By Lorraine Escobar, CG

October 22, 2020

As hard as it may be to perceive, there are frauds and thieves among us; and by “us,” I mean those of us who are authentic California Indians. So, who are the frauds and thieves? Those who pretend to be Native American Indian. I call them pretendians. Even in this present day, there are several frauds in Los Angeles County who are appropriating a California Native American culture, rights of heritage, and ancestry that does not belong to them. How do they get away with it? There is too much gullibility. Not enough agencies are asking for proof of the claims. The media or would-be journalists just accept what someone says without fact checking the claim. In some cases, the Bureau of Indian Affairs help make it possible for frauds to engage in repatriation rights with the Native American Heritage Commission in tow. There is not much we can do to counter this movement except to start one of our own. We need to keep pushing ahead for legislation that makes it illegal for people to pretend to be Indians when the proof shows otherwise. This installment is the first of its kind to be published here, in the hope it educates those who care and empowers those real Native American Indians who find themselves robbed of their rights of California Indian heritage by a fraud.

How Non-California Indians Acquire BIA-issued Certificates of California Indian Ancestry

From 1848 to 1850, the United States Government entered into 18 treaties to obtain land from California Indians with the promise of being removed to “special reserved areas” within California. However, these treaties were never ratified. [Federal Concern about Conditions of California Indians 1853 to 1913: Eight Documents, Robert F. Heizer (1979, Ballena Press), “Editor’s Introduction”]

Nearly 30 years later, after discovering these treaties had not been ratified and after the failed governmental attempt to secure land for landless Indians, in 1905 and 1906, the United States Congress authorized the Attorney General of the State of California to sue the U.S. Government on behalf of those California Indians denied the promised benefits. This act became known as the 1928 California Indian Jurisdictional Act of May 18, 1928 [hereinafter 1928 CIJA]. [California Indians Jurisdictional Act: hearing before the Committee on Indian Affairs, House of Representatives, Seventy-fifth Congress, first session, on H. R. 5243 and H.R. 1998, bills to amend the act entitled “An Act Authorizing the Attorney General of the State of California to bring suit in the Court of Claims on behalf of the Indians of California,” approved May 18, 1928 (45 Stat. 602), by amending certain portions thereof and adding certain provisions thereto, Washington: U.S. G.P.O., (1937)]

The responsibility of managing the enrollment process fell to Agent Fred Baker who “wanted to avoid the problems he encountered in his previous enrollment work” such as “doubtful and spurious claims.” His plan of efficiency intended to avoid demanding proof of claims other than self-testimony by adding an affidavit page to the application which required the signed affidavits of two persons who knew the applicant. Following, Baker developed the “enrollment blank designed to present the claim briefly and efficiently, so that officials seldom needed to take additional evidence.” [1) Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians, Acjachemen Nation (Petitioner #84A), (2007), pp. 143, 144, 185 & 186; 2) Affidavit form on 1928 CIJA application, p. 6; and, 3) Indians of California Census Rolls Authorized under the Act of May 18, 1928 as Amended, Approved May 16/17, 1933, National Administration of Records and Archives, Pacific Sierra Region, (1998), Publication Number: M-1853, pp. 1–2]

No doubt, Agent Baker’s safeguards were not enough to prevent “doubtful and spurious claims” for a plethora of reasons, e.g. the lack of reliable evidence, the period of the Great Depression made it difficult to resist filing a false claim for self-enrichment (or signing one for someone else), the information was the product of “self-identification” (subject to self-interest), and the genealogical claims made by the applicants approved on “the 1933 Census Roll was not fully vetted.” Many affiants were not old enough to know the applicant and his/her family or only knew them a short time, thus rendering their affirmation as unreliable. As a result, many persons not of California Indian ancestry were approved for the 1933 California Indian Judgment Rolls, a fact noticed and acknowledged by U.S. DOI Commissioner D. S. Myer:

“We have been told that many Mexicans enrolled as Indians in 1928 but we cannot remove their names at this time without proof of the fact that they were illegally enrolled.”

