specifically directed the Council to conduct a comprehensive study of the
social, economic, and political status of California Indians; the
effectiveness of those policies and programs of the United States that
affect California Indians; and the services and facilities being provided to
California Indian Tribes, compared to those being provided to Indian tribes
nationwide. The Advisory Council submitted its reports to Congress in
September 1997, including recommendations related to the status and
eligibility of California Indians for federal Indian programs and services.
The Advisory Council recommended that the Bureau adopt the definition of
"California Indian" used by the Indian Health Service (25 U.S.C.
§ 1679). That definition includes California Indians whose Indian blood
quantum is derived exclusively from non-federally recognized California
tribes and California Indians whose Indian blood quantum is derived from
both federally recognized and non-federally recognized California tribes,
but who are not members of a federally recognized tribe. Adoption of the
proposed rule may result in many of these Indians being considered
non-Indians for purposes of those Indian programs and services administered
by the Bureau, in clear contradiction of the Advisory Council’s
recommendations to Congress and the Secretary of the Interior.
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