Abstract

Excerpted From: Carla D. Pratt, Indianness as Property, 105 Boston University Law Review 311 (February, 2025) (328 Footnotes) (Full Document)

Three decades ago, UCLA Law Professor Cheryl Harris published an article in the Harvard Law Review entitled Whiteness as Property. She posited that racial identity and property are deeply interconnected concepts with whiteness evolving from a form of racial identity into a form of status property that conveyed a bundle of rights on those individuals who embodied whiteness. She asserted that “American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.” Some three decades later, Professor Harris's work continues to inform how we think about race and identity in the law.

This Article builds on Professor Harris's work by exploring the interplay between race and property in the context of whites, blacks and Native Americans in early America through today. In a previous article, I examined how the tribal pursuit of whiteness historically was necessary to the preservation of Indianness as an identity. Because maintaining Indianness as a racial identity was essential to the preservation of Indianness as a political identity, tribes were forced to adhere to the racially established norms of the federal government in order to protect and maintain tribal sovereignty. This Article builds on that work to explore the relationships between the concept of race and property in Indian country and how these relationships have constructed Indianness as a form of property akin to whiteness--and contingent upon attitudes of antiblackness--that were perfected during the slavery era and persist into the present.

This Article focuses its analysis on the former slaveholding tribes and presents its arguments in four parts. Part I of the Article examines the legal history of black, red and white people during the slavery era in Indian Territory, which would later become the state of Oklahoma. Known as the removal and reservation era, the federal government displaced Indigenous communities by relocating them to other land initially “reserved” by the federal government for their benefit. This Part of the paper explores how Indianness emerged as a form of identity free of blackness which afforded its owner both status and entitlement property that guaranteed freedom from slavery and other human rights.

Part II examines Indianness as status and entitlement property during the Reconstruction Era and the early 1900s, which is known as the allotment and assimilation era of federal Indian policy. This Section explores how the federal government's efforts to deal with the “Indian problem,” which was also referred to as the “Indian Question,” fueled the concept of Indianness as property. It explains how allotment of Indian lands was part of a larger federal government project aimed at terminating tribes and making Indian people disappear into the dominant white society. Many federal and state policy makers viewed the disappearance of Indian people, which many anthropologists now call “cultural genocide,” to be a gift to Indigenous people because they thought that Indian marriage with whites would ultimately convey the status property benefits, and perceived genetic benefits, of white “blood.” During the early twentieth century, “whiteness was a form of status property,” resulting in the perception that integration of whiteness into tribes elevated Indigenous people in the eyes of the dominant white society.

Part III explores Indianness as status property and entitlement property during the Jim Crow and Civil Rights Eras when federal Indian policy shifted from seeking to terminate Indian tribes to supporting tribal sovereignty and self-determination. During the Civil Rights Era, Indianness continued to be a form of status property that elevated its owner above people who were deemed “black” or “Negro.” Indianness was also a form of entitlement property that entitled its holder to be free from the racialized constraints imposed on black people, also known as “colored” people during the era of segregation. During this era, former slaveholding tribes engaged in exclusionary actions restricting tribal citizenship toward the descendants of blacks or “Freedmen,” who by treaty were tribal citizens, in order to retain their own status property.

Part IV explores Indianness as property in the modern era. It examines contemporary notions of Indian identity that position it beyond race for some purposes, yet firmly grounds it in notions of race for other purposes. As a legacy of slavery and Jim Crow segregation, the concept of a property interest in Indianness is present in contemporary discourse surrounding the exclusion of black freedmen descendants from tribal citizenship. Many concerns raised in discussions about adding people to tribal citizenship rolls are concerns about property. Will adding black freedmen descendants reduce existing citizens' property interest in tribal citizenship? Stated differently, will the tribe have sufficient resources to provide for the needs of its citizens if it increases its population by accepting the black freedmen as citizens? The freedman question also presents a status property issue that is not discussed or examined openly. Will the freedmen's blackness taint the tribe's “Indianness” such that the tribe will be regarded by the dominant white society as including a group of “fake Indians”? If the tribe accepts thousands of black people as citizens of the tribe, will the dignity of the tribe suffer from the debilitating stereotypes of blackness that continue to plague our society? Given our nation's past treatment of tribes that have integrated people of African ancestry as citizens, and society's continuing anti-black racism, these are legitimate fears that animate tribal responses to the ““Freedman Question.”

