Abstract

Excerpted From: Ted Shepherd, Not “Indian” Enough: Freedmen, Jurisdiction, and Equal Protection, 2024 Pepperdine Law Review 43 (2024) (176 Footnotes) (Full Document)

Beginning in the 17th century, many American Indians held enslaved Africans, and during the Civil War several Tribal Nations joined the Confederacy. At War's end, the Nations signed treaties with the federal government requiring them to both emancipate their enslaved workers and agree that these “Freedmen” and their descendants would become full members of the Tribal Nations that had enslaved them.

In the 1970s, the Tribal Nations repudiated the latter requirement and withdrew Tribal membership from the descendants of those they had enslaved. The descendants were cast out of the Tribal Nations for about 50 years. However, in 2017, a federal court held that the Cherokee Nation must comply with the post-Civil War treaty and grant Tribal membership to the descendants of its Freedmen. The Cherokee Nation quickly changed its Constitution to comply. By early 2024, the Nation had enrolled over 15,000 Freedmen descendants as Tribal members.

Despite their new status, Tribal members of Freedmen descent are subject to different jurisdictional rules in criminal cases than racially “Indian” Tribal members. This racial divide was first revealed in a 2020 case when Oklahoma state police arrested two Black men for minor crimes committed on Tribal land. One of these men was a member of the Muscogee Creek Nation with 1/64th Creek blood. The other, descended from Freedmen, became a member of the Cherokee Nation after the 2017 federal court decision. Oklahoma dropped the case against the Creek with 1/64th Indian blood because the State lacks jurisdiction over crimes committed by Indians on Tribal land; jurisdiction is instead in Tribal courts or federal court. But Oklahoma refused to dismiss the case against the Cherokee Freedmen descendant, despite his status as a member of a federally-recognized Tribal Nation. An Oklahoma court agreed with the State. It ruled that, to qualify as an “Indian” for criminal jurisdiction, one must have “some degree of Indian blood.” That is, although the Cherokee Nation had granted the defendant full Tribal membership, the Court held that he was subject to different jurisdictional rules from other racially “Indian” Tribal members.

This interpretation is based on an antebellum judicial precedent almost 200 years old, which established a two-prong test to determine who qualifies as an Indian for the purposes of criminal jurisdiction. This test was originally formulated by the Supreme Court in an 1846 case, United States v. Rogers. According to Rogers, to be considered an Indian, a defendant must both have some “Indian blood” (the racial prong) and be affiliated with a federally recognized Tribal Nation (the political prong).

The Rogers test is at odds with several Supreme Court decisions from the 1970s that have defined “Indian” status as a political rather than a racial classification. The Court declined to base Indian status on race because a racial classification would have triggered strict scrutiny.

Because of a historical accident, however, the Rogers test has never been overturned. In the late 19th century and the first half of the 20th century, the descendants of Freedmen were members of some Tribal Nations. By the 1970s, all the Nations had expelled these descendants and tied membership to either blood quantum or lineal descendancy from a recognized Tribal member. Thus, by the time equal protection jurisprudence evolved to condemn racial classifications, all Tribal members were racially Indian. Further, because there were no Tribal members without Indian blood, a case never arose where the Rogers test would have produced different outcomes based on race.

This changed in 2017. Now that the Cherokee Nation is enrolling the descendants of Freedmen, substantial numbers of Tribal members lack any Indian blood. Freedmen descendants meet the political prong of the Rogers test because of their Tribal membership. But, lacking Indian blood, the racial prong prevents them from claiming the jurisdictional advantages of being an “Indian.” As a result, similarly situated individuals will be treated differently based on their race, raising obvious equal protection concerns. Rogers is now ripe for constitutional review.

The jurisdiction to which a defendant is subject can fundamentally affect the outcome of a prosecution because Tribal courts and federal courts are usually gentler on defendants than state courts. Tribal courts adjudicate disputes “according to their own laws, customs and traditions” and often “emphasize rehabilitation over punishment and prefer restorative justice measures ... to prison or harsh penalties.” Likewise, in spite of mandatory minimums and sentencing guidelines, empirical evidence indicates that federal defendants actually receive more lenient sentences than they would in Oklahoma state courts. Thus, the Rogers test can have serious consequences. By denying Indian status to Cherokee Nation members descended from Freedmen, Rogers condemns them to harsher courts and tougher sentences.

The equal protection concerns raised by the Rogers two-prong test are even more acute in light of the Supreme Court's 2020 decision in McGirt v. Oklahoma. In McGirt, the Court held that the entire eastern half of Oklahoma--the home of the modern-day Cherokee Nation where many descendants of Cherokee Freedmen still live--is Indian country for the purposes of criminal jurisdiction. The decision shifted the potential criminal jurisdiction of over 43 percent of the state of Oklahoma from state courts to Tribal and federal courts. Consequently, in most of eastern Oklahoma, the status of a defendant (Indian or non-Indian) will determine whether they are subject to federal, Tribal, or state jurisdiction.

This Article proceeds as follows. Part II explores both the history of slavery and the obligations to Freedmen of the Five Tribes--the Cherokee Nation, Chickasaw Nation, Choctaw Nation, Muscogee Creek Nation, and Seminole Nation. Removed from the southeastern United States to modern-day Oklahoma, the Five Tribes continued practicing plantation slavery, allied with the Confederacy during the Civil War, and agreed to give certain rights to Freedmen and their descendants at War's end.

