The Recognition process - International Court & Mr. Tecumsah

[kosowith]

It drives me crazy when fakes, or misinformed people make outragious claims, especially when so many legitimate groups/people suffer for this idiocy. I know this is a very long post but to do the subject justice would take several hundred pages and I will spare you that

I’ve been think about one of the original posts about that “Tecumseh Brown, et al” and the various responses, including the one from Mr. RedWolf, indicating that it had recently come to their attention that many of Brown’s claims were false.  Forgive me it I am quoting wrong or if I remember the post about the claims that Brown made as those quotes are no longer available on line.  And for those in the U.S. please forgive the British spellings, I can’t get my computer to keep its U.S. spellings. Another reason to buy local despite what seems to be a great bargain price. 

There seems to be a GREAT deal of misinformation and lack of knowledge about, basic legal concepts, Indian law,  the recognition process, and the role and jurisdiction of the UN and world courts are I would like to give a very brief and superficial overview.  Please understand that to really understand takes years and years of study and these are ALWAYS shifting sands.  What I mean is, law, both in the US and internationally is under constant re-clarification and change.  That is how the court system works. This is not a comment on the justice of how this works or not – just how it is done.

First – the process for a North American Indian group living within the boundaries of the United States to attain federal recognition and government to government status.  (It is very different in Canada, so I am only looking at the US statues and proceedures)

Application must be made through the BAR (Branch of Acknowledgement and Research) within the BIA (Bureau of Indian Affairs) which is part of the Department of the Interior.

The BAR implements 25 CFR Part 83 – Procedures for  Establishing that an American Indian Groups Exists as an Indian Tribe. The BAR consists of approximately eleven (11) staff persons -- professional anthropologists, genealogists and historians -- who evaluate petitions for federal recognition and make recommendations to the Assistant Secretary for Indian Affairs on whether to approve or deny each petition.

Of the over 300 applications received between 1954, when the US began terminating American Indian Nation-US relationships, (terminating tribes) and 2007 only 15 have passed BAR review to proceed onto the next stage, or review by the Assistant Secretary of the Interior. MOST of these are groups that held recognition prior to the Termination Act and immediately upon termination began the process to gain re-recognition.  They have the clearest documentation based on the fact that they were recognized prior to 1950.  Even for them, as the BAR states, “Exceptional anthropological, genealogical and historical research is required for any consideration.”

Forbidden from application are: associations, organizations, corporations or groups of any character that have been formed in recent times (post 1934 is considered recent by most researchers) Splinter groups, political factions or groups of any nature that separate from the main body of a currently recognized tribe.

Criteria REQUIRD for petition to be accepted for further evaluation: The Assistant Secretary will acknowledge the existence of the petitioner as an Indian tribe if it satisfies all of the following criteria:
a.   The petitioner has been identified as an American Indian entity on a continuous basis since 1900.
 
b.   A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. c.                   The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.
 
d.     It submits to the BAR a copy of the group's present governing document including its membership criteria which must follow IRA regulatiosn
 
e.    The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity. (It must also submit a copy of each available former list of members based on the group's own criterion).

 There are other rules that apply to groups that were terminated, but would not apply to the Erie.

For a good example of how difficult the historic criteria (identified as an American Indian entity on a substantially continuous basis since 1900) is,  you can take the example of the followers of Little Shell who were not given land at the same time as Stone Child and Little Bear, even though the Canadian government and the US government have documentation as their being a separate group, their intermarriage, continued relationship with other Chippewa-Cree groups has prohibited them from the final acceptance of the Dept. of Interior.  They have state recognition, but so far, not federal.  This is the same for almost all of the groups who have reached the final review status. 
 
It is my understanding from what was posted on line and from what I have seen of some of Mr. Brown’s claims on his sites, that they would have difficulty with all of these. Also,
Since the introduction of the American Indian Gaming Act – 12 States have filed suits against the BIA for recognizing groups within their boundaries that they do not want to have gaming establishments.  The ruling of the Supreme Court in February 2009  (just last month for this
posting) ruled for Rhode Island and against the Tribes.  So, it is getting even more difficult to establish recognition.


