| John Rockwell Snowden, Wayne
Tyndall, David Smith
excerpted from: John Rockwell Snowden, Wayne Tyndall,
David Smith, American Indian Sovereignty and Naturalization: It's a Race
Thing, 80 Nebraska Law Review 171-238, 199-230 (2001)(337 Footnotes)
The history of the "Indians" begins with the arrival of
this person Columbus, but the history of the People goes back to the
beginning of time. This predator, civilization, confuses us about our
identity. John Trudell
A. The Origins of Federal Blood Law
The issue to be considered is whether or not the United States would
recognize a person, without some Indian blood or descent, who is an
adopted or naturalized member of an Indian nation as a member of that
nation for purposes of federal laws distributing sovereign authority,
jurisdiction. The foundational case is United States v. Rogers.
William S. Rogers was indicted in the Circuit Court of the United
States for the District of Arkansas which geographically included at
that time the Cherokee Nation. The charge was the murder of Jacob
Nicholson. Both Rogers and Nicholson, white men and onetime citizens of
the United States, had long before the acts in question become by
marriage adopted members of the Cherokee and entitled to all rights and
privileges under the nation's laws. Both were domiciled in Indian
country where the acts took place.
Federal authority came under the act of Congress on the 30th of June,
1834, entitled, "An act to regulate trade and intercourse with the
Indian tribes, and to preserve the peace of the frontiers." A
provision to the twenty-fifth section of the act stated that the section
"shall not extend to crimes committed by one Indian against the
person or property of another Indian." Rogers put in a plea to the
indictment arguing against jurisdiction and the Circuit Court, being
divided, certified the record to the Supreme Court.
Were Rogers and Nicholson Indians? Chief Justice Taney authored the
opinion of the Court: "Whatever obligations the prisoner may have
taken upon himself by becoming a Cherokee by adoption, his
responsibility to the laws of the United States remained unchanged and
undiminished. He was still a white man, of the white race, and therefore
not within the exception in the act of Congress."
Every lawyer knows that law is, as is the world, a mixture of idea
and fact. Some legal concepts, "Indian" (perhaps), seem to
denote an existential reality and connote legal relations. Other legal
concepts, "Indian" (perhaps), seem to denote jural rights,
duties, powers, or liabilities, while carrying a connotation of the
usual factual circumstances. Legal thought understands, as did Chief
Justice Taney, that the question is never, "Is Joshua an
Indian?" Rather the proper question is, "Whether or not Joshua
is an Indian for the purpose of a principle, rule, goal, or policy
recognized by the law." The law reflects both purposive ordering
and the reality of existing chaos. What purposive vision appears in the
Taney opinion? And what values inform that purpose?
The circuit court had certified three questions to the Court. First,
could a citizen of the United States expatriate himself without some
kind of form or condition imposed by the federal government? Second,
could the Cherokee Nation or other Indian nations exercise the sovereign
power to naturalize citizens of other nations and to make them
exclusively citizens of the Indian nation? Third, does the provision
apply only to "natives of the Indian tribes of full blood or also
to Indians (natives), or others adopted by, and permanently resident
within, the Indian tribes" or also to "progeny of Indians by
whites or by negroes, or of whites or negroes by Indians, born or
permanently resident within the Indian tribes and limits," or also
to "whites or free negroes born and permanently resident in the
tribes, or to negroes owned as slaves, and resident within the Indian
tribes, whether procured by purchase, or there born the property of
Chief Justice Taney began by stating that "native tribes"
had never been treated as independent nations. Following the lead of
Chief Justice Marshall, he noted the uselessness of raising any
questions of justice, and at any rate:
[F]rom the very moment the general government came into existence to
this time, it has exercised its power over this unfortunate race in the
spirit of humanity and justice, and has endeavored by every means in its
power to enlighten their minds and increase their comforts, and to save
them if possible from the consequences of their own vices.
He next asserted the power of Congress to make law for Cherokee
country that would be applicable to any person, and then turned to the
provision in question finding it clear that a white man adopted at
mature age did not come within the Indian against Indian crime
exception. The Chief Justice said that such a person may by adoption
become a member of the Cherokee subject to their laws and usage, but the
federal statute spoke of Indians. "Yet he is not an Indian; and the
exception is confined to those who by the usages and customs of the
Indians are regarded as belonging to their race. It does not speak of
members of a tribe, but of the race generally,--of the family of Indians
. . ."
Chief Justice Taney then moved beyond the statutory language and
argued that peace would be difficult to preserve if white men of every
description might "at pleasure settle among [the Cherokee], and, by
procuring an adoption by one of the tribes, throw off all responsibility
to the laws of the United States." Yet adoption or naturalization
was in the arena of Cherokee law and no one could become a Cherokee
citizen without its authority. And, the Cherokee had an effective police
and judicial system. Perhaps, of most importance was Chief Justice
Taney's final axiological, value driven argument: Congress could not
have intended to grant exemption from federal criminal jurisdiction
"to men of that class who are most likely to become Indians by
adoption, and who will generally be found the most mischievous and
dangerous inhabitants of the Indian country."
The proviso then did not apply to Rogers and Nicholson. Indian
nations, domestic dependent sovereigns by federal legal ascription, were
spoken of only as native tribes. Indians, the justice of federal
relations put aside, were an unfortunate race now under the care of the
United States who would enlighten their minds and save them from the
consequences of vice. Federal law, at least the statute here, did not
use "Indian" as a short hand for many nations, but as a racial
classification. The "tribes" could not control their own
internal affairs with the needed skill, particularly if they were so
stupid as to allow a white man to live among them. Finally, any white
man who would leave his nation and his race must be a degenerate.
But, did not the Cherokee have a treaty with the United States that
promised to honor and protect their independence?
The United States hereby covenant and agree that the lands ceded to
the Cherokee nation in the forgoing article shall, in no future time
without their consent, be included within the territorial limits or
jurisdiction of any State or Territory. But they shall secure to the
Cherokee nation the right by their national councils to make and carry
into effect all such laws as they may deem necessary for the government
and protection of the persons and property within their own country
belonging to their people or such persons as have connected themselves
with them: provided always that they shall not be inconsistent with the
constitution of the United States and such acts of Congress as have been
or may be passed regulating trade and intercourse with the Indians; and
also, that they shall not be considered as extending to such citizens
and army of the United States as may travel or reside in the Indian
country by permission according to the laws and regulations established
by the Government of the same.
Chief Justice Taney might have concluded that the treaty and its
particular promises to the Cherokee, "their people, or such persons
as have connected themselves with them," controlled the general
language of the Trade and Intercourse Act of 1834. However, Chief
Justice Taney did not imagine nations, but rather races. He thus read
the treaty stipulation that Cherokee law not be inconsistent with
federal law as indicating that the treaty was not intended to alter any
part of the act passed just a few months earlier. Yet, he did not
specify what would be inconsistent.
