Published April 19, 2016
The Federal Government’s definition of an “Indian” is, in some instances, independent of an individual Indian’s tribal membership status. Several federal laws confer various federal benefits and protections to individual Indians who are no longer, or who may have never been, members of a federally recognized tribe. Consider: the “federal Indian.”
For instance, the Indian Arts and Crafts Act (IACA), 25 U.S.C. § 305, does not require an individual Indian to be a member of a federally recognized Indian tribe in order to incur federal protection of his or her Indian arts and crafts products. IACA defines an “Indian” as both a person who is a member of an Indian tribe as well as a person who is a certified “Indian artisan.” An “Indian artisan” is an individual who is certified by an Indian tribe as a non-member Indian artisan. The statute entitles both tribal members and non-member Indian artisans to protections based on their designation as an “Indian,” irrespective of their underlying tribal member status.
Moreover, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, applies to Indian children who are members of or are eligible for membership in an Indian tribe. ICWA defines an “Indian child” as an unmarried person under the age of eighteen who is either a member of an Indian tribe or who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. ICWA, therefore, likewise affords federal protections to “Indian children” regardless of their underlying tribal member status.
Further, the Indian Health Care Improvement Act, 25 U.S.C. § 1601, generally defines an “Indian” as any individual who, irrespective of whether he or she lives on or near a reservation, is a member of a tribe, including terminated and state recognized tribes, or who is a first or second degree descendant of a tribal member for the purposes of awarding scholarship and grant funding. An individual who is considered by the Secretary of the Interior to be an Indian for any purpose or who is determined to be an Indian under the regulations promulgated by the Secretary also is considered an “Indian” for scholarship and grant purposes.
Although the scope of benefits accorded to Indians who lack membership in a federally recognized tribe is limited, this sampling of federal statues shows that the Federal Government’s trust responsibility to individual Indians does not conclude as a result of an individual Indian’s failure to enroll or of a tribal government’s disenrollment of that person. In the view of the United States, at the very least, Indians do not cease to be Indians merely because they lack a certain political status as “members of a federally recognized Indian tribe.”
But getting the Indian Trustee to do anything to protect the Indian—whether tribal member or “federal Indian”—per the United States’ moral trust obligations, is another story.
Bree Black Horse is an Associate in the Seattle office and a former Clerk for the U.S. District Court of Montana. She is an enrolled citizen of the Seminole Nation of Oklahoma. Bree can be reached at (206) 735 – 0448 or [email protected].
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