Tribal Sovereignty and Enrollment Determinations
By Jessica Bardill (Cherokee), PhD
Identity is a sensitive issue that plays out at individual, family, and community levels. In American Indian and Alaska Native contexts, identity can be complicated by issues related to tribal recognition and tribal membership or enrollment. Tribes have diverse stances on how to determine membership and enrollment. This issue can be both politically and emotionally challenging. Traditionally, tribal membership was determined through systems of kinship, clan, and even adoption. The members of the communities understood those who belonged to their tribe through language, behavior, and cultural expressions. Whether the result of warfare, orphaning, marriage, or other social transaction, adoption allowed individuals to find belonging in a tribe or clan, many times not the one into which they were born. Matrilineal tribes passed the clan and source of belonging through the mother. Patrilineal tribes passed the clan and source of belonging through the father. In some cases, this meant a child would belong as a member in two tribes – that of his mother and that of his father if they were of these differently organized tribes. Even after contact, unions between tribal members and settlers occurred to build alliances and coalitions, similar to how and why they had been occurring between tribes. The traditional ways of determining membership were quite diverse and reflected the values of the community.
The context of tribal membership has changed over time for a variety of reasons, including the political status of American Indians and Alaska Natives in the United States; historical federal policies designed to dismantle intergenerational relationships based on land and place; increased mobility and migration of tribal members; and the availability of new technologies that provide new information about biological relationships and genetic ancestry. Enrollment in American Indian nations sets up particular rights and responsibilities of the citizen that may or may not require regular participation in tribal activities or even residence on tribal lands. The context of tribal enrollment also involves the distinct political status of American Indian and Alaska Native peoples. Tribes are sovereign nations and are mentioned as such in the US Constitution. Today, individuals may seek tribal enrollment to form a connection with their tribe, or to obtain access to benefits of tribal enrollment, such as health services or educational and training opportunities. These resources could also be reasons why tribes seek to restrict their enrollment through various kinds of criteria.
Tribes have the inherent and sovereign right to determine their own membership using their own criteria. This right enables tribes to consider whether DNA testing is an appropriate tool for determining tribal enrollment. The ability to determine tribal membership criteria is a right held by all Indigenous peoples throughout the world. The United Nations Declaration of the Rights of Indigenous Peoples, puts this forward as a principle, stating specifically in Article 33 that:
- Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
- Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
The U.S. signed this Declaration in 2010 after initially voting against it, and while the Declaration does not create any explicit rights, it presents principles from a collective of nations and Indigenous peoples. This quoted principle states that tribal nations have the right to use the methods they feel reflect their traditions and values, such as different ways the tribe may have of defining family, kinship, membership, and responsibility that may be more fluid than scientific methods can demonstrate. Another important function of the UNDRIP principle above is that it reinforces a longstanding principle of federal law that tribes have the right to determine their own membership. Within the United States, this sovereign right is encoded within the Code of Federal Regulations (CFR) and within the courts.
While tribal sovereignty enables tribes to determine their own membership, in most cases and particularly for tribes applying for recognition, the Bureau of Indian Affairs (BIA) maintains a role of review for those requirements through the CFR. The CFR – Title 25 – Indians (83.7) describes the BIA’s review of tribes seeking federal recognition, including a review of the tribe’s membership requirements. The CFR places particular limits and expectations upon newly recognized and many reorganized tribes. The CFR requires those tribes seeking recognition to provide a “governing document including [the tribe’s] membership criteria” and “an official membership list” in the petition. The CFR allows various kinds of “acceptable” evidence for this item; however, most acceptable forms of evidence involve a documented listing of members, historical or current, generated from outside of the tribe such as “Rolls prepared by the Secretary [of the BIA]” or “State, Federal, or other official records.” One kind of evidence allowed though is that of “affidavits of recognition by tribal elders, leaders, or the tribal governing body.” These affidavits are also for creating a membership list, but they come from within the tribe. This particular “acceptable evidence,” as well as making amendments to constitutions and other governing documents, provide ways in which a tribe might enact changes in membership requirements to support their current decisions about who should be a member.
In sum, tribes have their own ways of determining their membership. However, the federal government of the United States and specific states also maintain their own various definitions of who is an Indian and therefore eligible for certain services, such as the historical allotment process of the Dawes Act or separate tribal schools. Further, enrollment within the tribe is used for determinations of eligibility for other federal services, such as access to healthcare at the Indian Health Services (IHS).
Enrollment in a nation is a very complicated issue, and there are many considerations that go into enrollment criteria. One size does not fit all for enrollment requirements. This section provides a broad overview of different ways tribal nations determine their membership. Some possible questions to consider about tribal enrollment determination include:
- What value does each tribal enrollment requirement represent?
- What are the positive aspects of the tribal enrollment requirement?
- What are the challenges?