It would have seemed an honorable and coherent notion to protect
Cherokee sovereignty by reading the treaty and statute as recognizing
Cherokee jurisdiction over their people, as defined by the Cherokee
Nation. And, it would have been consistent with federal policy to do so.
Certainly it would have been consistent with federal policy to encourage
Indian nations that adopted ever more European legal forms.
Inconsistency must have arisen in the imagination of race. "He was
still a white man, of the white race . . . ."
The circuit court's first question was not race-based and the Supreme
Court did not offer any answer relating to rights of expatriation. The
circuit court's second question was not answered regarding exclusive
citizenship in the naturalizing nation, and the idea of dual citizenship
was not considered. Rogers could be a Cherokee for Cherokee purposes,
but federal law would only see his citizenship in the United States,
which was presumed without arguments to continue. As to the many who is
an Indian issues, the Supreme Court's response to the Circuit Court's
third question only made clear that for federal purposes race was going
to be the determinant.
"Indians and Whites do not exist . . . . Indian and White
represent fabled creatures, born as one in the minds of seventeenth- and
eighteenth- century European thinkers trying to make sense of the modern
experience . . . ." There is not a White nation nor any Indian
nation, though there is Greenland and India. There are today more than
556 Indigenous nations recognized by the United States. And, although
"courts have consistently recognized that one of an Indian tribe's
most basic powers is the authority to determine questions of its own
membership," every instance of federal law distributing
jurisdictional sovereign authority includes a question of racial
criteria for those to whom it applies. The Rogers case is not an
isolated and narrow manifestation of federal Indian law, but rather a
fourth pillar which with the Marshall Trilogy is the base of current
One year after the Rogers decision, the Circuit Court for the
District of Arkansas was again faced with a jurisdictional question
involving an adopted Cherokee in United States v. Ragsdale. Thomas
Ragsdale, a Cherokee Indian, was indicted for the murder of Richard
Newland, a white man who became a Cherokee by marriage to a Cherokee
woman in 1835. When the Cherokee were removed from the Mississippi area
in 1835, Newland was removed with them and continued to be recognized as
a Cherokee at the time of the alleged murder. Ragsdale entered a plea of
not guilty and an issue of a prior pardon under the second article of
the Treaty of Washington concluded with the Cherokee on August 6, 1846.
All difficulties and differences heretofore existing between the
several parties of the Cherokee nation are hereby settled and adjusted,
and shall, as far as possible, be forgotten and forever buried in
oblivion. All party distinctions shall cease, except so far as they may
be necessary to carry out this convention or treaty. A general amnesty
is hereby declared. All offences and crimes committed by a citizen or
citizens of the Cherokee nation against the nation, or against an
individual or individuals, are hereby pardoned.
The issue was whether both Ragsdale and Newland were Cherokee for the
purpose of the pardon provision of the treaty. District Judge Johnson
started off with reference to Rogers, but he had a focus that recognized
the sovereign, even if diminished, status of the Cherokee. They were
dependent nations and always had the power to adopt others as members.
And, Judge Johnson quoted language in Rogers as expressly affirming such
power in the Cherokee.
Chief Justice Taney had said that a white man may become a member of
an Indigenous nation, but they were not "Indian" for purposes
of the exception to federal criminal jurisdiction. Judge Johnson did not
miss the distinction. He looked to the purpose and language of the
treaty pardon provision which referred not to "Indian" but to
"citizen or citizens of the Cherokee Nation." One of the
treaty purposes was to restore peace among hostile factions of the
Cherokee and to bury past differences in oblivion. Thus he concluded:
In this plenary pardon to all native born Cherokees, why should it
not also extend to adopted members of the tribe? After adoption they
became members of the community, subject to all the burdens, and
entitled to all the immunities of native born citizens or subjects; and
it is reasonable, in my judgment, to suppose that they were intended to
be included in the general amnesty.
It would be fifty years before another issue of a naturalized or
adopted non- racial citizen of an Indigenous nation came before the
Supreme Court in a matter of Indian nation or United States
jurisdiction. However, two cases of "Indian" identity and
jurisdiction in the early 1890s should be noted. First, In re Mayfield
held that an adultery prosecution against a Cherokee defendant was a
proceeding in which a Cherokee was the "sole party" and that
Cherokee courts consequently had exclusive jurisdiction.
John Mayfield was convicted of adultery with a white woman under a
federal statute. Mayfield claimed to be a Cherokee by blood and the
prosecution stipulated that he was one-fourth Indian by blood, and a
citizen of the Cherokee tribe of Indians. Mr. Justice Brown held for the
Court that Mayfield was a member of the Cherokee Nation, "by
adoption, if not by nativity." Consequently, statute and treaty
provisions gave exclusive jurisdiction to the Cherokee.
An 1890 act of Congress for the Territory of Oklahoma provided in its
thirtieth and thirty-first sections that Indian nations or "the
civilized nations" should have exclusive jurisdiction where
"members of the nation by nativity or adoption shall be the only
parties," or "wherein members of said nations, whether by
treaty, blood, or adoption, are the sole parties." These statutes
confirmed for the Court the continuing force of an earlier treaty with
the Cherokee in 1866 which promised that Cherokee Courts would be the
single jurisdiction for cases where the only parties are "members
of the nation, by nativity or adoption."
The Court did not explain why Mayfield was the sole party. However,
it did note in reference to another treaty provision that the person
with whom the adultery was claimed to have been committed was not
adverse, but consenting. Further, the case was not brought by Mayfield's
wife if the crime of adultery could be considered as against her.
The second case, Famous Smith v. United States, involved the Indian
against Indian crime exception to federal jurisdiction. Famous Smith,
convicted of murder, was an undisputed Cherokee. The question focused on
his victim, Kajo Gentry. The trial judge had instructed the jury that
they must find that Gentry was "a white man"; meaning by this
a "'jurisdictional citizen of the United States.' That if he were,
notwithstanding the defendant was an Indian, the court still had
The facts showed Gentry's father to have been "either of
Cherokee blood or mixed Creek and Cherokee." He was
"recognized as an Indian," and was enrolled, and participated
in the payment of "bread money" to the Cherokees. The
prosecution offered that Gentry had been denied participation in a
Cherokee election, had lived for some time in Arkansas, and had come to
the Cherokee Nation by way of the Choctaw Nation. The prosecution's
theory was that Gentry had severed his relation with the Cherokee.
Mr. Justice Brown held for the Court that the prosecution must prove
Gentry was, "a white man and not an Indian," and concluded
that the prosecution's evidence failed to do so. The conviction was set
Mayfield and Famous Smith did not involve non-racial members of
Indigenous nations, but they do indicate some change and some continuity
in the problem of who is an "Indian" for jurisdictional
purposes. Federal statutes dealing with a particular territory had
jurisdictional rules phrased in terms of members by nativity or
adoption. Treaties, always nation to nation, also referred to citizens
or members. Consequently, the argument that "Indian" in a
general jurisdictional statute means race, not nationality, might
sometimes be avoided. And, no question was raised against a naturalized
(perhaps) member that was a racial "Indian." However, since
1871 treaty relations have been prohibited with Indian nations.