[Letter from Commissioner D.S. Myer to Mr. Normal M. Little, dated 14 May 1951, 4 pages, cited, original in possession of Chris M. Lobo, grandson to Chief Clarence Lobo of the Juaneño Band of Mission Indians, no copy available] [1) Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians, Acjachemen Nation (Petitioner #84A), supra, 143; 2) Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians (Petitioner #84B), p. 30]

Chief Clarence Lobo, of the Juaneño Band of Mission Indians, among others, reported the fact of illegally enrolled persons on the 1933 California Indian Rolls during the second CIJA enrollment period (1947–1950) where the only requirement was for the applicant to show a familial relationship to someone on the 1933 rolls with no additional genealogical vetting for the original participant. On this point in the Proposed Finding [PF] against the Juaneño Band of Mission Indians (84B), the Office of Federal Acknowledgment [OFA] wrote:

“The evidence in the record for the PF indicated that at least some people in the group knew or believed that people had enrolled (either fraudulently or erroneously) who were not SJC [San Juan Capistrano] Indian descendants.”

Now that various California tribes are petitioning for federal acknowledgment, OFA has publicly revealed the problems caused by lack of proper genealogical proof standards in the 1928 CIJA enrollment process and acknowledges this data is unreliable specifically for that reason and it should only be used to produce clues for further research because “the 1933 Census Roll was not fully vetted.” Regarding this condition, OFA also wrote in the Proposed Finding against the Juaneño Band of Mission Indians, Acjachemen Nation (84A):

“The acknowledgment regulations lists a variety of sources of acceptable evidence of descent, in addition to descendancy rolls that the Department prepared and, in this case, the evidence in these sources was found often to outweigh the evidence from the 1928–1933 enrollment process.”

“… appearance on the 1933 Census Roll in this case is not considered sufficient evidence of Indian descent or of descent from the 1852 ancestor(s) claimed on the 1928 Applications.”

“When other contemporary evidence supported a non-Indian “other” Indian, or Mexican origin for the claimed 1852 San Juan Capistrano ancestor, the descendant’ non-contemporary claims on the 1928 Applications could not be deemed acceptable evidence of Indian ancestry under 83.7(e)(1)(i).”

And,

“While the 1933 Census Roll is an “acceptable” form of evidence, other forms of “acceptable” evidence, such as mission registers and censuses, often outweigh information in the applications and OFA used these sources to corroborate ancestry claims made in the 1928 Applications.”

OFA cited a specific non-Indian individual who applied, and was approved, for the 1933 Roll — Marcus Forster:

“Marcos H. Forster claimed Indian descent through his mother Guadalupe Avila, although OFA was unable to locate any documentary evidence of Indian descent for the Avila family.”

That there were non-Indians approved for the 1933 California Indian Rolls is now an indisputable and public fact. [1) Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians (Petitioner #84B), Supra; 2) Final Determination Against Acknowledgment of The Juaneño Band of Mission Indians (Petitioner #84B), p. 105, 3) Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians, Acjachemen Nation (Petitioner #84A), supra, 144 & 185]

All of this CIJA data now lies within the jurisdiction of the California BIA agencies with no mandate other than to maintain and use the data “as is,” with no further genealogical vetting as to the original 1928 CIJA applicant claims of genealogy. Until recently, the BIA was mandated to use this unvetted data to issue Certificates of Degree of Indian Blood [CDIB] or Statements of Indian Ancestry for all CIJA participants and their descendants. The certificates and statements include verbiage which specifically clarifies the source of the information upon which these documents are based — records in the BIA and not information from vetted genealogical claims. Regarding these forms, OFA wrote:

“Two versions of the form included language which implied that it was not necessarily the applicant who had provided the documentary evidence proving relationships and blood degrees, by citing ‘information shown in records in this Agency’ or ‘other records in the office’ …”

For example, a Statement of Indian ancestry typically bears the following verbiage:

“This is to certify that based on the information shown on the records in the Bureau of Indian Affairs, Southern California Agency. _(Name)_, Date of birth ________, is of _(Tribe)_ ancestry, non-federally recognized tribe. His/her _(relative name)_, is named on the Original Roll of California Indians as enrollee number: _______.” Then footnoted at the bottom is the phrase, “Based on Information from the Act of May 18, 1928 (45 Stat. L 602), 1948 amendment of the 1928 Act (62 Stat.1166). 1950 Amendment of the 1928 Act (64 Stat.189), and the Act of September 21, 1968 (82 State 860 & 861.”

And a Certificate of Degree of Indian Blood typically bears the following verbiage:

“This is to certify that __(Name)__ enrolled as a California Indian under the Act of September 21, 1968 (82 Stat.860 & 861), and is named on the California Judgment Fund Roll of California Indians, completed as of December 15, 1972, as enrollee number ___________, date of birth ___________. Information as to degree of Indian blood is not shown on this roll however, other records in this office show her to be the __(relation)__ of _(Name of ancestor)__. Based on the above relationship to the applicant’s degree of Indian blood is computed to be _(blood quantum/name of tribe)_.”

