'Power over this unfortunate race': race, politics and Indian law in United States v. Rogers.

• Author: Berger, Bethany R.

TABLE OF CONTENTS INTRODUCTION I. THE ROGERS DECISION II. UNMASKING THE LAW A. Indian Law Before Rogers in Congress and the Court B. Back to the Facts 1. Developing the Test Case 2. Fabricating a Jurisdictional Gap 3. Prosecuting the Dead Defendant III. THE QUEST FOR FEDERAL POWER A. Why Did the Court Go Along? B. The Executive Push for Power 1. Bureaucratic Consolidation 2. Emergence of Ethnology 3. Battle Between the Cherokee Nation and the Executive Branch 4. Executive Use of the Rogers Decision IV. REVISITING THE ROLE OF RACE IN UNITED STATES V. ROGERS A. Cherokee Understandings of Race B. White Americans' Ideas of Indian Race 1. The Racially Equal Indian 2. The Dangerous Half-Breed 3. Racing the Indian Tribe V. IMPACT OF ROGERS ON INDIAN LAW A. Rogers and the Origins of Federal Plenary Power B. Rogers and the Doctrine of Implicit Divestiture CONCLUSION ABSTRACT

[F]rom the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavoured by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices. (1)

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In 1846, in United States v. Rogers, the Supreme Court blithely announced the above vision of the history of Indian-United States relations. The first part of the quote describes Indian people as a race and an inferior one; the second part describes a positive and paternal federal relationship to this race. As even the most casual student of American Indian history knows, this vision was more fantasy than reality, more desire than description. Although such fantasies are commonplace in Indian history, in this case the statement signaled a shift in federal Indian law and policy, heralding a move from viewing Indian tribes as sovereign governments to viewing them as collections of individuals bound together by ethnicity. As governments, tribes posed a legal barrier to federal interference with their members. Although the federal government could wage war against them, could demand unfair agreements from them, and could usurp their property, they were still governments, and thus their members and territory were subject to tribal, not federal, authority. By redefining Indians as individuals joined not by politics but by race, the federal government could assert a new kind of power: the power to breach tribal boundaries and regulate their members in order to "enlighten their minds and increase their comforts" and "save them ... from the consequences of their own vices." (2) What "humanity" demanded then was not that tribes be treated, as far as possible, according to the law of nations but that Indians be treated as subjects in need of guidance to fully incorporate into the American mainstream.

The decision of the Supreme Court in United States v. Rogers did not initiate this change. It was instead the product of a growing movement to increase federal power to regulate Indian lives. This movement was tied to such diverse factors as the bureaucratic centralization of the Indian Department, the emergence of the science of ethnology, and the debates over American identity in the face of increasing immigration to the United States and international conflicts over the North American continent. The success of this vision in the Supreme Court was fueled by distortions of law and fact ranging from mischaracterization of the role of white men in Indian country to the fact that the case was moot at the time it was decided. By memorializing the vision of this movement in law, however, the Rogers decision provided it with powerful legal and moral ammunition in ways that continue to resound in the courts and on Indian reservations today. In this Article, I use Rogers as a lens through which to examine the nature and origins of this shift.

INTRODUCTION

United States v. Rogers arose from homely facts. In 1844, in the Cherokee territory west of Arkansas, William S. Rogers allegedly stabbed his brother-in-law Jacob Nicholson to death with a five-dollar knife. (3) Although both men were racially white, both had also married Cherokee women, thereby becoming citizens of the tribe under Cherokee law. (4_ When federal authorities sought to prosecute Rogers for the murder, he argued that the court had no power over him because the law that provided for federal jurisdiction in Indian country exempted crimes between Indians, and he, as a citizen of the Cherokee Nation, was an Indian for purposes of the exemption. (5)

In 1846, the Supreme Court summarily dismissed Rogers' challenge. (6) A white man was a white man, and no political affiliation could change this. (7) Although the term "race" had often been used to refer to Indians before this time, it contained an ambiguity indicating both a group with a common biological heritage and a group with a common national or political identity. (8) The assumption of policymakers in the time before Rogers was that the two senses of the word were identical, that the political and biological boundaries around Indian tribes were the same. But what if they were not? What if whites or blacks became citizens of Indian tribes? The Rogers opinion, for the first time, established a biological limitation on the federal definition of "Indian."

Authors have seized on this limitation as evidence that Indian law is a "blood law" (9) based on racial distinctions between Indians and non-Indians. (10) Some scholars and courts have recently extrapolated from this assertion to suggest that descent-based tribal membership requirements and even Indian law itself must be discarded as irredeemably tainted by racial discrimination. (11) This Article shows that neither the historical record nor the Rogers opinion support this understanding. Although the 1840s saw the growth of scientific racism and its use to justify oppression of African Americans, policymakers and ethnologists continually emphasized that race did not define Indian people, stressing instead the equal potential of Indians and whites. (12) In Rogers itself, the inferior people are not the Cherokees themselves but the "mischievous and dangerous" whites that associated with the Cherokees. (13) The primary legal significance of Rogers, moreover, is that it was the first time that the Court asserted federal authority and control over any person in Indian territory, regardless of race. (14)

This is not to say that race was irrelevant to the decision or the federal policy behind it. To understand its role, however, requires broadening one's understanding of the many ways race works in American law. (15) By defining tribes as collections of individuals united by race rather than as governments bound together by the political choices of their members, the United States could justify regulating Indians without regard to the barriers that governmental status might pose. At the same time, the belief that individual Indians were not defined by this racialized group status justified destruction of the tribal group in the name of assimilation. It was, therefore, the fact that Indian tribes--not Indian individuals--were indelibly raced that supported this expansion of federal power.

The history behind Rogers is replete with fabrications of law and fact to achieve this result. (16) The Court's opinion presents Congress as having unlimited authority over tribes and their property. Close examination of earlier case law and Congress' own statements regarding its power paint a sharply contrasting picture, one in which the federal government has no power over tribes or their members on reservations (17) and in which tribal property rights were as sacred and protected from federal intrusion as those of non-Indians. (18) Subsequent Indian law cases, moreover, show that the Court, and even Justice Taney himself, did not adopt the vision of Indian law that the Rogers opinion espoused. (19)

The facts behind the decision were equally distorted. Most startling, at the time the case was argued before the Supreme Court, the defendant William Rogers was ten months dead--a circumstance that if recognized would have deprived the Court of jurisdiction to hear the case. (20) This fact was omitted from both the certified record compiled in Arkansas two months after Rogers' death (21) and the Attorney General's argument before the Court eight months later. (22) More subtly, the assertion of jurisdiction rested on the argument that Indian tribes were neither able nor willing to control the white men in their midst. (23) The historical record, in contrast, reveals that the Cherokee government neither wanted nor needed federal assistance in controlling white men in Indian country and that federal attempts to exercise jurisdiction only increased lawlessness in the Cherokee territory. (24)

This Article shows that rather than representing an accurate reflection of the law or the policy needs of the time, the Rogers decision was the product of a broader campaign by the executive branch of the federal government to expand its power over Indians. This campaign was catalyzed by the increased bureaucratization of the Indian Department as well as the development of the science of ethnology, both of which created institutional interests in regulating Indians not as members of political entities but as individuals. Concerns about two impending wars over federal power on the North American continent led the Supreme Court to concur with the executive branch's expansive definition of federal power over Indian territory.

Although the decision had little basis in law or fact, it represents a turning point in Indian law. The decision represents a moment in which what might have been a trend to increase the political power of tribes became instead a vast increase in federal power over tribes. The decision immediately provided legal grounding for the coalescing executive branch...