Native American Ancestry: Family Lore, Oral Swabs, and Enrollment Cards

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By Mark Vezzola, CILS Escondido office Directing Attorney

Have you ever heard someone claim their great-grandmother was a Cherokee princess? Or that their ancestors include the Lakota holy man Sitting Bull? Until recently, most of what people knew about their family history came from older relatives, maybe even old photos and letters. Today, anyone with internet access and a credit card can get a DNA test, submit an oral swab, and presto – almost instantly, they get the location of their family’s origins, percentages by region or group, and with some services, even the names of extended relatives and known genetic abnormalities that run in the family.

Native American ancestry seems to get special attention from people who take the 23andMe and Ancestry.com tests. While they do not distinguish between North and South America or reference particular tribes (which are political bodies and not family groups sharing genetic markers), people sometimes are surprised to learn they have Native American roots. Beyond making for interesting cocktail party conversation (remember when we had parties during pre-COVID times?), this information can fill in gaps in family trees that were often overlooked or deliberately concealed out of fear of stigma and/or discrimination.

But does Native American ancestry get a person anything tangible, like a share of profits from an Indian casino? The answer is, it depends. Learning you have Indian ancestry can be the first step in forming a connection to a Native American Tribe or community. Most tribes require more to enroll as a member (which is similar to citizenship), such as a minimum amount of Tribal or Indian blood or a family tree showing lineal descent from a Tribal member. While Indian ancestry by itself does not guarantee formal Tribal enrollment, it can help a person seeking a political status that can unlock healthcare benefits, Tribal voting rights, job and scholarship opportunities, and more.

Keep in mind that individuals can be descended from and/or have connections to more than one tribe. Some tribes contain multiple bands, regions, or districts, such as the Minnesota Chippewa Tribe, which is made up of six distinct bands, including Leech Lake and Mille Lacs. Cultural groups like the Kumeyaay occupy both sides of the U.S.-Mexico border. Several sovereign tribal Kumeyaay nations recognized by the United States government, like the Sycuan Band of the Kumeyaay Nation and the Jamul Indian Village, have reservations in southeastern San Diego County. Kumeyaay villages previously existed in the Mexican municipalities of Ensenada and Mexicali were where their descendants live today.

CILS does not represent individuals seeking to enroll in Native American tribes. Tribes, which are sovereign nations, have the sovereign power to determine membership criteria and approve or deny enrollment applications. When people call CILS with questions about Native American ancestry, we provide general information about the potential benefits of formal enrollment in a tribe, contact information for the tribe(s) the caller believes s/he/they descend from, and a disclaimer that Tribes rarely if ever charge a fee to enroll. CILS is aware of some “Tribes” that advertise membership for a hefty fee and tout all sorts of empty benefits. We encourage anyone interested in Tribal enrollment to contact the Tribe directly to do more research on the requirements.

CILS Brackeen News Flash

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On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

However, per our preliminary review, a majority of the Fifth Circuit found three portions of the ICWA unconstitutional under the anticommandeering doctrine:

  • 25 USC 1912(d) – active efforts requirement as applied to state agencies;
  • 25 USC 1912(e) and (f) – testimony of a qualified expert witness; and,
  • 25 USC 1915(e) – placement record-keeping requirements.

The anticommandeering doctrine, which springs from the Tenth Amendment, says that the federal government cannot make states adopt federal laws as their own nor enforce those laws.  It’s important to remember that in states like California, which have codified the ICWA into state law; the anticommandeering doctrine cannot be used to invalidate state law because it only addresses the compulsory adoption and enforcement of federal laws.

Flowing from the anticommandeering holdings, the Fifth Circuit also held certain related portions of the BIA’s 2016 ICWA regulations to be invalid.  California has already incorporated those regulations into state law (as of 2019 via AB 3176), so ICWA cases here will be unaffected for the same reasons as above.

There is a strong likelihood that one or both parties will ask for a review by the U.S. Supreme Court.  The Supreme Court accepts very few of the many petitions for review it receives, although the chances of it granting certiorari do increase with the creation of a split amongst the federal appellate courts, as the Brackeen decision does.

It is worth noting the lead portion of the decision calls out the fact that the states challenging the ICWA’s constitutionality (Texas, Louisiana, Indiana, and Ohio with its amicus brief) are home to only a tiny fraction of the nation’s Indian tribes and citizens, while the 26 states who came out in favor of the law, including California, are home to a vast majority of both.

Again, CILS will have further analysis to offer as we work our way through this lengthy decision.  We will continue to monitor the case if a review is sought and will continue to be watchful for attempts to push anti-ICWA arguments in California.

Stay safe!