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 Indians?"
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 understanding.
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 jurisdiction."
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 aside.
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 actors.
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 or adoption.
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 mentioned.
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 Cherokee Nation.
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 jurisdiction matters.
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 thereof, recognition:
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 jurisdiction?
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 Rogers test.
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 blood.'
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 foundation.
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 said:
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 Nebraska.
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 Nebraska.
CONSTITUTION OF THE SANTEE SIOUX TRIBE OF NEBRASKA Article II - Membership
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 application.
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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.
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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 all applicants.
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 applications.
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 evidence.
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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.
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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 descent.
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 termination era.
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 tribe.
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 Jurisdiction;
(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.