Court ponders definition of American Indian

What does it take to meet the legal definition of an American Indian?

Is it simple enrollment in a federally recognized tribe? Does the question turn on cultural traditions – sweet grass, tribal drums, stick games, powwows and sweat lodges?

Or is it the percentage of ancestral blood in someone’s veins?

Senior U.S. District Court Judge Justin Quackenbush of Spokane is wrestling with that complicated legal question after a daylong evidentiary hearing Monday.

The hearing, which was recessed indefinitely until another witness can be questioned, centered on former Bureau of Indian Affairs agent Duane Garvais. He professes pride in his Native American heritage but says he doesn’t meet the current legal definition because he is not an enrolled member of any federally recognized tribe.

The federal judge must decide if Garvais meets the legal definition of being an Indian.

“This is really judge-made law as to what an Indian is,” Quackenbush said at the end of the daylong hearing.

“Even Congress, with its plenary powers, has not set forth any definitive definition,” the judge added.

In 1990, when Congress attempted to clear up the definition, it passed a law which says “an Indian means any person subject to the jurisdiction of the United States as an Indian,” Quackenbush said with a smile from the bench.

The Spokane Tribe of Indians, represented by Spokane attorney Mark Vovos, contends Garvais meets the legal definition of being an Indian and, therefore, should be subject to prosecution in the tribe’s court.

The Spokane tribe wants to prosecute the ex-BIA agent for allegedly misappropriating undercover drug funds during investigations on the reservation.

The tribe pursued its own case after the U.S. attorney’s office reviewed it and decided criminal charges weren’t warranted. Even if the federal court determines Garvais meets the legal definition, he still may be protected from tribal prosecution because of a federal “supremacy clause” that gives immunity to federal law enforcement agents.

Garvais contends he is being targeted by the Spokane tribe because he investigated fellow police officers on the Spokane reservation in 2001 on allegations they were involved in tape deck thefts and drug trafficking. No charges were ever filed, but the Spokane Tribal Council passed a resolution asking the BIA to transfer Garvais off the Spokane reservation.

Garvais was transferred, placed on paid administrative leave and then fired in February. The BIA said Garvais didn’t meet the legal definition making him eligible for “Indian preference” when he was hired by the agency.

In an opening statement to the court, Vovos said Garvais participated in Indian cultural issues as a child growing up near the Tulalip Reservation in Western Washington.

“He held himself out as an American Indian to the U.S. Marine Corps,” Vovos told the court before presenting Garvais’ military records.

Vovos then called a series of witnesses who testified Garvais was given Indian housing when he worked on the Spokane reservation and medical exams at a health clinic only open to Native Americans.

Garvais participated in Indian basketball games, owns Indian artifacts, including an eagle feather, and has given away sweet grass as a cultural gift.

“He enjoyed the benefits of tribal affiliation and social recognition as an Indian,” Vovos argued to the court.

“We’re not able to (present) any evidence before you that he was formally enrolled” in an Indian tribe, Vovos said.

Spokane attorney Les Weatherhead, representing Garvais, said the Spokane tribe has no jurisdiction over the former BIA agent because he isn’t a member of any tribe.

Garvais’ ancestors were Caucasian and Indian “and he’s proud of his Native American ancestry,” Weatherhead said.

“But no tribe of Indian recognizes Mr. Garvais,” he said, “and now the federal government doesn’t recognize him as a Native American.”

Garvais doesn’t have Indian fishing or hunting rights, doesn’t own any reservation land and doesn’t get “per capita payments” paid to enrolled tribal members, Weatherhead told the court.

Garvais’ grandfather was a one-quarter blood enrolled member of the Colville Confederated Tribes, Weatherhead said, but Garvais’ mother, Mary Wenger, was denied enrollment.

He was raised by his mother and stepfather in a middle-class family in Western Washington and didn’t attend Native American religious ceremonies or cultural events as a child, Weatherhead told the court.

In the early 1990s, Garvais located his biological father, the late Ken Garvais. He told his son of ancestral ties to the Fort Belknap Assiniboine Tribe in Montana.

Quackenbush recessed the hearing and postponed his ruling until an enrollment officer for that tribe can be located for further questioning.