General Allotment Act

Jim Gray: Making Change Happen

Producer
Native Nations Institute
Year

Former Principal Chief James Gray of the Osage Nation makes a guest speaker appearance to the January In Tucson class “Making Change Happen”.  In Chief Gray’s own words, he shares his direct experiences with indigenous governance for the Osage people and gives a larger context to the historic challenges and endurance the Osage Nation has shown in their encounters with U.S. intervention.  The years he spent has Principal Chief offer an inside look into the ways a Tribal Leader works with the tools of self-governance while taking note of the ways conflict was navigated.  Jim Gray gives insight to both his time running an Executive branch, the endeavors of Constitutional reform, and current ways he continues to advocate for the people of Osage Nation.

People
Native Nations
Resource Type
Citation

Native Nations Institute. "Jim Gray: Making Change Happen" Native Nations Institute, University of Arizona. Tucson, Arizona. January 26, 2021

Transcript available upon request. Please email: nni@email.arizona.edu

Sarah Deer: The Muscogee (Creek) Nation's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Sarah Deer (Muscogee), Co-Director of the Indian Law Program at the William Mitchell College of Law, provides a brief overview of the Muscogee (Creek) Nation's unique approach to defining its citizenship criteria, which essentially creates two classes of citizens: those who run for elected office, and those who can't. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

People
Native Nations
Resource Type
Citation

Deer, Sarah. "The Muscogee (Creek) Nation's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"What I'd like to talk about just very briefly is...first of all, I'm a citizen of the Muscogee (Creek) Nation and I probably...by the way I look, you can tell I'm a lineal descendent as opposed to having a high blood quantum. And I want to talk a little bit about that because one of the things I think -- especially in Oklahoma -- they kind of joke about us. I'm not Cherokee, but they joke about the blonde-haired, blue-eyed Cherokees, and one of the things I think that's really important for someone like me to acknowledge is that I have privilege because of the way I look. I can walk into a store and I'm not treated as an Indian because people don't see me as an Indian.

And when I was talking to one of my mentors, an elder who works to help me try to learn my language, she talked a little bit about that with me recently, about...when she grew up in rural Oklahoma in the 1950s, the level of painful racism in her memory is still very palpable, being treated as second class because of her skin color and because of her name and so today when she sees people who can pass, who don't acknowledge their privilege, who say, ‘I'm a tribal citizen, but I'm just the same as you,' when I didn't go through the experience of racism is painful. And I think we have to talk about that when we talk about lineal descendency because I get the privilege of passing. I get to tell people I'm Indian if I want to and if we don't acknowledge that painful history, I think we're going to continue to have a lot of controversy about what this means to potentially open up citizenship. So I wanted to say that at the outset.

And the other thing that I think is interesting is that I'm asked often what my...how much Indian I am, my blood quantum. But the only people who tend to ask me that are non-Indian people. What Native people ask me is, ‘Who is your family?' So it's...the blood quantum itself is something that is of interest to people, but in my experience that's usually coming from outside the tribe.

Now, what I wanted to talk about was one particular facet of my own tribe's constitution when it comes to governance because we have two classes of citizens. One class is full citizens and the other class is citizens and I want to talk about the difference between the two in just a second. But typically, when we think about American citizenship, the American government really doesn't do much in terms of distinguishing between citizens. All citizens are treated the same. If you're naturalized, you have the same rights and privileges as people who were born here. The one exception that I think became I think a focal point of the election in 2008 was that the president must be a natural-born citizen and so to be the President of the United States you have to have been born here in the country.

So let me tell you about how this Muscogee constitution developed. We have a very complicated history as most tribes do. In Oklahoma in particular we governed...we had really no acknowledgement of our government between 1906 and 1977, 1978. We were still operating as a government, but the federal government didn't recognize us pursuant to the Curtis Act. So when we were able to fight and get recognized as having continuing governance throughout that time period, the federal court actually ordered a constitutional convention, which was interesting and sort of ironic that in terms of re-recognizing the tribal government, the federal judge says, ‘And we will tell you how to do this.' But we did end up ratifying and passing a new constitution in 1979, which governs us today, and citizenship in our nation is determined through lineal descent [from] the 1906 Dawes Roll.