So now lets switch to International law – and Mr. Browns ludicrous assertion that he could file some sort of action against the US, the Seneca or anything else.

The International Court of Justice Court or ICJ; (Cour internationale de Justice) is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by member states and to give advisory opinions on legal questions submitted to it by duly authorized international organizations, agencies, and the UN General Assembly.
Not by unrecognized groups within a member state – especially anyone that exists in a member state that sits on the Security Council. (is:  the US)
The ICJ should not be confused with the International Criminal Court, which also potentially has some "global" jurisdiction.  The United States withdrew from compulsory jurisdiction in 1986, and so accepts the court's jurisdiction only on a case-to-case basis.  Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce World Court rulings, but such enforcement is subject to the veto power of the five permanent members of the Council.(One of which is the US)
In contentious cases (adversial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only nation states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, and self-determination groups are excluded from direct participation in cases.
Jurisdiction is often a crucial question for the Court in contentious cases. The key principle is that the ICJ has jurisdiction only on the basis of consent.
International Court of Appeals (Also in the Hague) has the jurisdiction over cases in which an entity has already files a suit against a nation-state and has lost.   It is similar to the Supreme Court in the US and can only review cases that have passed through all other appeals. (US Supreme Court, North American Appeals Court, Appeals Court of the Americas, etc.)  Then and only then will it review.  AND – this is again non-binding.  A negative judgment only provides negative press. 
At this time I won’t even begin to comment on the rather idiotic assertions that he or his group have ANY rights to NAMAI or anything else.

[Defend the Sacred]

Thanks for taking the time to explain this.

I think the wild claims of some of the people in question made it clear they had no idea what they were talking about, but it's really good to have this laid out for the record.

[RDR]

Why would any indigenous tribe, community, nation, pin the validity of their very identity on being "recognized" by the illegitimate nation of the United States? Counting on that nation which all but annihilated the indigenous peoples to then be their sole "legal" definer is the perfect definition of colonialism (and a close cousin to genocide).  Since when do traditionalists "recognize" the United States of America as having ANY genuine authority over their own sovereign self-identification?

This is not a comment on the "instant Indian craze" but it IS a valid perspective when arguing "Sovereign Nations Law" versus United States Law. Using the laws of the oppressor (USA) to invalidate those who offend you is just as offensive - and irrational.

[kosowith]

Denouncement of recognition is one of the most common statements made by groups that are not comprised of authentic descendent peoples.  If the group is fake they are very, very quick to state that they do not want, nor will they seek federal recognition from a colonizing…etc. Etc…basically because they know it is hopeless, since they have no legitimate claims to Indian identity. Also, as several indigenous scholars have stated, if you want to be absolutely accurate, you can not use the term sovereignty when dealing with North American Indian law – as it reflects European laws based on the jurisdiction of a sovereign (king/queen) – which was unknown here prior to colonization.

However, Recognition has NOTHING to do with validity, it has to do with establishing a government-to-government relationship with the Untied States.  It does not matter if you are operating in North America or world wide, to get anything done you must be seen as a government.  Just stating that you are “a group” has no credence on the world stage. Therefore recognition does not give legitimacy, it recognizes historic legitimacy.

As to traditionalists who “recognize” the US – well here is the statement issued by the National Congress of the American Indians – which is comprised of community elected or appointed representatives.  Having been to Congress meeting there are a lot of “traditionalists” there who participate.

Federal recognition is important for tribes because it formally establishes a government-to-government relationship. Status as a sovereign entity carries with it significant privileges, including exemptions from state and local jurisdiction. These exemptions generally apply to lands that the federal government has taken into trust for a tribe or its members. Additionally, federally recognized tribes are eligible to participate in federal assistance programs. Through these programs, tribal governments may receive funds that they can then use to provide community services, such as health clinics.

