Wondering If You're An "Indian"? Ask The Ninth Circuit

                                                                            

 (Billy Mills; Sitting Bear

Articles on this site have previously commented on the troubling fact that race continues to be an actively-considered element in both substantive and jurisdictional issues of law affecting Native Americans. The recent 9th Circuit case of United States v. Cruz demonstrates that the phenomenon of “race laws” continues to haunt the national landscape.

The Cruz case involves the analysis of whether a criminal defendant could be tried by a federal court under the laws of the United States. The federal government contended that Mr. Cruz is an “Indian” and committed an assault on Tribal land, thereby subjecting him to federal jurisdiction under 18 U.S.C. § 113(a)(6). Mr. Cruz appealed, alleging that he is not an “Indian” and therefore not subject to federal jurisdiction under the statute. The 9th Circuit Court of Appeal offered the following preface to its analysis:

“At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.”

The Court then plunged into an analysis of Mr. Cruz’s racial heritage, determining that

“His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.”

The Court ultimately found that the evidence in the case “does not demonstrate that Cruz is an Indian”, and remanded the matter back to the lower court with directions to acquit Mr. Cruz of the federal charges.

The Cruz case is merely the latest in a long series of cases where judges have attempted to determine who is and is not Native American through subjective racial analysis. Leaving aside the glaring issue of why race is a jurisdictional factor in the first place, courts have also failed to create any uniform standard for this tortured arithmetic. In Sully v. United States, 195 F. 113 (8th Cir.1912). 1/8 “Indian” blood was held sufficient to be Indian; in Vezina v. United States, 245 F. 411 (8th Cir.1917), women 1/4 to 3/8 Chippewa were held to be Indian; in Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968), 1/4 Makah blood sufficient to satisfy the “Indian blood requirement”, in Goforth v. State, 644 P.2d 114, 116 (Okla.Crim.App.1982), the requirement of Indian blood was satisfied by testimony that a person was slightly less than one-quarter Cherokee; and in St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988), 15/32 of Yankton Sioux blood was held sufficient to establish one as an “Indian”.

Conducting mathematical calculations on a human being’s racial ancestry for the purpose of deciding which laws apply to that person harkens back to the darkest days of American jurisprudence. For those who thought America had moved beyond Plessy v. Ferguson, when the Supreme Court decided that a person who was “7/8ths White” could be consigned to both a separate train car and a separate legal standard, it is clear that much work still remains to be done. It has become typical for courts to “punt” the obvious problems with race laws involving Native Americans by saying “it’s Congress’ responsibility, not the courts.” This justification for abdicating judicial responsibility is not only legally fallacious, it directly contradicts the clear legal precedent of cases such as Brown v. Board of Education where legal policies based on race were declared inherently unconstitutional. Courts clearly have the legal authority to put an end to race-based laws, all they need is the courage.

A far better way for Tribal/federal jurisdiction questions to be analyzed is based on treaty status, with Tribal members being subject to either Tribal or federal jurisdiction based on agreements between their Tribe and the US government.  These are the same principles used when citizens of Canada, Mexico, or other sovereigns  are charged with crimes within the United States, and the procedures for determining jurisdiction are well established. Such a policy would properly acknowledge the sovereign status of Tribes, and eliminate the embarrassing and intellectually-unsupportable notion that a person’s race should determine their legal status in America.
 

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Comments (17) Read through and enter the discussion with the form at the end
erika enriquez - July 24, 2009 9:29 AM

I recently found out that I'm Native American Indian. My grandmother is 100% cherokee. I want to know how would I find out more information about that if she passed away already?

JOHN ROBERT LEMING - August 15, 2009 6:43 PM

MY GRAND MOTHER IS AN INDIAN,HER NAME IS EFFI CHASTAIN HER FATHERS LAST NAME IS PETTIJOHN.I WOULD LIKE TO KNOW IF I HAVE INDIAN IN ME.THANKS

marinda - January 19, 2010 4:36 PM

i really think i might be indian and i dont know HELP PLz

Matthew Nelson - February 12, 2010 7:19 PM

MY mother tells me that her father told her that her great grandmother and father were native americans from 2 different tribes.That makes her grandmother 100% by 2 different blood lines. Shes not for sure what tribes ,but it was thought to be cherokee and chickasaw.Perhaps shawnee.Her maiden name is Holland and her family has been in Tenesee and other south/eastern states forever.Im looking for all the advice I can get for I believe I am being called to be a shaman and am in the process of researching that. Thanks in advance for even taking the time to read this. Matt in Clio, Michigan

Marisa - July 6, 2010 7:39 PM

My paternal grandfather was a traditional medicine man of the Acalwa people, who are considered to be a part of the Yaqui tribe. However, he was of Nedhni Apache origins. Our surname was given to our family in the mid 1800's by Spaniards in the Southwest. My maternal grandfather is a mixed blood Lakota/Cherokee from Indiana. His mother was of French and Lakota descent, and his father of Eastern Band Cherokee and Irish descent. My great-great grandmother was a traditional Cherokee from North Carolina. She married a mixed blood from Winston-Salem, NC. As far as my maternal great-grandmother, all I know is that her Lakota grandmother was married to a mixed blood fur trapper. Although I am a descendant of three tribes, I cannot enroll in any one of them. I heard that you have to be 1/2 Yaqui or Apache to enroll. I don't know how to seek all of this out on my mother's side, because the documents are in posession of other people in our family we are unable to contact. If you have any ideas on how I might even get blood testing for DNA, that would be great. Although race shouldn't matter, it's always nice to know my origins and family history. Thank you.