One of the things that's interesting about that of course is that in 1906 during allotment, many traditional people refused the Dawes Roll. They refused to go and sign up for their allotment on principle because they never consented to breaking up the reservation and so you have a lot of traditional people in Oklahoma today who are not enrolled in any tribe because their ancestor stood their ground. So that's another interesting facet.

But what I want to talk about specifically is how the constitution distinguishes between full citizens and citizens, and this comes from Article 3, Section 4 of our constitution, and explains that full citizenship requires the one-quarter blood quantum and those folks are known as the 'full citizens.' And then all citizens who are less than a quarter blood shall be considered citizens and shall have all of the rights and entitlements as members of the Muskogee Creek Nation except the right to hold office. And I'm still doing some research to figure out exactly how this decision was made or what the dialogue in the community was, but to hold office under the constitution you have to have this quarter-blood requirement. So I can't run for office.

And so one of the things that happened is how do we interpret that language? So I just...I present this sort of as a cautionary tale as you're thinking about potentially designing language that would provide this kind of distinction, the kinds of ambiguities that can develop. So what does it mean to hold office? And this became the subject of a dispute in 1986 and the question of what is the right to hold office. So citizens of the nation elect a principal chief, a second chief and a tribal council. And justices and judges are appointed by the principal chief and confirmed by the council so they're not elected positions.

So in 1986, there was a district court case in our tribal court and the party who lost the case appealed to the Muscogee Supreme Court arguing that the judge, the district court judge in that case was not a quarter blood, he was an eighth and so the losing party challenged that decision saying that the judge was not qualified under the constitution because he was holding office with less than a quarter blood. And so what the tribal supreme court then had to do is to interpret what the constitution meant by hold office. And they ended up determining that the constitutional requirement for full citizens or quarter bloods applies only to elected officials. So in other words, the judge and the justices do not have to be full citizens under the constitution.

Now after that case, the Muscogee Tribal Council passed a law that required judges and justices to be full citizens. And this has never actually been litigated, although I suppose someone could challenge that as a question of whether or not the constitution saying hold office trumps the statute that says judges and justices are included in that. So we don't know for sure how the court would have ruled on that particular statute. But slowly, in recent years, I think what has happened is that the body of qualified judges and justices has somewhat shrunk in the sense that there's not a whole lot of quarter bloods practicing law in our tribal courts. And so how do you then find a judge or a justice who's qualified to sit on the court?

So in 2010, the tribal council passed new laws stating that the judges and justices must be full citizens unless there's a waiver passed by two-thirds of the council. And in 2012, they amended that again and now you must merely be a citizen of the tribe, which means there's no blood quantum requirement for the court, but still the quarter blood quantum requirement is for principal chief, second chief and council. So I can be a judge for my tribe, but I can't run for office is basically how that plays out for me; being not in Oklahoma, I suppose that I would not be in a position to run for office at any level.

So there's one other thing I wanted to say about that. Oh, so the other thing that may be important in thinking about this is that to be a district court judge or a trial court judge in our tribe you have to be an attorney. You have to have a JD, you have to have a license to practice law, and you have to have at least four years of experience practicing tribal law. For the justices of our Supreme Court, there is no requirement that you have a legal degree, you merely have to be appointed by the principal chief. And so we have elders on our tribal Supreme Court who are not attorneys and I think that's a really intriguing development where I see a mixture of attorneys and non-attorneys on the supreme courts of tribes where you can blend then traditional knowledge with sort of contemporary western legal traditions.

So I just wanted to give that as sort of a tale of being careful when you draft language, because I'm not sure that everybody agreed on what 'hold office' would have meant, but now it's pretty clear that judges and justices are exempt from the full citizenship requirement.

