Resisting a Genetic Identity: The Black Seminoles and Genetic Tests of Ancestry

Josephine Johnston

n July 2000, the Seminole Nation of Oklahoma passed a resolution that would effectively expel a significant I portion of its tribal members. The resolution amended

the Nation’s constitution by changing its membership crite- ria. Previously, potential members needed to show descent from an enrollee of the 1906 Dawes Rolls, the official Ameri- can Indian tribal rolls established by the Dawes Commission to facilitate the allotment of reservation land. The amended constitution requires possession of one-eighth Seminole In- dian blood, a requirement that a significant portion of the tribe’s membership cannot fulfill. The members of the Na- tion who fail to meet this new membership criterion all have one thing in common: they are black.

Descendents of former slaves who came to live among the Seminole Indians of Florida in the seventeenth and eigh- teenth centuries, the black Seminoles have been officially recognized by the U.S. government as members of the Semi- nole Nation of Oklahoma since 1866. Two of the fourteen bands within the Nation are composed of Freedmen, as the black Seminoles of Oklahoma are known, and up until the 2000 referendum these bands maintained an active role in Nation politics. The status of the constitutional change is not fully resolved, but if the change were to be implemented, many of the Freedmen would be stripped of their tribal mem- bership and risk losing a significant aspect of their collective identity -all because they cannot show possession of Ameri- can Indian blood.

At a time when using genetics to prove identity is be- coming more and more common, the Freedmen are an interesting case primarily because genetics, in the form of shared Indian blood, has traditionally taken a back seat in the construction of their “Indianness.” Their membership in

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an American Indian tribe has for generations been based on a shared history, rather than on shared Indian genes. But genetics is a science on the rise.’ All over the world, scien- tists and anthropologists are using genetic testing to study and trace ancestry. Studies have been undertaken to show that the African Lemba may be Jewish: to locate the ances- tral home of African-Americans,3 to show that some descendents of the slave Sally Hemings were fathered by Thomas Jefferson,’ and to confirm the legend that the Maori arrived in New Zealand in one planned migrati0n.j The Freedmen have not used this new genetic science in defense of their Seminole Indian identity. In the past, tribal member- ship has relied on a genetic link only insofar as all Freedmen are required to show descent from someone enrolled on the Seminole Dawes Roll. Until recently, membership in the Seminole Nation of Oklahoma has not required proof of Indian genes; that is, of possession of Seminole Indian blood. Instead, it is a history of comradeship and mutual alliance that has traditionally served to define the Freedman and the blood Seminoles as one people. However, the Freedmen’s membership in the Nation is under threat as the tribe moves to an identity system that seems to place genetics and blood quantum above history. Under the July 2000 membership amendment, direct descent from a tribal member would no longer suffice if that ancestor was a Seminole Freedman rather than a blood Seminole.

Is it possible, however, that the science that seems to threaten the Freedmen’s tribal membership could be used in their favor? It has long been said that many Freedmen do in fact have Indian blood, but that this is simply not recorded in the Dawes Rolls. Could genetic testing show that Freedmen do indeed have American Indian blood and therefore that they ought to be members of the Nation under Indian-blood rules? The answer is partial at best. Genetic testing could be used to show that some Freedmen have American Indian

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ancestors, but unfortunately because genetics is not yet able to identify the ethnicities of all a person’s ancestors, it may be unable to trace an Indian link even if one were present. It is not clear that a move by the Freedmen to utilize genetic technologies would help their overall cause. Genetics could actually have the effect of fragmenting their group into those who can show genetic “Indianness” and those who cannot. In addition, using genetic technology could be seen as “buy- ing into” an identity system that conflicts with the traditional identity system of the tribe, a system that for generations bound a group of African-Americans and a group of Ameri- can Indians into one tribal nation without recourse to blood quantum or DNA testing.

To gain any significant understanding of the position of the Freemen among the Seminole Nation of Oklahoma, and of the Nation’s move to exclude from its tribe individuals who have been members all their lives, it is necessary to examine the historical circumstances that brought Indians and escaped slaves together, and formed them into one feder- ally recognized group. A study of the past will offer an understanding of how the Freedmen came to be Nation mem- bers despite the fact that many of them cannot prove that they have any Indian blood. In addition, it will make clearer why the science of genetics, even if it could perhaps help some Freedmen remain tribal members, cannot offer the group as a whole a solution. An understanding of the history of the Freedmen serves not only as background to the current political and legal battles within the Nation, but also as an unusual illustration of what it can mean to belong to an American Indian tribe.

