Native Americans in The United States - Current Legal Status

Current Legal Status

There are 562 federally recognized tribal governments in the United States. These tribes possess the right to form their own governments, to enforce laws (both civil and criminal) within their lands, to tax, to establish requirements for membership, to license and regulate activities, to zone and to exclude persons from tribal territories. Limitations on tribal powers of self-government include the same limitations applicable to states; for example, neither tribes nor states have the power to make war, engage in foreign relations, or coin money (this includes paper currency).

Many Native Americans and advocates of Native American rights point out that the U.S. federal government's claim to recognize the "sovereignty" of Native American peoples falls short, given that the United States wishes to govern Native American peoples and treat them as subject to U.S. law. Such advocates contend that full respect for Native American sovereignty would require the U.S. government to deal with Native American peoples in the same manner as any other sovereign nation, handling matters related to relations with Native Americans through the Secretary of State, rather than the Bureau of Indian Affairs. The Bureau of Indian Affairs reports on its website that its "responsibility is the administration and management of 55,700,000 acres (225,000 km2) of land held in trust by the United States for American Indians, Indian tribes, and Alaska Natives". Many Native Americans and advocates of Native American rights believe that it is condescending for such lands to be considered "held in trust" and regulated in any fashion by other than their own tribes, whether the U.S. or Canadian governments, or any other non-Native American authority.

As of year 2000, the largest tribes in the United States by population were Navajo, Cherokee, Choctaw, Sioux, Chippewa, Apache, Blackfeet, Iroquois, and Pueblo. In 2000, eight of ten Americans with Native American ancestry were of mixed ancestry. It is estimated that by 2100 that figure will rise to nine out of ten. In addition, there are a number of tribes that are recognized by individual states, but not by the federal government. The rights and benefits associated with state recognition vary from state to state.

Some tribal nations have been unable to document the cultural continuity required for federal recognition. The Muwekma Ohlone of the San Francisco bay area are pursuing litigation in the federal court system to establish recognition. Many of the smaller eastern tribes, long considered remnants of extinct peoples, have been trying to gain official recognition of their tribal status. Several in Virginia and North Carolina have gained state recognition. Federal recognition confers some benefits, including the right to label arts and crafts as Native American and permission to apply for grants that are specifically reserved for Native Americans. But gaining federal recognition as a tribe is extremely difficult; to be established as a tribal group, members have to submit extensive genealogical proof of tribal descent and continuity of the tribe as a culture.

In July 2000 the Washington Republican Party adopted a resolution recommending that the federal and legislative branches of the U.S. government terminate tribal governments. In 2007 a group of Democratic Party congressmen and congresswomen introduced a bill in the U.S. House of Representatives to "terminate" the Cherokee Nation. This was related to their voting to exclude Cherokee Freedmen as members of the tribe unless they had a Cherokee ancestor on the Dawes Rolls, although all Cherokee Freedmen and their descendants had been members since 1866.

As of 2004, various Native Americans are wary of attempts by others to gain control of their reservation lands for natural resources, such as coal and uranium in the West.

In the state of Virginia, Native Americans face a unique problem. Virginia has no federally recognized tribes but the state has recognized eight. This is related historically to the greater impact of disease and warfare on the Virginia Indian populations, as well as their intermarriage with Europeans and Africans. Some people confused the ancestry with culture, but groups of Virginia Indians maintained their cultural continuity. Most of their early reservations were ended under the pressure of early European settlement.

Some historians also note the problems of Virginia Indians in establishing documented continuity of identity, due to the work of Walter Ashby Plecker (1912–1946). As registrar of the state's Bureau of Vital Statistics, he applied his own interpretation of the one-drop rule, enacted in law in 1924 as the state's Racial Integrity Act. It recognized only two races: "white" and "colored".

Plecker, a segregationist, believed that the state's Native Americans had been "mongrelized" by intermarriage with African Americans; to him, ancestry determined identity, rather than culture. He thought that some people of partial black ancestry were trying to "pass" as Native Americans. Plecker thought that anyone with any African heritage had to be classified as colored, regardless of appearance, amount of European or Native American ancestry, and cultural/community identification. Plecker pressured local governments into reclassifying all Native Americans in the state as "colored", and gave them lists of family surnames to examine for reclassification based on his interpretation of data and the law. This led to the state's destruction of accurate records related to families and communities who identified as Native American (as in church records and daily life). By his actions, sometimes different members of the same family were split by being classified as "white" or "colored". He did not allow people to enter their primary identification as Native American in state records. In 2009, the Senate Indian Affairs Committee endorsed a bill that would grant federal recognition to tribes in Virginia.

To achieve federal recognition and its benefits, tribes must prove continuous existence since 1900. The federal government has maintained this requirement, in part because through participation on councils and committees, federally recognized tribes have been adamant about groups' satisfying the same requirements as they did.