Invisible Indians: Termination, Denial and the Innovation of Political Agency

Photo by Rachel Waters

On June 15, 2010, the sound of drumming and the joyous peels of a victory song echoed through the coastal forests of eastern Long Island in New York State, celebrating the end of the Shinnecock Indian Nation’s 32-year battle for federal recognition (Hakim 2010). Meanwhile, on the opposite side of the country in Washington State, the Chinook — a tribe that had once been federally recognized — continued in what Tribal Chairman Tony Johnson called a “life and death” struggle to regain that status (Associated Press 2015).

The jubilation and despair experienced by tribal nations regarding federal recognition are sentiments that penetrate more deeply than the validation of identity or the historic and present-day struggles of these tribes. For Indian nations, federal recognition shapes them to fit the legible scheme required to receive medical and educational assistance, to practice traditions otherwise suppressed and to assert a measure of sovereignty as domestic dependent nations with secure claims on land (Ulrich 2010: 3–18). Without this political classification, tribal nations cannot be “seen” by the U.S. government and are thus consigned to death by assimilation or destitution. Or so it might seem.

By reorganizing themselves as 501(c)(3) entities in lieu of federal recognition, tribes like the Chinook and Shinnecock secured a measure of political legibility and funding with which to identify and govern on their own terms, even as they struggled to define themselves as native peoples in the eyes of the federal government.

As of 2014, American Indians comprised just 2 percent of the U.S. population, rendering them all but invisible to the broader American public and, for those without federal Indian status, totally invisible as native peoples to the government (U.S. Census Bureau 2014). Federal recognition, as defined in 1832 by Worcester v. Georgia, establishes a tribe as an entity which has a government-to-government relationship with the United States as a domestic dependent nation. This semi-sovereignty affords tribes the right to self-government and to land held in trust and secured from purchase or seizure by non-natives. Furthermore, as dependent nations, these tribes are eligible for funding and services provided by the Bureau of Indian Affairs (BIA 2015).

To be recognized as a tribal nation by the government is to be afforded both the right and funds to establish tribal legislatures and judiciaries complete with law enforcement as well as schools, healthcare facilities and profitable businesses like casinos (that might otherwise be illegal within a tribe’s home state) (Robbins 1999: 87–100). Additionally, tribes are able to enact taxes in order to sustain governmental functions and can practice traditional customs that — like casinos — might be illegal in the state in which their land is situated. Such customs and privileges include the ability to possess eagle feathers, to participate in religious ceremonies that involve the use of peyote, to hunt certain types of game and to engage in traditional fishing or whaling practices which comprise significant parts of their cultural heritage (p. 98–112).

As of 2014, there were 566 federally recognized American Indian and Alaska Native tribes and 400 additional unrecognized tribes (Mittal 2012: 4). The figure of 2 percent given by the U.S. Census is that of all self-identified natives, including those who are part of a federally recognized tribe as well as by those who are not (U.S. Census Bureau 2014). For non-federally recognized natives, their unique needs often remain unseen and unmet.

Natives, whether enrolled in a federally recognized tribe or not, experience death from diseases like tuberculosis and alcoholism at more than 500 percent the national average as well as from diabetes at 189 percent and suicide at 69 percent the national averages (SAMHSA 2003). These disparities extend far beyond health. Only 18.9 percent of natives hold a bachelor’s degree or higher (compared to 30.1 percent of the overall population), their rates of unemployment range from 14.8–35 percent depending on region, and the likelihood they will experience violent crime is twice the national average (Sarche & Spicer 2008).

With such numerically small and largely undereducated and underemployed populations, native people hold relatively little economic or political power. Without the buffer that federal recognition confers, the privileges and assistance needed to address these disparities are nonexistent. Thus, native peoples exist in a limbo of quasi statelessness. Though they may be deeply ingrained as tribal members in nations whose leadership structures are intact and who define themselves and their members, not by federal recognition but by lineage and tradition, they are effectively rendered invisible as unique political entities in their interactions with the U.S. government (Sarche & Spicer 2008). Therefor the impetus to achieve federal recognition is strong even as the process by which this recognition is achieved is tedious and costly — both financially and culturally — for those nations that seek to obtain it.

Established in 1978, the current Federal Acknowledgement Process (FAP) was designed to be a standardized and “objective” guideline for evaluating who did and did not qualify as a legitimate Indian nation (Riley 2010: 4–9). What follows are the seven mandatory criteria that were established in order for a tribe to qualify for federal recognition:

a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900;

b) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present;

c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present;

d) Petitioner must provide a copy of the group’s present governing documents;

e) The petitioner’s membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity;

f) Membership of the petitioning group is composed principally of persons who are not members of any other acknowledged group; and

g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship. (p. 5)

These criteria are notoriously hard to satisfy within the Office of Federal Acknowledgement’s interpretive framework. For instance, though it might seem easy to fulfil the first requirement that the petitioner be identified as an American Indian entity on a continuous basis since 1900, large numbers of petitioners have failed to do so. Collections of contemporaneous photos of indigenous families and gatherings or journalistic references to native peoples living in a certain part of the city or state are frequently denied as evidence for the FAP on the grounds that these only prove the existence of native persons and not tribal entities, themselves (p. 5–16).

