Red and Black – A Divided Seminole Nation: Davis v. U.S.

Red and Black – A Divided Seminole Nation: Davis v. U.S.

Kansas Journal of Law & Public Policy
University of Kansas School of Law
Volume 14, Number 3 (Spring 2006)
pages 607-638

Joyce A. McCray Pearson, Director, Law Library and Associate Professor of Law
University of Kansas

One of the longest unwritten chapters in the history of the United States is that of the relations of the Negroes and the Indians. The Indians were already here when the white men came and the Negroes brought in soon after to serve as a subject race found among the Indians one of their means of escape.1

There is no black Seminole…2

If you want to keep the bloodlines going, you got to keep’em separate…. the tribe is not trying to rewrite history-it’s just that the common fight for freedom that brought blacks and native people together 200 years ago doesn’t apply anymore.3

When we all started out, we started out as brothers. We fought together as brothers. Our blood ran together the same. When we settled we were still brothers. We were brothers until this money came up and then they went to pulling away.4

These sentiments and opposing points of view regarding the identity of Black Seminoles is at the heart of the matter in the case of Davis v. United States. The history of the Black Seminoles reaches as far back as the 17th century.  But the most recent history began in 1950 and 1951 when the Seminole Nation of Oklahoma (SNO) and Seminoles living in Florida filed claims for compensation for Florida lands ceded to the United States in 1823. In an attempt to quiet title to land taken from the Seminoles, in 1976 a $16 million judgment from the Indian Claims Commission (ICC) was awarded to the descendants of the “Seminole Nation as it existed in Florida on September 18, 1823.” The Department of Interior (DOI) directed that 75% of the money be distributed to the Oklahoma Seminoles, 25% to the Florida Tribes and nothing to the Freedmen or Black Seminoles because in 1823 they were considered slaves. Congress did not pass an act allowing distribution of the funds until 1990 which by this time, with interest, had ballooned to $56 million.

In 1996, Sylvia Davis, a member of the Dosar Barkus band of the Seminole Nation of Oklahoma, was denied a $125 school clothing allowance from the funds.  The Dosar Barkus and Bruner bands are Seminoles of African descent and are the only branches of the tribes being denied access to these funds. The Bureau of Indian Affairs (BIA) and the SNO argue that in denying their claims, they are not discriminating against the Dosar Barkus band based on race, but they are correctly enforcing the requirement that the funds be distributed to descendants as defined in 1823. The Black Seminoles, also known as Estelusi, were not considered members of the nation until 1866 when the U.S. government decided to recognize them as such after the passage of the Thirteenth Amendment, and passage of treaties imposed upon the Seminoles and a number of other Indian nations who owned slaves. These treaties provided for the emancipation of any slaves owned by the tribes and allowed them to incorporate the “freedmen” into the nation “on an equal footing with the original members”

Obviously, there is much more at stake in the Davis case than $125 worth of school clothes. What is at stake is how tribes, federal agencies and other entities, based upon both an historical analysis and today’s public policy concerns over the distribution of resources, will choose to define or identify as Indian or Black, numerous people who have over the years identified themselves as Black Seminole Indians either through blood quantum, social construct, cultural affiliation, or proven descendancy from an identified ancestor.

This article will not draw definitive conclusions about how to label or categorize an obviously mixed race of people. I will not endorse one position at the peril of alienating the legitimacy of the opposite stance. I only propose to point out the claims of both the Black and Red Seminoles.

Part II of the article explores the historical backdrop which created this ostensibly Black and Indian race. It also looks at the numerous definitions of the word “Seminole.” Part III looks at the Davis case, and the rich heritage of the plaintiff, Sylvia Davis. This section will not employ an in-depth analysis of the procedural, constitutional or other substantive legal issues that plain people will never understand to be the reason why they win or lose a case. Because to plain people that is not what the real issues are. The real issue to plain people is the end result of litigation, not procedural questions or issues which ultimately sends them away from the courts empty handed.

Part IV looks at the reaction and the community outcry after Davis as tribal leaders and disenfranchised Black Seminoles express their agreement or discontent over the outcome of the cases.

Part V briefly explores how DNA and genetic tests may or may not bolster the claims of Black Seminoles, followed by a conclusion which unfortunately gives no solid solutions but instead is merely a few concluding remarks and observations…

Read the entire article here.

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