The Historical Development of Tribal Acknowledgment Policy, 1776-1978
Seven miles off the Massachusetts coast, Jacqueline Kennedy Onassis's secluded four-hundred-acre estate on the resort island of Martha's Vineyard was surely a welcome retreat from the constant gaze of the gawking public on the mainland. From her nineteen-room shingled home the former first lady and American icon could look out in privacy over the windswept dunes to the moody, swirling Atlantic beyond. Shortly after she purchased the estate in the late 1970s, however, this scene abruptly changed as Onassis, like hundreds of other land owners up and down the East Coast, found herself embroiled in a lawsuit with members of a non-federally recognized Indian group, the Gay Head Wampanoags. It seemed the small tribe was demanding the return of lands or monetary compensation for acreage their ancestors lost in the preceding century. Suddenly the glamorous symbol of the Kennedy dynasty found herself in the awkward position of opposing members of the struggling Indian community for control of a one-and-a-half-acre strip of dunes, a small sliver of land that the Wampanoags coveted for its sacred significance and that Onassis needed for keeping celebrity seekers at bay. Though troubling to the former first lady and others, the tiny Gay Head tribe clearly had arrived on the national scene.
At the time, however, the Martha's Vineyard group was just one of over two dozen Indian enclaves living on or near state reservations or former colonial Indian reserves on the East Coast that lacked federal sanction. By the early 1970s these groups and other unacknowledged Indian communities across the country began demanding fishing rights, the return of tribal lands, and ultimately the formal federal recognition that they believed the national government had denied them for centuries. Fired by a sense of pride in their Indian heritage, the forgotten enclaves came to demand an end to their second-class status among Native Americans, yet because they were unacknowledged, it was unclear what rights, if any, they possessed. Although the Gay Head Wampanoags were awakening the country to their existence, their actions also created a crisis in Indian affairs in the process. Their movement would eventually set the stage for the BIA's Federal Acknowledgment Process or Project, a program designed to end the arbitrary policies of the past and to bring justice to unacknowledged communities by determining which were Indian tribes within the meaning of federal law. As the following pages show, a primary goal of the Bureau of Indian Affairs and its tribal constituency was to create exacting standards that all groups had to meet to join the ranks of acknowledged tribes.
Like other unrecognized Indians, the tiny three-hundred-member Massachusetts group was an unlikely force with which to reckon. The once mighty Wampanoag Federation-the same people who aided the Pilgrims and who were the subject of a popular 1829 play, Metamora; or The Last of the Wampanoags-had in popular consciousness become extinct. Yet the group seemingly was rising from a nineteenth-century grave to upset what one indignant Gay Head vacation homeowner described as the "harmonious atmosphere" of the island. In 1974, with the help of attorney Tom Tureen and the Native American Rights Fund (NARF), the Indians on Martha's Vineyard filed suit for the return of 238 acres of dunes, bluffs, and marshes that were then held as common lands by the town of Gay Head. In the suit the Wampanoags claimed that the state legislature had illegally taken the group's lands in the nineteenth century by violating the obscure 1790 federal Indian Nonintercourse Act that forbade any party but Congress from dealing in Indian lands. Like another case Tureen had filed for the Mashantucket Pequots at the same time, the court proceedings cast a cloud over land titles in the area, prompting locals to hire prominent attorneys to fight the Indians.
From the start local whites questioned whether these groups were indeed tribes and expressed doubts about their Indian identity. To the eastern landowners, most of these groups "looked" variously white, black, Indian, or something in between. They clearly did not fit the image of the horse-riding, buffalo-hunting Indians they had seen in Hollywood westerns. In court the town attorneys proceeded to impugn the cultural and tribal integrity of these people, claiming that the groups had long ago abandoned their tribal organizations and assimilated into American society and culture. Despite the Wampanoags' assertions that the land on Martha's Vineyard was sacred to their people and that they maintained a vibrant tribal organization, town lawyers echoed a popular belief that the Wampanoags-if they were a group at all-were assimilated individuals hoping to get rich off land claims. Because the rights asserted were group rights, the hopes of the Martha's Vineyard Indians and others ultimately rested on whether they were still an Indian "tribal" entity.
