What is an Indian? A Legal Definition, Part 2

Yesterday I was talking about the complex legal debates and precedents that define what it is to be Indian, as well as the confusion this causes Native American people when it comes to recognition, eligibility, and answering the question “Are you Indian?”

Continuing on with other legal definitions of what it is to be Indian:

Indian Education Act definition:  “The Indian Education Act of 1972 employs a relatively broad definition of ‘Indian.’ It includes all the following: “people of one-eighth blood ancestry and higher who are members of Indian tribes and groups, residents of state reservations, urban Indians, Indians from ‘terminated’ tribes, and self-identified Indians.” (Jack Utter in the book “American Indians–Answers to Today’s Questions,” at page 28.)

Indian Arts & Crafts Act definition:  For the purposes of the Indian Arts and Crafts Act of 1990, “Indian” is defined by Congress as “any individual who is a member of an Indian tribe, or . . . is certified as an Indian artisan by an Indian tribe. There is no blood quantum requirement. A ‘tribe’ is also defined to include those tribes and Alaska Native villages recognized by the federal government, those formerly recognized, and tribes or groups recognized by a state government when there is no federal recognition.”  (Utter at page 28)

Lower 48 & Alaska Tribes definition:  As indicated above, federal definitions have included Alaska Natives under the broad heading of “Indians” when discussing BIA and other agencies and other agency programs affecting Indians. Therefore, “Indians” is sometimes employed as a generic term for all Native peoples of the continental United States. At other times, the term refers only to American Indians in the 48 states, while “Alaska Natives” is used to distinguish the Indian, Eskimo, and Aleut people of Alaska.

United Nations definition:  In the “Declaration of Rights of Indigenous Peoples,” the United Nations uses the word indigenous peoples when referring to “Indians.” Legal definition? It is somewhat unilateral to accept the federal definition of what an Indian is.  (2006 Report by the Human Rights Council to the U.N. General Assembly, at page 58)

American Indian law definition: “To avoid the great confusion associated with the question of who is an Indian, Felix S. Cohen (1982) — the renowned chronicler of American Indian Law — suggests that a practical and basic legal definition of an Indian would be one which sets two essential qualifications:  (a) some of the individual’s ancestors lived in what is now the United States before the first Europeans arrived, and (b) the individual is recognized as an Indian by his or her tribe or community.” (Utter at pages 28-29)

And on and on it goes…

I think what is clearly called for is for a bi-lateral effort by the U.S. and tribes themselves to find a less confusing definition of  “What is an Indian?” Tribes have yet to agree on a unified definition of Indian and perhaps there will never be such an agreement because each separate tribe will always have their own membership according to their own respective criterion for membership.


Join the discussion and tell us your opinion.

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