The BIA's Blood Trouble

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Last month this letter from the Great Plains Acting Regional Director to the Cheyenne River Sioux Tribe sent shockwaves through Indian Country. It appears similar letters were sent to tribes by BIA Regional Directors throughout the country.

The BIA informed the tribes that the Bureau intended to abruptly its issuance of issuing Certificates of Indian Blood (CDIBs), saying a “tribe’s right to define…degrees of Indian blood is a central aspect of tribal sovereignty.”

Let’s unpack this.

First, we never defined ourselves according to blood degree until the U.S. foisted that racial formation/fiction upon us in the late 1800s and most notably via the IRA in 1934. The BIA should not get it twisted by suggesting that the acts of defining Indian blood or issuing certificates of belonging were traditionally any aspect of tribal sovereignty.

Although some tribes have “638’d” the issuance of CDIBs as the letter alludes, if a practice wasn’t indigenous to us, it’s disingenuous to dub it an act of tribal self-determination today. 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.

Second, as Paul Spruhan has explained in his seminal scholarship on CDIBs, the BIA has been issuing CDIBs since the 1930s, albeit without any Congressional authority to do so. Rising indigenous activist Emilio Reyes has uncovered BIA documents since the mid-1960s that form the agency’s CDIB “policy.”

Even without Congressional authority, such an internal policy is binding upon and actionable against the BIA under the Administrative Procedures Act (APA). Confederated Tribes and Bands of Yakama Nation v. Holder, No. 11-3028, 2011 WL 5835137, at *3 (E.D. Wash. Nov. 21, 2011) (“The internal policies that can bind an agency and give rise to a cause of action under the APA are not limited to only those rules promulgated pursuant to notice and comment rule making.”).

(Also actionable under the APA is any withdrawal of the CDIB policy by the Bureau, without proper tribal consultation. Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395 (D. S.D. 1995))

Because so many federal and tribal decisions regarding tribal belonging are non-reviewable—as a result of another racial formation/fiction, the U.S. Supreme Court’s decision in Santa Clara v. Martinez, 436 U.S. 49 (1978)—an Indian’s legal right to challenge any arbitrary, capricious, or otherwise unlawful federal agency action relating to his or her CDIB could be vitally important.

Third, the BIA’s attempt to suddenly withdraw from the CDIB business, if successful, will have a seismic impact on Indian Country. Spruhan correctly analyzes CDIBs in “the current environment surrounding disenrollment.” Indeed, the Bureau’s proposed withdrawal will—not may, will—“feed into the ongoing controversies over tribal recognition, membership, and disenrollment.”

The possibility of tribes taking over CDIB issuance—again, a non-indigenous way—is especially worrisome. The BIA would essentially be authorizing tribes to unilaterally “define” or redefine “degrees of Indian blood” or amend or invalidate an existing CDIB.

As Spruhan warns:

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.

We throughout Indian Country are still reeling from the Obama Administration’s abrupt decision, “[f]rom behind closed doors,” to extricate itself from disenrollment activity, in the spring of 2009. See “The Obama administration's disenrollment legacy.” What ensued?

During the next seven years of the Obama Administration, several thousand Indians were terminated by their own relatives—upwards of 9,000 tribal members have now been disenrolled from 79 tribes in 20 states according to Professor David Wilkins.

With the Omaha Tribe’s recent decisions to adjust hundreds of members’ blood quantum downward and to purge its rolls, it is now 80 tribes who have left their own people for dead, according to Wilkins.

Prof. Wilkins fears the BIA’s CDIB proposal is another tribal “depopulation campaign” in the making. Given the Trump Administration’s body of work—including Mashpee and Bears Ears—and rhetoric—suggesting that tribes are racial groups whose lands should be privatized—it is hard to disagree.

Likewise, I have no doubt that if the BIA carries out its proposed plan to cease issuing CDIBs, many more Indians will be disenrolled and internecine warfare will destroy many more tribal communities.

To be clear, both blood quantum and disenrollment need to be abolished. But with the genesis of each of those genocidal ways dating back to at least the Dawes Act of 1887, the abolition of blood quantum cannot be sudden, and it cannot happen at this tumultuous moment in American Indian history.

Please do your part to oppose the BIA’s plan. Quite enough Indian blood has already been spilled.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.