In examining these claims, however, all sides came to realize that federal law and policies gave them little help in deciding the issue. Despite the fact that federal Indian law was premised on tribal sovereignty, at this time officials discovered-incredibly-that there was no congressional or other federal definition of an Indian "tribe" to apply to these vexing cases. Lawyers for the towns and some BIA officials claimed that the lack of recognition, in itself, was reason enough to deny these groups' standing in court. Other officials discovered, however, that the reasons for nonrecognition were not so simple. BIA lawyers eventually admitted that previous acknowledgment policy had been, at best, characterized by consistent arbitrariness. Congress and the federal courts began to take steps to provide some order to the chaotic environment. Fearing an end to its hegemony in recognition cases, the Bureau of Indian Affairs and its tribal base also rushed to devise new acknowledgment regulations. Seizing the initiative in 1978, the BIA finalized rules for acknowledging tribes that were designed to provide an objective and timely process yet at their core were aimed at protecting the sovereignty, funding, and cultural integrity of currently recognized Indians.
When designing the new program, all parties realized that previous tribal acknowledgment policy had followed a twisting, serpentine path. This stemmed from the fact that tribal recognition activity generally mirrored the ebb and flow of federal Indian policies and dominant ideologies about Native peoples and indigenous sovereignty. Once widely recognized because of their power in intercolonial relations, American Indian tribes had faced a long, general assault on their sovereignty in the ensuing years. After several tribes gained recognition during the late 1960s and early 1970s, however, a new era had dawned: one where the national government once again was willing to acknowledge that a government-to-government relationship existed between it and many small, forgotten tribes scattered across the country. In light of the new stance most parties clearly welcomed the BIA acknowledgment process in 1978 because it seemed to represent a decisive rejection of past anti-tribal agendas while promising to restore pride, dignity, and self-government to all Indian peoples. Concerned people of all stripes hoped that the previous arbitrary and ambiguous policies would be a thing of the past.
Prior to the 1970s, however, tribal recognition had not always been such an arbitrary proposition at the complete power and discretion of the federal government. From the American Revolution until 1871 federal officials routinely recognized Indian nations through the treaty-making process. During these years many Indian groups were still formidable military foes on the western borders of the expanding nation, and army negotiators and the Senate actively recognized tribes as sovereign nations, acts that followed existing international laws and procedures. To accomplish its immediate goals of ending frontier warfare and securing land for the growing nation, the federal government signed 372 treaties with Indian nations before ending the practice in 1871. Treaty recognition provided unambiguous confirmations of a tribe's self-government, of its territorial integrity, and later of its status as a beneficiary of a federal trust relationship. By clearly acknowledging the sovereignty of Indian tribes, federal treaties provided the legal basis on which their special, "anomalous" relationship in the federal system rests.
From the first years of the fledgling nation the existence of independent Indian tribes as separate nations within the United States proved contentious. After decades of controversies, John Marshall, chief justice of the Supreme Court, attempted to settle the issue once and for all. In the landmark Cherokee Cases of the 1830s, Justice Marshall announced the limits of tribal sovereignty, noting that Indian tribes were "domestic dependent nations" whose relationship with the United States resembled that of a ward to his guardian. American Indian tribes thereafter fell under the plenary or absolute power of Congress yet generally remained free to govern their internal affairs while remaining independent from state laws and regulations. It was this sovereign status vis-à-vis local non-Indian communities that would generate heated controversies in future years.
During the 1970s researchers discovered that Congress had left few clues on how to define or recognize Indian tribes, despite their importance within the federal system. Perhaps because what constituted a "tribe" seemed obvious or taken for granted, the formative documents in American history such as the Articles of Confederation, the Constitution, and the Northwest Ordinance all left a definition of an "Indian tribe" unformulated. In the Commerce Clause of the Constitution and a series of six Indian Trade and Nonintercourse Acts, Congress reserved for itself plenary or absolute power in dealing with Indian tribes or nations. In each of these acts, however, Congress maintained a vague use of the term "tribe," stating simply that these laws applied to "any Indian nation or tribe of Indians." As late as 1921 the sweeping Snyder Act maintained this imprecise usage by identifying its beneficiaries simply as "the Indians throughout the United States." Flowing from this undefined terminology, for certain groups during the treaty-making era tribal recognition was an uncertain, arbitrary proposition. Throughout the nation federal officials often overlooked many viable Indian tribes and peoples, seeing them as simply too weak, dependent, or numerically insignificant to bother with. These forgotten tribes were left outside the federal circle as a result.