Consequently, the opportunity to secure jurisdiction for all Indigenous
nation citizens by treaty is no longer available.
The Courts continued to look at "Indian" as the opposite of
a "white man." Although the Supreme Court in Famous Smith
found that the United States had not met its burden of proof, it was not
bothered by the trial court's or its reference to a jurisdictional
citizen of the United States as "a white man." Little had
changed from the pre-civil war role of race in Rogers. Those owing
allegiance to or receiving protection from the federal or Native
sovereigns were racial phantoms rather than flesh and blood political
From 1895 to 1897, four cases came before the Supreme Court with
jurisdictional issues involving adopted or naturalized, but non-racial
members of Indian nations. In Westmoreland v. United States, Thomas
Westmoreland was convicted of the murder of Robert Green. The only
records before the Court were the indictment, the judgement, and the
motion in arrest thereof. The indictment described Westmoreland and
Green as "white person[s] and not . . . Indian[s], nor . . .
citizen[s] of the Indian Territory." The events took place within
the Chickasaw Nation and the trial was in the Circuit Court of the
United States for the Eastern District of Texas.
The defendant argued the Indian against Indian exception to federal
jurisdiction. Mr. Justice Brewer began with the Rogers holding that
"Indian" is a racial term for purposes of the Indian against
Indian exception. But, Westmoreland had one more card to play. The
Treaty of 1866 with the Choctaws and Chickasaws provided that:
Every white person who, having married a Choctaw or Chickasaw,
resides in the said Choctaw or Chickasaw nation, or who has been adopted
by the legislative authorities, is to be deemed a member of said nation,
and shall be subject to the laws of the Choctaw and Chickasaw Nations
according to his domicile, and to prosecution and trial before their
tribunals, and to punishment according to their laws in all respects as
though he was a native Choctaw or Chickasaw.
Consequently, Westmoreland claimed that the indictment should have
negatived the possibility of membership by marriage or adoption to avoid
the treaty exclusivity provision that was now in the Federal
jurisdictional statute: "This section shall not extend to . . . any
case where, by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively."
The Court held that the indictment was sufficient to negate all
possible citizenships in the Chickasaw Nation. It had charged that
Westmoreland was a "white person, and not an Indian, nor a citizen
of the Indian Territory." As a result, the sufficiency of the
indictment being the only issue, the conviction was affirmed.
In Alberty v. United States, Alberty had been convicted in federal
court for the murder of Phil Duncan, an illegitimate child of a Choctaw
Indian and a Negro woman who was at the time of Duncan's birth a slave
in the Cherokee Nation. The Court determined that Duncan was, "a
colored citizen of the United States." Alberty would also seem to
have been a Negro; however, by a treaty provision Alberty was a citizen
of the Cherokee Nation. Justice Brown started with the now well settled
notion that Alberty, although Cherokee, was not Indian.
The 1866 treaty also had a jurisdictional provision that gave the
Cherokee exclusive jurisdiction in all cases where "members of the
nation, by nativity or adoption, shall be the only parties." And,
the most recent legislation to provide for the Territory of Oklahoma
contained a similar promise of exclusive Cherokee jurisdiction where
"members of said Nations, whether by treaty, blood, or adoption are
the sole parties."
The Court concluded that the "sole" or "only
parties" language referred to the actual people involved in the
crime. Justice Brown attempted to distinguish In re Mayfield as being a
case where there was no adverse party due to the consent of the woman to
the charged adultery. As a result, federal jurisdiction was upheld, but
Alberty's conviction was overturned due to errors in the trial court's
instructions regarding self-defense and flight.
A little more than a month after Alberty, the Court decided Lucas v.
United States. Lucas, a Choctaw, was convicted in federal court for the
murder of Levy Kemp, who was alleged in the indictment to have been
"'a negro and not an Indian." ' An 1866 treaty with the
Choctaw provided in article three that the Choctaw would receive a sum
of $300,000 for cession of territory to the United States conditional
upon the Choctaw giving residents of African descent full citizenship in
the nation. In 1883, the legislature of the Choctaw Nation adopted its
freedmen as citizens. The same statute for the Territory of Oklahoma at
issue in Alberty was applicable here, and the issue for the Court was
whether the only parties were members of the Choctaw Nation by nativity
Justice Shiras found that the trial court had instructed the jury to
presume that Kemp, a Negro, was not a member of the Choctaw. The Court
found this error, as the question should have been one of fact for the
jury without any presumption. Along the way it was noted that Rogers was
easily distinguished since in that case, "there was no statute in
terms extending jurisdiction of the Indian courts in civil and criminal
cases over their adopted citizens." Westmoreland was never
In January of 1897, the Court issued its opinion in Nofire v. United
States. Nofire and others, "full-blooded Cherokee Indians,"
were convicted in the federal court and sentenced to hang for the murder
of Fred Rutherford. The indictment charged that Rutherford was "'a
white man and not an Indian." ' However, evidence was offered to
prove that he was an adopted member of the Cherokee Nation by marriage.
FN196] The federal jurisdictional law was the same as in Alberty, i.e.,
specific treaty and statutory provisions promised that the Cherokee
courts would have exclusive jurisdiction when all parties were members
of the nation, by birth or adoption.
The jurisdictional issue being clear, the only question before the
Court was the sufficiency of the evidence regarding Rutherford's
marriage. The Court reversed the trial court and found that the facts
established Rutherford's marriage in accord with Cherokee law and
thereby his membership in the nation. The case was remanded with
instructions to surrender the defendants to the authorities of the
Nofire is the last Supreme Court case dealing with jurisdictional
authority over naturalized or adopted non-racial citizens or members of
an Indian nation. And, it might seem that it signals a recognition that
such a person would be treated by federal law as an "Indian"
for jurisdictional purposes. However, the cases just considered make it
clear that "Indian" in federal criminal jurisdiction statutes
remained a racial term. Adopted or naturalized non-racial members of
Indigenous nations would be recognized by federal law only when a treaty
and/or statute specifically referred to citizens or members of the
nation by blood or adoption. Today such treaty provisions are forbidden
and relevant primarily as history; only indirectly offering insight to
B. The Rogers Legacy--Racial Jurisdiction
Chief Justice Taney's opinion in Unites States v. Rogers remains a
vital part of current federal Indian law. With the Congressional
decision to end treaty relations with the Indian nations in 1871, any
opportunity for treaties referencing "citizens" of the
particular Indian nation or promising exclusive Indian jurisdiction in
cases where all parties are "members . . . by nativity or
adoption," was ended. Today jurisdictional questions turn on
"Indian" in the criminal jurisdiction statutes and that term
is understood as it was by Chief Justice Taney: "It does not speak
of members of a tribe, but of the race generally."
