Monday, October 14, 2013

Tribal Recognition a TWO FRONT BATTLE:

Greg Guedel has a great article on tribal recognition and federal recognition

Despite the fact that the first several thousand years of American history and culture were the creation of Native Americans, it remains intensely difficult for many Native Americans to obtain basic recognition from their government of their heritage. In the current context, “their government” is actually plural – recognition must be granted by both the United States government and the Tribal government in order for individual Native Americans to fully enjoy their rights and historical legacy as members of their nation. For more than a century the primary battle has been for Tribes to obtain federal recognition and a treaty relationship with the United States, and the onerous process for achieving this recognition is well documented. However, at a time when the federal government is now working constructively to improve the recognition process for Tribes, a different battle is repeatedly making unfortunate headlines – Native Americans being rejected or banished from membership by their own Tribes.
To obtain full recognition from the United States government – which is the only means through which Tribes can participate in federal programs designed to benefit them – Native American Tribes have long had to endure one of the most arduous administrative processes in the bureaucratic universe. Numerous Tribes have applied for federal recognition, completed every task asked of them to demonstrate their unity and history as a nation, and then waited 30 years or more just to be told “No”. Given that federal recognition is required in order for a Tribe to participate in most federal programs, the consequences for members of non-recognized Tribes have been dire, including a denial of assistance for health care, law enforcement, and community development.
Improving this system has long been a priority for Native advocates, and the federal government is finally taking tangible action. The Bureau of Indian Affairs has circulated for comment draft revisions to the policies and procedures for federal recognition of Native American Tribes. Key provisions of the proposed new policies include:
  • Eliminating duplicative application documents;
  • Fewer subjective criteria regarding cohesiveness of Tribal community and identity;
  • Expediting the decision process following applications – from years to months;
  • Greater weight given to current Tribal recognition by state government;
  • Automatic recognition if criteria are met and no in-state government objections are filed.
A presentation on the draft revisions to the federal recognition policy can be accessed HERE.
Paradoxically, as the obstacles to federal recognition for Tribes appear likely to diminish, individual Native Americans are confronted with increasing obstacles to recognition by their own Tribal governments. Socio-political rivalries are likely to be encountered within any given community on earth, and the fact that such rivalries exist within indigenous communities is neither surprising nor necessarily destructive. However, a unique problem has arisen within Tribal communities that can rend apart the entire social fabric of an indigenous culture. Increasingly, a faction within a Tribe that has obtained control over the Tribal government is using its political power to reject enrollment and banish members of rival factions, clans, and/or families. The impact of such actions is drastic, resulting not merely in disenfranchisement but the official denial of a person’s historical identity and cultural heritage.
A current battle is being waged within the Nooksack Tribe in Northwest Washington state. The Tribal Council has voted to declare 15% of the Tribes enrolled members ineligible for recognition as Nooksack members, and has initiated disenrollment proceedings. This is the largest potential disenrollment in history for Washington-based Tribes. Revocation of membership status would result in the loss of medical and housing benefits, as well as hunting and fishing rights, for the affected individuals and families. Moreno Peralta of the Narte-Gladstone family within the Tribe said they would lose much more.

 “I feel like I will be losing my heritage and my culture,” Peralta said. “It’s where I am from. They are telling me, ‘You are not Nooksack, you are not a tribal member,’ but I have been a tribal member my whole life.”
Tribal sovereignty generally places membership criteria within the discretion of the Tribal government, guided by the constitution of the Tribal nation. Just as the federal government controls the requirements of United States citizenship, each Tribe has similar authority to determine who is eligible for recognition as a member, and federal courts and agencies are unlikely to intervene in such internal Tribal matters. This leaves people facing disenrollment from a Tribe with a severe legal difficulty: with little likelihood of federal help, their only recourse is the Tribal Court – which may itself be controlled by people holding views similar to those of the Council that initiated the disenrollment.
When analyzing the legal elements of citizenship, Tribal governments also need to consider the big-picture implications for enrollment and membership policies and decisions, particularly the cultural impacts. Having survived and preserved their heritage through the nightmare of the termination and allotment eras, it would be a cruel irony for Tribes to undermine the strength of their own communities through politically-motivated banishments and enrollment rejections. The strength of a nation comes first and foremost from its people, and indigenous nations in particular carry forward their traditions and culture through the cohesiveness and collective actions of their members. This strength must be guarded vigilantly – on all fronts.

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