At a recent White House event held to honor the Navajo Code Talkers, President Trump repeated a slur directed at Senator Elizabeth Warren: “Pocahontas.” A jibe originating during her campaign for the Senate, the term was applied to Senator Warren due to her claim to have Native American ancestry. Since the original attack, Senator Warren’s ancestral claim has been scrutinized and debated not just by journalists and political pundits, but by Native Americans as well.

In an attempt to allay such concerns, Senator Warren recently made a surprise appearance at the winter meeting of the National Congress of American Indians (NCAI). In her speech to that body, she continued to claim Native ancestry, but also stated that who is a tribal member is ultimately decided by tribal nations.

Though it may be the most high-profile controversy about Native American identity, the debate underlying the Trump/Warren situation is neither new nor unique. The question of who gets to identify as a Native American has triggered conflict within and outside tribal nations since before the founding of the United States. Indeed, federal law has grappled with the question through legislation, regulations, and court decisions since the early nineteenth century, with no definitive resolution.

Instead, the terms “Indian,” “Alaska Native,” or “Native American” mean different things for different purposes, evading a simple answer. The issue is incredibly complex, as it involves interconnected strands of the law, history, and culture of hundreds of separate tribal peoples, with an overlay of federal and state law.

Indian law, outside of the laws of each tribal sovereign, is primarily a matter of federal law. Under federal law, the technical legal terms, “Indian” and “Alaska Native” are defined in three different ways: (1) tribal membership, (2) blood quantum, and (3) self-identification. They are not discrete categories, as some statutes or regulations apply one or more categories at the same time.

Tribal Membership

At the most basic level, “Indians” and “Alaska Natives,” are those individuals recognized as citizens of a tribal nation. A fundamental premise of federal law is that tribal nations determine under their own law who their members are. Some federal laws, such as the Indian Child Welfare Act, defer completely to tribal law by defining “Indian” as a person who is a tribal member or eligible to be a member. The Indian Arts and Crafts Act restricts the ability to identify certain types of art as “Indian” to members of tribes and others certified as “Indian artisans” by those tribes. Under the act, it is a federal crime to falsely suggest the art is Indian made.

Because membership is determined by sovereign tribal nations, federal law classifies Indian and Alaska Native status as “political” and not “racial” for equal protection purposes. This is true whether a tribal nation applies “blood quantum,” meaning a certain threshold percentage of “blood,” to define its membership, or not. Indeed, some tribal nations recognize people as members who are classified by the federal government as having no Indian ancestry, such as the Cherokee Nation of Oklahoma, which recently accepted descendants of “Freedmen,” or ex-slaves, as tribal citizens. Further, some tribes have no minimum blood quantum requirement, such as the Osage Nation, recognizing anyone directly descended from a member. As such, some individuals are legally “Indian” or “Alaska Native,” but don’t have the stereotypical physical attributes of a Native American “race.”

To complicate things more, not all tribal nations are recognized as sovereign governments by the United States. Congress or the Bureau of Indian Affairs has recognized some tribal nations, and rejected others. Indeed, President Trump recently signed a bill recognizing six tribal nations in Virginia. Further, state governments recognize some tribal groups, whether or not they are federally recognized. Therefore, a person may be a member of a tribal nation, but that tribal nation may or may not be a political sovereign under federal or state law.

There are significant controversies even among tribal nations over who is a tribal member. Some tribes have “disenrolled” specific individuals or whole families or classes of people by tribal law, stripping them of their membership status, and therefore their legal status as “Indian” under some federal laws. Even under the “tribal membership” definition, then, there is ambiguity and controversy, as some individuals were members, and continue to consider themselves members, but their tribal government does not.

Blood Quantum

Other definitions of “Indian” and “Alaska Native” in federal statutes and regulations only require a threshold quantum of “blood,” with no requirement that an individual be a member of a tribal nation. To show proof of Indian blood for these laws, the Bureau of Indian Affairs issues a “Certificate of Degree of Indian or Alaska Native Blood,” or CDIB for short. Indians and Alaska Natives are the only population in the United States that have such a document. There are then individuals who may not be tribal members, but have been legally considered “Indian” for some purposes, simply by their amount of Indian blood.

Self-Identification

Though rare, federal law does in certain circumstances recognize individuals who simply identify themselves as Native American. The U.S. Census accepts self-identification regardless of membership or blood quantum. Therefore, many more individuals claim to be American Indian or Alaska Native than there are members of federal or state recognized tribes. They do not need to provide proof of Native ancestry to count for this purpose, and this census data could be used in voting rights litigation or other situations where the number of individuals of a certain race is relevant.

Historical Evolution

The three legal definitions have not historically been given the same weight. Up to the 1934 Indian Reorganization Act (IRA), statutory and administrative definitions almost exclusively deferred to tribal membership. Blood quantum did become more prominent through its administrative application during the allotment era—a period from 1887–1934 in which the federal government split up communal tribal lands in order to weaken the tribes as collective entities—to release “mixed-blood” Indians from federally-imposed restrictions on sale of their land. When allotment was repudiated, a bare blood quantum was included in the definition of “Indian” in the IRA, and was then applied by itself or in tandem with tribal membership in other statutes and regulations, including the Alaska Native Claims Settlement Act in 1971.

Self-identification is a relatively new definition, as race was recorded by census takers until 1960, when individuals could for the first time “choose their own race.”

Controversies over Identity

The intersection of these legal definitions drives many of the controversies over Indian identity, including the Trump/Warren issue.

Some individuals, such as Senator Warren, publicly identify as Native American or at least as having Native American heritage, regardless of whether any tribe accepts them as members or if they can provide documents attesting to their ancestry. The issue is particularly pronounced in academia and the arts community. Some individuals who identify as Indian, but lack tribal membership, have faced challenges when hired for university positions. Some artists who identify as Indian have faced criticism due to lack of documentation of their membership or Indian ancestry. Partisans on both sides apply the various definitions to support their views, with no definitive way to answer the question: who is a real Native American?

Conclusion

Beyond its political theater, the Trump/Warren controversy is a reflection of the seemingly unresolvable conflict within and outside tribal communities over how to define Native American identity. While the core legal concept is tied to membership in a federally recognized tribal nation, other legal definitions exist simultaneously, rendering it impossible to definitively state who is an Indian or Native American for all purposes.

As a member of Congress, Senator Warren can do much to resolve these conflicts within federal law, if she chooses to carry forward the good will generated by her NCAI appearance to directly benefit tribal communities. However, regardless of what legal definitions exist in federal law, differences in opinion over legitimacy will continue to exist within and outside tribal communities, and therefore public debate and conflict will continue.

Native American