1. Federal Criminal Cases
Federal courts begin with a citation to Rogers, usually stating a
version of the following: "[T]he term 'Indian' has not been
statutorily defined but instead has been judicially explicated over the
years. The test, first suggested in United States v. Rogers and
generally followed by the courts, considers (1) the degree of Indian
blood; and (2) tribal or government recognition as an Indian."
The "Indian" test then contains two questions: (1) how much
blood; and (2) what counts as tribal or government recognition? The
focus in this Article is on naturalization and blood, or descent, but it
is necessary to look briefly at the second issue--recognition. The
Supreme Court tells us:
[F]ederal regulation of Indian affairs is not based upon
impermissible classifications. Rather, such regulation is rooted in the
unique status of Indians as "a separate people" with their own
political institutions. Federal regulation of Indian tribes, therefore,
is governance of once- sovereign political communities; it is not to be
viewed as legislation of a "'racial' group consisting of 'Indians'
. . . ." Indeed, respondents were not subjected to federal criminal
jurisdiction because they are of the Indian race but because they are
enrolled members of the Coeur d'Alene Tribe.
Experience would give truth to these words if jurisdictional laws
distinguishing "Indians" from others looked to the law of the
Indigenous peoples' political institutions. However, the Court in a
footnote to the quoted passage reminds us that enrolled membership is
not a requirement.
Two recent federal cases use the Rogers test, blood and recognition,
to determine whether a child victim of abuse by a non-Indian defendant
was an "Indian" for the purpose of jurisdiction under the
Indian Country Crimes Act. In United States v. Lawrence, the Eighth
Circuit found the child victim not to be an "Indian" and
affirmed a dismissal of the indictment. The victim was an
"11/128ths Oglala Sioux Indian," and the district court had
presumed that to be within the "requisite quantum of Indian
blood." However, the victim failed the recognition test: (1)
enrollment, (2) federal government recognition formally or informally
through assistance reserved only for Indians, (3) enjoyment of benefits
of tribal affiliation, or (4) social recognition via residence and
participation in Indian social life. The child was not enrolled, and
eligible for enrollment only after completing a one-year residency. Yet,
the Oglala had intervened through their courts to rescue the child from
abandonment in Las Vegas, made her a ward of the Oglala court, and
placed her in the custody of her Oglala grandmother. The court concluded
that there was not sufficient recognition.
In United States v. Keys, the child victim was the daughter of an
enrolled member of the Colorado River Indian tribe who was
"one-half Indian blood," while the defendant father was
"African-American." The conviction was upheld despite the
defendant's argument that since the victim was not enrolled, a finding
that she was "Indian" would be based on race and in violation
of the Equal Protection Clause.
The Keys court used the Rogers test, the issue being the second part
Enrollment is not the only means to establish membership in a tribal
political entity. Here, the daughter's "Indian" status is
based on the recognition by tribal institutions of her membership in the
tribe. Her classification as an "Indian" is not race-based
and, consequently, Keys' prosecution under §1152 does not violate the
Equal Protection Clause.
In Keys, the tribal recognition was established by the mother's calls
to Tribal Social Services, treatment of the child by Indian Health
Services, and the filing of a "child in need of care" petition
in tribal court.
Though sharing contrary results, Lawrence and Keys are recent
examples of the continuing use of Rogers to determine "Indian"
status. The issue here is the federal law's focus on blood, but the
recognition factor is also telling. Blood and enrollment end the matter,
but what of the idea that recognition may be found without enrollment?
Native nations all have some law determining membership in the polity.
If "Indian" status is political, how can the law of Native
nations be supplanted by a federal court's view of
"recognition" ? If the political lens looks to the actions of
the United States, why should federal action towards a person be
determinative of that person's status in another nation for purposes of
2. State Criminal Cases
The federal criminal jurisdiction statutes deny states jurisdiction
in matters where they are applicable, and state convictions have been
challenged for jurisdiction in both federal and state courts. State
cases also employ the Rogers definition of "Indian." In State
ex rel. Poll v. Montana Ninth Judicial District Court, the Montana
Supreme Court dealt with a situation that was close, but distinct from
the old cases. One of the defendants, Don Juneau, was born of non-Indian
parents. However, under the law of Montana he was legally adopted by a
member of the Blackfeet Nation, Benton Juneau, and he lived and worked
all of his life in the Blackfeet Nation. He attended Indian schools,
practiced Indian religion, participated in Blackfeet culture, married a
member of the Rocky Boy Nation, had Indian friends, and had Indian
children. He was not enrolled, did not vote in Blackfeet elections, did
not hold any Blackfeet office, and did not receive any federal benefits.
The Montana court cited Rogers and found that Don Juneau failed both
prongs of the "Indian" test; he did not have significant
Indian blood and did not have tribal or federal recognition. Thus,
Montana had jurisdiction.
The case is particularly interesting for several reasons. First,
there are no cases in the criminal jurisdiction context raising an issue
of a naturalized non-racial member of an Indian nation after the 1897
case of Nofire v. United States. Poll concerned an adopted child, but by
the late twentieth century Indigenous culture made the European
distinction between adoption and naturalization, and Don Juneau had not
been naturalized by the Blackfeet. Of course, that raises questions of
whether that was either possible or desirable.
Second, a concurring and dissenting opinion by Justice Trieweiler
agreed that the defendant failed the Rogers test, but argued that the
test was "antiquated" and failed to realize that "an
inherent element of tribal sovereignty is to enroll members, regardless
of their degree of Indian ancestry." Then, Justice Trieweiler
argued that a proper analysis in the case would have looked to federal
preemption and a balancing of federal, tribal, and state interests. The
crimes involved gambling offenses on the Blackfeet Nation's land and
consequently federal law and tribal interests should have prevailed to
deny state jurisdiction.
The state cases rather uniformly use the Rogers test of
"Indian" for criminal jurisdiction. Yet, as in Poll, a judge
sometimes questions its appropriateness. In Vialpando v. State, the
Wyoming Supreme Court affirmed the conviction of Dennis Vialpando,
holding that one-eighth Indian blood is not a "substantial amount
of Indian blood" and that he did not have "'a racial status in
fact as an Indian." ' Vialpando was "by blood one-eighth
Shoshone Indian"; not an enrolled member; had been treated at the
Bureau of Indian Affairs hospital; lived in the Shoshone Nation for many
years; hunted under an Indian permit; attended Shoshone cultural events;
and had suffered racial discrimination as an Indian. He failed the
In another less than sanguine acceptance of race based status,
Justice Rooney concurred that Vialpando was not "Indian" for
jurisdictional purposes. Nevertheless, Justice Rooney said, "racism
is an improper factor upon which to resolve matters such as this. Indian
sovereignty would be a more satisfactory basis. . . ." However,
Justice Rooney also thought Indian sovereignty was "only a facade
which hides the true status of Indians." Justice Rooney's views of
Indian sovereignty notwithstanding, he believed that tribal sovereignty
did provide that a tribe could determine its own nationals.