One other thing I just wanted to raise because we talk about the Veronica case and the Indian Child Welfare Act. One of the things that's interesting about ICWA is that it applies when a child is a member or eligible for membership. Can a tribal government distinguish between citizenship and membership? The reason I bring this up was partly based on a comment made this morning about the clumsiness of the English language and how the English language around the terms like 'citizenship' and 'members' is really incomplete or a mismatch for culture. But there is an English distinction between 'member' and 'citizen,' at least they're two different words, and so one of the questions that I would just pause at -- and I don't know that I have an answer to this is, could a tribal government distinguish between citizenship and membership specifically thinking about ICWA and expanding the body of children in which the tribe would have jurisdiction over? So that was just one piece that I wanted to leave you with and I think that's what I have to say. So thank you."

Bethany Berger: Citizenship: Culture, Language and Law

Producer
William Mitchell College of Law
Year

University of Connecticut Law Professor Bethany Berger provides a brief history of the federal policies that have negatively impacted the ways that Native nations define and enforce their criteria for citizenship historically through to the present day. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Native Nations
Resource Type
Citation

Berger, Bethany. "Citizenship: Culture, Language and Law." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"Our first panel this morning is really designed to develop a foundation for the rest of the day: discuss culture, language and law as it relates to tribal citizenship; historical overview of the laws that have affected tribal citizenship; and what our culture and stories tell us about traditional concepts of citizenship. Our first speaker will be Professor Bethany Berger. All of our speaker bios, by the way, are in your materials, your program for today, so I'm not going to go through and read each line of everyone's bio, but I did want to say a few things about Professor Berger. She is a widely read scholar of property law and one of the leading federal Indian law scholars in the country.

She is a co-author and member of the editorial board of the Felix Cohen Handbook of Federal Indian Law, the foundational treatise in the field and co-author of one of the case books, American Indian Law: Cases and Commentary. After law school, Professor Berger went to the Navajo and Hopi nations to serve as the Director of the Native American Youth Law Project of DNA Peoples Legal Services and there she conducted litigation challenging discrimination against Indian children. At the University of Connecticut, she teaches American Indian law, property, tribal law, and conflicts of Laws. She has served as a judge for the Southwest Intertribal Court of Appeals and has been a visiting professor at Harvard and University of Michigan.

Our next speaker is Professor John Borrows, who is at the University of Minnesota Law School, a professor in the area of international law and human rights. He was appointed Professor and Law Foundation Chair of Aboriginal Justice in Governance at the University of Victoria in 2001. Prior to that, he taught at several other places including the University of Toronto and the University of British Columbia-Vancouver. He received his Ph.D. in 1994, an LLM in 1991 and a JD in 1990. He has been honored with a Trudeau Fellowship for Research Achievements, Creativity and Social Commitment with an achievement award from the National Aboriginal Achievement Foundation for Outstanding Accomplishment in the fields of law and justice.

And finally, our panelist professor Stephen Cornell, who is a professor of Sociology in Public Administration and Policy at the University of Arizona, also Faculty Associate with the Native Nations Institute. He is the Director of the Udall Center for Studies in Public Policy, Professor of Sociology-Public Administration. Also Co-Director of the Harvard Project on American Indian Economic Development, a program headquartered at the Kennedy School of Governance. He holds a Ph.D. from the University of Chicago and taught at Harvard University for nine years before moving to California and then to Arizona. All of these speakers today have had a profound impact on my scholarship and I think have really done an incredible amount to try to articulate how federal Indian law has impacted the lives, the real lives of Native people today. So I'm very excited to introduce the panel. Please join me in welcoming them this morning."

