As America's indigenous peoples were displaced, their reservations moved, and members scattered, through the successive treaties with the government, tribal recognition became an intricate process that has befuddled even bona fide historic Indian tribes. According to the Code of Federal Regulations, in order for a tribe to be officially acknowledged, it must have been identified as an American Indian entity on a substantially continuous basis since 1900, demonstrate community, have political influence over its people, and proven descent from a historic tribe.
The 'Nato crew, which comes up short on every test, does not pretend to have a chance at federal recognition. But they argue they don't need it, nor want it. In Clayton's interpretation, federal recognition allows tribe only to qualify for services from the BIA, which he sees as a well-meaning detriment to Indian people. "It is a government agency that has served to control Indians, more than it has helped them," he says. "The BIA, like many government agencies, is dedicated mainly to its own self preservation."
It so happens that Clayton's rejection of the government's right to authenticate Indian tribes isn't that far-fetched a concept. In fact it falls in line with a vocal movement among Native Americans. Ward Churchill, a registered Keetoowah Cherokee, and the author of several books on Indian issues, has forced tribes in the lower 48 states and Alaska to come to grips over the controversial issue of outright rejecting the federal government in favor of self-governance.
In a recent interview with a Native American publication, Churchill, considered a firebrand by many tribal leaders, said, "The federal government is not a valid power (for Native Americans). It is the illusion of power, but they (Indians) are confused by it."
'Nato, at least in principal, is dedicated to making Indians self-sufficient, to wean them off the federal welfare at all levels. 'Nato will, however, accept government property as repayment for the land it owes Indians. Clayton says he has been encouraged and guided in his efforts by his Indian relatives in Oklahoma. Some of them are members of the Keetoowah band who live apart from the nearly 170,000 strong Cherokee Nation. The Keetoowah don't get federal money because they do not have a land base.
Another branch of his family belongs to the Four Mothers, a tribe made up of Cherokees, Choctaw, Chickasaw and Creek Indians, who are fiercely independent, he says, and accept no federal money.
"My people--the Keetoowah and the Four Mothers--are hurting. They want to make changes but they don't know how. So they need us," says Clayton. "The BIA isn't allowing any new tribes, so we got creative in order to take advantage of the special privileges and rights allowed for Indians."
Clayton believes he has found a legal loophole to get the tribe a degree of legitimacy to do its business. That loophole, he explains, is a state charter. He is basing this on his own interpretation, not of the federal code, but the Indian Reorganization Act of 1934 (IRA), which provided for the formalization of tribal governments and the formation of business corporations, and the Indian Self-Determination Act of 1988 (ISDA), enacted to stimulate Indian business enterprises.
In the law, as Clayton interprets it, the IRA refers to Indians as anyone living on a reservation in 1934 and their descendants. In the ISDA, an Indian tribe is defined as any tribe, group, community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians. "Where did that status come from? From being Indians in the beginning," says Clayton. "It doesn't say their status as BIA Indians."
Clayton insists he did not pull this bit of sophistry and circular reasoning "out my hat," but arrived at it through careful study and with the assistance of Indian law scholars. He says he ran his theories by renown Indian law expert Kirke Kickingbird from Oklahoma City. "He [Kickingbird] said, 'Geez, Henry, OK,'" Clayton recalls.
Director of the Native American Legal Resource Center at the Oklahoma City School of Law, Kickingbird remembers the conversation with Clayton, but regrets giving him the impression he thought 'Nato was a valid tribe. "I didn't think it would work. But I didn't tell him that because I thought I misunderstood him."
When Kickingbird was assured by a reporter that he heard Clayton correctly, he says he amended his earlier comment. "As a general proposition, unless you are recognized by the federal government, you are not recognized to have powers of a government," says Kickingbird. "In this case [the 'Nato tribe], a number of people have formed a non-profit. There doesn't seem to be much basis to support the contention of a government. It may be possible for them to get a grant from the Department of Health and Human Services that recognizes they work with Indians, but not as a recognized government.