Consequently, as the Shoshone had not enrolled the defendant and he was
not eligible for enrollment, the state conviction was permissible.
C. The Disappearance of the Non-Racial Naturalized Indian
Although the law of United States v. Rogers remains a vital part of
federal Indian law, the factual circumstance of adopted or naturalized
non-racial citizens of Indian nations has disappeared from reported
cases and perhaps no longer exists. There is little, if any, scholarly
writing devoted to the phenomenon, but a few recent works discuss the
federal role in Indian identification. M. Annette Jaimes argues that it
is an inherent element of sovereignty to determine a nation's citizenry
or membership and that federal policy defining Indigenous nation
membership by "blood quantum" or "degree of Indian
blood" is "racist" and has "genocidal
implications." Ward Churchill has described federal definitions of
membership, foisted upon and adopted by Indian nations, as the
"most advanced and refined iteration of imperialism." Both
Jaimes and Churchill refer to the 1887 General Allotment Act as a
crucial moment in the implementation of federal Indian identity policy.
The General Allotment Act parceled out land in severalty to
individual Indians. The congressional reformers hoped to assimilate
Indians into a small agrarian culture by having them become landowners
and by associating with new non-Indian neighbors who would be allowed to
homestead on unalloted land. A similar program was later applied to the
Indian nations of Oklahoma. Justice Scalia has said, "The
objectives of allotment were simple and clear cut: to extinguish tribal
sovereignty, erase reservation boundaries, and force the assimilation of
Indians into society at large."
The foundation of allotment was the production of formal rolls
listing the members of each nation that would be eligible for an
allotment of land. The federal agent sent to each Indian nation was
responsible for these rolls and they relied heavily on blood-quantum.
Not less than one-half degree of blood was a typical standard and rarely
did the standard slip below quarter-blood. Blood also was used to expand
or contract the restrictions on the land allotted, with the preferences
to those of less Indian blood.
By the first years of the twentieth century, Indian nations had their
polity determined by federal administration. Moreover, blood had been
made an engine of destruction turning Indigenous citizens against each
other. Today blood is a membership requirement in many Indian nations.
The Indian Reorganization Act of 1934 ended the allotment policy and
provided for the establishment of federally approved tribal governments
with constitutions and bylaws drafted by federal lawyers. The Indian
Reorganization Act of 1934 also focused on blood and descent:
The term "Indian" as used in this Act shall include all
persons of Indian descent who are members of any recognized Indian tribe
now under Federal jurisdiction, and all persons who are descendants of
such members who were, on June 1, 1934, residing within the present
boundaries of any Indian reservation, and shall further include all
other persons of one-half or more Indian blood.
John Collier, Commissioner of Indian Affairs at the time of the IRA,
was a proponent of blood and descent as the earmark of Indian identity.
In a circular to Superintendents and Field Agents doing IRA work,
Collier stressed that the policy of the federal government would be to
give close scrutiny to constitution and bylaw membership provisions.
Further, provisions for adoption of non-members should require approval
by the Secretary. 'It is important that the Indians not only shall
understand this policy but shall appreciate its importance as it applies
to their own welfare through preventing the admission to tribal
membership of a large number of applicants of small degree of Indian
As the Indian nations adopted IRA constitutions with the federal
model of blood-quantum membership, the last step was completed for the
internalization of colonial racial identity law. Now the federal
government could rely on the Indian nations to articulate its race laws
and point to the nations as being responsible for their existence.
"A more perfect shell game is impossible to imagine."
The last cases involving non-racial naturalized citizens of the
Indian nations all stem from struggles over who would be entitled to
allotment parcels of land. In the so-called Cherokee Intermarriage
Cases, the Supreme Court construed Cherokee laws of citizenship and
naturalization as excluding non- Indian adopted members from property
rights and thus from allotment. The Cherokee law, after an 1875
amendment, allowed non-racial adopted members political participation,
but denied such citizens rights of soil or interest in the vested funds
of the nation. The Court recognized that an Indian nation could change
its citizens' status, and as it had once been in England there could be
distinct classes of citizens.
In United States ex. rel. West v. Hitchcock, a naturalized non-
Indian member of the Wichita Nation sought mandamus to compel the
Secretary of the Interior to approve selection of an allotment. Justice
Holmes held that the Secretary's decision was unreviewable by stating,
"some one must decide who the members are." It seemed clear
that the petitioner had been adopted by Wichita law. However, the
Secretary apparently denied the selection because the adoption had not
been approved by the Indian Office as required by regulations.
The relator contends that the validity of the adoption was a matter
purely of Indian law or custom, and that the Department could not take
it under control. Probably it would have been unfortunate for the
Indians if such control had not been exercised, as the temptation to
white men to go through an Indian marriage for the purpose of getting
Indian rights is sufficiently plain. We are disposed to think that
authority was conferred by the general words of the statutes. Rev.
Stats. §§ 441, 463. By the latter section: 'The Commissioner of Indian
Affairs shall, under the direction of the Secretary of the Interior, and
agreeably to such regulations as the President may prescribe, have the
management of all Indian affairs, and of all matters arising out of the
Indian relations.' We should hesitate a good deal, especially in view of
the long-established practice of the Department, before saying that this
language was not broad enough to warrant a regulation obviously made for
the welfare of the rather helpless people concerned.
Justice Holmes' view of Indian people and of whites who would
associate with them was identical to that of Chief Justice Taney who had
sixty years before called Indians "this unfortunate race" and
naturalized whites "the most mischievous and dangerous inhabitants
of the Indian country."
The Supreme Court of Oklahoma decided two of the last three reported
cases involving naturalized non-racial members of an Indian nation. Reed
v. Clinton held that a contract of conveyance from a naturalized white
member of an Indian nation was void. The court reasoned that the
Congressional prohibition of conveyance of allotments was plain and that
they therefore could not examine the purpose of the prohibition.
In Franklin v. Lynch, a white woman had become a naturalized member
of the Choctaw Nation. The United States Supreme Court held that she
could not convey an expectancy of an allotment by a warranty deed
executed before she had been officially naturalized by Choctaw law and
the allotment made. Congress had removed alienation restrictions on
allottees of the Choctaw Nation who were "not of Indian
blood." However, a prior statute stated that allotted lands should
not be affected by any deed made before patent of the land. The Court
then concluded that the woman, Emmer Sisney, "cannot be treated as
a white woman, for the purpose of conveying an expectancy, and an Indian
for the purpose of securing an allotment."
