From: "Victor Rocha" <[email protected]> Subject: BIA's proposed rule on Certificates of Degree of Indian Blood Date: Wed, 12 Jul 2000 16:49:36 -0700 Alert! BIA's proposed rule on Certificates of Degree of Indian Blood The Bureau of Indian Affairs recently published in the Federal Register a proposed rule that establishes the documentation requirements and standards for filing, processing, and issuing a Certificate of Degree of Indian Blood ("CDIB"). See 65 FR 20775-20787 (April 18, 2000). The proposed rule sets forth the policies and standards that will allow the Bureau to issue, amend, or invalidate CDIBs. The deadline for comments on the proposed rule is July 17, 2000. We are concerned that the Bureau has not scheduled a consultation session on the proposed rule in California where it may, in fact, have its greatest impact. This appears to be a consistent pattern on the Bureau's behalf. California tribes are continually placed in the position of either going out of state to comment on proposed Bureau rules, or demanding that a separate consultation be conducted within California. CILS urges all California Tribal Leaders to address this issue immediately. We have provided our clients with a sample letter to the Bureau requesting that it conduct a separate consultation session in California. Please send the letter as soon as possible. If you have not received a copy of that letter and would like to receive one, please call (800) 829-0284, Ext. 312, and leave your name and mailing address or fax number. If you need further information on the proposed rule or assistance in preparing comments, please contact your local CILS office. Preliminary Analysis of Proposed Rule Based on our initial review of the proposed rule, it appears that the Bureau intends to use this rule as a means of limiting access to federal Indian programs and services to only those Indians who possess the blood of federally recognized tribes where some degree of Indian blood is either a stated or implied requirement of program eligibility. Our initial concern is that adoption of such a rule could result in many California Indians being treated as non-Indians for federal purposes and is an indirect way of restricting eligibility for federal Indian programs and services and therefore the Bureau's Indian service population in California. We intend to conduct a more searching analysis of the proposed rule and its implications for California Indians and tribes and to submit comprehensive comments in response to the proposed rule. In the meantime, the following is a brief summary of our initial thoughts about the major issues raised by the proposed rule. The Bureau appears to be using the proposed rule as a means to unilaterally "amend" both federal statutory and regulatory provisions without congressional oversight or formal rulemaking with respect to specific programs and services. The eligibility requirements for a number of federal Indian programs are based on statutes or regulations that include a stated degree of Indian blood (e.g., 25 CFR §40.1 - Higher Education Grants, which has a one-quarter Indian blood quantum requirement; Section 19 of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 479 - "persons of one-half or more Indian blood") or imply that some degree of Indian blood is required (e.g., the Snyder Act, 25 U.S.C. §13 - "Indians throughout the United States"; 25 U.S.C. §334 - Allotment of public domain land to "any Indian not residing upon a reservation"). In the past, the Bureau's calculation of Indian blood for purposes of Snyder Act programs, the IRA, the Allotment Act and other purposes, was based on blood derived from both federally recognized and non-federally recognized tribes. The proposed rule, which authorizes the Bureau to "issue, amend, or invalidate" CDIBs, would allow the Bureau to recalculate Indian blood degree based solely on the blood of federally recognized tribes and effectively determine that individuals who were Indians yesterday are no longer considered Indians for federal purposes. The Bureau's recalculation of the blood quantum of members of federally recognized tribes could raise questions about the eligibility of such persons for tribal membership if the recalculated blood quantum falls below the minimum tribal blood quantum requirement. A number of California Indian tribes rely on the Bureau's calculation of Indian blood degree in determining eligibility for tribal membership. In some cases, the Indian blood degree requirement for tribal membership (whether it be in a tribal constitution or ordinance) may not specify whether the blood must be that of a federally recognized tribe). As mentioned above, the Bureau's Indian blood quantum calculation underlying such determinations of membership may well include Indian blood derived from both federally recognized and non-federally recognized tribes. The likelihood of this is probably higher in California than elsewhere because of the large number of non-federally recognized tribes (both terminated and unacknowledged tribes) in California. If the proposed rule is adopted, the Bureau's recalculation of Indian blood quantum could raise questions about the eligibility of such individuals for tribal membership if the recalculated blood quantum falls below the minimum tribal blood quantum requirement. Although the Bureau's calculation would not be binding on the tribe in determining tribal membership, it could jeopardize the membership status of such individuals and their lineal descendants. The proposed rule attempts to restrict the scope of the United States' trust obligations ...[Message truncated] http://www.delphi.com/n/mb/message.asp?webtag=IndianLaw&msg=398.5 Victor Rocha California Indian Gaming News Los Angeles, California www.pechanga.net