SWOE BEGINNINGS [N FLORIDA The story of the Freedmen begins in the early eighteenth century in Florida, where the story of the Seminole Indians as a distinct tribe also begins. Before either Freedmen or the Seminole Indians occupied Florida, the land was home to Timucua, Guale, and Apalachee Indians. These original American Indian tribes were virtually eradicated in the years following initial European contact, either killed by Euro- pean diseases or taken into slavery by the Carolinian English and the neighboring Yamasee and Creek Indians. By 1708, Florida’s Spanish governor estimated that only 300 of the original Indian population of around 25,000 remained in the area. And because the Spanish had not made any effort to establish their own settlements on the peninsula, Florida was by the beginning of the eighteenth century an almost entirely uninhabited region.“

However, it was not long before populations from the north began to move into the area. During the early years of the eighteenth century, the Spanish encouraged Lower Creek Indians from Georgia and Alabama to settle in Florida in order to serve as a buffer against English expan~ion.~ By the end of that century, Creek Indian villages were established

along the length of Florida, and by the beginning of the nine- teenth century, the population had reached an estimated 4,000.8

During the early years of this settlement period, the Creek Indians who moved to Florida remained part of the Creek Confederacy, a collection of Creek Indian towns sharing linguistic and political affiliations. But over time they be- gan to distance themselves from the Creeks who had remained in the north, growing increasingly autonomous and eventually ceasing altogether to participate in the con- federacy. It was also during this period that the English began to refer to these Creek pioneers as “Seminole” lndi- ans, emphasizing their differentiation from the Creek Indians in the The term “Seminole” is said to be derived from the Muskogee word simand-li, which may be trans- lated as “emigrants,” “pioneers,” or “frontiersmen.” The Muskogee word is in turn originally derived from the Span- ish cimarr6n, meaning “runaway” or ‘‘wild.”1o By the time the Upper Creeks fled to Florida following the Creek, or Red Stick, War of 1813-18 14, the Seminole Indians were firmly established as a separate tribe, independent of their Creek cousins.

BLACKS m c m THE INDms Creek Indians were not the only people moving into Florida in the eighteenth century. In fact, as early as 1687, the Span- ish were also encouraging English slaves to desert to Florida, offering freedom and land in exchange for military service.” Although most of these blacks were evacuated to Cuba when Spain ceded Florida to Britain in 1763, many of those who did remain following cession settled among the Seminole Indians, as did other slaves who escaped to Florida seeking refuge. Some Seminole Indians also purchased slaves from whites, while others received them from the British as re- wards for loyaltyI2 or brought them to their villages following raids on British plantations. All in all, it has been estimated that by 1836 there were around 1,400 blacks living among the Seminole Indians of F10rida.l~

Some writers distinguish between the “free” blacks liv- ing among the Indians and those who were technically their ~1aves.l~ However, even those blacks who were the slaves of the Seminole apparently often lived in such a manner as to make them virtually indistinguishable from those who joined the villages as free men and women. They lived with their own families, sometime in separate villages, had their own fields, and raised their own crops and animals. Many owned their own homes and some even carried guns.Is Although they were required to give a small percentage of their annual corn yield to their Indian “masters,” one observer in 1834 noted that they retained full possession of all their animals. Even those slaves who did not live under such liberal condi- tions were reportedly better off than they would have been on white plantations.16

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But the relationship between the blacks and the Indians appears to have also gone beyond master/slave or fugitive/ protector. It has often been noted that the blacks gave the Seminoles valuable insight into the customs and languages of whites,I7 that they acted as go-betweens and interpreters, and that some soon rose to the level of advisors to Seminole chiefs.” it was reported by many American soldiers and dip- lomats who dealt with the Seminoles that the blacks wielded considerable influence on the Indian councils.Iy Black Semi- nole slaves were often freed by their Indian masters,zo and some were reportedly given Indian women as wives, in one case the widow of the principal chief of the Nation.zi If blacks were not “free” or necessarily regarded by the Indians as equal in standing, they certainly appeared to have been bet- ter off than they would have been living under white masters.

