Keshav Dimri is a historian and legal scholar with a focus on postcolonial economic history and the history of capitalism. He is currently pursuing his PhD in legal and economic history at the University of Texas at Arlington. Formerly, he practiced law as a prosecutor and trial attorney. He graduated with honors from Harvard Law School and earned his B.A. in History with Distinction and Honors in International Security Studies from Stanford University.
A Correction of an Error
When Reverend John Norwood, a leader of the Nanticoke-Lenape, delivered his statement to the United States Senate in 2012, he likely found himself confronted by an already burned-out Bureau of Indian Affairs (“BIA”), weary from what is now decades of Native petitions and appeals for acknowledgement. Federal recognition of the hundreds of Nations scattered across the continent casts a long shadow, one that dates well before the founding of United States. Despite widespread myths that have erased them from much of our contemporary paradigms of United States colonial history, Native peoples not only featured prominently in the wars and debates leading to our founding but have also been a constant presence since. Early ideas of federalism and international law were profoundly shaped by colonial attempts to negotiate with, and often overpower, the various Nations claiming sovereignty over the lands they sought to acquire. Scholars like Ned Blackhawk and Colin Calloway are good contemporary examples of researchers bringing to light this erased U.S / Native history, and join a rising cadre of historians who have uncovered how founders like George Washington, for instance, incorporated the “Native question” into their conceptions of what the new Constitution and country should look like.
Following their impact on colonial America, Native peoples, while often the victims of genocide and policies of elimination, have persisted and survived over the centuries. They were there during the Civil War; they were there during the Great Depression. They were there at Woodstock and protesting in the 1960s and 70s. They fought in Vietnam, and they exist today. Recent census data reveals that the total population of Native Americans in the U.S. has actually been growing. As Department of the Interior memoranda reveal from over 50 years ago, this is not a new trend. Just as in 1776, the United States thus finds itself still having to address these nations within nations, whose very existence serves as a persistent reminder of its Original Sin.
The BIA, a successor to the Committee on Indian Affairs in 1775, was created in part as an administrative effort to manage this “Original Sin” by categorizing and formalizing the relationships between the United States and indigenous peoples in various “trust” arrangements. The modern apotheosis of that effort to solve the so-called “Indian problem” is now found within the bureaucratic machinery of a certain 1978 Act of Congress, listed in the books under 25 C.F.R. §83. This Act of 1978, or simply “§83,” is what defines the current terrain of federal recognition, a landscape of forms and legalese, the stodginess of which Reverend Norwood confronted in his speech. On paper, the structure of §83 addresses the situation whereby previously unacknowledged Nations can formally petition the federal government for status through a new Office of Federal Acknowledgment and its evaluative Branch of Acknowledgment and Research, contingent on the ability to prove certain preordained criteria. In practice, the §83 criteria are so extensive and legalistic that only those with decades to spare and teams of specialist lawyers can hope to achieve much more than a flat, technical rejection. For the majority of Native petitions who do not meet the extensive historical authenticity requirements, the benefits of federal recognition, for land rights, governing power and other regulatory benefits, remain but another broken promise of the American Dream.
Inclusion and Exclusion
Academic writing since 1978 has tended to echo Norwood’s opinion of the BIA’s recognition process as one that is largely restrictive, inefficient at best, and discriminatory at worst. Megan Renoir’s and Shelly Covert’s recent article on the Nevada City Rancheria Nisenan Tribe in the American Historical Review is emblematic of this critical view. Mark Edwin Miller, a historian writing in the early 2000s, was one of the first to frame this line of thinking, arguing that what might appear to be an objective legal process in reality masks numerous symbolic, structural and other defects. Of these, the lack of acceptance of oral histories at the BIA is one of the most widely felt, and makes the task of providing lengthy genealogies often contingent on the availability of hostile European accounts of the “savages.” Indeed, one of the most interesting facets of the legal regime around federal recognition is how deeply it delves into arguments of discipline and methodology concerning history itself. While many contemporary scholars are now comfortable with oral accounts as true representations of Native agency and voices, administrative bodies like the BIA are apparently more reluctant to accept such testimony regarding the past. The result is a system that picks and chooses its sources and ends up excluding as much as it includes.
Contemporary scholarship on recognition has applied a similar critical eye to other systemic failures of the §83 process. Renée Ann Cramer, a political scientist and legal scholar, emphasizes the effect of perceptions and politics at the BIA and greater society, especially when it comes to notions of gaming rights. For scholars like Cramer, Native actors are not just idealist Disney-characters, but real economic actors with concrete material aims. Native realpolitiking, including from Native voices within the BIA itself, affects recognition outcomes far more than stereotypes of “noble savages” defending their lands would suggest. Such Native agency is, however, double-edged and there is a suspicion among some that established tribes within the BIA are using their power to “gatekeep” potential competition from federal resources.