[applause]

Bethany Berger:

"So I want to say what a pleasure it is to be here and how sorry I am I can't stay for the rest of the day. You guys are doing really important and hard work here. And in my remarks, I'm going to focus on large overall trends mostly in federal Indian law, so it's not necessarily going to speak to your tribal choices, but some of the factors may be the same. And I also want to say what a pleasure it is to be on a panel with Professor Borrows and Professor Cornell, and Professor Cornell in particular helped shape the way I look at federal Indian policy history.

So we talk about tribal citizen choices in historical perspective, mostly focusing on the federal trends, but I also want to say that tribes have always engaged in boundary drawing and those boundaries have always relied heavily on descent and clanship, but they've also always made room for incorporating people that weren't born with that descent and clan. So this is from a frieze in the U.S. Capitol Building in Washington, D.C. This is an image of Pocahontas supposedly saving Captain Smith. Whether it's apocryphal or not, one of the suggestions about it is that this was actually an adoption ritual, that in order for an outsider to be adopted into the Pamunkey they had to go through a kind of play-acted process of attempted threat and saving. And this kind of adoption has gone on throughout history.

The Navajo Nation, the Diné -- where I've worked -- have the [Mexican] clan from the Mexican people, the [Red House] clan from the Zuni people and many other clans that reflect people that were not born Diné. In the Great Lakes, intermarriage was often a tool of diplomacy. If you could marry somebody in, you could build a relationship with them that would have important political impacts.

And this process of boundary drawings continued after contact. Just the 1827 Cherokee Constitution -- something that the Cherokee Nation created in a spirit of defiance -- to some extent engaged in this boundary drawing and some of the interesting things you see in it is that they'd already changed some of their traditions saying that children of Cherokee men, because this is a matrilineal tribe, Cherokee men with non-Cherokee women could become Cherokee, but they're also making rules about those of negro and mulatto descent. And so these kind of decisions are shaped from the outside, from the inside in multiple levels.

So federal boundary drawing: federal government has always been interested in drawing boundaries about who is Indian, who is not, who is part of a tribe, who is not. From very first Congress, we passed the Trade and Intercourse acts providing that non-Indians could not be on Indian land, that there were certain punishments, providing jurisdictional rules. And one question is, does 'Indian' mean tribal citizen or not? And relatively early on in the case of U.S. v. Rogers in 1846, the courts essentially decided Indian means whatever the federal government wants it to mean, that a white man who had married a Cherokee woman becomes a citizen of the nation, had actually traveled on the Trail of Tears. He was not Indian for purposes of the federal law, because basically they didn't think Congress wanted that kind of tribal power to change jurisdictional definitions. So this is continually a problem that tribes face, that there is room for making tribal citizenship decisions, but that room can be clamped down on by the federal government.

Process of treaty making and putting people on reservations obviously involved lots of questions about who is a tribal member and who is not, because annuities became really significant once you were on a reservation, once you couldn't engage in the practices that had sustained your people on a greater piece of land. And in fact, annuities would be taken away if you didn't conform to the rules that the agent on the reservation imposed.

One interesting aspect from this area that involves the conference on the Dakota War that William Mitchell [College of Law] put on last year, the Sisseton Wahpeton Sioux were deprived of all of their annuities and deposed from their reservation as a reaction to the Dakota War even though they had not been involved at all and there's an 1867 treaty saying, "˜Oops, you were the wrong group to deprive annuities from.'

Another thing that comes up in these annuity treaties is, and the benefits from treaties, what about people that are the products of intermarriage with people outside the tribe? And quite a lot of these tribes...these treaties around this time have either half-blood or mixed-blood scrip saying...some of them saying, "˜We want to provide for these people,' some of them not necessarily including that provision. And a problem we see in the...from a number of these treaties -- including significantly the 1854 treaty with the Lake Superior Chippewa, kind of an amalgamation of a whole bunch of Ojibwe peoples -- was that the federal government kind of thought anybody with a little Chippewa heritage might be eligible for a mixed-blood scrip and got people applying for their 80 acres by just finding somebody that they could convince was a little bit Chippewa to sign up. And you may be aware of all the scandals that arose from that. But these are just ways the federal government is drawing these boundaries that may not necessarily have to do with the way tribes are drawing boundaries and how it affects tribes going on.

