On June 18 the
U.S. Senate passed Resolution 26, which apologized “for the enslavement
and racial segregation of African-Americans” but precluded reparations.
than pass a disclaimer disguised as an apology for slavery, the
U.S. Senate should instead end Congress’ disparate treatment of
Native American Freedmen: Jim Crow and the ‘one-drop’ rule are still
alive and well in Indian Country.
President Obama’s hands-off
attitude only added to more than 100 years of discrimination against
Freedmen. During his presidential campaign, he opposed the Black
Congressional Caucus’ attempt to withhold funding from the Cherokee
Nation after they disenfranchised Cherokee Freedmen. He believed
the courts were the better forum for deciding the rights of Cherokee
Freedmen, not Congress. More recently, several Caucus members called
on Attorney General Holder to investigate the Five Civilized Tribes’
racial discrimination against Freedmen. Both sides are missing the
point, that in 1896 Congress documented Indian ancestry on the Dawes
Rolls in a racially discriminatory manner. The issue is neither
one of blood quantum nor sovereignty, but Congress’ duty to remedy
the lasting harms they caused by violating Equal Protection.
The Dawes Rolls created a racial
hierarchy between Native American Freedmen and “by-bloods” by placing
Freedmen at the bottom of the totem pole. Used for identifying land
allotment eligibility under the Dawes Allotment Act, the Rolls were
established consistent with the prevalent “one-drop” rule of the
era. Just prior to Final Roll documentation, the U.S. Supreme Court
affirmed the ‘one drop’ rule in 1896. Homer Plessy, who from all
appearances was white, was arrested for sitting in the segregated
“whites only” train section in Louisiana
after identifying himself as having African ancestry. Initiated
as a test case, the Court ruled he had to sit in the car designated
for blacks, even though he only had 1/8th African ancestry.
Rolls discriminated against Native Americans with African ancestry
by merely identifying them as Freedmen, without bothering to identify
their Indian ancestry. Native Americans with Caucasian ancestry
were identified by blood quantum to 1/32nd degree of “Indian by
Blood.” This ‘paper-bag’ test for Native American identity reinforced
the stigmatic badge of slavery against persons with African Ancestry.
Freedmen challenged their segregation from ‘Indians by Blood,’ but
in 1906 Congress barred the transfer of Freedmen to the ‘by-Blood’
rolls. Thus began a century of Freedmen litigation seeking equality
with ‘Indians-by-Blood,’ who were unjustifiably granted the advantage
of using the Dawes Rolls for documenting lineage.
codified the ‘one-drop’ rule into its constitution in 1907 when
it was consolidated with Indian Territory and admitted as a state. The constitution applied “colored”
or “negro” to “all persons of African descent.” By contrast, being
Indian was equated to being “White” by defining the term “white
race” to include “all other persons.” Public schools, hospitals,
and even pay-phones were legally segregated until the constitution
was amended in 1978.
Congress inflamed racial tensions
by apportioning government benefits based on blood quantum rather
than from treaties and historical context. In 1990 they excluded
Seminole Freedmen from sharing in monies divided between Florida
and Oklahoma Seminoles in the Seminole Indians Judgment Funds Act.
The Act fractured relations between Oklahoman Seminole Freedmen
and Seminole-by-Bloods, which ended with the BIA siding with tribal
leaders in denying Freedmen their share of the award.
This treatment of Seminole Freedmen
underscores the arbitrary racial character of the Dawes Rolls. Seminoles
coalesced in Florida largely from escaped slaves and indigenous
peoples disenchanted with Southern plantation system of slavery.
Former slaves freely intermarried within Seminole society, shared
African methods of crop cultivation, and fought shoulder to shoulder
with their indigenous brethren under the most miserable conditions
against American troops seeking their land. Congress recognized
the integral role black slaves played in Seminole society by not
mandating separate rolls for Seminole Freedmen as they had for the
Cherokee, Chickasaw, Choctaw, and Creek. Yet the Seminole were nonetheless
segregated consistent within the era’s racial norms.
Ultimately, the issue is neither
sovereignty nor blood, but a core conceptual premise of the Fourteenth
Amendment. When the government creates a discriminatory harm because
of race, be it Native American, or African American, or by creating
a racial hierarchy between the two, they have a duty to repair the
lasting effects of that harm. The harm becomes more insidious when
inflicted on the two ‘involuntary’ minorities responsible for the
birth and wealth of this nation.
Congress needs to skip the apologies
and pass the justice. Rather than issue hollow palliatives, Congress
can best facilitate the healing process between Freedmen and “by-Bloods”
by reforming the law consistent with Equal Protection. First, the
invidious racial discrimination of the Dawes Rolls must be repealed
by granting Native American Freedmen full access to the same government
benefits afforded to Native Americans ‘by-blood’.
Second, Congress must remove
the economics underlying the racial bias against Freedmen. Rather
than burden tribes with unfunded mandates, Congress must proportionally
increase tribal grants to reflect full Freedmen citizenship. Only
then can traditional tribal values be rescued from a blood fetishism
fueled by perverse incentives pitting one disadvantaged group against
is a certain irony in the fact that our founding fathers were inspired
by the color-blind, egalitarian values of indigenous Americans,
yet Congress later legislated racial strife into the tribes in a
way that persists to this day. The Dawes Rolls are but another vestige
of slavery whose unlawful racial effects can be readily remedied
by appropriate legislation. Congress can heal this rift by creating
an incubator, rather than an incinerator, in which the human needs
and aspirations of all Dawes Rolls descendants can be mutually recognized
Guest Commentator, Kevin James, is an attorney and former FDNY fire
fighter and arson investigator. He lobbied for passage of New
York State’s historic fire-safe cigarette
act, and was a Revson Fellow at Columbia University from 2002-2003. In 2005
he assisted the Center for Constitutional Rights with the Vulcan
Society lawsuit against the New
York City Fire Department as an Ella Baker law intern. Click here
to contact Mr. James.