The last case involving a naturalized non-racial member of an Indian
nation is In re Hawkins' Estate. Margaret Hawkins, a white naturalized
member of the Choctaw Nation died intestate and without issue. The laws
of intestate succession would have resulted in an escheat to the state.
However, the Oklahoma Supreme Court held that Margaret's husband, a
Choctaw citizen, should inherit because of the purpose of Congress to
preserve Indian property and the law's disfavor of escheats. And with
that, non-racial naturalized members of Indian nations disappeared from
the reported cases.
D. Blood Beyond Jurisdiction
In short, when the concept is membership, the interpretation should
hinge on whether the term is used as part of congressional power to
control the property of Indian tribes, in which case the congressional
definition will govern, or whether it is part of a statute designed to
strengthen or protect tribal sovereignty, in which case the tribal
definition must be ascendant.
Sovereignty is the focus here and particularly the sovereign power to
define citizenship. Sovereignty manifests itself in jurisdiction, the
authority to make and apply law. If Indian nation sovereignty is second
class, perhaps that is due to the racial nature of federal Indian law.
In this part a brief account will be offered of the role of blood and
descent in that law when the issue is not jurisdiction, but rather
federal benefits or disadvantages for the people of the Indian nations.
When Congress controls the property of Indian nations, blood is in the
The federal policy of racial identification of citizens of Indian
nations was formalized in the allotment era as field agents prepared
membership rolls of Indian nations for entitlement to allotment parcels
of land. That policy, however, remains alive and well. In Simmons v.
Eagle Seelatsee, the plaintiffs hoped to acquire an interest in an
allotment despite a statue which provided that "only enrolled
members of the Yakima Tribes of one-fourth or more blood of such tribes
shall take by inheritance or by will any interest." The Court held
that Congress had full power to determine who gets what and as to blood
It is true that in doing so it specified a minimum quantum of Yakima
Indian blood, but it seems obvious that whenever Congress deals with
Indians and defines what constitutes Indians or members of Indian
tribes, it must necessarily do so by reference to Indian blood. What was
done here was in line with what Congress had previously done.
. . . Indeed, if legislation is to deal with Indians at all, the very
reference to them implies the use of 'a criterion of race'. Indians can
only be defined by their race.
Can you imagine: "Whenever Congress deals with Europeans, or
citizens of France, Germany, Spain, etc., it must refer to French blood.
Germans can only be defined by their race." Blood runs rampant in
federal Indian law. The sovereignty of a people will neither be
respected nor protected if they are imagined as racial ghosts.
Perhaps the single greatest federal benefit is recognition as an
Indian nation. However, after Congress established the Indian
Reorganization Act in 1934, the policy of the Department of Interior was
to instruct its field agents and lawyers doing IRA work to create
"Indian" constitutions defining membership by blood.
Consequently, citizenship or membership provisions in Native nation
constitutions regularly require a blood-quantum or descent.
The constitutions of four Native nations neighboring Nebraska are
good examples of blood based membership.
CONSTITUTION OF THE OMAHA TRIBE OF NEBRASKA Article II - Membership
SECTION 1. The membership of the Omaha Tribe of Nebraska shall
consist of all living persons whose names appear on the official roll of
the tribe prepared pursuant to Section 1 of the Act of September 14,
1961 (74 Stat. 508).
SECTION 2. Any person possessing aboriginal Omaha blood of the degree
of one-fourth or more, and not enrolled with any other tribe of Indians,
who is born after September 14, 1961, to a member of the Omaha Tribe of
Nebraska, shall be enrolled as a member of the tribe upon the filing by
or on behalf of such person, with the secretary of the tribal council,
of a membership registration form prescribed by the tribal council. In
determining the degree of aboriginal Omaha blood, the blood of any tribe
other than Omaha shall be excluded.
SECTION 3. Any person who being a member of the Omaha Tribe of
Nebraska becomes a member of any other tribe of Indians shall
automatically lose his or her membership in the Omaha Tribe of Nebraska.
Any person who loses membership in the Omaha Tribe of Nebraska shall not
thereafter be entitled to membership in the Omaha Tribe of Nebraska,
except as may be authorized by an ordinance promulgated pursuant to
Section 4 of this Article II.
SECTION 4. The tribal council shall have the power to promulgate
ordinances, subject to the approval by the Secretary of the Interior,
governing future membership, including adoption and loss of membership.
CONSTITUTION OF THE PONCA TRIBE OF NEBRASKA Article II - Membership
SECTION 1. The membership of the Ponca Tribe of Nebraska shall
consist as follows:
(a) All persons listed and their lineal descendants on the tribal
rolls of April 1, 1934, January 1, 1935, and June 18, 1965, as compiled
by the Bureau of Indian Affairs.
(b) All persons entitled to be listed on the membership roll of June
18, 1965 who were not listed on the roll, notwithstanding the
application or appeal deadline dates of P.L. 87-629.
(c) No individual is eligible for enrollment to membership if at the
time they make application for membership in the Ponca Tribe of Nebraska
they are currently enrolled with another federally recognized Tribe,
Band or group unless an application for relinquishment is made with the
other Tribe contingent upon enrollment with the Ponca Tribe of Nebraska.
(d) Any person not otherwise eligible for enrollment for membership
in the Ponca Tribe of Nebraska shall be entitled to appeal a denial of
membership by the Enrollment Committee to the Ponca Tribal Council and
submit at such appeal clear and convincing evidence they possess some
degree of Ponca Tribe of Nebraska blood. After hearing the appeal,
membership shall be granted if the Ponca Tribal Council, by a two-thirds
vote, approves the application of said person for enrollment into the
membership of the Tribe. The decision of the Ponca Tribal Council shall
constitute a final determination.
SECTION 2. The Ponca Tribal Council shall have the power to enact and
promulgate resolutions and ordinances governing future enrollment of
members and reinstatement of membership into the Ponca Tribe of
SECTION 3. The Ponca Tribal Council shall establish an honorary
roster for persons adopted by the Tribe who do not meet the requirements
for membership in the Ponca Tribe of Nebraska. Honorary members shall
not have the right to vote, hold office, or otherwise exercise the
rights or receive benefits of the members of the Ponca Tribe of
CONSTITUTION OF THE SANTEE SIOUX TRIBE OF NEBRASKA Article II -
SECTION 1. The membership of the Santee Sioux Tribe of Nebraska shall
consist as follows:
(a) All persons of Indian blood whose names appear or are entitled to
appear, on the official census roll of the Santee Sioux Tribe of
Nebraska as of April 1, 1934, with the supplement thereto of January 1,
1935, provided that within one year from the adoption and approval of
this constitution and bylaws, additions and eliminations may be made in
said roll and supplement by the tribal council subject to the approval
of the Secretary of the Interior. Persons enumerated in the
"McLaughlin roll" made under the act of March 4, 1917 (39
Stat. 1195), or their descendants, shall not be considered, by virtue of
such enrollment, to have established membership in the Santee Sioux
Tribe of Nebraska under this section.
