Who Is a Seminole, and Who Gets to Decide?
By WILLIAM GLABERSON
Monday, January 29, 2001
-- Polly Gentry's skin is black. But she says she is an Indian. A black Indian.
For generations, a little-known chapter of America's racial history shows, she and other descendants of escaped slaves have been members of the Seminole Nation of Oklahoma. Even on the tribal council, descendants of slaves have sat alongside descendants of native people.
Until last summer. Then, in the middle of a bitter legal battle over $56 million in federal funds, Seminoles with native blood voted to strip the people who call themselves black Seminoles of tribal membership.
Suddenly, Ms. Gentry said, "My skin makes a difference."
The battle over the place of the black Seminoles is now at the center of two federal lawsuits that challenge basic notions about race in America.
Although the issue has been addressed before, the cases give new currency to the question of who is an Indian.
Experts in Indian law say the Seminole cases provide a view of often hidden battles over tribal membership across the country, as gambling revenues and federal land payments have given Indians something to fight over.
"This has become one of the major hot-button issues in Indian Country: Who is an Indian? And, just as important, who decides who is an Indian?" said Robert A. Williams Jr., director of the Indigenous Peoples Law and Policy Program at the University of Arizona College of Law.
Few tribes share the Seminoles' unusual history. But many are split by race conflicts, which sometimes pit members with more Indian blood against those with less, said Robert B. Porter, director of the Tribal Law and Government Center at the University of Kansas School of Law.
"The future," Mr. Porter said, "has to be tribes clarifying what it means to be an Indian."
Here, along the dirt roads in the scrubby countryside east of Oklahoma City, the end of a 200-year-old racial partnership is a raw subject. It was here that both black and blood Seminoles were forced to move from Florida by the federal government in the 1840's. So it is here that cousins of different colors, who still live side by side, accuse each other of racism, opportunism and betrayal.
The argument is much the same in courts in Oklahoma City and Washington. The Seminoles' legal battle centers on the $56 million that Congress paid to the tribe in the early 1990's to compensate for the federal government's seizure of much of Florida in the 1820's.
When the government of the 15,000-member tribe began distributing the money a few years ago, only Indians by blood were permitted to receive benefits for such things as school lunches, health care and job training. Black and blood Indians say that decision was guided by Interior Department officials. Interior Department lawyers say they were doing nothing more than advising the tribe as it made its own sovereign decisions.
The other day, Roosevelt W. Davis Sr. pushed up on the collapsed roof of his two-bedroom shack and said that was what it meant to be a black Indian. Mr. Davis, 75, is a retired laborer who collects old cans to add to his $500 monthly Social Security check.
Not long ago, he said, the tribe sent him $5,000 in housing assistance and then demanded he return the check when its officials realized his family was listed on the tribal roll of black Seminoles, not on the roll of blood Seminoles.
Black and blood Seminoles have intermarried over the generations. But some blacks who say they have Seminole blood cannot prove their link to registered blood Seminoles. Others insist on preserving their identity as descendants of Africans.
The eyes of Sylvia M. Davis, Mr. Davisís 46-year-old daughter, filled with tears as she described how the roof collapsed after a storm last summer, forcing her father out of the shack.
Her father, who is staying at a friendís apartment, "calls me every night," she said. "He just talks about how long does he have to wait Ďtil he can get his house fixed."
The answer to that may depend on how the courts view the claims by the 2,000 black Seminoles that their history shows they, too, owned the Florida land. Some historians say the escaped slaves lived free as farmers, warriors and political leaders among the Indians, who were themselves, exiles and runaways from other tribes. The name Seminole itself, some historians say, meant pioneer or seceder.
But Justice Department lawyers and some blood Seminoles argue that some Seminoles owned black slaves before the Civil War.
Because the tribe has sovereign immunity from lawsuits, the black Seminoles sued the Interior Department alone in the first suit, which was filed in 1996. The Departmentís Bureau of Indian Affairs acts as a trustee of the $56 million fund, and the black Seminoles said the bureau should assure that they were not the victims of discrimination.
The black Seminoles are represented by a New York lawyer, Franklin B. Velie of Salans Hertzfeld Hellbronn Christy & Viener, and two of his nephews, Jonathan T. Velie and William Velie, lawyers in Norman, Oklahoma.
In legal papers, the black Seminolesí lawyers say federal officials and blood Seminole leaders motivated by racism "plotted to exclude" the black Seminoles. Interior Department lawyers and Seminole leaders denied those assertions in interviews, saying that there was no plot and that all decisions had been made in an effort to distribute the money as Congress intended.
But the black Seminolesí lawyers discovered a series of memorandums written by federal officials from the 1970s to the 1990s that they say show an effort to deceive Congress.
In 1976, as the tribe pressed its land claim, Bureau of Indian Affairsí officials prepared a history of the black Seminoles. In concluded that in the 1700s some of the blacks "became essentially free under the Seminoles" and that the "very close relationship" continued in the 1800s.