Throughout the world, citizenship is used by nations to mark who belongs and who does not. Certain common criteria are used more often. For example, jus soli refers to the use of birthplace or residence to establish citizenship, and jus sanguinis refers to the use of bloodline or birthright to establish citizenship. Marital status and expanded notions of residence, such as living in traditional homelands, can also play a part in determinations of citizenship or extensions of naturalized citizenship. Many nations also use naturalization, which is a process to extend citizenship to individuals who are currently citizens of other nations. Naturalization criteria use different combinations of requirements, including place of residence, knowledge of the nation’s history and/or language, loyalty oath, sufficient income, good character, absence of criminal convictions, and renunciation of prior citizenship in another nation. Some tribes require renunciation of other tribal citizenships, while other tribes allow for dual or multiple citizenships. Other modes of determining citizenship include naturalization, affinity based citizenship, economic citizenship and dual citizenship.
Among tribal nations in the U.S., many different enrollment requirements exist. These criteria include blood quantum, lineal descendancy, and residency. Enrollment requirements may be viewed as reflecting particular ideas of kinship and identity, while they also confer a citizenship status that comes with legal rights. The next sections will review different types of enrollment criteria that are currently in use by tribes.
Blood quantum is a concept familiar to many throughout Indian Country and the U.S. Blood quantum is used to describe an individual by the “blood” contributions of their parents, one half from each parent, and consists of fractions ranging from 4/4 to 1/1024 and so on. For example, if your mother is half X tribe and half Z tribe, and your father is half Z tribe and half nontribal, you would be ¼ X tribe, ½ Z tribe, and ¼ nontribal. An individual’s blood quantum is calculated in this way and recorded on a Certificate Degree of Indian or Alaska Native Blood (CDIB) card. When the blood quantum is used to refer to a specific tribe, it may help to ensure a biological connection to the tribe. Blood quantum is sometimes used to refer to the proportion of Indian ancestry an individual has, rather than ancestry from any one tribe. The use of blood quantum may encourage marriage within a tribe or Indian Country. On the other hand, blood quantum requirements may not account for nontribal individuals who marry tribal members or children adopted by tribal members. As marriage outside tribes becomes more common, the use of blood quantum requirements may result in a decrease in the number of tribal members across generations.
Historically, blood quantum requirements were used by the Bureau of Indian Affairs to determine who would and would not be considered “Indian.” Today, tribes are relating to historical blood quantum requirements in different ways. For example,the Navajo Nation requires all members to prove that they have at least ¼ Navajo blood in order to become a member. (Discussion of this requirement and the legal system of the Navajo is presented by a Paul Spruhan in “The Origins, Current Status, and Future Prospects of Blood Quantum as the Definition of Membership in the Navajo Nation.” Some tribes that historically had blood quantum requirements are now considering whether to change their membership criteria. During community forums for new membership requirements on the White Earth Anishinaabe reservation of the Minnesota Chippewa Tribe, ideas for refiguring the referent of blood quantum and resetting the level of “full blood” emerged (Jill Doerfler, Ph.D. research and dissertation on the constitutional reform at White Earth). Further, the Ysleta del Sur Pueblo is now attempting to remove blood quantum as a requirement in their enrollment decisions because this requirement was imposed by the BIA and they feel it does not help determine who belongs within the tribal community.
Case Study: Ysleta del Sur Pueblo
The Ysleta del Sur Pueblo of Texas and their current quest to remove congressionally mandated minimum blood quantum as a requirement in enrollment determinations provides an example of a tribe working to confirm its right to determine its own membership. While at this time, the bill (HR 1560, 112th Congress) has not yet passed the Senate, there are lessons that other tribes may find useful from the Ysleta del Sur Pueblo case regarding enrollment determinations. For example, if the Ysleta del Sur Pueblo is successful in having Congress pass the bill, that decision could pave the way for other Tribes to oppose modification of tribal membership criteria put forward by or supported by the BIA. Lieutenant Governor Carlos Hisa testified to Congress about the tribe on June 22, 2011 and noted: “A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community” (See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)). Lt. Gov. Hisa goes on to describe his community’s history with federal oversight: “In 1968, toward the end of the termination era, Congress recognized the Pueblo as an Indian tribe and transferred federal trust responsibilities for the Pueblo to the State of Texas. On August 18, 1987, the United States Congress restored the federal trust relationship between the United States and the Pueblo. In the Restoration Act, Congress imposed a 1/8 Tigua blood quantum requirement for membership.” The imposition of this requirement coming from outside of the community presents one of the largest concerns for the tribe. The 2010 Census counted 1,692 people who identified as community members. Changing the requirement could allow up to 800 more members, a 50 percent increase in their tribal population. Hisa states that this increase would reflect those who truly belong to the community:
Our young men and women are vibrant Pueblo people who are part of our community. Many aspire to serve our Pueblo, but encounter barriers to doing so because they do not meet the federally mandated blood quantum limitation to be a member. They participate in our cultural events, they study our history, they engage in community service, they learn and speak Tiwa language, and they understand the importance of carrying the traditions of our Pueblo forward. These “descendants” are a part of our community and our people recognize them as legitimate members. They are Tigua. They are our future, our hope, but they will not be able to serve as Tribal Councilmen and Councilwomen, offices that are older than the office of President of the United States. They live on our reservation and interact with our members who are their mothers, fathers, grandfathers, grandmothers, cousins, uncles, aunts, and neighbors and influence the entire community for good or for bad. They must be treated like citizens of our Pueblo, but if not included as members they will not be subject to the jurisdiction of the Pueblo. The inability to exert jurisdiction over people who are the children of many of our members has a negative social impact on our Pueblo.
