Wednesday, March 21, 2007

Race, Citizenship, and the Cherokee Nation

American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.

Prior to their removal from their ancestral aboriginal homelands in Georgia, North Carolina and Tennessee on the horrendous Trail of Tears, the Cherokees both influenced southern plantation culture in significant ways and were also significantly influenced by it. One of the most troubling aspects of that cross-cultural influence involved adoption by some Cherokees of plantation farming culture together with slavery. While history suggests that the Cherokee experience with slave holding was nowhere near as brutal as that suffered by slaves held by their white neighbors, the experience nevertheless was dehumanizing. That history gives lie to the notion that slavery uniquely constituted a white imposition on colored peoples and that “people of color” were incapable of such discrimination. Many of the Cherokees’ slaves suffered the same indignities as their “masters” when they were forcibly removed with the Cherokees on the Trail of Tears to the Indian Territory. The fact that some members of the Cherokee Nation continued slavery in the Indian Territory led portions of the Nation to side and fight with the Confederacy during the Civil War. In fact the last Confederate battalion to surrender during the Civil War was the batallion of Cherokees, Seminoles and Osages led by Brigadier General Stand Watie (Degata or Stand Firm), a noted and controversial Cherokee leader, who surrendered months after Lee had capitulated at Appomattox.

Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.

White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”

While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v. Ferguson (1896).

This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.

Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.

Earlier this month, the Cherokee Nation voted in a referendum to limit citizenship in the Cherokee Nation to persons of Cherokee blood. Most of the descendants of the Cherokee freedmen had not yet been enrolled and therefore could no participate in the referendum. The vote indicated that 76% of the voters favored moving from a race neutral to a racial definition of Cherokee citizenship in great part to exclude the descendants of the Cherokee freedmen who, of course, are of African-American descent. Since over 2,000 Cherokee freedmen descents had enrolled, the practical effect of the vote was to revoke the Cherokee citizenship of over 2,000 people and to deny future enrollment to others who could prove Cherokee freedmen descent. Answering a question asked by Chief Justice Stacy Leeds in the Allen litigation as to whether the Cherokee Nation was a political tribe or a race, the people of the Cherokee Nation voted overwhelmingly in favor of race. Since the Cherokee Nation did not begin as a people who culturally drew racial classifications as part of the determining tribal identity, the fact that three-fourths of the tribe now calculates its identity in purely racial terms speaks volumes about the ability of long-standing American racism to virally infect, contaminate and alter the sense of identity of others, including the victims of racial discrimination.

The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.

When the white government of South Africa disenfranchised and relegated to second class citizenship its black citizens under the guise of apartheid, the international community and, more particularly, the United States government took action to assure that equal political rights were given to all. Economic and cultural embargoes and the refusal to recognize or deal with the white apartheid government ultimately ended human rights abuses in South Africa and returned political control to a democratic state in which all South Africans had the right to participate equally. While Indian tribes no doubt have the same sovereign right to determine their own citizenship that South Africa does, their sovereign authority to do so does not and should not insulate them from either criticism or adverse political action by the federal government when they make decisions that disenfranchise or expel portions of their tribe, particularly when they do so strictly on the basis of race. The United States is a party to the 1866 Treaty and, just like any Indian tribe, has a right to insist that its treaty rights be honored. Cutting off federal assistance or refusing to recognize or deal with any government of the Cherokee Nation of Oklahoma elected under the citizenship rules just adopted by Cherokee voters might be major steps the federal government could take to demonstrate that racism is no more acceptable when undertaken by Cherokee voters than when adopted by Southern legislatures a half-century ago in de jure segregation statutes. Only time will tell whether the federal government has the same will and patience to end abuses of basic human political rights by Indian tribes in the same way it did in South Africa. The response of the United States government to this challenge will speak volumes about whether it really has developed a mature government-to-government relationship with the Indian tribes, as it frequently claims.