The status of the blacks in Seminole society did not go unnoticed by whites, nor did whites suffer quietly the loss of their slaves. There were various attempts by the Americans to recapture the runaway slaves, many of which resulted in armed conflict, including the first Seminole war, which be- gan in 1816 with an attack by General Andrew Jackson on a mainly runaway slave outpost at Negro Fort, east of Pensacola. The war consisted of numerous armed conflicts and ended inconclusively in 181 8. According to historian Kenneth Por- ter, “the war was almost entirely due to the position held by Negroes among the Seminoles.”2z

TREATTES AND REMOVAL Following the first Seminole War, the Americans, to whom Spain had by now ceded Florida, attempted to confine the Seminoles to a small area. In 1823, the Seminole Indians signed a treaty in which they ceded their best lands to the American government in exchange for a small reservation and money. Under the treaty, they also promised to appre- hend and return runaway slaves. Although the Seminole Indians did initially return some recent runaways, the terms of the treaty quickly proved unworkable.u

In 1830, the government passed the Indian Removal Act, requiring that most tribes east of the Mississippi be trans- ported to an Indian Territory located in present day Oklahoma and Kansas. Negotiations to move the Seminoles began in 1832 and a delegation was sent by the tribe to inspect the land in the wesr. However, on its way back, the delegation was detained in Oklahoma and released only when the mem- bers signed a treaty agreeing to take the land and leave Florida.” During the next few years, relations between the Seminoles and the Americans deteriorated. The blacks were reluctant to move west for fear of being captured by slave hunters along the way and the Seminole Indians were equally suspicious of the plan. This reluctance to relocate resulted in the second Seminole war, which began in 1835 and lasted for 7 years. I t is reputed to be the most costly Indian war ever fought by the U.S. Army and the most significant event in

Seminole history.lS The role of the black Seminoles in this war should not be underestimated. Fighting for their very freedom, the black Seminoles were said to be “a most cruel and malignant enemy,” and one major even noted that “this is, I can assure you, a Negro, not an Indian war.”26

During the war it became clear to the American authori- ties that the Indians and the blacks could not easily be separated, and eventually most black Seminoles were relo- cated to Indian Territory along with the Seminole Indians. Life was not easy for the black Seminoles in Indian terri- tory. They were initially settled on land given to the Creek Nation, who raided the black Seminoles and sold them as slaves in Arkansas. As a result, some black Seminoles left Oklahoma in 1850 for Mexico, although most of them re- turned in 1852 when the Seminole Nation received its own reservation.”

Following the Civil War, the government entered into a treaty with the Oklahoma Seminoles in 1866. The treaty included a provision that is of crucial importance to the black Seminoles, particularly in terms of their current legal and political battles, and forms the basis of their claim for inclu- sion in the Nation. The provision is at Article 2 of the treaty and states:

inasmuch as there are among the Seminoles many peoples of African descent and blood, who have no interest or property in the soil, and no recog- nized civil rights it is stipulated that hereafter these persons and their descendents, and such other of the same race as shall be permitted by said nation to settle there, shall have and enjoy all the rights of native citizens.28

The treaty is not only vital to the black Seminoles’ rela- tionship with the government, but also to their relationship with the Seminole Indians. The treaty guarantees equal rights to black Seminoles, or Freedmen, as they were hereafter known, and is said to reflect the Freedmen’s oral history of a promise made by the Seminole Indians that “as long as grass grows and water flows ... i f the Indian gets a dollar, the Freedmen gets a dollar.”z9 Following this treaty, relations between the Freedmen and the blood Seminoles appear to have been relatively harmonious. Freedmen towns were re- established and blood Seminole and Freedmen children attended school together. Freedmen participated in Nation politics and, according to some sources, there was consider- able intermarriage during this period.30

LAND ALLOTMENT AND STATEHOOD In 1897, the Dawes Commission reached an agreement with the Seminoles, whereby the reservation was divided into in- dividual allotments. At this time, there were about 1,000 Seminoles and each individual, including each Freedman,

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was entered onto a roll and given a minimum of 40 acres, although many Freedmen were cheated out of much of their land by hnd-grafters in the following years3’ The remaining land was taken by the government. The Dawes Commission published its roll of Seminole Nation members, which listed Seminoles by blood and Seminole Freedmen as two separate groups. Because the tribe is matrilineal, individuals whose mothers were Freedmen were listed on the Freedmen roll and individuals whose mothers were blood Seminoles were listed on the blood Seminole roll. Until the recent constitu- tional referendum, membership in the Nation required proof of descent from someone enrolled on either of the Dawes Roll lists.

The early years of the twentieth century proved difficult for the Freedmen. When tribal government was abolished in 1906, one of the most fundamental links between the Freed- men and the Indians ceased to exist?2 Then, when Oklahoma became a state in 1907, life for the Freedmen took a definite turn for the worse. With the introduction of state-level segre- gation laws, Freedmen were pushed away from the blood Seminoles and toward the majority black population. They were prohibited from marrying Indians, and young blood Seminoles growing up in a segregated environment report- edly sought to create a distance between themselves and the Freedmen.”