(b) All children born to any member of the Santee Sioux Tribe of
Nebraska who is a resident of the Santee Sioux Reservation at the time
of the birth of said children.
(c) All children of any member who is not a resident of the
reservation at the time of the birth of said children may be admitted to
membership by the tribal council under ordinances made by the tribal
council and subject to review by the Secretary of the Interior, provided
such children reside on the reservation at the time they made
. . .
SECTION 4. Reinstatement. Request for reinstatement of tribal members
shall be made by written application to the membership committee whose
decision shall be subject to the approval of the tribal council.
SECTION 5. Adoption. Request for adoption of an Indian who is a
nonmember of the tribe shall be made by written application to the
membership committee who shall make recommendation to the tribal
council. The decision of the tribal council shall be subject to popular
vote at the next annual election.
SECTION 6. The right of the issue from the marriage of descendants
with nonmembers to membership in this organization shall not apply to
those having less than one-fourth degree Indian blood; provided that
this section shall not apply to any such issue whose names appear on the
official tribal and census rolls as of April 1, 1934, with the
supplement thereto of January 1, 1935.
REVISED ENROLLMENT ORDINANCE
SECTION 2. FILING OF APPLICATIONS FOR ENROLLMENT. Applications for
enrollment with the Tribe must be made by all persons whose names appear
on the basic roll of April 1, 1934 and the January 1, 1935 supplement
and their descendants, on forms authorized by the Tribe and must be
accompanied by a birth or/baptismal certificate of the applicant. If a
tribal official or the Superintendent has knowledge of a minor or mental
incompetent for whom an application has not been filed, such official
shall file an application for such person. Applications for minors or
mental incompetents who are living with persons other than parents or
legal guardians may be filed on their behalf by the person responsible
for their care. Applications for enrollment must be filed with the
Membership Committee which shall screen or review all applications.
SECTION 3. APPEALS. A person rejected for enrollment shall be advised
in writing of the reasons for the action of the Tribal Council and that
the decision may be appealed to the Area Director of the Bureau of
Indian Affairs, within sixty (60) days following receipt of a rejection
for enrollment notice. If the Area Director sustains the decision of the
Tribal Council, he shall notify the applicant of his decision and that
his decision may be appealed to the Commissioner of Indian Affairs
within sixty (60) days following receipt of the Area Director's
decision. If the Area Director cannot sustain the decision of the Tribal
Council he shall instruct the Tribal Council to place the applicant's
name on the roll. The Tribal Council may appeal the decision of the Area
Director to the Commissioner. Appeals to the Area Director shall be
filed with the Superintendent for forwarding to the Area Director.
Appeals from the decision of the Area Director shall be filed with the
Area Director within sixty (60) days from the date of notice of his
decision for forwarding to the Commissioner.
SECTION 4. BURDEN OF PROOF. The burden of proving eligibility and
entitlement for enrollment with the Santee Sioux Tribe of Nebraska shall
be upon the applicant. The April 1, 1934 and January 1, 1935 supplement
official membership roll of the Santee Sioux Tribe shall be the
authoritative document to be used in establishing blood quantum provided
that blood quantum as shown on this roll be properly determined by the
Tribal Enrollment Clerk with the guidance and assistance of the Area
Tribal Enrollment Officer through research of all available Government
records and documents.
. . .
SECTION 7. CHILDREN BORN OUT OF WEDLOCK. If an applicant is born out
of wedlock, he shall be deemed to possess one-half ( 1/2 ) of the total
degree of Santee Sioux Indian blood possessed by one or both parents who
are members of the Santee Sioux Tribe, the father shall acknowledge
paternity by signing a statement properly witnessed and filed with the
Membership Committee. Further, if the father is a member and the mother
is a non-member of the Santee Sioux Tribe of Nebraska, the application
must be accompanied by a written, properly witnessed acknowledgment of
paternity signed by the father of the applicant. Orders by Courts of
competent jurisdiction shall also be considered as proof of paternity.
SECTION 8. REINSTATEMENT. That Article II, Section 4, be properly
satisfied and provides further that a condition of reinstatement to
tribal membership shall be the possession of 1/4 or more of Santee Sioux
Indian blood by all applicants.
SECTION 9. ADOPTION. In satisfaction of Article II, Section 5 of the
Constitution, "Non-members" shall mean those persons of Santee
Sioux ancestry not otherwise able to meet the constitutional membership
requirements, provided that a condition of adoption to tribal membership
shall be the possession of 1/4 or more of Santee Sioux Indian blood by
CODE OF THE WINNEBAGO TRIBE OF NEBRASKA
Title 5- Tribal Government
Article II - Membership
SECTION 1. The membership of the Winnebago Tribe of Nebraska shall
consist as follows:
(a) All persons of Indian blood whose names appear, or are entitled
to appear, on the April 1, 1934 official census roll of the Winnebago
Tribe of Nebraska, or the January 1, 1935 supplement thereto: Provided
that those persons who possess Winnebago blood and blood of another
tribe have not elected to be enrolled with the other tribe; and provided
further that those persons of Indian blood of tribes other than Nebraska
Winnebago, whose names appear on the basic roll as "N.E.",
shall not be considered as members of the Winnebago Tribe of Nebraska;
and provided further that persons of Winnebago Indian blood born after
the date of the basic roll and prior to the date of this amendment may
be enrolled if by January 1, 1967 they submit to the tribal council a
request, in writing, accompanied by such evidence as is necessary to
determine their qualifications for enrollment; and provided further that
any Indian who may be eligible for membership in the Winnebago Tribe of
Nebraska, who has received an allotment of land or received financial
benefits as a member of another tribe, shall not be enrolled.
(b) All persons who have been validly adopted as members of the
Winnebago Tribe of Nebraska prior to the date this amendment is approved
by the Secretary of the Interior.
(c) All children born to a member of the Winnebago Tribe of Nebraska
after the date this amendment is approved by the Secretary of the
Interior, provided said children possess at least one fourth degree
Winnebago Indian blood.
SECTION 2. Any person who has been rejected as a member of the
Winnebago Tribe of Nebraska, except those rejected under section 1(b),
shall have the right to appeal his case to the Secretary of the Interior
within ninety days from the date written notice of the rejection is
issued to him/her, and the decision of the Secretary of the Interior
shall be final.