5 Comments:

At March 21, 2007 6:30 PM, Blogger KWashburn said...

Could a potential Freedman v. Cherokee Nation case be the vehicle for overruling Santa Clara Pueblo v. Martinez. Not likely, perhaps, but the facts are ugly enough to make it possible. I doubt that the Court as presently constructed would be as solicitous of tribal sovereignty as Justice Thurgood Marshall was. I am reasonable confident that Ginsburg, for one, would be delighted to undo Martinez.

 
At March 22, 2007 9:56 AM, Blogger Kevin Gover said...

For reasons I've talked about many times, I'm not so sure that overruling Martinez would be a bad thing.

 
At March 22, 2007 11:46 AM, Blogger Bethany Berger said...

Would an ICRA suit be necessary? Why not a suit under the 1866 treaty itself? Does any one know of cases in which suits were brought to enforce treaties against tribes instead of the federal government? Despite the facts, I still would be reluctant to allow tribes to be sued under unilaterally imposed federal laws; when it's under a treaty that the tribe signed onto, it seems different. As the Cherokee high court said,
In the Treaty of 1866, the Cherokee Nation agreed to extend citizenship to the Freedment and accept them as “native” citizens. Although this Treaty was signed at the end of the Civil War, when the Cherokee Nation was in a weaker position, it was still an agreement between two sovereign nations.
When the Cherokee Nation enters into treaties with other nations, we expect the other sovereign to live up to the promises they make. It is rightly expected that we will also keep the promises we make.

Allen v. Cherokee Nation Tribal Council, JAT-04-09 (Judicial Appeals Tribunal 2006)

 
At March 27, 2007 5:35 AM, Blogger ezrarosser said...

One question that I have on this naturally reflects my own research, but how does this affect rights granted through a treaty but phrased in terms of the Cherokee people. Where, as in the Cherokee right to a U.S. Congressional delegate, the right can be understood both in its connection to the Cherokee tribe and to Cherokees as individuals, can this sort of action provide a justification for two separate sets of tribal membership books -- one for the tribe and tribal government derived benefits and the other for the U.S. government and Indian/treaty-based rights flowing to the Cherokee people. In other words, could the membership choices of tribes be ignored for some U.S. government rights or programs delivered to Indians (regardless of their tribal decisions regarding membership). To go back to Bethany's post, sometimes it seems the U.S. could argue that keeping the promises we made can require separating U.S. delivery on promises from the choices of tribes that make delivering on those choices otherwise impossible.

 
At March 30, 2007 10:41 AM, Anonymous Paul Spruhan said...

Hello all.
In relation to Ezra's comment, I believe there are historical examples of the United States declaring its authority to define its obligations separate and apart from tribal membership decisions. In certain allotment eligibility decisions, decisions concerning who could vote on IRA constitutions, and decisions on who was eligible for damages for the illegal taking of land or other property, Interior officials have declared their right to decide who had tribal rights, whether the same individuals were considered tribal "members" or not. One curious example is from a Court of Claims case from the early 20th century concerning eligibility for damages to the Iroquois tribes for sale of a reservation, where the court declined to apply the matrilineal descent rule favored by those tribes, and instead considered tribal people descended either from Iroquois in the paternal or materal line to be eligible for the damages payout.
Interestingly,in relation to the larger discussion, I recently stumbled across an Interior Solicitor's opinion from 1941 which concluded that the Cherokees and other Five Civilized Tribes could exclude the Freedmen from membership regardless of the Treaty of 1866 because "the Oklahoma Welfare Act [the OK equivalent of the IRA] represents a turning point in the organization of Indian tribes" and "takes its place beside the various treaties of 1866." Without using the language of abrogation, it appears Nathan Margold at the time believed the Oklahoma Welfare Act was Congress' authorization to deviate from the treaty. I don't have an educated opinion on whether Interior has since repudiated that view, but there it is...

 

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