After World War 11, tribal legal identity was restored and the Freedmen became very active and influential in tribal politics, no doubt in part because this was one of the few forums in which they could participate on an equal footing. However, as anthropologist Rebecca Bateman noted in her doctoral thesis on the Freedmen, the Freedmen’s enthusiasm for tribal politics seems to have been among the reasons some blood Seminoles have recently sought to exclude the Freedmen from the Nat i~n.’~ But according to Bateman, the major issue going to the heart of the controversies between the two groups is “the competition among all tribal mem- bers for a scarce commodity: money.”3s When limited tribal funds must be shared among members, an incentive to limit the number of people in the Nation is, unsurprisingly, cre- ated. I t is this competition that has come to a head in the last 10 years, resulting in a legal suit brought by the Freedmen and the membership referendum of 2000.

MONEY AND POWER DIVIDE rn NATION Despite the result in the Nation’s membership referendum in 2000, the fate of the Freedmen as official Nation mem- bers is not yet clear. Although American Indian tribes are theoretically entitled to set their own membership criteria, the Nation’s constitution contains a clause requiring Bureau of Indian Affairs (BIA) approval of any changes. In a letter of September 2000, the Department of Interior’s Assistant Sec- retary of Indian Affairs, Kevin Grover, wrote to the Nation, stating that he would not approve the constitutional amend-

ment because it sought to exclude the Freedmant6 no doubt relying on the 1866 treaty between the Seminole Indians and the federal government guaranteeing equal rights to the Freed- men. While the Nation can theoretically operate under its new rules without BIA approval, the BIA’s response was to suspend “government-to-government” relations with the Nation, that is, suspend its funding, causing the Nation to lose a considerable amount of its annual income.

In response to the BIA’s action, the Nation filed a law- suit challenging the Bureau’s authority to review and approve amendments to the Nation’s constitution. Judge Kollar-Kelly of the district court in Washington, D.C., upheld the BIA’s decision not to approve the membership an~endment.~’ In the month following the ruling, the Nation passed a tribal resolution recognizing “the Freedmen as fully participating on the General Council,” thus effectively repealing the mem- bership change. However, according to local BIA officials, the membership issue is far from resolved within the Nation itself.3n

The Seminole Nation’s ability to make decisions about membership, a fundamental aspect of its tribal structure, is in effect not absolute. This kind of interference by the gov- ernment in the Nation’s membership change can rightly be criticized as infringing on the Nation’s sovereignty. How- ever, according to the courts, the BIA can, at least in this case, exercise such power. Whether the BIA ought to be able to affect tribal policies, or whether nations should have the prerogative to set membership criteria regardless of how such criteria might affect their existing members, is certainly de- batable.

The constitutional referendum of June 2000 is not the first measure to attempt to exclude Freedmen from tribal affairs. Despite having been official members of the Nation since 1866, Freedmen not able to show a measure of Indian blood have for decades routinely been excluded from pro- grams administered by the Nation, such as clothing, housing, and health care assistance programs. Federally administered programs have a blood quantum criterion attached, but when the tribe itself administers funds it can set its own distribu- tion policies.’Y For some time, the Seminole Nation of Oklahoma has set policies that exclude Freedmen members from sharing in tribal programs, usually by limiting eligibil- ity to those who can show one-eighth Seminole Indian blood.

Perhaps the most controversial example of this policy relates to an award of $16 million made by the U.S. govern- ment to the Seminole Indians in 1976. The award is compensation for land taken from, and ceded by, Seminole Indians between 1823 and 1832. For more than 25 years, these judgment funds sat undistributed while it was deter- mined how they should be divided among the various Seminole Indian tribes, groups, and individuals around the country. When the funds were finally distributed in the early 1990s, the $16 million had become over $56 million, due to the interest that had accrued, with the Seminole Nation of

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Oklahoma’s share amounting to 75 percent. In developing a usage plan, the Nation set eligibility criteria for participating in the judgment fund programs. The criteria did not require proof of Indian blood, as was the case with previous tribal assistance programs. Instead, the usage plan stipulated that only individuals who were descended from members of the Seminole Nation as it existed in Florida on September 18, 1823 (when the land was unfairly taken) were eligible to participate in any of the judgment fund programs. This had the effect of making Freedmen ineligible for any portion of the judgment funds because, according to the Nation, the Freedmen’s ancestors were not tribal members until they were officially recognized as such in the 1866 treaty and thus did not hold a propriety interest in any of the lands taken in 1823.40 The distribution policy was approved by the BIA.

