By Jacqline Wolf Tice, At-large Delegate, Pennsylvania Chapter ExCom
Indigenous Peoples Day is observed in Pennsylvania and as a federal holiday on Monday, October 10, 2022. It has been a long road for Tribes and Indigenous activists, and their allies, to change Euro-American culture’s elevation of someone who never even stepped foot in North America. It signals legitimate progress that President Biden, state legislatures and governors, and local lawmakers acknowledge and reprimand Columbus’s role in seeding a massive literal and cultural genocide upon his newly discovered “New World’s” Indigenous populations. Now, we take that national holiday and elevate it in remembrance, celebration, and repossession of Indigenous voices and culture. It is long overdue, and it is a start toward ending the pervasive fairy tale perceptions of Tribal histories and cultures that distill the impact of intergenerational trauma upon Indigenous Peoples, whether those individuals are part of a tribal community or not.
Although Pennsylvania has a rich pre-Colonial and Colonial Tribal history, modern Tribal identity remains mostly unknown, misunderstood, and dramatically unseen in our state. The easiest explanation for this seeming erasure or invisibility of Indigenous context is the lack of what are called “federally recognized” Tribal Nations in the state of Pennsylvania. To illuminate and provide some understanding, this article examines the politics of federal recognition, existing legal protections for tribal cultural properties in PA, and recent efforts to actively involve Indigenous voices in Sierra Club-supported initiatives.
History and Treaty Making
The United States (U.S.) recognizes 574 Tribal Nations as having a government-to-government relationship within the constructs of the federal trust, which the U.S. assumed by way of good faith negotiations for tribal land. This term of art describes what became of guarantees made through Treaties, which England initiated with sovereign Tribes, and the U.S. Government continued, as they colonized aboriginal land. Simultaneously, the conquest of colonization and implicit goal of treaty making involved subjugating Indigenous communities by limiting their jurisdictional powers to reservations and in Indian Country, as it became known. Treaties are, according to the Supremacy Clause, the “supreme law of the land” (U.S. Const. art. VI, cl. 2). Treaties were regularly made with Tribes, and of the over 400 U.S. Government treaties on record, all were broken by the U.S. by moving the proverbial goalpost of consumption of land and natural resources according to the Judeo-Christian imperialist objectives set in motion by the doctrines of Discovery and Conquest. Then, by a vote and the stroke of a pen, Congress, as a precursor to the great Assimilation Era (1880-1934), eliminated Treaty-making with Tribes in 1871 (Act of March 3, 1871, Chap. 120, §1). The next 50 years produced a series of policies and Supreme Court decisions that systematically limited sovereignty and reduced Indigenous territory (natural resources and subsistence lifeways) by 90 million acres across the country. Here, in Pennsylvania, the Lenape were removed by a series of treaties that scattered various Tribal bands to the west and north. Although, presently, there are no federally recognized Tribes who reside in this state, there are six federally recognized Tribal communities in the U.S. and Canada who trace their original homelands to the Lenapehoking, the traditional territory of the Lenni Lenape. This land area includes the eastern part of Pennsylvania, New Jersey, Delaware and New York. It’s important to note that no federally recognized Tribes reside within any of those states, except New York.
Treaties demonstrate sovereign recognition. The removal of the Lenape Tribes (renamed “Delaware” by the colonial government), happened within the context of treaty making, whereby guarantees of goods and peace, protection and lands were made to accommodate settlers moving westward into Tribal land, often before the land was legally exchanged. Despite the glorified version of the 1683 Treaty of Shackamaxon at what became Penn Treaty Park in Philadelphia, the migration of the Lenape was accomplished by a series of prodding schemes to charm, shame, and manipulate the Lenape sachems into marking their names on paper to legitimize colonial expansion. This “diplomatic dispossession” (Harper, 2010) of the sacred homelands of the Lenape happened in part by swindle (Walking Purchase of 1737) and swagger (Treaty at Ft. Pitt, 1778).
Susquehannock, Shawnee, Erie, Iroquois, and Munsee Tribes all experienced some form of the same removal strategies from Pennsylvania and, as the Lenape did, migrated west to the Ohio Valley and beyond, north to the Great Lakes through to Canada, and south to Kansas and Oklahoma.
Federal Recognition, State Recognition, and the Unrecognized
Federal Recognition
Federal recognition of tribal entities (25 CFR 83) is a rigorous criteria of requirements to receive federal funding and protections vis-à-vis the trust responsibility of the U.S. government. Documentation of historical existence is more difficult for some Tribes due to impacts of Federal Indian policy throughout 500 years of contact. While some criteria of historical evidence, such as proving existence as an Indigenous entity since 1900 (25 CFR § 83.11) seems an attainable goal within the statutes that define tribal entities, this condition is limited by its access to recorded or archival evidence, and problematic for some because written documentation relies on “non-Indian entities” (Anderson, Berger, Krakoff, & Frickey, 2013, p. 269). One’s elder’s stories cannot satisfy the requirement, even en masse, and that is unfortunate for many tribal communities.
In United States v. Sandoval, 231 U.S. 28 (1913), Justice Van Devanter writes that it is “not for the courts” to decide the status of Tribes while he clearly describes conditions in reports under which Pueblo people were, for all intents and purposes, operational as Tribes. By law, we look to the federal government for recognition, for terminations, for diminutions, and for evidence of existence. This is the non-Indigenous perspective. The government does not define an Indigenous person or community outside of the law. That is purely a function of internal inherent tribal sovereignty.
