racial discrimination by tribal governments

[Janet Alexander]

As I recall from reading about the similar situation with the Seminoles, 
the separation into two lists was at the instigation of the federal 
government, not the tribes.  At least in the case of the Seminoles, there 
is a contention that some of the original "black Seminoles" were free 
blacks.  In the case of the Seminoles, I believe that they were fully 
recognized by the tribe until, relatively recently, a big chunk of money 
became available from the federal government for distribution to members of 
the tribe, which was the beginning point for the push to remove descendants 
of people who had been on the Freedman roll.  If it is true that those who 
were descended from Africans were at one time treated as full members of 
the tribe, then stripping them of their tribal membership looks like a 
denial of equal protection to me and thus covered by the Indian Civil 
Rights Act, and an equal protection violation cannot be made OK by taking a 
vote.  (Even if a vote is "due process of law" that might justify a 
deprivation of liberty or property, which seems questionable, the provision 
of "process" does not make a denial of equal protection OK.)
         Janet Alexander


At 06:51 PM 3/4/2007 -0500, Scott Markowitz wrote:
>I talked about this with my wife, who has far more knowledge and 
>experience in Indian law than I have:
>
>The only U.S. Constitutional provisions that apply to tribal actions are 
>those contained in the Indian Civil Rights Act. Section 1302(8) states 
>that tribes shall not "deny to any person within its jurisdiction the 
>equal protection of its laws or deprive any person of liberty or property 
>without due process of law". In the Cherokee case, the due process of law 
>was the vote of the people. In the event that someone brings a challenge, 
>the correct forum is the Cherokee court system. Once the petitioners 
>exhaust all the appeals within the tribe, Congress may, but will likely 
>not, take action. From the case-on-point, Santa Clara Pueblo v. Martinez, 
>"Congress retains authority expressly to authorize civil actions for 
>injunctive or other relief to redress violations of 1302, in the event 
>that the tribes themselves prove deficient in applying and enforcing its 
>substantive provisions".
>
>For those who don't understand the history behind this situation:  Any 
>Cherokee living in Indian Territory (soon to become Oklahoma) between 
>1899-1907 had to sign their name to the Dawes rolls, at which time they 
>received 160 acres of non-taxable land, and 160 acres of land that would 
>become taxable in the future. (This also applied to the Choctaw, Muscogee, 
>Seminole, and Chickasaw). Any excess land was opened for non-Indian 
>settlement. Any Indian that did not sign the Dawes rolls was no longer 
>considered a member of the tribe regardless of blood quantum. Any person 
>who can claim blood descent to a person on the Dawes rolls can be a member 
>of the Cherokee tribe. The Freedman roll, which was a separate roll from 
>the Cherokee roll, has been stricken by the action of the tribal 
>vote.  This is an injustice to them, but there is also injustice to the 
>descendants of the Cherokee who did not sign the Dawes rolls who can never 
>be considered part of the tribe.
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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