In response to the judgment fund eligibility criteria, the two Freedmen bands filed a civil suit against the U.S. gov- ernment, the Department for the Interior, and the BIA in 1996, being unable to sue the sovereign Nation directly. The Freedmen claimed that the Nation’s policy was in part the result of a report by the BIA recommending that beneficia- ries of the judgment funds be limited to blood Seminole members of the Nation, and that this report and its recom- mendations represented a breach of trust:’ The case was heard in 1996 on a motion to dismiss for lack of a necessary party - the tribe itself. The case was decided in favor of the defendants, but was appealed by the Freedmen, sent back to the district court, decided against the Freedmen, appealed again, and heard by the U.S. Court of Appeals for the Tenth Circuit in early 2003.42 A decision is expected in the fall of 2003.

A similar scenario may transpire if the Nation succeeds in lobbying Congress for compensation for oil and gas min- eral rights on Seminole lands in Oklahoma. Following the Dawes Act of 1897 and the allotment of reservation land described above, the government entered into a separate land allotment agreement with the Seminoles under which they promised to pay the tribe one-half of all mineral interests harvested from their lands.43 Congress unilaterally revoked this agreement in 1908 and the Nation has been seeking compensation since the mid-1960s. A successful claim could result in an award to the Seminole Nation of somewhere in excess of $100 milli0n.4~ However, since the membership referendum of 2000, the Nation appears to have lost the support of some black members of Congress and it is pos- sible that a firm resolution of the membership issue in favor of the Freedmen will be politically necessary before the min- eral claim can succeed.4s

Unsurprisingly, the Freedmen resent their ongoing ex- clusion from tribal money, not to mention the terms of the new constitution. Jon Velie, attorney for the Freedmen, said the Freedmen are “saddened” when they are told that they are not who they have always thought they were. And at least some blood Seminoles appear to feel equally strongly about

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this issue. Both sides have many reasons for taking their po- sition and it is not clear who is right. What is clear is that the question of the Freedmen’s inclusion in the Nation and its financial programs is an emotive issue with profound conse- quences. Eddie Streater of the BIA’s Wewoka field agency said that the issue is “very sensitive’’ with the tribe and that feelings are “very high.”4h

IDEN~YANDGENETICS At the heart of the problems between the Freedmen and the blood Seminoles is the growing reliance on blood quantum to define tribal membership. Until recently, the Freedmen have based their membership on a history of involvement with, and eventual inclusion in, the Seminole Nation, rather than on possession of Indian blood. They have been part of the tribe all their lives, and as Bateman has reported “they believe that, somewhere in their past, their ancestors earned the right for their descendants to be treated fairly and equally by the Indians.”” The blood Seminoles advocating exclu- sion of the Freedmen are also aware of history, but they emphasize that the Freedmen were the former slaves of the Seminoles and some state that the Seminoles were forced to take the Freedmen with them to Oklahoma when they relo- cated. The historical relationship is not denied, but its relevance to tribal membership is questioned, with posses- sion of Indian blood becoming the more important factor. Pat Wickman, director of the Seminole Tribe’s Department of Anthropology & Genealogy, puts the argument this way:

The Seminole people are the descendants of the Maskoki tribes that have inhabited the southeast- ern quadrant of North American for at least the last 12,000 years! . . . The oft misused term “Black Seminoles,” ... is one that tends to obscure more than it clarifies.. . . the term implie[s] no degree of Seminole blood.4R

Some blood Seminoles also argue that the tribe never intended to incorporate the Freedmen in the way stated in the 1866 treaty, and that the treaty was a result of persistent coercion by the U.S. g ~ v e r n m e n t . ~ ~ Arguing against recogni- tion of a treaty would Seem a dangerous move for an American Indian tribe, given that indigenous peoples worldwide have had great difficulty getting treaties with colonizing powers recognized and upheld. However, the argument highlights the distinction that appears to have always, at least to some degree, been made between black Seminoles and blood Semi- noles.

In addition, the fact that Freedmen appear to identify themselves as both American Indian tribal members and African-Americans has apparently caused some resent- ment. At least some blood Seminoles apparently do not believe that the Freedmen can be both Seminole and black.

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Bateman reports that at a Seminole Nation meeting she attended in 1983 the opinion was voiced that “blacks had to decide whether they were blacks or Seminole tribal members - they could not be both.”50 Of course, one clearly can have both black and American Indian ancestry, but identifying oneself as both is nonetheless unusual in a country where “one drop” of African-American blood was once enough for a person to be classified as purely Afri- can-American.

