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Ted Shepherd

First Page

43

Last Page

70

Document Type

Article

Abstract

Beginning in the 17th century, many American Indians owned enslaved African workers. They stopped only at the end of the Civil War, when several Tribal Nations signed treaties with the federal government requiring them to emancipate their enslaved workers. The treaties also required the Nations to enroll these “Freedmen” and their descendants as full Tribal members. The Nations complied for a time, but then withdrew membership from the descendants in the 1970s. In 2017, however, a federal court required the Cherokee Nation to honor its treaty and grant the descendants of Cherokee Freedmen full Tribal membership, which it did. Despite their enrollment, Cherokee Tribal members of Freedmen descent are subject to different jurisdictional rules than racially “Indian” Tribal members. Tribal and federal courts, rather than state courts, are supposed to have jurisdiction over crimes committed by Indians on Indian land. However, in a 2020 case, an Oklahoma state court refused to cede jurisdiction over a Cherokee defendant descended from Freedmen because, in spite of his full Tribal membership, he lacked “some degree of Indian blood.” The Court’s decision invoked an antebellum Supreme Court precedent which held that to qualify as an “Indian” for purposes of criminal jurisdiction, a defendant must not only be a Tribal member but also have Indian blood. This racial test survives only because of historical accident: By the time equal protection jurisprudence evolved to condemn racial classifications, there were no Tribal members without Indian blood who could challenge the racial test. Now that the Cherokee Nation has extended membership to the descendants of those they enslaved, there are Tribal members who may be tried in different courts from other Indians because they lack Indian blood—because of their race. This Article will examine the history of Indian slaveholding, the evolution of the racial test for criminal jurisdiction, and its conflict with modern equal protection jurisprudence.

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