EDITORIAL OBSERVER
When Racial Discrimination Is Not Just Black and White

By BRENT STAPLES

The historian John Hope Franklin is black to the naked eye. A boulevard named in his honor runs through Greenwood, the black section of Tulsa, Okla., where he lived as a child. The Franklins are not just black, however, but also Native American. Milley Franklin, Mr. Franklin's grandmother, was one-quarter Choctaw and was raised as Choctaw, attending Indian schools. Her children — including John Hope Franklin's father, the lawyer B. C. Franklin — are clearly listed on the official tribal rolls that determined who was a member of the Choctaw Nation. The rolls were important, since tribal members got land when the reservations were dissolved.

Americans are often shocked to learn that black Indians exist at all — and that Native Americans actually held slaves. Like the white slave owners they emulated, Native Americans often fathered children by enslaved women and occasionally — as in Milley Franklin's case — treated those children as family. As a result, millions of black Americans are descended from black people who were either members of the tribes during slavery or adopted into them just after Emancipation.

White families have begun to acknowledge mixed-race connections after centuries of denial. But the attitudes of some Native Americans have not evolved in the same way. Both the Seminole and the Cherokee tribes have employed discriminatory policies to prevent black members from receiving tribal benefits — and to strip them of the right to vote in tribal elections.

The Interior Department, which oversees the tribal governments through the Bureau of Indian Affairs, has historically regarded this kind of racial discrimination as a violation of 19th-century treaties that required the Indian nations to treat black members as full citizens. But the Bush administration could conceivably change course and actually validate these discriminatory policies.

The relationship between the federal government and the five tribes that were removed from the East to Oklahoma on the Trail of Tears is governed by several laws and treaties. The most important are the treaties of 1866, which required the Seminole, the Creek and the Cherokee to adopt their former slaves as members of the tribes in return for being recognized as sovereign nations. At the time, Washington was grappling with its own former slaves, and the federal government did not want the added burden of those from the Indian nations. The tribes fought black membership from the very beginning, but the federal courts have upheld the treaties again and again.

The federal government has not, however, been consistent when it comes to racial fairness. When it set out to create an authoritative membership roll of all the Native American tribes in the 1890's, the Dawes Commission took the poisonous step of creating segregated rolls, with so-called Blood Indians on one list and black Indians — called "Freedmen" — on another. The Freedmen sometimes had clearer Native American blood lines than nonblack brethren on the Blood Rolls.

The Dawes segregation has been toxic to race relations within the tribes, which have used the rolls time and again to argue that black Native Americans are not tribal members at all. The argument that blacks are not really Indians is ludicrous in the case of the Seminole, which was a multiracial tribe from its inception. The Seminoles did not exist when Europeans colonized this country but coalesced in the mid-1700's when runaway slaves came together with refugees from other tribes in the Florida wilderness.

The Bureau of Indian Affairs, with the support of the federal district court in Washington, refused to recognize a Seminole government that came to office while black Seminoles were barred from the polls. But Washington may yet buckle in the face of similar discrimination by the Cherokees — who are more politically connected than the Seminoles. The federal government insists that it has not taken a "final position." But court documents suggest that the Bureau of Indian Affairs might formally endorse elections in which black Cherokees are barred from voting.

John Hope Franklin, whose family bridges the black and Indian communities, takes a dim view of the attempt to divide the two. He grew up in Oklahoma, where blacks and Indians were "very much involved with each other, not only in terms of friendship but in terms of marriage." He adds: "It is perfectly absurd to talk about dividing Indians and blacks. Any Indians who speak in exclusionary terms do not represent the historic interests or the historic relationships of Indians and blacks."

The tribes argue that they are sovereign nations and can do as they please. But this sounds suspiciously like the "states' rights" dodge raised by the South when blacks were being murdered for seeking the right to vote. Congress placed clear limits on Indian sovereignty in treaties and laws that also guaranteed minority rights. The question is whether Congress will act to ensure those rights or look the other way while they disappear.