With the majority of indigenous groups on reservations by 1871, however, Indians gradually lost the power to dictate terms of negotiation and tribal existence. Acknowledgment eventually became less of an issue to policymakers. The period of active treaty making and acknowledgment thus slowly came to an end during the 1870s and 1880s. Between 1871 and 1934 it is not surprising that few tribes gained recognition of their sovereignty, for non-Indians used all tools at their disposal to destroy Indianness and tribalism. During these years missionaries, local settlers, and federal officials descended upon tribal communities seeking to stamp out their tribal governments and cultures. Although federal courts sometimes were concerned with whether Indian entities could be recognized as being federal "wards" or trust beneficiaries during the late nineteenth century, the entire thrust of congressional policy sought to destroy tribalism and break up Indian lands through mechanisms such as the Dawes Severalty Act, a largely disastrous law for most Indian communities. During these years it was a matter of faith to non-Indians that full acculturation was the best solution to the "Indian problem" in the country; establishing new trust relations would only slow the Indians' eventual assimilation into the mainstream.
As non-Indian views of Native peoples forever change, the federal emphasis swung again during the 1930s. In the midst of an economic and military crisis between 1934 and 1945, a new, gentler policy toward Native Americans emerged. At this time idealistic Indian commissioner John Collier pushed the Indian Reorganization Act of 1934 (IRA), a significant piece of legislation that became the centerpiece of the "Indian New Deal." Through the IRA a new federal agenda was born: one that promoted Indian tribalism and cultures while seeking to reorganize widely varying Indian governments along Euro-American political lines. As a result these years were marked by a strengthening of tribal status and sovereignty overall. By this time, however, tribal recognition was no longer a negotiation between equals, but a process dictated by the federal government and its bureaucrats.
The Indian New Deal ushered in the modern tribal acknowledgment issue. During the 1930s and early 1940s questions regarding tribal acknowledgment arose as Indian Office lawyers had to decide which Indian communities qualified as tribes or bands eligible to hold elections and organize under the Indian Reorganization Act. Specifically, the IRA listed three types of Indians authorized to organize tribal governments: "recognized" tribes, descendents of recognized tribes residing on a reservation in 1934, and other persons of one-half or more Indian blood. Indian officials had to determine which peoples fit these descriptions. Ultimately during this era Harvard-trained lawyer Felix Cohen, who later authored the standard Handbook of Federal Indian Law, developed a set of criteria the government used in deciding difficult jurisdictional cases. Until the BIA created the 1978 regulations, the "Cohen Criteria" were the primary templates officials used when determining Interior Department jurisdiction. According to Cohen, the department's criteria were based on the limited case law on the matter and past federal policies. The Supreme Court decision Montoya v. United States (1901) was particularly salient.
The Montoya case arose under the Indian Depredation Act of 1891 and involved the Mescalero Apache Tribe of New Mexico and local businessmen. In the late 1800s E. Montoya and Sons of Socorro, New Mexico, sued the Mescalero Apache Tribe for damages their company incurred during a raid conducted by Victorio's Band in 1880, an event that would prove to be one of the last of the Indian "wars" in the American West. At issue was whether the Mescalero Apache Tribe was liable for the deeds of Victorio's Band or whether his group had acted as a separate and distinct body or tribe. In deciding that the band had in fact acted independently, the Court handed down a common law definition of "tribe." According to the justices: "by 'tribe' we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." The Montoya definition of tribe, although somewhat vague and imprecise, would be the primary common law definition of the concept used by the Interior Department during the 1930s and early 1940s. As revealed here, to white officials a tribe was a political unit living under leaders who controlled and directed the community's behavior.
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Excerpted from Forgotten Tribes by Mark Edwin Miller Copyright © 2004 by University of Nebraska Press . Excerpted by permission.
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