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.