Who is an ‘Indian’ is a complicated question

I have friends, members of the Navajo Nation, who object to being called “Indians”, preferring the term “Native Americans.”

They say they didn’t come from the Indian subcontinent, neither did their ancestors, and consequently believe there is no need for them to buy into a designation based on Chris Columbus’ hopelessly muddled sense of direction. I completely agree, but as a lawyer practicing in Indian Country, I have no choice but to use the term that has been embedded in the laws of the United States for more than 200 years and which has huge legal significance.

The term “Indian” appears in the Articles of Confederation, the governing document that preceded the Constitution. The Constitution includes the “Indian Commerce Clause,” a provision giving the United States power to regulate commerce with Indian tribes and which is still the source of much of Congress’ power over Indian affairs. Title 25 of the United States Code contains most of the federal laws concerning Indians and, to this day, those laws always use the term “Indian” when referring to Native Americans. The two key federal agencies dealing with Native American issues are the Bureau of Indian Affairs (BIA) and the Indian Health Service.

In short, “Indian” is what is called a legal “term of art,” that is, a term that has a specific meaning in the field of Indian law. But what does it mean, in a strictly legal sense, to be an Indian?

Many times over the course of my career, I have heard someone say that they are an Indian because of a family history that there is an Indian ancestor (often Cherokee) in their bloodline. Nice stories, but it doesn’t make the storyteller an Indian. To be an Indian, a person must be an enrolled member of a federally-recognized Indian tribe. There are two issues here: First, is the person enrolled in a tribe; second, is it a federally-recognized Indian tribe?

The United States publishes a list (in the Federal Register) of all the tribes it has legally recognized. Some tribes are not on the list. The United States has a complicated process for the unrecognized tribes to become federally-recognized and added to the list. It doesn’t matter whether your are genetically or culturally 100 percent Native American, if you’re tribe isn’t on the federal government’s list, you’re not legally an Indian.

The same is true of membership; if you’re not enrolled in a tribe then you’re not legally an Indian. Tribes control their own rules for membership; they are not dictated by the United States. Many tribes require that to be a member, a person must have at least one quarter Indian blood, that is, from a person who was also legally an Indian. Some tribes, such as the Oklahoma Cherokees, don’t have a blood quantum requirement, but only require that a person show descent from a tribal member who was on the Cherokee tribal rolls in the early 20th Century. Many Native Americans have a document issued by the BIA called a Certificate of Degree of Indian Blood, or CDIB, which states their blood quantum inherited from enrolled Indians, although having a CDIB does not mean that the individual is enrolled and legally an Indian.

These rules can have strange results. I recently received a high school graduation announcement for a young Navajo woman who used to play with my son when the two of them were about 3 years old. Her mother, an attorney colleague of mine, is half Navajo and half northern European, so the daughter inherited one-quarter degree Navajo blood, making her eligible for enrollment in the Navajo tribe. But the daughter is actually, genetically 75 percent Native American and culturally 100 percent Native American. Her father is a descendent of Lakota people who escaped to Canada after the Little Big Horn battle and lived with First Nations people. Because the father, who is genetically 100 percent Lakota, is not enrolled in any federally recognized tribe, he is legally not an Indian and his blood quantum is not counted toward determining whether his daughter is legally an Indian. I have often pondered what would happen if this young woman married a person who was genetically 100 percent Native American but not enrolled, or eligible for enrollment, in a federally recognized Indian tribe. Her children could be genetically nearly 100 percent Native American and culturally 100 percent Native American, but would not legally be Indians.

These aren’t just issues of semantics. If a person wants to receive the services and benefits that the United States supplies to Native Americans, with a few minor exceptions, they have to be an Indian. The protections that federal law extends to Native Americans also often depend on whether a person is legally an Indian.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.