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Power Over this Unfortunate Race: Race, Politics and Indian Law in United States v. Rogers

Bethany Berger

University of Connecticut School of Law

William & Mary Law Review, Vol. 45, 2004

In 1846, the Supreme Court held in United States v. Rogers that a white man who had become a citizen of the Cherokee Nation through marriage was not an Indian for purposes of federal criminal jurisdiction. This article examines the extensive fabrications of law and fact that underlie the decision, and its part in a campaign by the executive branch to increase federal power over Indian people. The campaign involved the Attorney General of the United States arguing before the Supreme Court for the right to prosecute a man that had died ten months earlier. More profoundly, the campaign was founded in distortions of congressional and judicial understandings of U.S.-tribal relations and misrepresentations of both the impact of federal jurisdiction in Indian country and the capacity of tribal governmental systems.

The article also offers a new understanding of the role race plays in the decision and in Indian law generally. While Rogers has often been cited as evidence that federal Indian law is based on racial differences between individual Indians and non-Indians, the decision does not support this understanding. Indeed, this understanding of Indian race would have been inconsistent with federal efforts to assimilate Indian individuals into the American mainstream. Instead, the article argues that race is relevant in Rogers' definition of the tribe, not the individual. The decision reduces tribes to groups united by ethnicity rather than governments bound together by the political choices of their members. This alternative was equally detrimental to Indian interests. By defining tribes as collections of individuals united by race, 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 immutably marked by this racial status justified destruction of the tribal group in the name of assimilation.

Number of Pages in PDF File: 96

Keywords: Indian law, jurisdiction, legal history, discrimination, race

JEL Classification: K10

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Date posted: January 3, 2005  

Suggested Citation

Berger, Bethany, Power Over this Unfortunate Race: Race, Politics and Indian Law in United States v. Rogers. William & Mary Law Review, Vol. 45, 2004. Available at SSRN: http://ssrn.com/abstract=537884

Contact Information

Bethany Berger (Contact Author)
University of Connecticut School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
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