However it is justified -and regardless of whether it is the “right” thing to do - the constitutional membership criterion amendment requiring proof of Seminole Indian blood was a direct effort to base Seminole Nation member- ship on genes, rather than history or identity. And there is nothing unusual in this practice. The BIA limits its assis- tance programs to blood Indians, and membership in many other tribes, including the Cherokee, the Choctaw, and the Creek Muscogee Nations, requires proof of Indian blood. By introducing a blood quantum requirement, the Seminole Nation may have simply been bringing itself into line with Indian politics generally. However, in the case of the Semi- nole Nation of Oklahoma, this requirement has the unusual result of suddenly excluding a significant portion of the tribe -unless, of course, Freedmen can somehow show that they do have Seminole Indian blood.

F R E E D M W A N D ~ ~ ~ ~ ~ M G E Clearly the Freedmen are widely considered to have little or no Indian blood, but is this assumption accurate? Until re- cently little has been made of the possibility that Freedmen may have some Seminole Indian blood. However, if inter- marriage took place before the Dawes Rolls were prepared, it is possible that some Freedmen may actually have Indian blood, though they have never been able to prove it by show- ing descent from a blood Seminole on the 1906 Dawes Roll. As noted above, individuals whose mothers were Freedmen were listed on the Freedmen roll. And while each entry also lists the enrollee’s parents and states whether they were Freed- men or Indian, it does not go back any further. Therefore, it is theoretically possible that in this matrilineal tribe both parents of an enrollee could have been classified as Freed- men, even though the grandfathers of the enrollee were Indian. That is to say, two of the four grandparents of a Dawes Roll enrollee could have been blood Seniinoles and yet the en- rollee and his or her descendents would have been classified as Freedmen on the roll.

In fact, there are some comments in the literature that suggest at least some intermarriage between Freedmen and blood Seminoles in Florida before removal and before prepa- ration of the Dawes Rolls, although overall there is very little in the historical literature about this aspect of Seminole history. Historian Kenneth Porter notes that during the early nineteenth century “prominent persons of the nation did not

think it beneath their dignity” to marry blacks:’ although in another book he notes that such intermarriage probably did not often occur in Florida because the blacks lived separately and independently.52 In contrast, Daniel F. Littlefield has written that before removal to Oklahoma intermarriage did often occur,s3 and physical anthropologist Wilton Krogman noted in his 1934 paper, The Racial Composition of the Seminole Indians of Florida and Oklahoma, that it is “unde- niable” and “self evident” that intermarriage occurred “to a considerable Jon Velie, the Freemen’s lawyer, be- lieves that a great number of Freedmen have Indian ancestry, which they unfortunately cannot document.

It is difficult to know who may be right about this ques- tion; perhaps many more Freedmen have Indian blood than know or are able to prove it. Perhaps this aspect of shared history is overemphasized. If there were a way of tracing Freedmen genealogy further back than to the parents of Dawes Roll enrollees, some Freedmen may be able to answer this question and go some way toward meeting any blood quan- tum requirements.

G m c Tksn OF “~VDIANNESS”

Enter genetic science in the form of Family Tree DNA - Genealogy by Genetics, Ltd., a new Texas-based company offering a “DNA-driven genealogical service.” For $299, the company will perform genetic testing for Native American ancestry. As is explained on the company’s website (http:// www.familytreedna.com), the company can carry out mito- chondrial DNA testing to determine “whether or not you have Native American ancestry inherited through a direct line of descent from your mother’s maternal side,” by look- ing for one of “five distinct maternal lineages.” They can also perform Y-chromosome testing on men to trace back through their paternal line - from son to father to paternal grandfather and so on. The site states that “95% of Native American males have 1 or 2 specific markers [mutations] that can be verified” with the Y-chromosome test.ss Perhaps this service could help Freedmen identify their American Indian ancestry and thus resolve their membership problems.

Even those with a modest knowledge of DNA testing know that these tests are limited, that they are able to follow exclusively the maternal or paternal line, and that they are unable to tell us anything about a person’s mother’s father or father’s maternal grandmother. Mitochondria1 and Y-chro- mosome genetic tests look for mutations in specific areas of our DNA. Different types of mutations have different rates of Occurrence and some are so rare that when they occur at a particular site on a chromosome it can be assumed to be the result of a single mutation event in human history. Genetic anthropology follows these rare mutations in Y-chromosomes and mitochondria1 DNA to find links between different peoples.s6 If two people share a mutation, then they may be assumed to be related.

