Africa and Aboriginal Tuesdays: Racial Exclusion in Indian Country by Professor Kevin Noble Maillard

Tribal life for Black Indians can be difficult. Mixed-blood Indians have been told to ''go back to Africa.'' Tribal meetings escalate to roaring sessions of racist rhetoric, with animal noises, stomping feet and cow calls for ''blacks to get the hell out.'' Blatant proponents of exclusion have no shame in publicly declaring, ''We're trying to keep the black people out.''

While such behavior has been shunned since the civil rights era, it thrives in some parts of Indian country. This is sovereignty.

Determining membership in Indian nations forces hard choices. The business of inclusion and exclusion marks a fundamental element of tribal sovereignty. As indigenous people, we exercise autonomy by defining ourselves without the influence of others. This liberty to determine the composition of our nations, however, does not give our governments the same freedom to promote racial exclusion.

Sovereignty has taken on a new meaning in Indian country: the ability to do what we want, when we want, and with whom. In Oklahoma, this display of political freedom incites questionable demonstrations of pre-civil rights Southern segregation. In their efforts to streamline membership rolls, tribal leaders target Indians with black ancestry as unworthy heirs to an indigenous legacy. Freedmen, as the disenfranchised are known, cannot be ''Indian'' because they have no blood quantum.

This dialectic of yes/no, black/Indian draws a familiar picture: on one side sits a group of racially ambiguous people who have been kicked out of their tribe. On the other side, tribal leaders and supporters stand as gatekeepers of Indian authenticity. The ultimate determination of inclusion comes not from people, but from paper. Very ancient paper.

Written documents, such as treaties and court cases, put freedmen on equal status with all tribal members. Other papers, namely the tribal rolls, portray freedmen as lacking ''Indian blood.'' This absence of blood precludes them from participating in tribal programs, and invokes an atmosphere of differential treatment.

''Indian blood,'' as it is known today, was invented by white Northeasterners on vacation. In the late 19th century, a group of whites known as ''Friends of the Indian'' met annually at Lake Mohonk, a resort in upstate New York, to propose speeches and papers addressing solutions to the ''Indian problem.'' From this group of politicians, scholars and missionaries emerged the General Allotment Act. Each adult citizen of the various Indian nations would receive plots of land. These farms represented a physical testament to the Indians' ''entry wedge'' into mainstream culture. And they also freed more tribal land for white settlement.

In deciding who would get a farm, the ''Friends'' engaged the federal government to locate the eligible Indians. Thus, in order to solve the ''Indian problem,'' the bureaucrats had to ask, ''Who is Indian?'' For them, a person who was part-white and part-Indian could still qualify as Indian. But an applicant with partial African ancestry was irrevocably classified as black. The social rules of miscegenation, or the mixing of races, allowed for white-appearing Indians, but excluded anyone partially black.

The Friends intended to create order from chaos, and we still feel their impact. Supposedly, contemporary freedmen have no Indian blood because no record of it exists. No record ever existed, even when the reality did. This weight of the past on the present challenges the idea of sovereignty.

The historic delineation of black and red standardizes racial segregation. Blood Indians wish to uphold the separation of the rolls because they disprove the freedmen's claims for inclusion. Conversely, freedmen point to inherent racial bias in the rolls. Freedmen have brought suit in federal court to enforce their inclusion.

This incursion upon sovereignty raises the controversy to a fevered pitch. As accusations of racism and discrimination increase, tribal leaders turn to this bedrock concept as political refuge. In resisting the encroachment of traditional American jurisprudence, tribes ask outsiders to respect their assertion of self-determination.

But the question remains of separating oneself from the chain of earlier generations. Tribes cannot persuasively spin the rolls as internal articulations of Indian nationhood. This method of maintaining a past of tribal independence reveals telling truth. Forgetting and remembering exist as essential functions in the management of history and memory.

The journey of the Allotment Act from a destructive policy conceived by whites to an irreproachable doctrine fortified by Indians is nothing short of a remarkable transformation. This dogged loyalty to membership rolls and blood quantum confounds the idea of self-determination and self-identification. In relying on these papers as a prerogative of liberty and a symbol of independence, tribes fail to escape the state power they claim to be sovereign from.

Tribal insistence on self-determination, in regards to membership, can appear completely non-indigenous. The current tribal standards for membership are fundamentally rooted in the ''solution to the Indian problem.'' By relying on blood quantum, 21st century Indians accept and reproduce the external and inorganic racial attitudes of dead white Victorians in upstate New York.


Kevin Noble Maillard is an assistant professor of law at Syracuse University. He is a member of the Mekusukey Band of the Seminole Nation of Oklahoma and can be contacted via e-mail at: maillard@law.syr.edu

Kevin Noble Maillard

Tuesday, May 22, 2007