OKMULGEE, Okla. – Individuals that can show their birth mother or father is an enrolled member of a federally recognized Indian tribe can obtain from the federal government a Certificate of Degree of Indian Blood (CDIB) card. This card states the amount of Indian or Alaska Native “blood” possessed by the person named on the document.
How was the CDIB card developed? What is its purpose? What rules govern the issuance of the card?
The Certificate of Degree of Indian Blood is a document issued by the United States Bureau of Indian Affairs. It is a necessary document in order for individuals to obtain federal benefits such as educational loans, employment preference, and medical services.
The CDIB does not establish membership in a Tribal nation. Tribal nations determine their own membership as an aspect of their sovereignty.
CDIB cards are issued by the BIA with no direct statutory authority and there are no formally published regulations governing the process.
The document can be obtained from the BIA or a Tribal enrollment office, but there are no clear rules delineating how these offices grant or deny a CDIB or calculate the blood quantum listed on the document. Tribal enrollment offices can issue CDIBs under a “638” contract, which is a funding agreement between the tribe and the BIA established under the Indian Self-Determination and Education Assistance Act passed in 1975.
How did such an important document come to be without codification in statute or formal regulation?
Some federal statutes and regulations, such as the Indian Reorganization Act of 1934, have a definition of “Indian” that does not refer to Tribal membership. The IRA states: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.”
On August 4, 1947, Congress passed a statute that would become known as the Stigler Act. The lands that the Five Civilized Tribes had received from the federal government in Indian Territory, and later allotted to citizens, was known as restricted fee land. Restricted fee land cannot be sold, transferred or encumbered without the permission of the Department of the Interior.
The Stigler Act set up a mechanism for this restricted fee land to be removed from restricted status.
Originally, the Stigler Act limited interests in certain allotted land maintained in restricted fee status to individuals with “one-half or more Indian blood”. This was later amended by the United States Congress in 2018 to remove this requirement for any member of the Five Civilized Tribes of Oklahoma.
In both of these instances, a CDIB would be necessary to prove the individual’s “blood quantum”.
Paul Spruhan is visiting Assistant Professor, University of New Mexico School of Law and former Assistant Attorney General for the Navajo Nation Department of Justice.
Spruhan is the author of “CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity” published in volume 6, issue 2 of the “American Indian Law Journal.”
According to the article:
The importance of a CDIB might lead to the assumption that there are clear authorities and accessible procedures for how the BIA and tribes issue the document and calculate the blood quantum that appears on it. However, there is no specific congressional authority for the BIA to issue CDIBs. There is no reference to CDIBs at all in Title 25 of the CDIB Code. There is no mandate by Congress to the BIA to create or continue to issue CDIBs, other than the implicit direction contained within congressional definitions of “Indian” and “Alaska Native” that use blood quantum. The CDIB is an internal BIA creation, presumably issued under the Department of the Interior’s general authorities delegated by Congress for matters involving Indian affairs. Also, there are no regulations, and have never been any regulations, in the Code of Federal Regulations authorizing or governing CDIBs.
Currently, the BIA has a page on their website that assists individuals seeking to obtain a CDIB. This page has a link to the CDIB application form which details what documents are needed to apply. The application also has a “request for CDIB form” that must be filled out and returned to the BIA.
This webpage does not describe the process for appealing the denial of a CDIB.
Because of the lack of a statutory or regulatory mandate for the creation of CDIBs, it is unclear when or how they were first developed. In the late 1930s, the BIA sought to register individuals for programs created by the Indian Reorganization Act. John Collier, the Commissioner of Indian Affairs, began issuing letters to individuals attesting that they had half or more degree of Indian blood, as a way to satisfy the IRA requirements of documentation for federal purposes.
A BIA memorandum from the time states that the Superintendent of any Indian agency could grant a certificate of Indian blood as long as the applicant’s name appeared on an official Tribal or census roll of an Indian group under the jurisdiction of the agency in question. The roll utilized must have the applicant’s degree of Indian blood listed as one-fourth or more.