Therefore, the possession of either of these types of documents is not reliable evidence that the named person’s Native American ancestral genealogy has been vetted or verified. This is how it is possible for a person of non-California Indian heritage to have been issued a CDIB or Statement of Indian Ancestry from the BIA even though the genealogical proof standards prove otherwise. Yet, BIA agencies are positioned to accept genealogical evidence if it corrected their record though no mandate exists to enforce such a correction, or to report the correction to other interested parties, i.e., the NAHC. [Proposed Finding Against Acknowledgment of The Juaneño Band of Mission Indians, Acjachemen Nation (Petitioner #84A), supra, 186]

Why the BIA Record Needs to be Corrected or The Problem with NAHC Policy Implementation for Most Likely Descendants

The Native American Heritage Commission exists for the advocacy of California’s Indians. And, as such, one of its obligations is to “identify the Native American group most likely descended from those Native Americans who may be interred on the property” in California. Therefore, California Public Procedures Code §5097.98 “invests the NAHC with the authority to designate a Most Likely Descendent (MLD), when Native American human remains and any associated grave items are inadvertently discovered.” [Native American Heritage Commission Most Likely Descendant Procedures, pp. 1 & 4]

To comply with the law, the NAHC developed a Most Likely Descended List. A NAHC publication explains this list and how it is allegedly developed:

“2. The NAHC gives special recognition to tribes and individual California Native Americans that can trace their ancestry to a particular village site or sites, pursuant to established procedures. The NAHC will contact an MLD that has provided the NAHC with documentation to particular traditional village site first, if the discovery of Native American human remains is with[in] a radius of 12 miles from that village site.” [PRC § 5097.98(a); Native American Heritage Commission Most Likely Descendant Procedures, supra].

Despite this alleged provision of “special recognition” to those California Indians who can document their lineage to a “particular village site,” the NAHC employs a separate policy that permits frauds to usurp the rights of authentic California Indians without regard to acknowledgement that CIJA data is unreliable. As stated in a letter from the NAHC, Larry Myers, Manager, NAHC considers a “Certification of Degree of Indian Blood” from the federal BIA and an “Enrollment Number” as proper “credentials.” Further, Myers added,

“The NAHC accepts the CDIB certifications from the BIA; unless the BIA provides information challenging the validity of the CDIB presented by California Applicants to the NAHC for inclusion on the eligible MLD list, the NAHC accepts the BIA certifications.” [Letter from Larry Myers, Manager, Native American Heritage Commission, to Lorraine “Rain Cloud” Escobar, dated July 7, 2011]

In the above referenced case, among other cases, the NAHC was given the genealogical report and evidence proving the subject was not a “Gabrieleno” Indian as listed. This report properly challenged the CDIB on file for that MLD list. However, the NAHC rejected that vetted evidence and research in favor of a CDIB which allowed a proven non-California Indian to usurp the rights of the authentic Gabrieleño Indians and remain as an individual MLD providing recommendations for human remains who could not possibly be related to him — an outcome certainly not supported by the state goals of PRC §5097.98. This is the heart of the problem for which authentic California Indian tribes seek a remedy.

The Right to Pursue a Remedy for Redress of Grievances in Native American Affairs

DOI Commissioner Myer’s words were “We have been told that many Mexicans enrolled as Indians in 1928 but we cannot remove their names at this time without proof of the fact that they were illegally enrolled.” In stating this sobering fact, the U.S. Government concluded this “proof” was not their burden to produce but promised action if they had such proof. [Letter from Commissioner D.S. Myer to Mr. Normal M. Little, supra.]

The logical course, as dictated by the NAHC’s response that it would not change its MLD list unless the BIA record was changed, is to petition the agencies responsible for maintaining and correcting that record. And until such day exists where proper legislation enforces the assurance that the rights of authentic California Indians are protected against misguided policies, tribes who wish to protect their heritage have no other choice but to petition the agencies responsible [BIA] for the actions that enable frauds to usurp those rights. Until then such activity is only covered by the California Code of Procedures § 425.16 and the Noerr-Pennington Doctrine, “Those who petition the government are generally immune from … liability.” CCP § 425.16 (a) states, “… The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process… (e) As used in the section, an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Conclusion

Although the repatriation laws were intended to protect those of Native American Indian ancestry, there is a 92-year old loophole that must be addressed. Let the movement begin.

Certified Genealogist from 1998 to present, specializing in Native American lineages, and advocate in protecting rights of heritage for California Indians

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