This case helps in considering the following questions:
- What factors might contribute to the success, or failure, of the Pueblo’s quest to change the criteria?
- If successful in their dispute, what implications might this case have for Ysleta del Sur Pueblo, and for other tribes including your own?
Descendancy has become an increasingly popular way of determining membership for U.S. tribes. This method of membership determination traces an individual’s lineage back to an ancestor on the tribal roll. For example, in lineal descendancy, if your great grandmother is listed on a tribal membership roll, you would be eligible for membership in that same tribe because you can prove you are related to her. Lineal descendancy is tribally specific but does not necessarily have a cut-off rule for proportion of ancestry as blood quantum does. Membership rolls reflect a particular snapshot of the community at a given moment. Tracing lineage to that point in time requires attention be paid to the history of the tribe and intergroup relations, including who was and was not included in the community at the time of the roll’s completion. Reasons for exclusion from rolls include lack of involvement in the community, language use, residency, birth date and place, and race. Like blood quantum, descendancy does not expressly allow for marrying in or adoption of outsiders. The Cherokee Nation is one tribal nation using descendancy as a membership criterion. The Cherokee Nation (2011) does not require any particular amount of tribally specific or Indian blood (the sum of many Indian bloodlines), but instead “To be eligible for Cherokee Nation citizenship, individuals must provide documents connecting them to an enrolled lineal ancestor who is listed on the Dawes Roll with a blood degree. CDIB/Tribal Citizenship is traced through natural parents. In cases of adoption, CDIB/Citizenship must be proven through a biological parent to an ancestor registered on the Dawes Roll.”
Kirsty Gover finds that “Tribes are increasingly likely to use lineal descent and blood-quantum rules after 1970, in place of the parental-enrollment or residency rules that were dominant in constitutions adopted in the 1930s. Tribes are also more likely to include in their constitutions rules prohibiting multiple membership and less likely to expressly allow the incorporation of persons into the tribe via tribal adoption” and that “Seventy percent of tribal constitutions now contain a blood quantum rule, up from forty-four percent of tribes enacting constitutions before 1950” (Gover 2008-9). Gover’s study of 245 tribal constitutions revealed that currently 42% are utilizing a lineal descent rule, which is up from 15% using a lineal descent rule prior to 1940 (Gover 2011).
Previously, some tribes implemented a residency rule as a basis for tribal membership. A residency rule requires that the tribal member live within, maintain a residence, or have an allotment among the tribal lands. This criterion limits the membership to those within the community as established by a land base, who in turn help care for and maintain that land base. Following the Indian Relocation Act of 1956, many tribal constitutions removed this requirement. Relocation and modern forces of life have led many people away from their tribal homelands, and it is becoming less common for tribes to use residency as a primary membership criterion. The Cedarville Rancheria, Modoc County, Cedarville, California appears to be the only U.S. tribe that still maintains a residency requirement, in combination with a lineal descent requirement, for members. Some tribes require that the enrolled parent or parents reside on the tribal lands at the time of the applicant’s birth (Gover 2011, p. 40)
As has been seen, tribal nations use a variety of criteria in determining their membership. These tools may be used in combination as well. For example, many tribes who use descendancy may also use blood quantum defined in terms of either tribal blood or Indian blood. Others will combine parental residency requirements with descendancy. How tribes define membership and describe identity through membership requirements is still emerging. Tribal sovereignty enables tribes to have diverse and evolving ideas of tribal identity and belonging. DNA testing is one new tool that some tribes are also considering as part of their membership requirements.
 Paul Spruhan notes that blood quantum, one of the more common membership requirements, dates back at least to a 12th century English law that “distinguishes between ‘whole blood’ and ‘half blood’ relatives for purposes of inheritance.” This distinction refers to the legal status of an individual, a function similar to that of the current use of blood quantum. With colonization, blood quantum came to the Americas and colonizers used it to distinguish between peoples, particularly “mixed-race” peoples. Spruhan follows the history of Federal uses of blood quantum from Andrew Jackson in the early 1800s to the Indian Reorganization Act (IRA) of 1934. The IRA provided a way for tribes to reorganize under the Federal government in a way that secured certain rights for those tribes involved. In his work, Spruhan focuses on how legal status of Indians was determined from blood quantum. Kirsty Gover’s research on tribal constitutions continues into the era following the IRA, and after this period, to show how Indians use blood quantum, versus Spruhan’s focus on the Federal uses. Gover’s (2008-2009) work describes how tribes now have chosen to use this concept from the Federal government in their own ways to serve their community and people.
Importantly, the determinations of identity and membership belong to indigenous peoples themselves, not to the States in which they live, of which they may also be citizens. Further, not only is respect given to the customs and traditions in these rights of determining membership, but also to the structures and procedures developed for that purpose.