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During sexual reproduction, the chromosome pairs in our bodies split to form eggs and sperm. Before the chromo- somes separate in this way, most of the pairs swap pieces of their DNA with each other. But the Y-chromosome does not swap easily with other chromosomes and so men pass al- most exact copies of their Y-chromosomes directly on to their sons, who pass them on to their sons and so on. Y- chromosomes of men living today thus retain a record, in the form of mutations, of that chromosome’s passage through time. They can reveal paternal ancestry and show relation- ships between different groups of mens7

Women also carry a record of their history in their mito- chondrial DNA, which is found outside the cell’s nucleus in the mitochondria. During fertilization of the egg, the sperm’s mitochondria are discarded and only the mitochondria from the mother are retained in the new cells. Therefore, the DNA in each person’s mitochondria is a unique record of his or her maternal heritage and scientists can use mutations in mitochondrial DNA to construct extended mother to daugh- ter genealogical trees?8

Despite their limitations, the tests could turn out some interesting results for Freedmen, particularly the Y-chromo- some test. A male Freedmen’s paternal grandfather could be a Seminole Indian, making the individual at least a quarter “blood” Indian, and yet if both the individual and his father had Freedman mothers, they would both be classified as Freedmen according to the matrilineal system. Genetic test- ing could confirm the presence of American Indian ancestry where the maternal or paternal line of an individual allows. But genetic testing is limited and it might not find a record of American Indian ancestry even if some exists, and it cannot be used to show that a person definitely does not have Indian ancestry because it is currently unable to identify all of a person’s ancestors. An individual with known American In- dian ancestry could have her DNA tested and find that only her white or black ancestors show up. Her American Indian ancestry may remain hidden from such a test. So, although the test may turn up a positive result for some individual Freedmen, it cannot offer conclusive results for everyone. And even if Freedmen can show they have American Indian genetic markers, there is no guarantee that the presence of these markers would be enough to satisfy a blood quantum requirement.

The use of genetic testing to trace ancestry is not un- precedented. Recent studies carried out on the Lemba, a black Southern African Bantu-speaking population, indicate that the group as a whole may have Jewish ancestry. The Lemba have an oral tradition of being descended from Jews who came to Africa and their culture retains customs sugges- tive of Jewish ancestry, such as circumcision and a pork taboo. Y-chromosome testing for a genetic marker known as the Cohen modal haplotype revealed a high level of the marker among Lemba males, indicating that the tribe as a whole has some Jewish, or Arab, ancestry.s9 A similar study is being

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carried out by Brent Kennedy and the University of Virginia at Wise scientist Kevin Jones to trace the ancestry of a people called the Melungeons, a group of seemingly mixed ancestry from the American southeast.60 In fact, scientists across the world are using genetic testing to study the ancestry of vari- ous racial groups, including ‘Tibetans, the Maori, Palestinians, Jews, Ethiopians, the Chinese, Brazilians, Aboriginal Aus- tralian, and various European founder populations.6’

The impact of these studies on the populations tested, and the reaction of other groups to the results, has varied. For some groups, the tests merely confirm what they already believed to be true. For others, it shakes the foundation of their collective narrative. In some cases, the results have caused a third party to regard the study population in a dif- ferent way. In the case of the Seminoles, it is interesting to consider how genetic ancestry testing might affect the Freed- men given the current problems they are having retaining their tribal identity.

Although I have found no reports of American Indian tribes requiring or relying on DNA testing for membership, there is one officially unrecognized tribe that has tested the DNA of its members in an effort to prove they possess Ameri- can Indian blood.62 Ron Roberts, chief of the Western Mohegan mbe of the upper Hudson, has for some time been working to have his tribe officially recognized by the BIA. When the Bureau rejected the tribe’s 1997 application, say- ing the Western Mohegans were descended from white settlers, Roberts and a number of his approximately 300-member tribe reportedly had their DNA tested by a group at Oxford University. According to Roberts, the scientists at Oxford were looking for a set of seventeen markers. Although Rob- erts was reluctant to specify numbers, he said that the scientists found all the markers in his DNA and some of them in all of the other tribal members they te~ted.~’

Roberts believes that genetic testing is the way of the future for American Indian tribes seeking federal recogni- tion. In support of this move, he was recently influential in the introduction of an unusual piece of legislation in the Vermont Legislature.” The bill, introduced in February 2000, proposed that the state’s Commissioner of Health:

establish standards and procedures for DNA-HLA [human leukocyte antigen] testing to determine the identity of an individual as a Native American, at the request and the expense of the individual. The results of such testing shall be conclusive proof of the Native American ancestry of the individual.6s

The bill was sponsored by Republican representative Fred Maslack, but it failed to become law before the end of the 1999-2000 two-year legislative session and has not been reintroduced in the current session. However, during its short life, it provoked a strong reaction. Debra Harry, director of the Indigenous Peoples Council on Biocolonialism, called it

