Should the BIA get out of the blood degree business?
Tribal leaders and tribal citizens across the United States were startled by a “Dear Tribal Leader” letter sent by the Bureau of Indian Affairs dated Sept. 18. The letters — which were worded a bit differently depending on which regional office they were sent from — all delivered the same basic message: “The Bureau of Indian Affairs (BIA) is considering whether to end the practice of BIA issuing Certificate(s) of Degree of Indian or Alaska Native Blood.”
The CDIB, as it’s known, is one of the principal documents tribal citizens use to obtain educational or health services, apply for grants or loans, or use for other purposes related to tribal business. At least one tribe requires a CDIB before applying for citizenship, according to attorney Paul Spruhan, who has studied the issue extensively.
Currently, both the BIA and tribes operating under a P.L. 638 self-governance compact issue the CDIB certificate, a document / card that ranges in size from a business card to an 8 ½” by 11” document.
“It’s unclear what [the BIA] is trying to do,” said Spruhan during a recent lecture at Arizona State University’s Indian Legal Program. “The CDIB has become a thing of mystical quality without an origin story.”
Atorney Paul Spruhan, who has studied the issue of CDIB's extensively. Photo Deb Krol
Spruhan, who has written about the issue, noted that the first time the U.S. government mentioned blood quantum was in an 1837 treaty; however, he said, “the treaty didn’t denote if blood quantum determines tribal membership.”
The U.S. government couldn’t seem to agree on tribal citizenship requirements for more than a century and wavered between accepting patrilineal or matrilineal heritage for tribal membership. At one time, the government accepted “Indians not of Indian Blood” for membership in a tribal government. Congress had even resorted to bringing in anthropologists who measured head size to guess who was a mixed or full-blood Indian.
Not until the Indian Reorganization Act of 1934 did Congress finally get around to a definitive definition:
“The term 'Indian' as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians."
Based on documents obtained by Emilio Reyes -- who claims Tongva heritage -- through a Freedom of Information Act request, the BIA has struggled with how to issue CDIBs for decades.
Spruhan also noted there are not any statutes or Code of Federal Regulations governing how the BIA issues CDIBs. “A CDIB may be issued directly by the BIA or by a tribal enrollment office operating under a ‘638’ contract, but with no clear rules to govern how those offices grant or deny a CDIB or calculate the blood quantum listed on the document.”
Current BIA documents cloud the issue even further. For example, BIA’s Form 4432, which establishes tribal employment preference, complies with IRA’s definitions of “Indian,” which include any Native person who can prove one-half blood quantum regardless of if that person is a citizen of a recognized tribe. It also provides for Alaska Natives relevant to the roll of Alaska Natives before July 31, 1981, according to the form’s instructions.
However, the instructions on the BIA’s application form for a CDIB specifies that the applicant must be a member of a federally recognized tribe. Also, the agency has been known to change the quantum requirements on a whim. Spruhan cited an Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations), dating back to 1986. ”In that decision,” he wrote, “the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations.”
The National Congress of American Indians wrote to Assistant Secretary for Indian Affairs Tara Sweeney Oct. 18 seeking clarification and calling for consultation. “Right now tribes are unsure what consequences this might have on tribal citizens since federal CDIBs are accepted as proof for services in some instances,” the letter stated.
Some tribal citizens posted copies of the letters on social media, igniting heated discussions, including questions as to whether the move is connected to recent events such as the withdrawal of trust land from the Mashpee Wampanoag Tribe, the most recent challenge to the Indian Child Welfare Act, work requirements for Medicaid and other such events eating away at tribal sovereignty.
Raymond John Gutteriez, Wuksachi Band of Mono Indians is concerned about losing access to healthcare for tribes. “While I think the concept of the CDIB is paternalistic, given the number of non-federally recognized tribes, bands and communities in California who would lose access to health care without that CDIB, the BIA should continue to issue those documents.”
“If it weren’t for my grandma’s and mom’s 1972 land judgment paperwork, I don’t know if we’d have any way to ‘prove’ we’re Native.” Gutteriez is referring to the California Judgment Roll, a series of censuses from 1958 to 1972, which sought to count all California Indians.
Indigenous California Natives can use the proof of being on that roll, or descended from an enrollee, to obtain health care under the Indian Health Care Improvement Act. It’s of particular value to Natives from non-federally recognized California tribes, as it’s allowed them to receive medical care. And, disenrolled Natives can still use their CDIBs or other proof of being an Indigenous California Native to obtain health care or other services that require only blood quantum or Native heritage.
Karen Shepherd, a citizen of the Sherwood Band of Pomo Indians in Northern California, said in a Facebook post that the CDIB should go: “Persons should only be required to prove their heritage and should just have to show lineage,” she said, adding the hashtag #stopdisenrollment.
Shepherd’s sentiment regarding disenrollment is also on the minds of other Indian legal experts. Gabriel S. Galanda, a citizen of the Round Valley Indian Tribes of Northern California and a frequent critic of tribal disenrollment, wrote in a recent blog: “The Bureau’s proposed withdrawal will—not may, will— ‘feed into the ongoing controversies over tribal recognition, membership, and disenrollment.’“ Galanda further agreed with Spruhan’s writings: “Spruhan correctly analyzes CDIBs in ‘the current environment surrounding disenrollment,’
“If a practice wasn’t indigenous to us, it’s disingenuous to dub it an act of tribal self-determination today,” Galanda wrote. “It is instead an act of delegated federal power that, like disenrollment, Washington, DC bureaucrats created to extinguish us—and that tribal politicians now wield to ‘kill the Indian’ themselves.”
Spruhan wrote, “The BIA should also seriously consider whether authorizing the unilateral amendment or invalidation of a CDIB is necessary or prudent, particularly when the power to take such action is diffused among numerous BIA offices and 638 tribal contractors. As shown by recent controversies, disenrollment is a serious issue, and empowering the unilateral revision of CDIB documents has the potential to exacerbate the phenomenon.”
Galanda concluded, “The BIA’s attempt to suddenly withdraw from the CDIB business, if successful, will have a seismic impact on Indian Country.“
At press time, the BIA has not issued any formal decisions regarding any changes to CDIB issuance.