Many Native communities who chose not to enroll for recognition during the Indian Reorganization Act of 1934 are still unrecognized by the U.S. government. Without federal recognition, these Native communities’ treaties and lands are unprotected, and they do not have access to Indian health and welfare programs. Some efforts to recognize such communities, such as the Mashpee Wampanoag, have succeeded in recent years.
Questions of identity are among the most difficult issues facing Native peoples today. Who is Native American, who is not? And who decides? Whose definition of identity prevails? Many Native peoples are well known, their recognition by the U.S. government marked by treaties and by the establishment of reservation lands. But many other Native communities which have a longstanding tribal identity go unrecognized as such by the United States. Questions of the federal recognition of American Indian identity are highly charged political matters that affect access to the protection of treaty relationships and treatied lands, as well as access to Indian health and welfare programs. Because these questions are about identity, any such decisions can have emotional, social, and spiritual implications as well as practical ones.
The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination. This policy came to life through such laws as the 1975 Indian Self Determination and Education Act, which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally acknowledged the authority of recognized tribal governments to engage in casino gaming in cooperation with the states.
Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies and, as a consequence, numerous Native communities have stepped forward to apply for federal recognition—a lengthy, laborious, and highly-charged political process overseen by the Federal Bureau of Indian Affairs, Office of Indian Recognition. Some communities, like Michigan’s Little Traverse Band of Odawa, have pursued recognition directly through congressional legislation. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act.
The case of a Wampanoag community in Mashpee, Massachusetts illustrates the dilemma facing many Native communities seeking recognition. The town of Mashpee has been home to several hundred people of the Wampanoag nation since the early 1600s, when disease and dislocation brought them there from all around Cape Cod. Settlers on the Cape called Mashpee “Indian Town.” During the past century, the Wampanoags of Mashpee saw no need to obtain federal recognition as an “American Indian tribe” in order to live as a Native community. In fact, most probably thought that keeping a low public profile was a surer way to protect their distinctive way of life. But, as Cape Cod became fashionable in the 1960s and developers began buying up the land surrounding the community, the entire way of life of the Mashpee community became threatened.
Encouraged by the success of other Eastern tribes in gaining recognition and winning land claims, the Mashpee Wampanoag Tribal Council, Inc., representing most of the Native residents, brought suit in 1976 against developers and private landowners for 16,000 acres of land in and around Mashpee. To stress its interest in saving Native land rather than displacing private homeowners, the Council later reduced its claim to 11,000 acres of primarily undeveloped land. The Federal District court case of Mashpee Tribe v. New Seabury et al (1st Dist., 1979) hinged on questions of identity. Lacking a treaty and federal recognition, could the Mashpee community, organized currently as plaintiffs, be considered a continuous political unit as a tribe? Did that community lose title to its lands in violation of Congressional requirements that the United States approve of all such private transactions?
The Mashpee people themselves knew of their strong cultural roots and heritage, but the historical dynamics of their community worked against them in court as they tried to persuade an entirely non-Native jury that they had constituted a continuous “tribe” since the 1600s. The Mashpee Wampanoag had long been primarily Protestant Christian in their public religion, had lost their Massachusetts language around 1800, had assumed New England’s township form of government, and had intermarried significantly over time, assimilating almost completely with other residents of the Cape, both of European and African American descent. Furthermore, most of Mashpee’s history, as well as its religious, cultural, and social distinctiveness, lay solidly in its oral tradition, difficult to examine and evaluate in court.
On the Mashpee’s own terms, none of these factors made them any less Native. There was room in their embracing spirituality for Christian practices and beliefs and there was room for adopted members, regardless of their skin color. As for the continuity of structures of governance, Mashpee was originally formed as a community of refugees. From the earliest days, its survival hinged on healthy interaction with the surrounding New England society and economy.
The Mashpee Wampanoag knew themselves to be a continuous Native community. So, too, did their neighbors, since Mashpee had always been Cape Cod’s “Indian Town.” The jury in this case decided that, while the Mashpee community had a Native culture, it did not remain a continuous “tribe.” This was evidenced by the fact that the tribe was inconsistently recognized by state and federal government entities in certain legislative acts during the 18th and 19th centuries as well as during the incorporation of the town of Mashpee in 1870. The burden of proof was allocated to the tribe to prove that they were a continuous tribe despite the discrepancies, not allocated to the state to prove that the tribe was not continuous despite the discrepancies. Following the loss in court, Mashpee representatives took their struggle for federal recognition out of the courts and into the legislative process. In 2007, the sovereignty of the Mashpee Wampanoag was recognized by the federal government, 31 years after the tribe began pursuing such recognition.
Once a tribe receives federal recognition, a Constitution must be created, where thorny and murky questions of identity and belonging must be legally demarcated. The most common criteria for membership or citizenship is “blood-quantum,” wherein citizenship or membership is dependent upon direct familial ties to a “full-blooded” past or present tribal member. The level of blood quantum one must have (full, one-half, one-fourth, etc.) varies among tribes that use this standard, and may vary depending upon one’s eligibility for citizenship, membership, or for holding an office. The past ancestor may refer to enrolled tribal members when the Constitution was written, if it was immediately following the 1934 Indian Reorganization Act. In other cases, the past ancestor refers to some earlier tribal census or record of tribal members.
Historically, the idea and policies of blood quantums were colonial creations drawn up by non-Natives. These policies racialized Native Americans and were often implemented for the goal of the eventual dissolution of tribal governments and the destruction of Native peoples and identities. Still, many tribes still maintain these kinds of policies as an exercise in sovereignty. Such policies may be utilized to preserve and protect the existing tribal community. Another descent criteria for membership is “lineal descent,” which means that if an individual’s ancestor was enrolled in a tribe then they too are eligible.
For the Mashpee Wampanoag, tribal membership requires “direct lineal descent” to a Mashpee Indian identified in the 1859 Mitlon Earle Report. In addition, at the time of the adoption of the Constitution, individuals or family members must reside within twenty miles of Mashpee, be involved in the tribal community affairs for the past twenty years, not publicly denounced their own affiliation to the tribe or the existence of the Mashpee tribe, and may not be an enrolled member of another tribe.
Though the tribe received federal recognition and created a recognized sovereign governing body, this recognition, and the benefits of land acquisition and trust, sovereignty, and economic development opportunities that come with federal recognition, have been continually challenged. The Mashpee Wampanoag trust application was initially approved by the Department of Interior in 2015, but has faced legal challenges from the Department of Interior itself during the Trump administration. The Department determined in 2018 that the land should not be placed in trust since the Mashpee Wampanoag were recognized after the 1934 Indian Reorganization Act. In response, legislation was filed in 2018 to protect the reservation’s status, in the “Mashpee Wampanoag Tribe reservation Reaffirmation Act (H.R. 312).” The bill passed the House but not the Senate, meaning that the reservation’s status was not protected legislatively.
In June of 2020, a judge for the U.S. District Court for the District of Columbia ruled that the Department of Interior’s March 2020 attempt to take the tribe’s land out of trust was “arbitrary, capricious, an abuse of discretion, and contrary to law.” As a result, the tribe’s reservation status is currently maintained, though still threatened. The status will remain under threat until protective legislation is passed or until a legal interpretation of the standards by which tribes recognized after the 1934 Indian Reorganization Act may put land into trust is settled.