But that report, which was the basis of the battle to follow, concluded that the former slaves did not own the Florida land at the time the federal government seized it in 1823. The black Seminoles were recognized as members of the tribe in a treaty with the federal government in 1866. Their lawyers now say that simply acknowledged a relationship that already existed, while some blood Seminoles say the post-Civil War federal government forced the tribe to accept the blacks.
The status of the black Seminoles in 1823 is critical. In 1976 the federal Indian Claims Commission concluded that 1823 was the date of the federal seizure of the Florida land. The commission said Congress should make a compensation payment to the "Seminole Nation as it existed in Florida" in 1823.
The Bureau of Indian Affairsí memorandums show that beginning in the 1970s, blood Seminoles expressed concerns about sharing any eventual payment with the blacks. In an interview, the Seminolesí chief, Jerry G. Haney, described the issue as political rather than racial in nature.
He said the tribe had moved to exclude the black Seminoles partly because modern blacks Ė unlike their ancestors, who had dressed as Indians and learned the Seminole language Ė had drifted away from cultural identification as Indians.
Interior Department officials, he added, had told the blood Indians that the money was to compensate for the stolen lands and "the blacks were not landowners."
Dwayne Miller, a full-blood Seminole and a tribal council member, said in an interview that he believed the blacks should be paid by the federal government for their hardship in the forced removal from Florida. But, he said, "I donít think they should take it out of our money."
By 1990, the lawyers for the black Seminoles contend, maneuvering to cut the blacks out of the $56 million had become explicit.
A Bureau of Indian Affairs official in Oklahoma wrote a report of a meeting that September in which an Interior Department lawyer named Janet Spaulding conferred with Seminoles. The memorandum said the treatment of the black Seminoles was "a very sensitive matter" and hinted that an effort to exclude them might draw resistance in Congress.
The report said Ms. Spaulding outlined "options" regarding the black Seminoles. One of them, said the memorandum, was "Possibility of plan slipping through if Congress is busy with the Middle East crisis on their mind" Ė an apparent reference to the tensions that would soon lead to the Persian Gulf war. That, the black Seminolesí layers say in legal papers, suggested an effort to keep Congress from realizing that the tribe planned to exclude the blacks.
In the end, the act appropriating the money said it was "for the benefit of the Seminole Nation of Oklahoma," leaving the status of the black Seminoles murky.
In an interview, Ms. Spaulding, who is still an Interior Department lawyer, denied that she had worked to hide anything from Congress or to exclude the black Seminoles. She said the writer of the 1990 memorandum might have misunderstood the advice she gave the tribe. "I certainly didnít plot with them in any fashion," she said.
A supervising Interior Department lawyer, Robert J. McCarthy, said federal officials always believed that the black Seminoles should share in the money if they could prove that "their ancestors were members of the tribe in 1823." He pointed to a 1991 memorandum suggesting that the tribe be encouraged to permit the black Seminoles to try to prove such membership.
But in the black Seminolesí lawsuit in federal court in Oklahoma last year, Justice Department lawyers representing the Interior Department took a sharply different position.
They suggested that only Seminoles by blood could have been members in 1823. "Presuming the plaintiffs have no Seminole Indian blood," the lawyers wrote, "they cannot legitimately claim harm from exclusion of funds to which they are not entitled."
In fact, the federal government lawyers have fought the black Seminolesí case aggressively. In 1998 the government won a trial court ruling that dismissed the case on the grounds that the Seminole tribe was an indispensable party that could not be sued because of its sovereign immunity.
In 1999, the federal appeals court in Denver reversed that ruling and said the trial court had to decide whether in "good conscience" the case should proceed even without the tribe.
The trial judge in that case had taken no new action when the battle grew more heated with last summerís referendum stripping the black Seminoles of tribal membership. After the referendum passed, the Interior Department declared that this disenfranchisement would not recognize any tribal government that did not include the black Seminoles. Eventually, that action could mean the federal government could freeze payment of federal funds to the tribe.
In October, the tribe responded with its own suit against the Interior Department in federal court in Washington.
In December, with the Seminoles in court because of their own suit, the lawyers for the black Seminoles filed to enter the case, asking the federal court in Washington to use the Seminolesí case as a route around the sovereign immunity barrier. They asked the court in Washington to declare once and for all not only whether the black Seminoles were members of the tribe but also whether they should share the $56 million.
This month, the tribeís lawyers filed papers in that suit arguing, among other things, that it was "pure fiction" for the black Seminoles to suggest the vote to exclude them from the tribe was related to the $56 million fund. Instead, the tribe said, it was part of a broader reorganization of the tribeís government structure.
The court in Washington has yet to rule on the black Seminolesí request. But here in Oklahoma, some of the black Seminoles said that whatever happens in court, the racial harmony of their ancestors may be lost forever.
"It takes your pride away," said Donnell E. Davis, Roosevelt Davisís 18-year-old grandson. "You know they donít want you to be part of them. They tell you youíre nothing to them."