Historically, tribes have been granted recognition through treaties, by the Congress, or through administrative decisions within the executive branch. In 1978, the Bureau of Indian Affairs established a regulatory process for recognizing tribes. The current process for federal recognition, found in 25 C.F.R. 83, is a rigorous process requiring the petitioning tribe to satisfy seven mandatory criteria, including historical and continuous American Indian identity in a distinct community. Each of the criteria demands exceptional anthropological, historical, and genealogical research and presentation of evidence. The vast majority of petitioners do not meet these strict standards, and far more petitions have been denied than accepted.

The second BIG reason for recognition is basic economics. For example: tax-free status on lands held in trust, and the availability to bid for block grants and other federal funds.  On reservations and in Indian communities that are overwhelmed with poverty (many with 70% unemployment and 3XPV ) there is no other money for roads, health, education, elder care, infrastructure, etc, etc.  If there were even an opportuntity to promote sustainable economic developement without that status it would be different, but there is just no opportunity here today.  So, No matter how you feel about the very real evils of the invasion of Indian homelands, the status of the US, etc., this is a reality of living in an Indian community today.

On a even more debatable note, and one that I will not go in to as I am not a big proponent,
No recognition – no casino

[RDR]

I do not dissagree with you - there certainly are TRIBAL and NATIONAL and POLITICAL and ECONOMICAL reasons for those with whom there are international binding agreements called Treaties (or even other business) with the "Untied" States (as your typo so aptly put it  ) HOWEVER, there are LEGITIMATE and TRADITIONAL enclaves, communities, individuals who live their lives as free of interaction with and interference by the United States as possible. Because they choose to not engage in any solicitation game of "recognition," that should not summarily relegate them to a category also containing frauds and deceivers and wannabees - By your choice to wheel out just one of over 15 LEGAL - united states legal system - definitions of who and what an American Indian can and can't be simply relies on bias and convenience, and excludes all the other Indigenous people who DO fit one or more of the other LEGAL definitions. I am only unwilling to let such "convenience of exclusion" (which smacks of prejudice and racism) go unchallenged. As a respected, enrolled, "recognized" Elder once said, "There's more than one way to be an Indian, and no other government has any say about that...."
As far as the economic games that have to be played, we can all be grateful to those leaders who give so much of themselves as they wrestle with that part of United States Law (and it's offshoot - contemporary "recognized" tribal law). They do a remarkable service without which Native America would suffer even more hardship. However, "recognition" hardly legally, morally, ethically, traditionally "makes someone an Indian." And as such, "recognition" should stay where it ORIGINATED and belongs; in the realm of business law and economics, and out of discussions of "identifying legitimate Native Americans."

Bottom line: If you are going to play the "United States Legal Definition" Card - then show the entire hand - which includes over 15 LEGAL DEFINITIONS of American Indian status - many of which are conflicting. 

[Superdog]

My own personal take on recognition. 

If your community recognizes you as one of their own...you are one of their own.  The rest is governmental definitions.

The debate of the legality of an individuals status in regards to enrollment is something that can only legitimately be argued on a tribal level as it's tribes that determine who is enrolled in their tribe and who is not. 

I just want to add that into this discussion.  Don't let bureaucracy be an excuse for individuals who self-determine their status as a spokesman in any capacity (spiritual, political..etc) for an entire community and entire tribe without first seeking recognition from that community or tribe to do so.

You make a legitimate argument RDR, but there is more to it than what the US gov't has to say and there are many of us who view it that way.  The BIA's recognition process does have a purpose for legally excluding those who do harm to Indian communities by misrepresenting them and at the same time excluding those who would do good for communities...there is agreement there, but in those cases then you would have to defer to what the community in question would say.  There isn't any legal definition there and that's where the gray area is. 