Part III describes the evolution of criminal jurisdiction on Tribal land from the treaties and federal laws of the early 1800s through the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma. I explain that, to determine who counts as “Indian,” courts have relied on the pre-Civil War Rogers opinion requiring that someone be both a member of a recognized Tribal Nation and a member of the Indian race.

Part IV explains that this test is inconsistent with modern Supreme Court jurisprudence which holds that the definition of Indian under federal law must depend on political rather than racial classification. By treating members of the Cherokee Nation differently depending on their race, the test raises obvious equal protection concerns.

Part V concludes by discussing how the Freedmen's rights can be protected. Although an appropriate case may eventually allow the Supreme Court to reverse Rogers, it may be quicker to fix the problem legislatively. Accordingly, the Cherokee Nation is lobbying Congress to change federal law to define Indian status based on membership in a Tribal Nation (a political classification) rather than ancestry (a racial classification).

[. . .]

In deciding which courts have criminal jurisdiction, all Tribal members should be treated equally regardless of their race. This is critical, first, to ensure that all Tribal members enjoy equal legal protection. Criminal defendants face potentially significant differences among Tribal, federal, or state criminal jurisdiction. Tribal courts prioritize rehabilitation over punishment, and empirical evidence has shown that Oklahoma state courts often impose harsher sentences than federal courts.

This change is also essential to preserving Tribal sovereignty. In numerous treaties dating back to the 18th century, the United States has continuously acknowledged the “Cherokee Nation to be a sovereign nation, authorised to govern themselves.” Oklahoma's assertion of criminal jurisdiction over some of the Nation's Tribal members violates this right to self-governance. In Zepeda, Judge Ikuta of the 9th Circuit recognized in her concurrence the Rogers test's inherent threat to Tribal sovereignty:

In holding that a person is not an Indian unless a federal court has determined that the person has an acceptable Indian “blood quantum,” we disrespect the tribe's sovereignty by refusing to defer to the tribe's own determination of its membership rolls. It's as if we declined to deem a person to be a citizen of France unless that person can prove up a certain quantum of ““French blood.”

The only way to safeguard the Cherokee Nation's Tribal sovereignty and treat Cherokee Tribal members equally is to judicially overturn the Rogers test or amend federal criminal law to establish a new, non-racial definition of ““Indian.” Ideally, Michael Hill, the Cherokee Nation member of Freedmen descent, would have appealed the 2021 decision holding he was subject to Oklahoma criminal jurisdiction because he lacked Indian blood. However, he did not, and Michael Hill is now time-barred from filing such an appeal.

Instead of waiting for another case in which Oklahoma asserts jurisdiction over a Cherokee Freedmen descendant, the Cherokee Nation is exploring legislative avenues to eliminate the racial test for Indian status. To ensure its new Tribal members have the same legal protections as non-Freedmen descendants, the Nation began actively lobbying Congress in 2024 to amend the Major Crimes Act to define Indian as a Tribal member--regardless of Indian blood. Specifically, the Cherokee Nation proposes that Indian status under the Act should follow from membership in a federally-recognized tribe, and each Tribal Nation should remain free to determine its own membership criteria. Equating Indian status to tribal membership makes it clear that Indian status is a political classification, not an impermissible racial classification.

A judicial or legislative change would only have a limited impact at the moment. Any impact from a change in the definition of Indian status would apply only to the Cherokee Nation because other Tribal Nations do not yet grant Tribal membership to their Freedmen descendants. In the Seminole Nation, which grants limited citizenship rights to its Freedmen descendants, the Freedmen descendants are considering litigation to force the Nation to uphold its Reconstruction Treaty and grant full tribal membership, but have not yet filed the case. The Choctaw Nation is also considering the membership issue but has not reached a decision in three years. And in the Chickasaw Nation, which never exercised the option under their Reconstruction treaty to extend tribal membership to Freedmen, the descendants have the lowest chances of attaining full tribal membership now.

Other Freedmen descendants are making more progress. A successful case brought by Muscogee Creek Freedmen descendants seeking tribal membership under the 1866 Treaty is now pending final review by the Muscogee Creek Supreme Court. The Muscogee Freedmen descendants are likely to eventually prevail because, like the Cherokee, the Creek's Reconstruction treaty required them to grant membership to their Freedmen. With members of Congress periodically threatening to withhold federal funding from Tribal Nations that refuse to honor their Reconstruction Treaty obligations, the remaining Tribal Nations may soon extend membership to Freedmen descendants. As a result, a judicial or legislative fix would apply to thousands more Tribal members of Freedmen descent.

By a legal and historical quirk, the descendants of Tribal freedmen are not entitled to have their criminal cases heard in the same courts as other Indian Tribal members. In the past decade, the Nations have begun to reenroll their Freedmen descendants. But criminal jurisdictional rules lag behind, stuck in the 19th century swamp of blood tests and racial discrimination. As Chuck Hoskin Jr., the Principal Chief of the Cherokee Nation, recently put it, “Current federal law creates a separate and unequal system of justice for Cherokee citizens of Freedmen descent. Cherokee Nation has lived up to its treaty promise of equal rights to all of our citizens, and we are calling on the U.S. to do the same.”