Race in Federal Indian Law

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Race in Federal Indian Law by Mind Map: Race in Federal Indian Law

1. 1700s

1.1. Treaty of Hopewell, 1785: requires Cherokee to restore slaves along with property (Indians as slaveholders)

1.2. 1 Ann. Cong. 13 (1789): assumes that Indians will go "extinct."

1.3. Trade and Intercourse Act, 1790: crimes against "peaceable and friendly" Indians are punishable as if against a "citizen or white inhabitant." (purpose of the Act was to consolidate power w/r/t other Europeans)

1.4. Washington letter: buying land is preferable to force since Indians are like "the Wild Beasts of the Forest"

1.5. Jefferson letter: "they will in time either incorporate with us as citizens of the United States, or remove beyond the Mississippi

2. 1800s

2.1. 1819 House Report: "Either that those sons of the forest should be moralized or exterminated"

2.2. Johnson, 1823: characterize Indians as "fierce savages" and necessarily separate from white society. Implies that integration is impossible.

2.2.1. From Supreme Court reporter summary of defendant's argument: "They remain in a state of nature."

2.2.2. Commentary (Williams Jr., 1990): "Johnson's acceptance of the Doctrine of Discovery into the United States law represented the legacy of 1,000 years of European racism and colonialism directed against non-Western peoples."

2.3. Creek Chiefs in 1824: "It is true, very true, that we are 'surrounded by white people' and that there are encroachments made."

2.4. David Brown, 1825: describing material conditions including butter and cheese, agriculture, trade. "Five Civilized Tribes" (from CB: "A disturbing sign of this degree of 'civilization' was that the more acculturated members of some of these tribes owned many African slaves.")

2.5. Removal Policy (1820's-40's): separatist. sanctioned by the "natural superiority allowed to the claims of civilized communities over those of savage tribes"

2.6. Cherokee Nation v. Georgia, 1831: argument between Marshall and Johnson over whether tribes are states (/on equal footing to states)

2.6.1. Johnson: "Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognized as a state?" Compares to Israelites - "an anomaly unknown to the books that treat of states . . . held together only by ties of blood and habit"

2.7. Worcester v. Georgia, 1832: considers Indians as "distinct people," non-European, and recognizes Euro-centric nature of the doctrine of discovery - "acknowledged by all Europeans, because it was the interest of all to acknowledge it."

2.8. Allotment and assimilation period (1880's-1920's) - forcible assimilation measures

2.9. Talton, 1896: Conceives of the Cherokee Nation as a full nation

2.10. Commissioner reports

2.10.1. Medill (1848): "it is seldom the case that the full blood Indian of our hemisphere can, in immediate juxtaposition with a white population, be brought farther within the pale of civilization than to adopt its vices." Whites as "superior race." Conflation between religion/Christianity and race/whiteness. Indians difficult to "Christianize."

2.10.2. Lea (1850): goal of "regenerating the Indian race."

2.10.3. Manypenne (1856): "That the red man can be transformed in his habits, domesticated, and civilized, and made a useful element of society, there is abundant evidence. . . . He is only regarded as the irreclaimable, terrible savage . . . But the history of the sufferings of the Indian has never been written."

2.10.4. Taylor (1868): "We have taken their heritage, and it is a grand and magnificent heritage. . . . If we find them fierce, hostile, and revengeful . . . and perpetuate atrocities that sicken the soul and paralyze us with horror, let us remember that two hundred and fifty years of injustice oppression and wrong, heaped upon them by our race with cold, calculating and relentless perseverance, have filled them with the passion of revenge, and made them desperate."

2.11. Elk v. Wilkins, 1884: 14th Am. does not confer citizenship onto Indians

2.11.1. Citizenship ceremonies: "you have chosen to live the life of the white man/woman..."

2.12. Kagama, 1886: Indians as "these remnants of a race once powerful, now weak and diminished in numbers"--> CB: "almost boundless federal power"

2.13. Sen. Quey: "It practically inculcates the doctrine that the red man has no rights which the white man is bound to respect"

3. Early 1900s

3.1. Lone Wolf (1903):"Dred Scott" of federal indian law. Note: allottees included 25 non-Indians, including family and other white people who had lived on the reservation.