In your argument:
"HOWEVER, there are LEGITIMATE and TRADITIONAL enclaves, communities, individuals who live their lives as free of interaction with and interference by the United States as possible. Because they choose to not engage in any solicitation game of "recognition," that should not summarily relegate them to a category also containing frauds and deceivers and wannabees"

For those communities and individuals who follow these ways a fraud, deceiver and wannabe would be someone who attempts to defraud or deceive (for various reasons...financial, laziness, or maybe they just want to be something they are not).....those individuals still do more harm then good and I would never give them a free pass.  The individuals who follow their traditional ways and never lie about it also, in my experience, have no reason jump up and declare their status over and over to people that have nothing to do with them.   They are simply not relegated to the same category of frauds and deceivers because they are not actively defrauding or deceiving anybody.

Your argument is very general RDR, but you seem to have something in mind that you are actively defending.  Can you give an example that supports what you have to say???  (i.e. legitimate, traditional enclave, community or individual who is considered a fraud because of governmental bureaucracy)

That's not an attempt to call you out..like i said i think your argument is a legitimate one and those examples exist, but it's tough to make any headway when speaking in a general sense.


Superdog

[Niiki]

It has come to our attention that Tecumseh's request for recognition by the Six Nations Confederacy Council has been refused since it never passed through the Seneca Fire at Tonawanda.

Therefore since the traditional government of the Six Nations doesn't recognize him or EIMTN, nor does the US or Canadian governments, nor does any provision under the UN Declaration of Indigenous Peoples, his hopes for recognition or support is "dead in the water". Squashed!!

Oneh


Niiki from Tyendinaga Mohawk Territory

[Superdog]

I think in TBE's case...you couldn't be more right Niiki.

[RDR]

All good points well taken, Superdog!

As to your comment:
"Your argument is very general RDR, but you seem to have something in mind that you are actively defending.  Can you give an example that supports what you have to say???  (i.e. legitimate, traditional enclave, community or individual who is considered a fraud because of governmental bureaucracy)

That's not an attempt to call you out..like i said i think your argument is a legitimate one and those examples exist, but it's tough to make any headway when speaking in a general sense. - Superdog"

Actually, I am not thinking "in defense" of any specific parties. There are, however, countless indigenous people who fit an assortment of the "legal definitions" of "American Indian" (or the legal definitions of specific tribes, nations, etc.) who also do NOT fit some of the limiting definitions I read so often quoted on this forum. I find that dangerous as it implies to the undereducated guests here that the "definition du joir" is the only legitimate one. It's not that simple.

So it is not my "generalities" that are of  concern as much as the "generalities" so often used by people as a way of drawing lines in the sand - an "us versus them" mentality which just doesn't stand up under scrutiny - legal, cultural, philosophical, logical scrutiny.

ONE TYPE of Example: A Chief from a tribe/nation wherein descent is matrilineal marries outside his tribe/nation...the offspring, who live in his country, speak his language, live in accordance with his people's ways, may not (depending on the currently "recognized" versus traditional governing body) be entitled to call their affiliation by that tribal name OR (again, depending on the tribe, nation, etc.) may call themselves "of" that tribe/nation, or even a "member" but not an "enrolled" member. This whole concept of "carding" is economic based and is racist and certainly runs contrary to the basic idealogy originally inherent to those tribes/nations. And it's the perennial ploy of the United States government when dealing with and doling to Native Americans - they hand out the "pie" and then that pie is "divided" to the point that most are left with crumbs. One alternative is to insist that not only does that  whole pie belong to the people, but so does the orchard from whence the cherries come, and the fields from whence the wheat is grown, and the energy that heats the oven, ad infinitum, and we can take care of our own kitchen, thank you very much, you may leave now, after you pay for YOUR piece of OUR pie( aka Treaty rights)!

(A guick scan of Indian Times archives will reveal how ugly it has gotten as the economic stakes increase thanks in part to casinos...longstanding members being dis-enrolled, etc...I see no historic tradition in that, and I see little honor.)

