Monday, May 21, 2018

Spruhan on "The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity"

Just out from the American Indian Law Journal: "CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity," by Paul Spruhan (Navajo Nation Department of Justice). ("CDIB" stands for "Certificate of Degree of Indian or Alaska Native Blood.") Here's a paragraph from the Introduction:
This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published regulations and suggest several possibilities for its first appearance. I then discuss a 1986 Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations). In that decision, the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations. I then discuss the BIA’s attempts at issuing regulations since 2000 and the possible reasons for why they have never been finalized. I then discuss potential remedies the BIA might consider in order to solve problems arising out of the CDIB program, including the potential misuse of CDIBs in current disenrollment conflicts within some tribes. In the conclusion, I discuss the CDIB’s role in enshrining “blood” as the dominant definition of Native American legal identity. I also argue that, for as long as the CDIB continues, the BIA has an affirmative obligation to issue clear policies that prevent its misuse in internal tribal conflicts.
The full article is available here.

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