3.2. Winans, 1905: "The respondents urge an argument based upon the different capacities of white men and Indians to devise and make use of instrumentalities to enjoy the common right . . . the argument based on the inferiority of the Indians is peculiar. If the Indians had not been inferior in capacity and power, what the treaty would have been, or that there would have been any treaty, would be hard to guess."

3.3. Pratt, Carlisle Indian School: described the purpose of the schools as to "kill the Indian in him to save the man." But he is born a "blank" and is cultured into "savagery" (move to culture instead of nature in the last century)

3.4. 1911: Society of American Indians - supratribal organization

3.5. Meriam Report (1928) - frames Indians as a race, now using language of "culture" that Indians are proud of rather than inferiority or "savageness." Whites no longer superior but "predominating" and "advancing." Integration is possible: individual Indians can "merge into the social and economic life and prevailing civilization" while other stay in tribe.

3.5.1. Commentary (Cornell) on the New Deal: "Neither the IRA nor the Indian New Deal challenged the fundamental belief that Indians would, and probably should, be assimilated ultimately by the society around them."

3.6. Hopi Tribe Constitution (1936): membership requirements - Indian blood very important here.

3.7. U.S. v Sandoval (1913): "The people of the pueblos, although sedentary rather than nomadic... and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government. Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetishism, and chiefly governed according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed, and inferior people" and because of this require federal protection.

4. 2000s

4.1. Rice v. Cayetano, 2000: Holds that ancestry or descent is a proxy for race, and the voting restrictions in the Hawaiian Constitution are unconstitutionally racially classificatory. Attempts to differentiate treatment of indigenous Hawaiians from Indian tribes under Morton v. Mancari, and argues that tribal voting schemes are limited to internal tribal affairs, while these elections are the affairs of the state of Hawai'i and bound by the U.S. Constitution.

4.2. Atkinson Trading Co v. Shirley, 2001: hotel occupancy tax case on fee land. "[T]he Cameron Trading Post derives business from tourists visiting the reservation . . . the Cameron Chapter of the Navajo Nation possesses and 'overwhelming Indian character'"

4.3. Nevada v. Hicks, 2001: Bighorn sheep case - narrow question about jurisdiction over a case regarding a state law enforcement officer. But court reaches a broad holding, converting Kagama's concerns about state control over white people to concerns about state authority in general.

4.3.1. Concurrence (Souter, Kennedy, Thomas): Difficulty of outsiders to sort out "values, mores, and norms of a tribe" since they are handed down orally from one generation to another. Not explicitly racial but emphasizes cultural divide passed down linearly.

4.4. Lara, 2004: upholds Duro fix. Skims over Lara's Equal Protection argument by saying that it is "beside the point" due to structural inconsistencies. "At best for Lara, the argument (if valid) would show, not that Lara's first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy claim."

4.4.1. Freedman Cases, 2003-2014: The Cherokee nation attempts to define citizenship as "Indians by blood" on the Dawes rolls, blurring the line between citizenship and bloodline ( and excluding Freedman). The District Court eventually rules in favor of the Freedmen, a decision that undermines Cherokee sovereignty in their ability to determine their own citizens, but distinguishes between citizenship and race.

4.5. Navajo court on same issue as Lara: "[A]t least 9,327 'other' or nonmember Indians resided within the Navajo Nation in 1990. . . . The questions are whether nonmember Indians should have de facto immunity from criminal prosecution, given the failure of federal officials to effectively address crime in the Navajo Nation. Also says that Means (the defendant) had consented to jurisdiction by establishing familial and community relationships.

4.5.1. Ninth Circuit: Equal Protection argument has "real force" since nonmember Indians are treated differently than whites, Blacks, Asians, and other non-Navajos. "But unlike states, when Indian tribes exercise their sovereign authority they do not have to comply with the United States Constitution." Also, this passes the "rational tie" test used for Congress's unique obligation toward Indians. Finally, "Indian tribal identity is political rather than racial, and the only Indians subjected to tribal court jurisdiction are enrolled or de facto members of tribes, not all ethnic Indians."