That example is just one of the countless variations in the quagmire of "legal definitions" which more often than not seem to exacerbate the confusion. I knew a now gone person who was "born Indian" and had "papers to prove it" but over time, the "rules" changed so many times that when he was asked "You Indian?" he began to stutter - he honestly didn't know what to say anymore. He KNEW he was, he knew probably more of his language than most others in his tribe even cared to know back then, his world-view and daily practices sustained the values of his grandfathers. Sometimes he did "Indian" things like hunt, fish, pray first, use it all after... Sometimes he just wanted to watch tv for awhile and eat an ice cream. (This was before people so casually asked or offered their tribal affiliations with the commonality one used to ask "one's sign" at a party. That really IS a recent phenomenen in the span of Indian history.) Like most people who fit at least a modicum of racial stereotypes, he found himself being "popular" when Indians were finally "IN!" It didn't go to his head, but he did show up where invited, and having been put on the spot a few times, maybe moved outside his comfort level - singing or shaking a rattle (nothing anybody in his family would have been embarrassed by) or offering some words in an opening ceremony or letting people take his picture with them...that kind of thing...He was a good man and could sing his Death Song with a clear heart. But he died knowing "who he was born" but confused as to "his place in it all" because the rules kept changing, and the rules were not aligned with anything real he had known being born Indian. I find that sad and senseless and oft repeated in myriad variations across Indian Country.

While I am repelled, even repulsed, by those who are so hungry for some connection to Earth, Spirit and themselves, that they justify theft of indigenous ceremonies ( or worse, don't even have the consciousness level to think it is something which would need justification) I am equally uncomfortable with using the language of the oppressor against anyone. There must be a better way, a truthful and intergrous way, to hold the mirrors up to them, without imitating the worst traits of the oppressors to do so.

I'm not smart or wise enough to know those answers. I do know that I am smart enough to not go on a campaign to "out frauds" without the sanction of the Elders who guided the tribe/nation/community which was purportedly being offended. They would rightfully call me on my ego aand remind me that if they wanted my help, they would ask for it.

With that in mind, I think I will next go listen to some of those Elders - If this nuage movement is of concern to them, and they want my help, I am certain they will inform me. If history repeats itself, they will either want to just step aside and let it spin itself out - or- harness that energy and direct it for good (thinking back to the hippies who used to come out to the rez to "help plant corn" - the rows were all crooked like crazy, but, hey, at least there was corn! 

I'm off now, but FYI I was having a dickens of a time getting the forum link to open - hope to make it back sometime, but it took so much time and energy just to get on this time!

[Superdog]

Right on..that's kind of what I was hopin' you'd say.  Just givin' you a little room to clarify because from the context of the thread it looked like you were defending TBE and his method of legitimacy when you really are arguing against it. 

I think you'll find the sentiment of this board is talk of government definitions only when it relates to frauds using the same definitions to present legitimacy to others (i.e. self-made chiefs who create tribes and attempt to gain members by throwing the UN declaration forward and then declaring that it gives them sovereignty...)

In general on here though a fraud is a fraud...no matter if they are a gov't defined Indian or not.  In fact, the most dangerous kind of fraud are individuals who are enrolled in a fed recognized tribe.  So I think the fear about  defining good traditional people in the same frame as frauds just because they don't meet tribal membership criteria or fed recognition criteria is a little far reaching.  But it's good to keep in mind not to expand our definitions of frauds too broadly and remember that enrollment or non-enrollment isn't the main argument...

Good discussion.

Superdog

[Niiki]

Tecumseh Brown Eagle = Abduhl Abdullah Mohammed=Erie "No-Indian" Moundbuilders= Faux Eries

That's the equation!!


