Monday, August 19, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

II. Definition of Indian Person--The Rogers Test

Whether a person is Indian is a political, not a racial, determination. Federal criminal jurisdiction over Indians is not over a discrete racial group but rather is based upon membership in quasi-sovereign tribal entities whose lives and activities are governed by the [Bureau of Indian Affairs] in a unique fashion. There is no statutory definition of Indian for determining the Indian status element under the federal criminal jurisdiction statutes, which has led one commentator to observe: the question of Indian status for purposes of criminal jurisdiction is perplexing. And an appellate court lamented the result as a bewildering maze of rules.

In general, guided by a two-part test derived from the 1846 Supreme Court case United States v. Rogers, the federal appellate courts have defined the term Indian as an individual who has Indian blood and who is regarded as an Indian by his or her tribe or Indian community. In contrast to Crow Dog, where an Indian murdered an Indian, Rogers involved a white man, Rogers, who was charged with murdering a white man. The alleged location of the murder--Cherokee country--created the case's controversy. The defendant maintained that because he and the victim lived in Cherokee country as citizens of the Cherokee nation, the courts of the United States lacked jurisdiction. The Supreme Court started its analysis with an overview of the discovery doctrine and domestic dependant nation status of Indian tribes first established in Johnson v. M'Intosh and Cherokee Nation v. Georgia, respectively. From our current perspective, the racist underpinnings of these legal doctrines reverberated in the language of Rogers, as did Manifest Destiny:

It would be useless at this day to inquire whether the principle thus adopted is just or not . . . . [T]he United States . . . 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.

From there, and likely in conflict with Crow Dog, the Court in Rogers reasoned that tribes residing within the territorial limits of the United States, and not within state jurisdiction, are subject to Congressional jurisdiction no matter whether the offender be a white man or an Indian. In contrast to the painstaking statutory and treaty analysis in Crow Dog, the Court in Rogers summarily concluded that an 1834 Act of Congress, entitled An act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers, provided jurisdiction over the defendant. While that act jurisdictionally exempted Indian-on-Indian crimes, the Court ruled that it [is] very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian . . . .

In conflict with the current jurisprudential definition of Indian as a political concept, the Court rooted its conclusion in race, invoking the concept of Indians born and repeatedly using the word race to define Indians. Perhaps reflecting prevailing attitudes, but regardless continuing its race-based analysis, the Court added that Congress could not have intended to include white men adopted into Indian tribes as exempt from jurisdiction: It can hardly be supposed that Congress intended to grant such exemptions, especially 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. Rogers emphatically concluded its racial analysis, stating: He was still a white man, of the white race, and therefore not within the exception in the act of Congress. More recent caselaw demonstrates that Indian status is not so black and white now.

In Rogers, the Court ruled that while there was federal jurisdiction generally, the precursor statute to 18 U.S.C. 1153 did not apply to a white man who had been adopted into an Indian tribe. While the later-gleaned test from Rogers is not crystal clear in the decision itself, the appellate courts have determined that Rogers suggested the generally followed two-part test, which considers (1) the degree of Indian blood and (2) tribal or governmental recognition as an Indian. What is clear is that the United States Supreme Court has not revisited the issue since the time of Crow Dog, and the lower courts have labored over it. In the meantime, the seeming clarity with which the Rogers Court could identify an Indian has been fogged by more recent American dynamics, such as ever-increasing inter-marriage, social and geographic mobility, cross-cultural understanding and respect, and more assertive self-identity. While generally considered positive changes, these developments have complicated the legal issue of who is an Indian.

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