The status and entitlement property interests in Indian identity continue to plague tribes today and is the often the unspoken concern surrounding the freedmen's struggle for the reinstatement of their tribal citizenship in the former slaveholding tribes. The final Part of the Article considers the persistence of Indianness as property and posits that refocusing Indian identity as a political identity free of the social construct of race will help liberate tribes from the property paradigm of Indianness and strengthen tribal sovereignty.

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In a nation that has sought the termination and extinction of Indigenous people, the most powerful exercise of tribal sovereignty is not the power to exclude people from tribal citizenship but rather the power to include. As long as tribal sovereignty is treated as a property right to exclude those who fail to conform to settler colonialism's nineteenth- and early twentieth-century notions of Indian identity as racial identity, tribal sovereignty will fall short of its potential to transform tribal communities into diverse, thriving political bodies that collectively work to strengthen tribal sovereignty. When tribes take a propertied view of tribal citizenship, they exercise hypervigilance around the right to exclude. But a political view of tribal citizenship is grounded in the notion that tribes are sovereign nations comprised of racially diverse citizens, not a race of people. Tribes and tribal sovereignty are actually strengthened when tribes exercise their power to include people as citizens of the tribe. The more citizens a tribe has, the more voters it has to advance its tribal interests in various political arenas. The more citizens a tribe has, the easier it is to cultivate tribal citizens as lawyers and leaders for the tribe. Rather than assuming that the black freedmen will take resources from the tribe, tribal leaders should think about what the freedmen can contribute to the tribe and the future of tribal sovereignty.

Tribal sovereignty means very little if tribes diminish their own population and thereby lack enough citizens prepared to administer tribal courts and lead tribal government into the future. Some tribes have to contract with non-tribal people to fulfill critical government roles that are essential to the exercise of tribal sovereignty. Tribes hire non-citizens of the tribe who have no shared citizenship interest in protecting and preserving tribal sovereignty. Most of the tribes that rely on non-citizens to help run tribal governments have no choice because the federal government has used constrained, racist definitions of Indian identity to limit the number of people who can be citizens of the tribe. One of the biggest threats to tribal sovereignty is placing non-tribal people in positions of power within the tribe. Non-tribal people are likelier to import non-tribal law and values into tribal governance, thereby shifting the tribe further away from its cultural foundation. The federal government has extinguished tribal immigration power, thereby terminating the tribes' historical practice of adopting non-tribal people and integrating them into the tribe. Consequently, the only way for tribes to grow their population beyond natural procreation is to reclaim those lost to the tribes through the racist practices of the federal government.

The former slaveholding tribes of Oklahoma each have a treaty that grants them the power to expand their sovereignty by extending tribal citizenship to the freedmen descendants. For too long, tribes have been pushed by law to protect tribal sovereignty and Indianness by separating them from blackness. Yet, clinging to the status property of Indianness by subordinating blackness to Indianness through the exclusion of the black freedmen descendants is not advancing tribal sovereignty. Tribal anti-blackness is a form of compensatory subordination aimed at maintaining the status property of Indianness.

Today, “American Indian tribal membership has replaced blood quantum and race as the key component of federal and tribal government activity in federal Indian law.” The Cherokee Nation of Oklahoma is no less Cherokee Indian and no less sovereign now that they have incorporated black Cherokee freedmen as citizens of the tribe. The former slaveholding tribes that have not yet reinstated freedmen tribal citizenship have internalized the values of the dominant historical narratives regarding who is Indian. They cling to the Dawes Rolls' conception of Indian identity, grounded in the racist racial hierarchy used by the Dawes Commission when it created the Rolls. The Dawes Commission operated in a place and time when Indianness was a form of status and entitlement property that elevated its holder over non-Indian people of color. The Dawes Rolls subordinated black people to people who were deemed racially Indian pursuant to early twentieth-century rules of race and racial identity. For the tribes to move beyond racism, they must relinquish their strict adherence to the Dawes Commission Rolls for determining tribal citizenship. Exercising tribal sovereignty to include the black freedmen as tribal citizens would be a step toward rejecting the racism of the Dawes Commission. It would also delegitimize the property interest in racial Indianness and its derivative doctrine that holds that tribal governments are only competent to govern people who are racially Indian.

Ada Lois Sipuel Fisher Chair in Civil Rights, Race and Justice, University of Oklahoma.