As Lorinda Riley, a former tribal liaison and policy analyst for the Department of Homeland Security pointed out:

“The Office of Federal Acknowledgement’s analysis of criterion (a) frequently suffers by the application of contemporary standards to the past. For example, it is doubtful that a journalist from the early 1900s would view Indians as a political entity, and therefore, unsurprising that an article from that era would contain little or no information about the larger Indian entity. The OFA uses the lack of such modern descriptors to buttress the argument that the petitioner is not an “entity,” but individual Indians. However, lack of outside identification of an Indian or group of Indians as an “entity” carries little meaning beyond a lack of information to form a conclusion.” (p. 7)

Furthermore, what comprises the second criteria’s “distinct community from historic times to the present” often stands in opposition to how many tribes have historically defined themselves. By forcing tribes to comply with these criteria, the federal government strives (and in many ways succeeds) in remaking the culture of the tribe, itself.

Shared oral tradition — an essential component of distinct tribal identity for many native peoples — is inadmissible as evidence versus the FAP’s acceptance of proof that 50% or more of a petitioner’s members having a high native “blood quantum” (literally the ratio of native to non-native blood) (p. 9–13). Rather than tracing lineage through traditional means of clan affiliation, traditional adoption or the use of common maternal or paternal ancestors, blood quantum is a strictly colonial indicator of indigenous identity. Its ethno-legal use first emerged in the historic record around 1817 with treaties that allotted certain privileges to individuals designated as “half breeds” and “quarter bloods” (Schmidt 2011).

In the all-consuming need to just be seen as a people, tribal emphasis shifts away from oral tradition and pre-colonial kinship structures as their value diminishes in comparison to those criteria valued by the state. In the hierarchy of needs, the ability obtain medical care, education necessary for employment and a land to call home, renders the loss of culture a distant secondary concern (Sturtevant 2008: 56–57). For some, the loss of culture also has a physical component that adds insult to injury for tribes seeking to meet federal criteria. Even as tribes are asked to prove their indigeneity in ways that are anathema to tradition, the criteria also confronts the historical reality that many tribes actively hid or destroyed material evidence of their own “Indianess” in order to bypass older policies of forced removal, assimilation and racial discrimination (Riley 2010: 12–16).

As a result of these complicated, Eurocentric and often circular demands for proof of historical legibility, achieving federal recognition also poses significant hardship to Indian communities. The initial petition alone is often the accumulation of several years of work frequently exceeding 7,000 documents comprised of 40,000 pages, much of which will ultimately be discarded as evidence during the FAP (Sturtevant 2008: 119). Even if the documentation is adequate and in order, petitioners may find their claims denied if a request for additional evidence can’t be met or if new evidence supplied by an interested party (consisting of state and local governments as well as other recognized and non-recognized tribes) appears to contradict initial findings.

Furthermore, it is not uncommon for tribes seeking federal recognition to face direct opposition from federally recognized tribes that fear a diminished slice of the BIA funding pie (p. 119–121). Given such a monumental task, it’s no wonder that unrecognized tribal nations have sought to establish the political agency and legibility needed to secure funding for essential services through the far simpler process of filing as a 501(c)(3) nonprofit entity.

A report sent by the US Government Accountability Office to Rep. Dan Boren in April 2012 showed that between 2007 and 2010, 26 non-recognized tribes collectively received $100 million in federal funding as 501(c)(3) organizations (Mittal 2012: 7). Of these funds, 95 percent were awarded by four departments: those of Housing and Urban Development, Education, Health and Human Services and the Treasury (p. 27). Each of the 26 tribes that received these funds had either been denied federal recognition, were actively seeking it or both (p. 49–50). Among those listed in the report were the Chinook and the Shinnecock.

Like many others in the report, the Shinnecock had never enjoyed federal status before their formal recognition was written into law on October 1, 2010 (p. 49). But the Chinook were unique in that they were among the few who had once been federally recognized only to have their Indian status revoked in 1954 during what would come to be remembered as the darkest period for native peoples in the 20th century.