Not all commentators are so critical of the BIA’s regime. Legal scholar William Quinn Jr., whose history of the 1978 Act was featured in the pivotal Rice v. Cayetano court case on Hawaiian sovereignty in the 1990s, defended the §83 process as one that generally achieved just outcomes, even if it was at times inefficient. Matthew Fletcher, a law professor and the chief justice of the Pokagon Band of Potawatomi Indians, disagreed with Cramer and Miller’s easy acceptance of Native self-identity, arguing that “Indianness” was not purely self-defined but required some by-in from other Native groups. The BIA, by distinguishing ‘real’ Natives from fake ones, simply acknowledges this true, “political” nature of Native identity. J. Anthony Paredes, an anthropologist and lifelong federal employee at the BIA, similarly questioned any perceived notion of subjectivity or bias in the BIA in a review of Cramer in 2005, arguing, like Fletcher, that exclusion was in fact the very purpose of part of the BIA process; the system was simply working as it should.
Paredes represents here a countervailing anxiety also felt by many Native groups. If anyone can claim to be Native, then who really is and who is not? For so long, being Native was a dangerous thing, something that might result in discrimination and violence. Now that being Native might actually come with some federal benefits, judging authenticity in the Native context has become more charged.
Blood on the Mind
There is perhaps no greater representation of the complex intersection of Native identity and authenticity in the federal recognition context than the subject of race. Although “blood quantum” is not explicitly one of the §83 criteria, scholars like Circe Sturm have pointed out how “Blood Politics” still plays a stand-in for authenticity at in how Natives are viewed by governmental agencies. Indeed, the distinction between “genealogy” and “race” in the acknowledgment context is blurry at best, given that many genealogical sources are also based on documents that use colonial racial categories. Race, though no longer as a part of a pseudo-science of the past, still features in evaluations of Native benefits on an individual level, most strikingly in the contemporary use of “Certificates of Indian Blood.” Race-based laws as applied to Native Americans are carved out of the protections of the 14th Amendment. Moreover, many Nations still use concepts of blood quantum to determine their own memberships. Alan R. Parker, a Chippewa Cree native and Washington insider that served, among other roles, as chief counsel on the senate committee that helped create the acknowledgment process, describes how anxiety about awarding permanent custody of “Indian children” to “non-Indian adoptive parents” in the Indian Child Welfare Act also influenced how the committee saw race in the §83 context. Blood quantum might not be on the books, but it was on the mind.
Nonetheless, if race is not supposed to be a determinative factor, then how is Native ethnic identity to be understood? How do Native activists like Norwood decide who gets to be part of their “inherent” sovereignty if we discount race? Scholars like to think they have solved this ambiguity by using the words “kinship ties” to distinguish more complex processes of blood affinity from settler conceptions of “race.” Nonetheless, what is at stake is the same question of ethnic authenticity, one that, with some exceptions, is usually not based on culture alone, but requires some familial connection to a Native polity. To the layman, that still sounds a lot like race.
Indeed, the very idea of emphasizing culture over race in the §83 context can have unintended consequences. Malinda Lowery, writing mostly on the Lumbee Indians, while discounting tired notions of “race,” does decry how a purely cultural/social outlook often tends to prioritize other harmful stereotypes, such as “primitivism.” Native peoples, forced to assimilate over decades to an Anglo-American culture and who have modernized just like everyone else, are ironically required to demonstrate to the BIA how little they have assimilated or modernized in order to prove their “ancient” authenticity. If blood quantum alone was all that mattered, such characteristics would need no validation. Race, in such context, cuts both ways. This stereotyping, according to Miller, damages Native conceptions of self and also confronts real issues of modernity. “Native Americans,” says Miller in his 2004 history of federal recognition, “are a rare ethnicity that must maintain premodern attributes to be accepted as authentic.”
The Future of Recognition
The current landscape of Native federal recognition thus raises more questions than it answers. Advocates for inclusion think that it should be made more efficient and more flexible. But if inclusion is all that matters, then why categorize or evaluate petitions at all? Exclusion seems to be part of the point. Yet even exclusion is ambiguous. Who is a Native? If race is not a part of it, then what determines authenticity in the modern context? What forms of historical knowledge are acceptable and who should decide?
In the context of such ambiguity, some scholars, like Audra Simpson writing on the Kahnawà:ke Mohawks and J. Kēhaulani Kauanui on the Hawaiians, have started to question the utility of recognition itself. By refusing the “gifts” of the recognition or American and Canadian citizenship, Simpson describes how the Mohawks have managed to express an inherent sovereignty antithetical to the colonial power that seeks to categorize and control them. For Kauanui, a petition for federal recognition similarly suggests an acknowledgement of federal jurisdiction that potentially goes against a treaty understanding of Hawaiian sovereignty and undermines its claims to self-determination under supra-structures such as international law. For native Hawaiians, federal recognition is its own cage.
Nonetheless, for many Nations, there is no appeal to international law that can aid them. One such tribe is the United Houma Nation (UHN) of Louisiana, whose lands, following an initial hit from the BP Deepwater Horizon spill in 2010, are also slowly being destroyed by the effects of coastal erosion. For such Nations, federal recognition is a very practical necessity, one that could help quell the literal rising tides that threaten to wipe out their lands and way of life. To help them, and others like them, it seems that there are certainly some errors left to be corrected. The “Indian Problem,” it appears, is here to stay.
