May 21 2019 - Interior’s Indian Depopulation Idea by Gabe Galanda

Late last year the U.S. Department of the Interior began to consider whether Bureau of Indian Affairs (BIA) agencies should cease issuing Certificates of Indian Blood (CDIBs). Interior’s idea, if realized, would depopulate and weaken Indian Country.

Indian lawyer Bree Black Horse describes the “federal Indian”: an Indian who is no longer or has never been enrolled by a federally recognized tribe, yet who still qualifies as “Indian” under various federal laws. Any elimination of BIA CDIBs would threaten federal Indian relatives’ existence, as well as the cultural, legal, and financial strength of tribal governments and urban Indian organizations.

In September 2018, Interior’s BIA Director Daryl LaCounte in Washington, D.C., issued an inter-department memo to BIA Regional Directors throughout the country, explaining that his office was “considering whether to end the practice of [the] BIA specifically issuing CDIBs.” In turn, the Regional Directors issued “Dear Tribal Leader” letters to the tribes in their region, “surveying” tribal concerns about the proposal. In a November 20, 2018, email to me, Director LaCounte suggested that “[t]here is no proposal to cease issuing CDIB’s.” But the fact remains that the Trump Administration has floated idea of ending the BIA’s practice of CDIB issuance.

According to FOIA records I obtained from Interior, Tribes as well as Alaska Native Villages and Corporations unanimously responded to BIA Regional Directors expressing concern about or opposition to the Central Office’s idea.

The Standing Rock Sioux Tribe, for instance, explained that CDIBs allow “non-enrolled Indians” to qualify for federal programs and services, including educational loans and farming and ranching assistance. Those federal Indians also qualify for health care through the Indian Health Service (IHS) and they are included in that agency’s self-governance funding calculations for tribal clinics and urban Indian health care organizations. Without CDIBs, those relatives could be excluded from IHS health care and the calculus that results in critical federal medical funding for tribal and Alaska Native governments and communities.

The Inter-Tribal Council of the Five Civilized Tribes pointedly asked the BIA Eastern Oklahoma Region: “How will the BIA continue to provide services to Indians who are not citizens of a Tribe?” The BIA responded: “A policy determination has not been made as to whether or not the BIA has an obligation to provide CDIB services to non-tribal Indians.” The BIA is wrong.

Interior’s course of conduct in issuing CDIBs to “non-tribal Indians,” for at least the last four decades according to Paul Spruhan, has established an enforceable policy determination—one that obligates the BIA to provide CDIB and related social services to those federal Indians, as well as tribal governments who afford those relatives services. Wilkinson v. Legal Servs. Corp., 27 F.Supp.2d 32, 60 (D.D.C. 1998).

Standing Rock further explained to the BIA how CDIBs are “critical to the exercise of federal criminal jurisdiction under the Major Crimes Act” over certain non-enrolled Indians, without which “the Department of Justice ability to prosecute crimes in Indian Country would be severely hampered.” In other words, fewer Indians would be considered “Indian” for purpose of federal criminal prosecution; as non-Indians, legally speaking, they could exacerbate the public safety crisis in Indian Country caused by Oliphant. The Tribe decried any change in BIA policy as an “abdication of the responsibility to issue CDIBs” as part of the United States’ various trust responsibilities to tribes and Indians.

The most common criticism of Interior’s CDIB survey was that it lacked any prior tribal consultation. The Asa’carsamiut Tribal Council of Alaska, for example, expressed that it “feels strongly conducting a Tribal Consultation, instead of a survey, is the appropriate way for the BIA to address this issue.” The Muskogee (Creek) Nation flat refused to answer the BIA’s survey, instead demanding “proper and appropriate Tribal Consultation.”

In response to a question from the Five Civilized Tribes about whether the BIA would consult with Tribes, the BIA demurred, explaining that its “Central Office has not made a final determination as to whether or not consultation is necessary.” Consultation would in fact be necessary as a matter of Interior’s own consultation policy, or tribes could also sue Interior and BIA officials under the federal Administrative Procedures Act (APA) to enjoin and set aside any policy change.

Tribes and Alaska Native Villages and Corporations brought moral issues of indigenous belonging to Interior’s attention, too. The Association of Village Council Presidents of Alaska cited the need for “preservation of our tribal members” and otherwise observed that the BIA’s “CDIB card program is an important way to provide evidence of Alaska Native/American Indian descent.”

Even BIA Pacific Regional Director Amy Dutschke agreed: “the BIA should continue to issue CDIBs,” explaining that they are “beneficial to many individual California Indians, whether they are members of a Federally Recognized Tribe or not.” Alluding to the need for Indian inclusion in the Golden State—where generations of Indians have been killed, exiled, terminated, and disenrolled— Director Dutschke urged “the widest positive impact on the Indian people of California” through CDIBs.

In all, Interior’s proposal or idea to end BIA CDIB issuance would depopulate Indian Country and erode our collective strength in numbers. Tribes and Alaska Native Villages and Corporations would be weakened in the process.

To be clear: blood quantum is systematically destroying us. It is a European racial fiction and colonial device that the United States introduced to us—and we in turn blindly adopted as our own norm—since the federal allotment and assimilation era over a century ago. Blood quantum will lead to our eradication, if not at our own doing, by federal politicians or judges who see tribes as unconstitutional racial groups. See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).

We must unravel the various fibers of blood quantum, including CDIBs, which are now deeply woven into the fabric of tribal sovereignty and belonging, and the federal Indian trust responsibility owed to all Indians—whether enrolled, non-enrolled, reservation, or urban. That will take time, if not generations. But that unraveling should not occur through an idea stitched by the Trump Administration to a boilerplate “Dear Tribal Leader” letter and survey. Instead, that unraveling must start with us, especially the Tribes and Indians who wear that fabric today.

Gabe Galanda is an attorney who practices Indian law with Galanda Broadman, PLLC, out of Seattle, Washington. He belongs to the Round Valley Indian Tribes.