Editor, Daily Press:

The disparate racial treatment of Native American Freedmen began and must end with Congress, not the courts.

Congress created the Dawes Rolls under the Allotment Act of 1887 to document tribal citizenship. The rolls discriminated against African-Native American offspring by labeling them Freedmen without documenting degree of Native American ancestry. Interracial Caucasian Native American offspring were identified by blood quantum to 1/32nd degree, creating a “paper bag” test for Native American identity, and reinforcing the stigma against anyone “tainted” by African blood.

Freedmen challenged their segregation from “Indians by Blood,” but in 1906 Congress barred the transfer of Freedmen to the “by-blood” rolls. Thus began a century of Freedmen litigation seeking equality with “Indians-by-Blood,” who were granted the advantage of using the Dawes Rolls for documenting lineage. Congress inflamed racial tensions by apportioning government benefits based on blood quantum rather than treaties and the historical context from which they arose. For example, Congress excluded Seminole Freedmen in apportioning money between Florida and Oklahoma Seminoles in the Seminole Indians Judgment Funds Act of 1990. This fractured relations between Oklahoman Seminole Freedmen and Seminole-by-Bloods, which ended with the BIA siding with tribal leaders in denying Freedmen their share.

The treatment of Seminole Freedmen underscores the arbitrary character of the Dawes Rolls. The Seminole Tribe coalesced in Florida from escaped slaves and indigenous peoples disenchanted with the Southern plantation system of slavery. Escaped slaves intermarried within Seminole society, and shared African methods of crop cultivation more suitable to Florida’s climate. Even Congress recognized their integral role, and unlike the Cherokee, Chickasaw, Choctaw, and Creek, there was no legislative mandate to create separate rolls for Seminole Freedmen.

The issue is neither sovereignty nor blood quantum, but a core premise of the 14th Amendment: that when the government creates a discriminatory harm because of race, it has a duty to repair the lasting effects of that harm. In this instance, the harm is more insidious due to the initial bonding between African and Native Americans, and their common heritage as the two “involuntary” minorities.

Congress can facilitate the healing by reforming the law. First, the racial discrimination of the rolls must be repealed by affording all Freedmen Native Americans identical access to government benefits for “by-blood” Native Americans. Second, Congress must remove the economics underlying bias against Freedmen and increase grants to reflect full Freedmen citizenship. Only then can traditional tribal values be rescued from a blood fetishism fueled by perverse incentives that pit one disadvantaged group against another.

There is a certain irony in the fact that our founding fathers were inspired by the color-blind, egalitarian values of indigenous Americans, yet later legislated racial strife into the tribes in a way that persists.

Kevin James, Esq.

Former Columbia University Revson Fellow, New York