It seems likely that these certificates were the genesis of the CDIB card.
In 1983 a Chickasaw citizen named Morgan Underwood requested a new CDIB card. He wanted a new “plasticized” card to replace his eight and half by eleven inch CDIB he already had. When the BIA agency office received his request, it conducted a review of his blood quantum and found that there was no judicial record of paternity, and so according to the BIA, Underwood had no proof that he was the actual son of his claimed father. The BIA then reduced his blood quantum from full blood to 1/2.
It is the BIA policy to automatically assign no Indian blood for a Child’s father if paternity is not proven to the agency’s satisfaction.
Underwood then filed an appeal with the Interior Board of Indian Appeals challenging the decision.
The BIA argued that any policy or actions the agency takes in regards to CDIBs is discretionary, because the BIA is not required to issue CDIBs at all. According to the BIA, CDIBs were granted for the convenience of the government, at the assistant secretary’s discretion. Their purpose was to facilitate the determination of eligibility for federal programs.
The IBIA disagreed, pointing out that the policies were unpublished, and thus not known to Underwood or those who would be affected by them. The IBIA blocked the BIA from changing Underwood’s blood quantum, and ordered the BIA to issue him a card with the original 4/4 blood quantum.
After the Underwood decision, the BIA did not issue final regulations. Instead, in 1987, the agency issued a notice in the Federal Register that enrollment appeals regulations would be revised.
The BIA then changed the classification of appeals of the change of degree of blood quantum so that the IBIA no longer had any jurisdiction over the decisions. The BIA administration would now hear all challenges to blood quantum changes.
Over the next decade, BIA officials from the Eastern Oklahoma Region as well as the Inter-Tribal Council of the Five Civilized Tribes worked to develop draft CDIB regulations, which were eventually published to the Federal Register for notice and comment on April 18,2000.
These draft regulations allow different tribal blood quantums to be included on a CDIB. They require certain documents to prove paternity and how blood quantum is to be calculated from the individual’s lineal ancestors. Timelines are established for the issuance of a CDIB and appeals of procedural decisions.
Under the draft regulations, the BIA is still authorized to unilaterally alter or invalidate an individual’s CDIB. An individual whose CDIB has been altered or invalidated has the right to appeal, but only after the decision is made.
There is no restriction on when a BIA employee could decide to review an individual’s blood quantum and make unilateral changes. These draft regulations have never been finalized by the BIA. The BIA could, for example, also authorize an audit of an entire Tribe, altering or invalidating the CDIBs of an unlimited number of citizens.
Currently, a CDIB is not required to apply for citizenship at the Muscogee Creek Nation. The MCN Citizenship Office does provide copies of the BIA’s application for CDIB.
What action can be taken to address the opaque nature of the CDIB process?
According to Spruhan:
None of this is unchangeable. Threshold levels of “blood” are not inherent to Native American identity, as other definitions exist, and have existed, in federal Indian law. Congress can revise those statutes that allegedly necessitate the existence of the CDIB to eliminate the bare blood criteria, and adopt other definitions, such as tribal membership, as it has done in the Indian Child Welfare Act.
The BIA could simply stop issuing CDIBs, as it created them and continues to issue them, despite the absence of any congressional mandate to do so. Further, tribal governments can, if they so choose as a matter of their own public policy, de-emphasize blood quantum, by revising their membership rules, or declining to issue CDIBs in lieu of or in addition to tribal citizenship identification documents, or both. Such actions dilute, if not fully dissolve, the claimed need for the CDIB.
However, until those actions are taken, and for as long as the CDIB continues, the BIA should apply clear and accessible policies that govern its issuance by its own officials and 638 contractors. Those policies should be sensitive to the possibilities of manipulation, so as not to exacerbate internal tribal conflicts over membership and identity. Ultimately, if the CDIB must continue, because federal statutes or regulations require some proof of blood quantum, the BIA should take the affirmative responsibility to prevent its misuse as an internal weapon within tribal communities.