5-102 Filing of applications for enrollment. Applications for
enrollment with the tribe must be made on forms authorized by the tribe
and must be accompanied by a birth or baptismal certificate of the
applicant. If a tribal official or the superintendent has knowledge of a
minor or mental incompetent for whom an application has not been filed,
such official shall file an application for such persons. Applications
for minors or for mental incompetents who are living with persons other
than parents or legal guardians may be filed on their behalf by the
person responsible for their care. Applications for enrollment must be
filed with the enrollment committee which shall screen and review all
5-103 Appeals. A person disapproved for enrollment shall be advised
in writing of the reasons for the action of the tribal council and that
its decision may be appealed to the area director of the Bureau of
Indian Affairs within thirty days following receipt of a rejection for
enrollment notice. If the area director sustains the decision of the
tribal council, s/he shall notify the applicant of his/her decision and
that his/her decision may be appealed to the commissioner of Indian
Affairs within thirty days following receipt of the area director's
decision. If the area director cannot sustain the decision of the tribal
council s/he shall instruct the tribal council to place the applicant's
name on the roll. The tribal council may appeal the decision of the area
director to the commissioner. Appeals to the area director shall be
filed with the superintendent for forwarding to the area director.
Appeals from the decision of the area director shall be filed with the
area director within thirty days from the date of receipt of notice of
his/her decision for forwarding to the commissioner.
5-104 Burden of proof. The burden of proving eligibility for
enrollment with the Winnebago Tribe of Nebraska shall be upon the
applicant. The April 1, 1934 official membership roll and the January 1,
1935 supplement thereto shall be the authoritative document to be used
in establishing blood quantum, provided that errors in blood quantum as
shown on this roll may be corrected upon submission of substantiating
. . .
5-107 Children born out of wedlock. If an applicant is born out of
wedlock, s/he shall be deemed to possess one half of the total degree of
Winnebago Indian blood possessed by one or both parents who are members
of the Winnebago Tribe of Nebraska. If both are members of the Winnebago
Tribe of Nebraska, the father shall acknowledge paternity by signing a
statement properly witnessed and filed with the enrollment committee.
Further, if the father is a member and the mother is a non-member of the
Winnebago Tribe of Nebraska, the application must be accompanied by a
written, properly witnessed acknowledgment of paternity signed by the
father of the applicant. Orders by court of competent jurisdiction shall
also be considered as proof of paternity.
. . .
5-110 Adoptions. Persons of one fourth or more degree Winnebago
Indian blood may be adopted into tribal membership, provided application
is made in writing to the tribal council. The tribal council after
proper investigation, shall submit to a vote of the tribal members at
the next tribal election the names of all applicants for adoption
determined to be of at least one fourth degree Winnebago Indian blood.
These applicants approved by a majority vote of the tribal membership
voting in the election shall be accepted as members of the tribe.
As a result of the Indian Reorganization Act constitutions, even
those federal statutes that define Indian beneficiaries as a
"member of an Indian tribe," are based on blood or descent.
During the "termination era," the federal government ended
federal recognition and the trust relation between itself and the
terminated nations. In 1970 President Nixon, convinced of the error of
termination policy, urged Congress to restore recognition to terminated
nations. The restoration acts in the following years usually mandated
descent or blood requirements for the membership of the restored Indian
nations. For example, the Menominee restoration legislation required
one-quarter blood, and the legislation for the Yseltal del Sur Pueblo of
Texas required one-eighth blood. Many other restoration acts required
When Native nations have won claims against the United States, the
congressional distribution of judgment funds usually require descent or
blood. For example, distribution to the Duwamish required descent from
members as the nation existed in 1855. Distribution of funds to the
Omaha required one-quarter blood. Interestingly, when the Omaha changed
their constitution at this time to a one-quarter blood membership
requirement, it resulted in the loss of some two hundred members at a
time when the Omaha Nation was struggling against the policies of the
Blood flows in strange places. In United States v. Curnew, Randolph
Curnew appealed his conviction on a charge of being unlawfully present
in the United States. Curnew based his defense on a statutory right of
"American Indians born in Canada" to pass freely over the
federal border. However, the right extends only to "persons who
possess at least 50 per centum of blood of the American Indian
race." Curnew had no idea of his blood quantum, but would have
testified that he believed himself to be and was considered by others
"a full blooded Indian."
Curnew retained a cultural anthropologist as an expert witness. The
expert testified that Curnew had some blood, but that it would be
irresponsible for her to opine as to the quantum of Indian blood without
more evidence. The court affirmed Curnew's conviction.
Chief Judge Lay dissented, believing that the blood quantum question
should have been left for a jury (Curnew entered a conditional plea of
guilty) and raised a pointed question about blood and race:
The initial burden placed on a defendant to even identify the members
of a family tree encompassing only three or four generations is
prohibitively onerous. However, under the majority's literal reading of
the statute, going back even four generations would likely not be
sufficient since tracing ancestry that far would hardly begin the
process of tracing a "blood line" back to the pre-Columbian
age. The majority also leaves unanswered the question of how the racial
make-up of a defendant's more distant ancestors is to be determined,
even assuming the highly questionable premise that sufficient
"bloodline" evidence of his or her ancestors' identities would
reasonably be available.
Finally, how about a job with the Bureau of Indian Affairs? In Morton
v. Mancari, the United States Supreme Court held that "Indian"
employment preferences in the BIA as required by the Indian
Reorganization Act were neither repealed by the Equal Employment
Opportunities Act of 1972 nor prohibited by the Due Process Clause of
the Fifth Amendment. It was, said the Court, not a racial preference,
but one designed to further Indian self-government. Yet, the preference
eligibility criteria at the time required that an individual must be
one-fourth or more Indian blood and a member of a federally recognized
The Indian Reorganization Act defined "Indian" and the BIA
has refined its preference criteria to better match the IRA.
Nevertheless, both definitions require at least descent; some blood, but
not too much:
For purposes of making appointments to vacancies in all positions in
the Bureau of Indian Affairs a preference will be extended to persons of
Indian descent who are:
(a) Members of any recognized Indian tribe now under Federal
(b) Descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation;
(c) All others of one-half or more Indian blood of tribes indigenous
to the United States;
(d) Eskimos and other aboriginal people of Alaska; and
(e) For one (1) year or until the Osage Tribe has formally organized,
whichever comes first, effective January 5, 1989, a person of at least
one- quarter degree Indian ancestry of the Osage Tribe of Indians, whose
rolls were closed by an act of Congress.
In 1976, the Final Report of Task Force No. 9 of the American Indian
Policy Review Commission recommended that the preference criteria
required by the IRA be changed to require membership and one-fourth
degree Indian blood or that there be a two-tiered preference of first
members and one-quarter blood; then if none in that tier, members and
descent. The proposal argued that just a little blood, descendancy,
conflicted with congressional intent and the vision of John Collier, the
"prime architect" of the IRA, who had urged that Indian
welfare depended on "'preventing the admission to tribal membership
of a large number of applicants of small degree of Indian blood." '
As a preference criteria this was to assure that the preferred
applicants would have knowledge of their nation and Indian affairs. One
might, however, think that domicile in their Indian nation, ability to
speak their native language, references from fellow members, or testing
of understanding of their nation's history and culture might provide a
better gauge than blood.