In southwestern Washington, a collective of five indigenous bands have fished, hunted and carved their lives into the steep banks of the Columbia River since long before Lewis and Clark sought shelter with them in the winter of 1805. For the Lower Chinook, Clatsop, Willapa, Wahkiakum and Kathlamet which comprise the greater Chinook Indian Nation, the federal funds they receive as a nonprofit are a poignant trickle of what once was prior to the Era of Termination and of what had been torn away once more after their short-lived restoration in 2001 (Johnson 2010).

In 1953, the United States Congress enacted legislation that, over the next 13 years, would end the government-to-government relationship held with more than 100 Indian nations. Known as the Termination Era, the program that generated the period’s namesake was something of a step backward for U.S. Indian policy. In 1934, Commissioner of Indian affairs John Collier sought to empower native peoples through the Indian Reorganization Act (IRA). Heralded as the “Indian New Deal,” IRA was a departure from assimilationist policies that came before in that it encouraged the recognition of Indian tribes as sovereign nations, restored some of 90 million acres of Indian land that had been lost to allotments between 1887 and 1934, and allowed tribes to write constitutions and manage their own internal affairs. Collier left office in 1945, and in his absence, the rhetoric of the old champions of assimilation and land allotment changed from that of “civilizing” the Indians to that of “emancipating” them from federal bondage (Ulrich 2010: 3–20).

In 1953, a senator from Utah and Chairman of the Senate Subcommittee on Indian Affairs Arthur Watkins, celebrated the passage of House Concurrent Resolution №108, a document he had penned which declared that termination would be an ongoing federal policy (p. 8–9). The four key goals of Termination were as follows: To repeal laws that “discriminated against” Indians and gave them a different status from other Americans; to disband the Bureau of Indian Affairs, to end federal supervision of individual Indians and to end federal supervision and trust responsibilities for Indian tribes. Though this could be interpreted as benevolent on its face, by stripping the legibility of Indian nations as entities with unique needs, rights and territories via the withdrawal of its recognition and trust responsibilities, the federal government made Indian peoples and lands vulnerable. Under termination, tribes ceased to exist as semi-sovereign nations and were no longer permitted to govern their own internal affairs (p. 8–20).

From 1953 through 1968, more than 100 tribes were terminated, roughly 1,365,801 acres of trust land were converted to private ownership, and 13,263 individuals lost tribal affiliation and became subject to state laws that had little regard for protecting or permitting traditional cultural practices (p. 3–20).

For some tribes, like the Menominee of Wisconsin, termination meant that tribal cash assets which had stood at $10 million in 1954 were drained to $300,000 by 1964 in order to compensate for the loss of medical facilities, schools and other social services. Even then, these funds were woefully inadequate and the standard of living for all Menominee declined dramatically, with unemployment doubling in the span of four years (p. 21–40). Even after the Menominee were successfully restored in 1975, the reservation schools that were unable to afford to stay open during Termination meant that 75 percent of the class of 1958 would grow up with only a 9th grade education (p. 155–158).

The Chinook were among the first to be terminated in 1954, and although the effects on their tribe were not as dramatic or well-documented as that of the Menominee, they too lost their reservation lands, schools, health center and their right to fish salmon as their ancestors had for millennia. As termination loomed, the Chinook quickly reconstituted to form the nonprofit Chinook Indian Tribe, Inc. in 1953 in preparation to launch what would become a more than 62-year battle for restoration (BIA 2001).

Known since 2002 as The Confederated Lower Chinook Tribes and Bands 501(c)(3), today the organization earns roughly $52,000 annually, with a significant portion of that income coming from the federal government (NCCS 2014). Although it’s a paltry sum for a nation to assist its 2,700 members, their status as a 501(c)(3) entity has given the Chinook people trademarked ownership of their name and a cohesive, legitimized identity with which to bolster their visibility in the fight for restoration (Johnson 2010).

For the Chinook and others like them, to be a 501(c)(3) is to be visible and acknowledged by the Internal Revenue Service, though only as a tax-exempt charitable organization without the power to lobby or participate in political campaigns (IRS 2015). Albeit a far cry from official recognition and the $2.9 billion in annual funding designated to recognized Indian nations by the BIA, nonprofit status enables tribes to apply for and receive donations and federal grants to support their existence (GPO 2011). Furthermore, the effort and time investment required for this measure of legibility and funding is minimized relative to the petition process for federal Indian status. With roughly 28–50 pages of application materials and supporting documents and a process that can be completed in less than 6 months, an Indian nation can exist on the federal record as a body with a name and the funds (however small) with which to serve its public (IRS 2015).

In 1982, after decades of research and evidence collection, the Chinook Indian Tribe, Inc., formally filed a petition requesting federal verification of their status. The petition languished in bureaucratic limbo until 2001 when Kevin Gover, assistant secretary for the Bureau of Indian Affairs under President Bill Clinton, surveyed the evidence and granted federal recognition once more to the Chinook Indian Nation. But the victory was swiftly overturned when on the 89th day of the 90 days allotted for interested parties to appeal such a decision, the neighboring Quinault Indian Nation claimed that Gover had interpreted the some of the tribes’ qualifications in a way that was inconsistent with previous interpretations by the Department of the Interior.

