CCR filed an amicus brief with the Supreme Court on May 21, 2004, urging the Court to grant a writ of certiorari and review the decision of the Court of Appeals for the Tenth Circuit in Davis v. United States, 343 F.3d 1282 (10th Cir. 2003). The Seminole tribal council determined not to share the millions of dollars that the tribe received in compensation for property confiscated in the 1820s with the African American members of the tribe, and did so in a blatant conspiracy with the federal government’s Bureau of Indian Affairs. CCR’s amicus brief urges the Supreme Court to pierce the veil of tribal sovereign immunity protecting such discriminatory actions by federal officials from the oversight of the federal courts.

Unique among Indian tribes, the Seminoles are not aboriginal. Instead, they were comprised of a group of separatists, refugees and runaways from various Native and African American groups, including many runaway slaves from nearby southern states. In part to cut off the flow of escaped slaves, Americans frequently launched incursions into Spanish Florida and eventually purchased the territory from that flagging imperial power in 1821. Shortly thereafter the tribal lands in Florida were ceded to the United States by Treaty, and by 1842 Presidents Jackson and Van Buren had forcibly removed most of the Seminoles to Oklahoma along the now-infamous “Trail of Tears.” In 1866 Congress imposed treaties on the Seminoles and several other Oklahoma tribes which had large black populations but had been aligned with the Confederacy, mandating among other things that these tribes ban slavery. This was done by treaty, as the post-civil war amendments did not by their terms apply to the tribes. (Thus, for example, challenges to racial discrimination by Indian tribal governments cannot be brought under the same post-Fourteenth Amendment statutes available to plaintiffs challenging similar discrimination by state governments.) The 1866 treaty with the Seminoles specifically mandated that “persons of African descent and blood” among the tribe (known as the “Estelusti,” meaning “Black Seminoles”) “and their descendants … shall have and enjoy all the rights of native citizens.”

Unfortunately, the modern history of the tribe has been one of unrelenting racial discrimination against the Estelusti. Although the African American tribe members had historically lived among and mixed with the other members, the 1906 Dawes Commission (established by Congress to create authoritative rolls of tribal members) created two rosters of tribe members, Natives and Freedmen. The 1907 Oklahoma State Constitution mandated pervasive segregation of blacks throughout civil society, exacerbating the separation. By 1942 the Tribal government was actively attempting to disenfranchise the black members of the tribe.

The current lawsuit challenges the distribution of some 56 million dollars provided by the federal government in 1976 in settlement of claims for lands lost by the tribal members—including Estelusti members—in the 1820s. The district court essentially found that federal officials at the Bureau of Indian Affairs had conspired with the Tribal government to slip past Congress a plan for distributing the funds which excluded the Estelusti. The Tribe enjoys sovereign immunity from suit in federal court, so the only named defendants in the suit were federal officials. However, the Court of Appeals held that since the tribe was an “indispensable party” (under Federal Rule of Civil Procedure 19) to Davis’ lawsuit against the federal government defendants, the suit could not proceed. (A party is indispensable under Rule 19 if it has legitimate interests that might be prejudiced by its absence—say, if the tribe would lose funds despite not being involved as a defendant in the suit—or if complete relief cannot be granted to plaintiffs without the party present.) Usually, under Rule 19 analysis, if a plaintiff has no other way to bring its claims than the lawsuit at hand, a suit will not be thrown out simply because an indispensable party cannot be brought into court as a defendant. However, where Indian tribes are concerned, several Courts of Appeals have ruled that a public policy in favor of tribal autonomy trumps the rights of plaintiffs to vindicate discrimination claims—even where those claims cannot be brought in any other forum if the suit is dismissed under Rule 19.

This ruling essentially means that sovereign immunity shields Tribal governments (and Bureau of Indian Affairs officials who conspire with them) from liability for the sorts of discrimination that are prohibited to state governments under the Fourteenth Amendment. CCR’s amicus brief argues that this violates the intent of Congress in the 1866 treaty; that it abdicates the fiduciary duty of the federal government towards tribal members; and that the tribal government’s interest in racially discriminating against its black members is not a legitimate tribal interest that might be prejudiced by the tribe’s absence from the litigation under Rule 19.

CCR attorneys: Jeff Fogel, Barbara Olshansky, and Shayana Kadidal.