Allotment -- huge impact on tribal citizenship choices. You know this both in treaties in the 1850s on, but particularly after the Dawes Act in 1887, federal government is dividing up reservations, providing allotments to members of the tribes and any land that wasn't allotted out was considered surplus and sold off. And so part of the process, the federal government is creating rolls. Who gets the allotment? And this is a big moment in which tribes...in which individuals are just saying, "˜I'm a member of this tribe and getting it recorded.' Another big moment like that is when other tribes are applying for claims for the improper taking of their land and that's another moment we get these rolls. And it's important to see that these rolls are not really created for tribal purposes. They're created for intimately federal purposes as well, even though they're fundamental to a lot of tribal citizenship requirements today.

So what does this mean for tribes besides the creation of the rolls? Tribes are watching land and money go out to the people that are on these rolls and there's a concern. What if these individuals that are getting our allotted land are not really people we consider part of the tribe? So there's a pressure on tribe to say...to start excluding some people and we see that throughout Indian Country.

Another key thing is that allotment by selling off surplus land to non-tribal members, so that's about two-thirds of the land goes out that way plus the land that was allotted, restrictions removed from it so that could be sold or taken for payment of debts or taxes, sometimes fraudulent. A lot of that money goes out to non-tribal citizens and about three-quarters of land on reservation goes to non-tribal citizens. And under federal law, very difficult to kick those people off. So if you think about the border disputes that the United States has about people coming in, Indian nations can't really enforce that border in that way in part because of allotment so that's changing some citizenship choices.

Another thing -- so this is a picture of a boarding school. Look at all those kids looking just not happy and you know why. But towards the end of the 19th century we get this massive increase in federal services and federal services, they cost money so the federal government is starting to say, "˜Hey, we want to limit the people that are eligible for those federal services,' and one of the laws that they passed to do that says, "˜If you're less than one-quarter blood and we think you're relatively civilized, you're not eligible for these services.' We don't have those specific laws in effect anymore, but we see a lot of their echoes in federal laws today trying to limit the people that can be eligible.

So throughout this process, tribes are having to make choices about who is in and who is out. The big moment when this is formalized in constitutions -- and when there is federal pressure, we really want to see these choices -- is in the Indian New Deal period in the 1930s, when the federal government is encouraging tribes to enact constitutions as part of the process of, to some extent, self-determination that the Indian New Deal represented, and saying, "˜We're going to insist and demand that the people that are included by your constitutions are those that you really want included, that have significant affiliations with your tribe, because this is who the federal money for your tribe is going to go to.' And so this research is from Kirsty Gover and most of it published in a great article from 2009 in the American Indian Law Review and this shows...this is 1936, this is 2003 and just shows how many constitutions, tribal constitutions are adopted during this period and I actually created this one -- she didn't include 1936 because it would just be off the chart -- and so like 30 constitutions are adopted in this period, a whole bunch more in the "˜40s. And then we see in the "˜60s, that's when this process of constitution adopting starts again, kind of goes up again and this is when we're kind of getting into the self-determination period. So this is somewhat more tribal choices to adopt the constitutions. They weren't forced on them before, but there was more federal pressure to do it.

And so what kind of citizenship requirements do we see in these? And it's from the very early period almost 90 percent have parental enrollment requirements. More than 50 percent have residence requirements, that your...either parents have to be residing on the reservation or you have to, or your parents have to be members, you have to be residing on the reservation. Somewhat under 50 percent have Indian or tribal blood requirements and very few have lineal descent requirements. And what this shows is that a number of tribes over this period that require parental enrollment, that goes way down. Residence, that goes way, way down and the Indian or tribal blood requirements and the lineal descent requirements go up. And something this chart doesn't show is that the...what kind of descent is required is shifting from being somewhat more just Indian blood to being tribal blood. This is blood of the nation. And this... so this period, this is what tribes are doing on their own. They're not getting a form constitution or set of membership requirements from the federal government so what is creating this process?