State Recognition
The Commonwealth of Pennsylvania as a government entity must follow federal tribal consultation guidelines for purposes of the National Environmental Protection Act (NEPA) with these fifteen federally recognized Tribes who have met the 25 CFR Part 83 criteria and who have ancestral descendance or have documented archeological and cultural resources and properties in the state: Absentee-Shawnee Tribe of Indians (OK), Cayuga Nation, Delaware Nation (OK), Delaware Tribe of Indians (OK), Eastern Shawnee Tribe (OK), Oneida Indian Nation (NY), Oneida Nation (WI), Onondaga Nation (NY), Pamunkey Indian Tribe (VA), Sant Regis Mohawk Tribe (NY), Seneca Nation of Indians (NY), Seneca-Cayuga Nation (OK), Shawnee Tribe (OK), Stockbridge Munsee Community (WI) Tonawanda Bank of Seneca (NY), and Tuscarora Nation (NY).
State recognition of Tribal communities has been invented as an alternative (Koenig & Stein, 2008) to federal recognition due to 25 CFR 83.3, which states, “The Department will not acknowledge: (a) An association, organization, corporation, or entity of any character formed in recent times unless the entity has only changed form by recently incorporating or otherwise formalizing its existing politically autonomous community; (b) A splinter group, political faction, community, or entity of any character that separates from the main body of a currently federally recognized Indian tribe, petitioner, or previous petitioner unless the entity can clearly demonstrate it has functioned from 1900 until the present as a politically autonomous community…”.
State recognition of Tribes can be not only politically advantageous to states, but it is a way to establish direct government-to-government relations with Tribes. The bright line rule separating states and Tribes has long been wielded by statutes such as the Proclamation of 1763 establishing land west of the Appalachian Mountains as Indian Country, the Commerce Clause (U.S. Const. art. I, § 8, cl. 3), the Trade and Intercourse Act (1790), which prevented sale of any Indigenous land without federal approval, and countless Supreme Court case rulings. It was a rule enacted for good cause since during the Revolutionary and Civil Wars, rogue states were imposing their laws on Tribal lands (see Cherokee v. Georgia, 30 U.S. 1, 1831). However, the 10th Amendment provides powers to States not specifically prohibited by federal law; hence, state recognition of Indigenous communities happens in the form of resolutions passed by state legislatures and gubernatorial proclamations with varying levels of recognition criteria (Koenig & Stein, 2008). A federally recognized Tribe can also be state recognized, but not necessarily the converse. Pennsylvania has no criteria for state recognition although Governor Wolf is on record saying he would seriously consider such legislation. Both New Jersey and Delaware have state-recognized Tribes.
Unrecognized
It can be concluded that most of those who were removed from Pennsylvania, if they survived, stayed together within Tribal communities, or they were absorbed into other Tribal communities. But for those who did not remove for varying reasons, what happened to them was traumatic in a different way. Considering the assimilation policies, racial profiling, discrimination, and stereotyping of Indigenous peoples, it was easier for Indigenous people to "hide" who were intermarried and living among non-Indians, especially in the East. This was survival. Those who chose to remain in Pennsylvania as Indigenous people did so as a form of Faustian bargain. Assimilation into Euro-American culture meant sacrifice of Indigenous identity. Is it any wonder they went underground for periods of time and lost contact with their communities? Who is to say they are more- or less-Indigenous by history’s impossible choices of removal or death, assimilation or abandonment?
While being unrecognized doesn’t prevent the free exercise of religion or cultural traditions in our state, the conflicts existing between the recognized and unrecognized Lenape from Pennsylvania has caused distrust and harsh feelings. Those who are federally recognized worry about the dilution of Indigenous identity that has been so hard-fought as evidenced by federal criteria requirements (Spangler, 2021). Those who are not federally recognized feel unseen.
As a matter of law, there appears to be no room for compromise on this matter, but according to Joint Secretarial Order 3403, the Department of Interior is working on inclusiveness regarding unrecognized Tribes and state recognized Tribes.
Space has dictated the scope of this article. Based on my research and knowledge, I apologize if any Indigenous community has inadvertently been excluded from being named. Any mistakes or omissions in this article are solely that of the author.
References
Anderson, R., Berger, B., Krokoff, S. and Frickey, P. (2013). American Indian Law Cases and Commentary (3rd Ed.). West Academic Publishing.
Harper, S. (2010). Making History: Documenting the 1837 Walking Purchase. Pennsylvania History: A Journal of Mid-Atlantic Studies, SPRING 2010, Vol. 77, No. 2 (SPRING 2010), pp. 217-233
Koenig, A. and Stein, J. (2008). Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes across the United States, 48 Santa Clara L. Rev. 79 (2008). http://digitalcommons.law.scu.edu/lawreview/vol48/iss1/2
Spangler, S. (2021, Nov 6). For Years, People Said There Were No Lenape Left in Pennsylvania. This Group Begs to Differ. https://www.phillymag.com/news/2021/11/06/lenape-nation-pennsylvania/
Wilkins, D.E. and Lomawaima, K. T. (2001). Uneven Ground: American Indian Sovereignty and Federal Law. University of Oklahoma Press.
Zotigh, D. (2018). A Brief Balance of Power—The 1778 Treaty with the Delaware Nation. https://www.smithsonianmag.com/blogs/national-museum-american-indian/2018/05/22/1778-delaware-treaty/
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