Margaret - August 12, 2010 11:50 AM

I am trying to find my ethnic background/heritege. I always felt like there was something missing in me. I felt really close to nature and native american/ asian culture. I was wondering if I have any native american in me whether its small just if its in me at all. My family doesn't really talk about culture, race or ethnicity. I t would be great if you could help me on my journey. So please help me

kyle karawan - October 5, 2010 9:41 PM

Yes im wondering if someone can tell me if i have indian blood in me becasue i stay really dark all year long and i was told that i have black foot in me.. thanks names kyle karawan if you can email me

Moon - October 19, 2010 9:28 AM

My father is Bert Fleharty I wanted to know if we have any indian blood in us. We are from Kaw City, Ok. or Ponca City, Ok

sarah durant - February 15, 2011 7:19 AM

my father just recently found out that we have indian in our family i had a great great great grandfather named jocoba. how would i find out if i am indian?

Danielle Smith - June 14, 2011 1:03 PM

I just found out that my great grandmother was half native american possibly belonging to the Koasati (Coushatta Tribe). How to find out for sure? Please help.

nicole - July 8, 2011 1:00 PM

Hi I'm not really sure if you can help me but i know I'm Indian bu ti don't know what kind my father passed away 10 years ago i never got to know him I've heard that I'm 3 different types of indian but could never get a exact answer. when I've asked mother shes will not talk about him, she wont even tell me who his father is. The only person i know of my dads family is his mom.i am now 21 and i have a daughter and i cant even tell her anything about her history. Do you know if there is any way i can find out what type of indian i truly am.


Thanks
Nicole

Joseph Benitez - August 23, 2011 1:43 PM

I was born in California to what was then a choice of only "white" or "other" on the birth certificate.I know for certain that I am hispanic. But both of my parents had generations of family from Arizona on both sides maternal and paternal, suggesting that they may have some Native American, by bloodline. Specifically, it would be the Yacqui, Tohoto Odem, and the Apache. Since both of my parents and their respective families were from Tucson, Arizona. And these are the prevalent tribes in that area. How could I make a definitive finding on this matter, as it has concerned me for quite some time. If you are able to direct me to the resources available to research this information it would be a great appreciation.

Thank You,

Joseph Benitez

Tiwana Nestor - February 2, 2012 5:39 PM

I have always been told by my mother that I am Native American. Her birth mother Elmira Martha Recore is whom she claims to be Indian. I am wondering what percentage or even if any at all that I am. I have found my family tree online and have attached it accordingly my grandparents are Elmira Martha Recore and John W. Collins. Is there any way to find out what the heritage is of my grandmothers family? Most of these names look French, but I am told that the tribe is from upstate NY which could therefore make it a possibility.

Thanks for any help that you could provide.

Tye

Melissa - January 26, 2014 3:21 PM

I have recently found out that my biological father's mother was full blooded Indian. I did not know my father or his parents, all I have is his name. Is there any way to find out what heritage my grandmother was? Any kind of help would be greatly appreciated

LaMere - June 27, 2014 5:11 AM

I'm 23 ..my father disappeared when I was 4 months Old. I was just told by his father that he is half Cherokee and half Chippewa Indian. They didn't want to tell me because they said that I'm a past mistake and should stay in the past. I can't get any paperwork from them on any of my father's side of the family. I can give the information I have..it's not a lot but it's something I guess. I'd like to be able to tell my daughter who she is and who her ancestors were. Help me find ouT who I am.

Cameron - July 31, 2014 8:13 AM

Hey, my biological dad was a full indian and my biological mom is 1/8th Indian. My grandmother told me that we are Cherokee and Chaktaw. My great grandmother was one of the last babies born on the Cherokee Indian reservation that her parents lived on. And my great great grandmother was an Indian princess with the Cherokee people. I just want to how much of an Indian I am. Never been super good at math so if someone could help me out that would be great!

Donna Howard - August 19, 2014 7:06 PM

hello I am trying to find out if I am a black foot any or not as my family isn't really sure if we have any us or not and I would like to know. many people say I look like I have some in me because of my dark hair and more than that I have 2 kids that want to know if they are as well so please help me out I would greatly appreciate it and thank you!!!!!

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