4.5.1.1. Note that the Ninth Circuit takes a restriction on tribes--that they can only exercise jurisdiction over Indians--and then justifies it with the constitutional loophole - as if it was the tribe that decided its laws only applied to Indians, but that decision was permissible because the Constitution didn't apply.

4.6. Adoptive Couple v. Baby Girl, 2013. This opinion is framed by race, describing Baby Girl as "classified as an Indian because she is 1.2% (3/256) Cherokee." The Court relies on this racial understanding to prop up its decision that there was no "continued custody" by Baby Girl's father or his tribe, and that there should be no preference for tribal foster care or adoption placement. Raises equal protection concerns about classifying Indian children based on their race.

4.6.1. Dissent: Sotomayor + Ginsburg, Kagan, and Scalia (in part): regardless of her racial makeup, Baby Girl is an Indian Child within the meaning of the statute. Also points out that classifications based on eligibility for tribal membership are not impermissible racial classifications, and that majority opinion is conflating race with tribal membership in substantive ways.

5. Mid 1900s

5.1. Termination period (1940-60s) - aimed to end special status of tribes --> more assimilation

5.2. Termination era: theme of Civil Rights movement - echoing language of racial equality and freedom

5.3. 1944 House Report: "The goal of Indian education should be to make the Indian child a better American rather than to equip him simply to be a better Indian."

5.4. 1949 Hoover Commission report: calls for "complete integration" of Indians

5.5. Public Law 280, 1953: Legislation allows states to assume jurisdiction over reservation Indians under an assimilationist policy - gives states jurisdictions over civil case disputes in Indian country and over offenses committed in Indian country by Indians

5.6. Williams v. Lee, 1959: Gives Indian courts jurisdiction over non-Indians in civil disputes arising on the reservation: "it is immaterial that the respondent is not an Indian."

5.7. Pre-ICWA child welfare policy: moving children from Indian homes to mostly non-Indians, far from reservations.

5.8. National Congress of American Indians - unexpected consequence of urban Indian population growth: common cause for urban Indians to come together

6. Late 1900s

6.1. Morton v. Mancari, 1974: Holds that employment preferences for Indians were not racial discrimination or racial preference, but rather legitimate employment criterion granted to Indians as members of quasi-sovereign tribal entities, not members of a racial group.

6.2. Santa Clara Pueblo, 1978: The dissent seems to be conceiving of a broader idea of "American Indians" , rather than a specific tribe; however, for a case that is very much a bloodline case, the Court generally ignores the bloodline aspects and focuses on tribal identity as a citizenship identity, rather than a bloodline

6.3. Indian Child Welfare Act, 1978: Adopted in part after House Report No. 95-1386 found that "25-35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions." These adoptions were based on racialized cultural expectations that led to states finding "neglect" or "social deprivation." ICWA attempted to remedy this problem by giving greater determinative power to tribes over custody proceedings and preference to placing Indian children with Indian families in the case of any foster care or adoption placement. ICWA defined "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."

6.4. Mississippi Band of Choctaw Indians v. Holyfield, 1989: Determined that although biological parents went to apparent great lengths to ensure that babies were not "domiciled" on the tribe's reservation, the twins' status as Indians was an overriding concern after ICWA; the Court recognized that “the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents.”

6.4.1. Existing Indian Family Exception: In some states, courts do not apply ICWA if there is not an "existing Indian family," despite the child meeting the requirements set forth in ICWA. Language of courts in establishing the exception reveals assumptions about racial and cultural dimensions of ICWA.

6.5. Duro v. Reina, 1990: Equal Protection-style argument to find that tribes do not have authority over non-member Indians. "We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them."

6.5.1. Note: they frame this as a matter of singling out nonmember Indians for disfavorable treatment (i.e. subjecting them to tribal courts), rather than singling out certain groups for favorable treatment (i.e. white people are not subject to tribal courts).

6.6. 1991: Duro Fix - "recognized and affirmed" the "inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians."

6.7. Lac Du Flambeau, 1994 (D. Wis): racial discrimination case - horrible racial slurs and white supremacy. Court finds that protests were racially motivated and that racial prejudice was a but-for cause of the protests.

6.8. Mashpee Tribe (1978): In trial, the court instructed the jury that for the Mashpee to be a tribe, they had to find that they constituted a group of the same or similar race, among other things.