22 May 2018

Blood

'CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity' by Paul Spruhan in (2018) 6(2) American Indian Law Journal comments
Native Americans are the only group in the United States that possess a document stating the amount of their “blood” to receive government benefits. The official name is a “Certificate of Degree of Indian or Alaska Native Blood,” or (CDIB) for short. As suggested in its name, the CDIB states the amount of “Indian” or “Alaska Native” blood possessed by the person named on the document.  It may be broken down by different tribal blood or may only state the amount of blood of a specific tribe.  It is certified by a Bureau of Indian Affairs (BIA) or tribal official authorized to issue it.  It may be printed on a standard eight and a half by eleven inch piece of paper or on a smaller card, which may or may not be laminated. 
Why does such a document exist in the United States in 2018? Simple in form, yet possessing immense bureaucratic power, the CDIB is a key that unlocks educational loans, medical services, employment preference, or other federal benefits unique to Native Americans,  and, in some circumstances, even enrollment as a member of a tribal nation. 
Simultaneously derided and coveted,  pervasive yet mysterious, the CDIB is one of the most important documents for Native Americans, but is issued with no direct statutory authority and governed by no formally published regulations. A CDIB may be issued directly by the BIA or by a tribal enrollment office operating under a “638” contract, but with no clear rules to govern how those offices grant or deny a CDIB or calculate the blood quantum listed on the document. 
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.