Niiki

[kosowith]

Actually according to the ILR handbook there are 28 commonly used variations - and almost all of them have some reference to community acknowledgement.  Community recognition or documentationworks for the Indian Arts and Crafts Act, just not for BIA funding or acceptance at an BIA-IHS facility, with some exceptions. Then there are decendancy problems, but lets not go into that now. 

you state (this is similar to a case written about at length by Rayna Green)

ONE TYPE of Example: A Chief from a tribe/nation wherein descent is matrilineal marries outside his tribe/nation...the offspring, who live in his country, speak his language, live in accordance with his people's ways, may not (depending on the currently "recognized" versus traditional governing body) be entitled to call their affiliation by that tribal name OR (again, depending on the tribe, nation, etc.) may call themselves "of" that tribe/nation, or even a "member" but not an "enrolled" member

I am not sure why your example has to be a "chief" but in any case this is the traditional way. Not somehting imposed by the US. If this chief were the member of a matrilineal society, when he married, he married "out" and his children or more accurately his wife's children were part of that matriline. The difficulty comes when a man from a matrilineal enrollment marries a woman from a patrilineal enrollment.  I agree that this is troubling, but also a historic traditional way to identify what community a child belongs to.  It does not matter if I like it or not, I am not enrolled where this is an issue and it is their tradition!

 

[Niiki]

I think you'll find the sentiment of this board is talk of government definitions only when it relates to frauds using the same definitions to present legitimacy to others (i.e. self-made chiefs who create tribes and attempt to gain members by throwing the UN declaration forward and then declaring that it gives them sovereignty...)


Good discussion.

Superdog

  This paragraph exactly relates to Tecumseh Brown Eagle aka Abdul Abdullah Mohammed, a self-made chief who has created a tribe called the Erie Indian Moundbuilders Tribal Nation and attempts to gain members by throwing the UN declaration forward and then declaring that is gives them sovereignty. He is a fraud along with rest of his EIMTN.

Niiki

[RDR]

Kosowith - the "example" was a "Chief" because it was a real life example. Culturally, his children know little about their Native Mother's people, they are living as their Father's people in every way. I understand the "traditional " government's stance. I also understand the conflicts in the "elected" government too - over such things as transfer of property and more recently, casino disbursements. I probably picked a poor example of my point which I feel I better made two paragraphs later, about the Elder who "lost his identity" due to the changing rules around him. Thanks for clarifying and for allowing me to do the same.

Niiki-
While I see some posters really believe that one might like to see this board as only relying on US/CAN definitions when discussing those subject persons who also use those government definitions, a cursory scan of the many "fraud threads" proves otherwise. There are a lot of hasty trigger fingers pointing and wagging from a place of synthetic definitions and the erroneous assumption that those definitions of choice in any way make or break legitimacy.

About the legal definitions of "community" determining whether or not one is identified as "Indian" please recall that in at least one of those legal definitions the term "commuinity" is NOT restricted to ""enrolled" or "recognized" or even "American Indian" community. Therefore any "community" (which can even be an intentional community set up for their own purposes!) where one resides, whether Native or not, may view a person living there as being "Indian" and that person would in effect fit THAT legal definition for those purposes of identity. While we may like to impose our own inference onto that definition - saying that "Native" is implied with the term "Community" the rule is specific and "implication" is not valid in a court of law. The drafters of that ruling deliberately omitted the term "Native" with reference to "community" so as to include, not exclude, the many self and other identified peoples who do not fit some of the other legal definitions. This is further complicated by the US Census where race is self-identified, as of course, it probably should be, since that person is the only person who has to live in  their own skin, live with their own conscience,(after all, the US has a president who is half caucasian but prefers to be identified as only Black and it seems his "community" prefers to ignore half of his genetics and culture of birth too!)  In both cases - (community definition and census) there are no economic or other measureable "benefits" and so few official entities care - (going back to my "pie" analogy - unless some money is changing hands somewhere, it seems no one cares much...which is a fairly recent value on this continent and not at all reflective of traditional Native values as I know them to be.)

[Niiki]

Not "Tecumseh" who is "Brown" and definately not an "Eagle"


Niiki