What is an Indian? A Legal Definition, Part 1
Individual Native people find themselves constantly having to answer “Are you Indian?” on many different levels. For example, one may define themselves as legally Indian by virtue of the fact they are descendents of one or both parents who are of Indian ancestry. Many Native people resent the efforts of others trying to legally define who or what they are and so it goes…
Where does one begin to talk about that which is as elusive as it is complex — made that way by generations of legal debate, precedent, and perspective? The more one examines the notion of a legal definition of Indian, the more one finds themselves in the middle of the sometimes hidden agendas and conflicting opinions and motives of international, national, and state entitles as well as tribes themselves.
There are so many definitions of “Indian” coming from the BIA (Bureau of Indian Affairs), the Indian Education Act, the Indian Arts and Crafts Act, the Indian Care Improvement Act, the United Nations, and the tribes that it is confusing and a Native person may be considered “Indian” by one entity yet not by another. I know, they’re the same person right? But not for purposes of law, eligibility for services, and tribal enrollment. Here are just a few of those definitions:
Author Jack Utter tells it like this: “Many federal laws and regulations define ‘Indian’ and these various definitions take on great significance when they control the distribution of funds and services or regulate the application of civil and criminal law.” (Excerpt from the book “American Indians – Answers to Today’s Questions,” page 26)
Bureau of Indian Affairs definition: “The BIA generally defines an ‘Indian,’ who is eligible for BIA services, as an individual who is a ‘member’ of an Indian tribe, band, or community that is ‘recognized’ by the federal government; who lives on ‘or near’ a reservation; and who is of 1/4 or more Indian ancestry.” (Utter at page 26, citing Bureau of Indian Affairs, 1987a. See also 2005 American Indian Population & Labor Force Report at page 6; it’s a slow-loading file.)
Indian Health Service definition: In “the situation where federal assistance is provided for Indian health care education,” the definition provided in the Indian Care Improvement Act of 1976 “defines ‘an Indian’ as anyone who is a member of a ‘recognized’ tribe, with no mention of blood quantum. An individual may also considered Indian if he or she belongs to a tribe, band, or group that has been terminated since 1940, regardless of whether or not the individual lives on or near a reservation. Another category includes those members of tribes which are recognized now — or may be recognized in the future — by the state in which they reside. In addition, anyone who is a descendent, in the first or second degree, of any one of these individuals also qualifies. Eskimos, Aleuts, or other Alaska Natives are considered Indians. Anyone considered by the Secretary of the Interior to be Indian for any purpose qualifies. And finally, anyone who is determined to be Indian under regulations promulgated by the Secretary of Health and Human Services also is considered to be Indian.” (Utter, at page 28. See also Part 7 of the Indian Health Service Manual.)
There are many more definitions of what is it to be “Indian,” and I will continue with these tomorrow.
And then you’ll know the rez of the story…