Walk into any law library in this country and peruse the wall of US Code, that record of Congressional statutes, and among the 51 volumes there you will find titles such as The Congress, Agriculture, Railroads, Minerals and Mining, War and National Defense – all subjects common and particular enough to the US that no one would think twice about their presence. But among these volumes you will also find one titled “Indians” – Title 25 to be exact. A second perusal of the wall of Congressional law should be enough to show you that no other group of people in this country have been made distinct by a completely separate set of laws. I still remember the first time, sitting in a sweat, just before the door closed and we ascended into darkness, someone said, “No one is more regulated than us Indians.”
There is a checklist that determines whether or not you are to be considered an Indian in the eyes of the federal government. In descending order of importance, they include whether or not you are an enrolled member of a tribe, services received that are made available only to Indians, reception of benefits available only through tribal affiliation, social recognition through residence on a reservation, and social recognition via participation in Indian social life. Just to simplify, here are a few practical examples of what those checklist items do or could refer to, in descending order of course: do you meet blood quantum requirements for your respective tribe, have you ever received services from Indian Health Service, have you ever received a per-capita check from a tribe, are you recognized as being an Indian by a reservation community while living on that reservation, and have you participated in ceremonies on that reservation. If you said yes to any of these questions, then you just might be an Indian.
The phrase “descending order” is more important than it might seem at first glance. For example, say Joe Harrison from Kalispell, Montana, who has no tribal ancestry, has helped put up sun dance lodges on the Rosebud Reservation in South Dakota. While that means he meets the criteria for the last item on the checklist, that doesn’t mean he’s an Indian in the eyes of law. Let’s say, however, that Joe has lived on the Rosebud Reservation his whole life. And let’s say he’s generally accepted as a member of the community – he’s grown up there, his friends are Lakota, he uses English the way Lakota from that part of the world use English. And let’s say he participates in Lakota ceremonies there. But wait – just to point out how strange this problem of legally defining an Indian can get, and just how antithetical the law can be to local, cultural definitions of belonging, let’s say Joe speaks Lakota. He grew up next door to a friend whose grandpa is a fluent speaker, and Joe learned the language from him. Despite the fact that Joe has pale skin, and blonde hair, and blue eyes, it would still be very difficult for anyone with any intelligence to say he was not, for all intents and purposes, Lakota. But because Joe has no Lakota ancestry, aka he has no so-called Indian blood quantum, in the eyes of the law Joe is simply an American citizen who happens to live on the reservation. So let’s change this up again: Say Joe does have tribal ancestry. Say he is everything we already said he was, the blue eyes and the blonde hair and everything. But let’s also say he’s an enrolled tribal member, that is, he meets his tribe’s blood quantum requirements. We’ll ignore for now that blood quantum is based on 19th century European racial theory, a theory that was developed in large part to justify the mistreatment – to put it lightly – of indigenous peoples around the globe.
We’ll also ignore for now the fact that blood quantum has no basis in any kind of contemporary scientific reality. What matters right now is that Joe is enrolled, which means legally he is considered an Indian in the eyes of the federal government, and all the benefits and complications and woes of being recognized as such are available to him. This also means, for what it’s worth, he can vote in tribal elections – something an unenrolled Indian can’t do. Now let’s shift again - let’s say Joe’s lived in Seattle his whole life, and is an enrolled member of a tribe in Montana. But let’s also say the only criteria he meets on the above list are that of being enrolled, and that of having received tribal benefit, such as a per-capita check from a tribal casino. And for the purposes of this illustration, we’ll say he not only has no relationship to the reservation where he’s enrolled – he’s never been there, and has no plans of ever doing so. But in the eyes of the law, Joe is a legal Indian despite having nothing to do with the tribe that act as the foundation for his legal identity. Now let’s imagine one last scenario: Let’s say Joe meets every criteria but that of being an enrolled member. He lives on the reservation, he is accepted by and participates in community life, and maybe he’s even received certain benefits that are available to unenrolled tribal members who live there. But here’s the catch – because he is not enrolled, he cannot vote, making him and others like him the only US born citizens who can’t participate in their local political process. Joe in this last scenario, from a legal standpoint, is a quasi-Indian at best, and unless he commits one of 13 major crimes that fall under federal jurisdiction on reservations, he’s never really going to be an Indian, not legally, not according to the federal government and usually the state.
But if he does commit one of those crimes, say, for example, he murders someone, or commits arson – then the federal government will be more than happy to try him in federal court as an Indian. It might seem like a extreme course of action to finally be seen as what you’ve always been, but, you know, a guy’s gotta do what a guy’s gotta do.
I’m Sterling HolyWhiteMountain, thanks for listening.