The Journal of Law, Medicine 6 Ethics

“outrageous” and said that it “demonstrates a complete lack of knowledge about genetics.’’66 One Internet site even set up a petition against the But hmberly Tallbear, of the International Institute for Indigenous Resource Management, has suggested that critics misinterpreted the bill as an effort to require DNA testing to show tribal affiliation. She says that Maslack actually intended that the bill would provide an additional, rather than sole, means of establishing Indian heritage. Nevertheless, she notes that the bill is an example of an approach that assumes “that a person’s culture and identity are chiefly biologically determined rather than being socially consrmaed.”68 She cautions that:

Scientists, policy makers, and others who advo- cate that genetic testing be used to determine cul- ture or identity, imply a eugenics-type belief that genetic markers are synonymous with culture and somehow guarantee cultural ~ont inui ty .~~

G m c s NOT THE ANSWER FOR THE FREEDMEN Theoretically the Freedmen could have their DNA tested and discover, as the Western Mohegans apparently have, that some of them have Indian ancestry. Such a result may fa- cilitate the Freedmen in meeting a blood quantum membership criterion. But this sort of biological testing does not seem to fit well with the Freedmen’s unique iden- tity system. Freedmen do not appear to hinge their identity as tribal members on possession of Indian blood. In fact, their identity persists in spite of many having no proof of Indian genealogy. Instead, they rely on a history of comrade- ship and inclusion in the tribe to justify their membership in the Nation. Of course, a reliance on genetics, in the sense of ancestry, is also a part of the Freedmen identity. Under the old membership criteria, Freedmen had to prove that they were descended from Dawes Roll enrollees, and to this extent membership in a Freedman band was based on a ge- netic link to a recognized ancestor. Descent from members of a hstorical alliance has always mattered. But Indian blood has not.

Even if genetic testing were able to attribute Indian an- cestry to some Freedmen, the current technology would certainly not be able to clarify the ancestry of each and every Freedman. Because mitochondria1 and Y-chromosome test- ing can only trace a limited number of ancestral lines, individuals may have an Indian grandparent or great-grand- parent who cannot be identified by current testing methods. Also, it is possible that many Freedmen simply do not have any Indian ancestry, a fact that has not traditionally affected their identity as Freedman and members of the Nation, even if it means that they can never be considered truly “Indian.” Genetic testing could actually fragment the group, splitting the Freedmen into those who can show Indian genes and those who cannot, a surely undesirable result at a time when

Freedman solidarity in the face of efforts to expel and ex- clude may count for much.

The Freedmen of the Seminole Nation of Oklahoma have been members of an American Indian tribe for about 250 years, not on account of possessing American Indian blood, but on the basis of a history of camaraderie in the face of adversity. Yet recently, rightly or wrongly, this camaraderie has come under extreme pressure. Excluded from sharing in monetary assistance programs and effectively expelled from the Nation in 2000 under subsequently repealed constitu- tional reforms, the Freedmen’s centuries old bond with the blood Seminoles may not last much longer. It appears that in the twenty-first century blood and genetics, rather than his- tory, may come to be the marker for a member of the Seminole Nation of Oklahoma.

Although it is not clear whether there are some among the Freedmen who do have Indian blood, this aspect of their tribal membership is seldom emphasized. Even if Freedmen did utilize the genealogical tools genetic science is now of- fering, it is likely that only some would be successful in identifying American Indian ancestry. In this respect, the story of the Freedmen is an interesting example of how genetic science might interact with identity questions and of how incompatible genetic science may be with certain identity constructions. It is also an illustration of how changes in group membership rules can affect an individual’s sense of self, and his or her access to people, services, and defining rituals. The Freedmen have traditionally relied on the wars in which their ancestors fought with the Seminole Indians and a treaty signed in 1866 guaranteeing all Freedmen the rights of Seminole Indians to explain and validate their mem- bership in the Seminole Nation of Oklahoma. They have relied on a shared history rather than shared genetic markers to bind them to the blood Seminoles. But as memories of this shared history fade, and as genetics emerges as an ever more popular genealogical tool, it looks increasingly likely that the Freedmen will lose their tribal membership and, with it, a defining aspect of their identity.

ACKNOWLEDGMFNTS I wish ro warmly thank Carl Elliott and David Wilkins for their feedback on this paper. The research supporting this article was funded by the National Institutes of Health, grant number R01-HG02196-01, “Ethnicity, Citizenship, Family: Identity After the Human Genome Project.”

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