So let's think about what happened after the 1930s. One thing, we get World War II and Native people serve in significant numbers and even more significant numbers -- they go off the reservation to work in the defense industry. And so that's bringing Native people off the reservations. Another factor, relocation, 1950s, federal government is saying, "˜Hey, just leave the reservations; by the way, we don't want reservations anymore, we don't want to pay for people on the reservations. Come to the cities.' And we see that very much in the cities here. We see that in Denver, we see that in Los Angeles, across the country, and so that's also dispersing the population off the reservation.

Something else: Indian gaming. And so this is the poster from the NIGA conference that just happened, this beautiful Sandia Resort and Casino, which creates wealth and questions about how it's going to be distributed, some similar questions to those we saw with allotment.

Other factors: so something important in this area and also in the Northwest, treaty fishing disputes in which tribes are given the power to regulate fishing within their treaty-protected areas. And there's a question, who gets that power to fish, to be considered a member of the tribe and to fish under the treaty? And the tribes are deciding that. So if they limit who can be a member of the tribe, then there can be their relatives that can't participate in that treaty fishing or hunting.

Another factor, these federal laws that create distinctions between tribal power over Indians and non-Indians, members and non-members. So we know '78, Supreme Court says tribes have no criminal jurisdiction over non-Indians. Does this apply...deny them criminal jurisdiction over non-member Indians? The Supreme Court originally said 'no' in 1990, Congress immediately turned around and said yes, but still there's some constitutional questions about that. More important, limits on civil jurisdiction over non-members, and it's not fully resolved, but I think the pretty good argument that tribal jurisdiction is very significantly limited over non-member Indians as well as non-Indians. So somebody is not a member, you may not have jurisdiction over them.

Another factor: Indian Child Welfare Act. Now there's something else in 1978 and Sarah [Deer] talked about the importance of having custody over your children. If somebody is not either a member or the child of the member eligible to be a member, they can't...you can't exercise that jurisdiction under the Indian Child Welfare Act. So that's something pushing towards a broader definition of who is in and who is out. Huge factor that may push in different ways, publish challenges to the idea of Indianness. If somebody who doesn't anything looks at you and says, "˜Do you look Indian to me or not?' what is the impact of that and we just saw that in a really painful way in Adoptive Couple v. Baby Girl in which this man...this child Veronica was taken away from her father, Dusten Brown, because they found that they were not entitled to the protections of the Indian Child Welfare Act under this particular set of circumstances were quite complicated under this statute. And I think it's probably a stupid reading of a statute, but the thing that really tried to...that really influenced the court was this idea that she wasn't Indian enough, that they said, "˜This case is about a little girl who's classified as an Indian because she is 1.2 percent, 3/256th Cherokee.' That's not why she was classified as an Indian. She was classified as an Indian because Cherokee Nation says, "˜Anybody that's a descendent of historical members of our tribe, she is eligible for enrollment in the Cherokee Nation.' That meant that he was...he actually was enrolled in the Cherokee Nation, she was eligible for enrollment.' In fact, the determination of blood quantum has to do with those historical federal rolls, it was probably totally inaccurate, but there's that kind of factor of defining what does it mean? Are the people you define to be a tribe... what are outsiders going to say? And so this all creates these kind of push and pull factors that affect these really hard questions that you guys are dealing with today.

So this is just a picture of violence that occurred as part of the political dispute that arose from the disenrollments of members of the Chukchansi Tribe in California where not only has it really, really messed up their government, they've also disenrolled one of the last Native speakers as a result of this determination of blood lines and stuff. So tremendous impacts of this stuff for your governments, for your people, for your children. So this is again hard work that you're doing and thank you for doing it."