By the time the appeal was reviewed, the Clinton administration had given way to that of George W. Bush and Neal McCaleb had replaced Gover as the new assistant secretary of the BIA. McCaleb agreed with the Quinault and in July 2002, the Chinook were cast back into the realm of the unrecognized — a nation in name alone, existing as nothing more than small nonprofit in the eyes of the federal government (Brown 2015).

While their status as a 501(c)(3) affords the Chinook modest funding and some sense of agency in the face of enduring challenges to their legitimacy, for the Shinnecock Nation of Southampton, NY, nonprofit status also carried the promise of cultural salvation.

From 1978 until their recognition in 2010, the Shinnecock received more than $1 million in direct federal grants (with $976,000 received between 2007 and 2010) (Mittal 2012: 20–25). In the absence of recognition, these funds acted as a lifeline for the Shinnecock’s 1,300 enrolled members and helped enable the tribal government to establish a community center, cemetery, a small health and dental center, a family preservation and Indian education center, a museum and a playground (King 2012). This small measure of legibility prior to recognition allowed the Shinnecock to establish physical and metaphoric spaces that asserted their identity and agency as a unified people over the course of 32 years of denial by the federal government.

In 1978, the Shinnecock were simply known as Petitioner #4 under the newly established FAP and its seven qualifications required for official Indian status. After spending $33 million over the course of those three decades, the tribe received a letter in October 2010 from the BIA’s Office of Federal Acknowledgement. It arrived just a few days after their recognition was made official and contained an internal memo from 1979.

The memo stated that the Shinnecock were a legitimate tribe and should be recognized as such “expeditiously” (Courey Toensing 2014). There was no further explanation or context for the letter, only the nagging ache experienced by the nation’s leaders that perhaps some misery might have been avoided had the recommendation been followed (2014).

Amid the timelines, facts and figures presented in papers like this, it can be easy to overlook why these matters of political legibility and agency are so important. It does our efforts as scholars, policymakers and aid workers a disservice to forget the devastation inflicted on individual human beings by such struggles to be recognized in the way one recognizes oneself or to simply be visible at all.

Just days before the decision to restore the Chinook Nation was overturned, Tribal Chairman Tony Johnson traveled to Washington DC as the nationally acknowledged leader of his people to celebrate the bicentennial of the Lewis and Clark expedition. It was here that his dreams would be shattered along with those of approximately 2,700 others:

“George Bush invited me as chairman to come to the White House. All the tribes along the trail were invited. My wife and I stayed for a couple of extra days, visiting family. We were sightseeing around D.C. when my cell phone rang. A secretary in the office called and said they had revoked our tribal recognition. That was all that was said…At that White House meeting we put a really nice necklace into (a family heirloom canoe) and gifted that to the president at the ceremony…We were there as a recognized tribe in the White House one day. Two days later, they were taking it away from us. Total devastation, frustration.” — Tony Johnson (Brown 2015)

Works Cited

Ulrich, R. 2010. American Indian Nations from Termination to Restoration, 1953–2006 Lincoln, NB.: University of Nebraska Press; 2–248.

United States Department of the Interior, Bureau of Indian Affairs (BIA). 2015. “Frequently Asked Questions.” Washington D.C.: Department of the Interior

Robbins, R. 1999. “Self-Determination and Subordination: The Past, Present and Future of American Indian Governance” in The State of Native America: Genocide, Colonization and Resistance New York, NY.: South End Press; 87–112

Sarche, M., & Spicer, P. 2008. “Poverty and Health Disparities for American Indian and Alaska Native Children: Current Knowledge and Future Prospects.” Annals of the New York Academy of Sciences, 1136, 126–136.

Schmidt, R. 2011 “American Indian Identity and Blood Quantum in the 21st Century: A Critical Review,” Journal of Anthropology 2011 (2011): 1–9.

Sturtevant, W. 2008 Handbook of North American Indians: Indians in contemporary society. Washington D.C.: The Smithsonian Institution. 19–86.

Mittal, A. 2012 “Report to the Honorable Dan Boren, House of Representatives re: Indian Issues: Federal Funding for Non-Federally Recognized Tribes”, Washington D.C.: United States Government Accountability Office; 1–60.

National Center for Charitable Statistics (NCCS) 2014. “Fact Sheet for Confederated Lower Chinook Tribes and Bands” Washington D.C.: The Urban Institute.

Originally published at Written as part of my M.A. in International Affairs at The New School