Cherokee freedmen controversy
Encyclopedia
The Cherokee Freedmen Controversy is an ongoing political and tribal dispute between the Cherokee Nation
of Oklahoma
and descendants of the Cherokee Freedmen regarding tribal citizenship. In 1863, by an act of the Cherokee National Council during the American Civil War
, the Cherokee who supported the Union
abolished the practice of African slavery in the Cherokee Nation. In accordance with a treaty made with the United States government in 1866, the Cherokee granted the Cherokee Freedmen full citizenship, with voting rights and equal sharing in annuities and land settlements. Those who left would become United States citizens, under its constitutional amendments following the Civil War.
The Freedmen were Cherokee Nation citizens until the early 1980s, when the Cherokee Nation amended membership rules to require direct descent from an ancestor listed in the "Cherokee By Blood" section of the Dawes Rolls
. This change stripped descendants of Cherokee Freedmen of citizenship and voting rights unless they satisfied this new criterion. This situation lasted for more than two decades, although the Cherokee Freedmen challenged it in the Cherokee Nation's courts and United States federal court.
In March 2006, the Cherokee Supreme Court ruled that the descendants of the Cherokee Freedmen were unconstitutionally kept for more than 20 years from enrolling as citizens. With that ruling, they were allowed to enroll as citizens of the Cherokee Nation based on descent from ancestors listed in the Dawes Rolls. The Principal Chief Chad "Corntassel" Smith called for an emergency election to amend the constitution. A special election was held on a constitutional amendment on the citizenship issue. As a result of the amendment's approval, the Cherokee Nation removed Freedmen descendants from tribal rolls. They have continued to press for their treaty rights and recognition
as tribal members. A tribal district court ordered the Cherokee Freedmen reinstated in 2007, ruling that the special election was unconstitutional, as they were not allowed to vote.
But, the Cherokee Supreme Court ruled on August 22, 2011 that the special election for the amendment was constitutional. In September 2011, the tribe sent letters to the more than 2800 Cherokee Freedmen descendants to exclude them from tribal citizenship and benefits, prior to the scheduled special run-off election of September 24, 2011 for the office of the Principal Chief. The US Department of Housing and Urban Development notified the Cherokee that it had put a freeze on $33 million in funding pending its legal review of the issues. On September 14, 2011, the Cherokee Attorney General recommended reinstituting the stay (which would allow Freedmen to vote) and scheduling oral arguments in the Nation's Supreme Court on the issue. The Cherokee Election Commission is working to provide ways for the Freedmen to vote in the scheduled special election for Principal Chief.
. In this context, "Cherokee Freedmen" refers to the African-American men and women who were formerly slaves of the Cherokee before and after removal to Indian Territory
. It includes the descendants of the former slaves, as well as those born in unions between formerly enslaved or enslaved African Americans and Cherokee tribal members.
After their emancipation and subsequent citizenship, the Cherokee Freedmen and their descendants had to struggle to be accepted as a legitimate part of the Cherokee Nation . Some Freedmen have been active in the tribe, voted in elections, run businesses, attended Cherokee stomp dances, knew Cherokee traditions and folklore, knew the Cherokee language, and served on the tribal council, with several holding district seats. For instance, Joseph "Stick" Ross, a Cherokee Freedman, served on the Cherokee Tribal Council in 1893. He had several companies and landmarks named after him, including Stick Ross Mountain in Tahlequah, Oklahoma
. Leslie Ross, Stick's great-grandson, says,
in 1906. With the extinction of tribal government, they and the Cherokee were all counted as US citizens.
In 1971, after the Cherokee Nation had reorganized and re-established its government, the Freedmen participated in the first tribal elections held for the office of principal chief since passage of the Curtis Act of 1908. While there are Cherokee Freedmen who have embraced this historical connection, after having been excluded from the tribe for two decades in the twentieth century and with the continuing citizenship struggle, some Freedmen have become ambivalent about their ties. They no longer consider identifying as Cherokee as necessary to their personal identity.
From the 1830s to 1860s, some Cherokee began to hold a more European-American view of chattel slavery. The Five Civilized Tribes
adopted the practice of buying African or African-American slaves. Cherokee plantation owners and tribal members acquired Africans for slave labor as they started cultivating larger plots of land and commodity crops. The 1809 Meigs Census counted 583 "Negro slaves" held by Cherokee.. p690 By 1835, that number increased to 1,592 slaves, and more than seven percent (7.4%) of Cherokee families owned African slaves, a greater percentage than across the South, where about 5% of families owned slaves. Enslaving Africans was less common among full-blood than mixed-race Cherokee. Of the Five Civilized Tribes in Indian Territory
, the Cherokee held the largest numbers of enslaved African Americans.
The nature of enslavement in Cherokee society often mirrored that of the European-American slave society, with little difference. The Cherokee instituted their own slave code and laws that were lenient towards Cherokee and whites, but discriminated against slaves and free blacks. Cherokee law barred intermarriage of Cherokee and blacks, whether the latter were enslaved or free. African Americans who aided slaves were to be punished with 100 lashes on the back. Cherokee society barred those of African descent from holding public office, bearing arms, and owning property. It was illegal for anyone to teach blacks to read and write.
Revolts attested to the Africans' desire for freedom. In the Cherokee Slave Revolt of 1842, several African slaves, including 25 held by the Cherokee plantation owner Joseph Vann
, left their respective plantations near Webbers Falls, Oklahoma
to escape to Mexico. They were captured by Cherokee near Fort Gibson
. On December 2, 1842, the Cherokee National Council passed "An Act in regard to Free Negroes" banning all free blacks from the limits of the Cherokee Nation by January 1843, except those freed by Cherokee slaveowners.
During the American Civil War
, the Cherokee Nation was divided between the North and the South. At first the Principal Chief John Ross
and his supporters adopted a policy of neutrality in regards to the Civil War and relations with the two parties. He then made a treaty with the Confederacy, responding to majority Cherokee sentiment, but repudiated it during the war. Ross was captured by Union forces in 1862 and stayed away until the end of the war.
Thomas Pegg became chief of the pro-Union Cherokee. On February 18, 1863, the pro-Union Cherokee National Council passed "An Act Providing for the Abolition of Slavery in the Cherokee Nation" to emancipate all enslaved African Americans within the limits of the Cherokee Nation. The act became effective on June 25, 1863 and any Cherokee citizen that held slaves were punished by fine in accordance with the act.
While the Cherokee became the only nation of the Five Civilized Tribes to abolish slavery during the war, few slaves were freed, as they were held mostly by those Cherokee loyal to the Confederacy. Despite agreeing to end slavery, pro-Union Cherokee were unwilling to allow civil and social equality for Freedmen in the Cherokee Nation.
Stand Watie
took over as chief of the pro-Confederacy Cherokee from 1862-1866. He served in the Confederate Army and was commissioned as Brigadier General.
and Elias C. Boudinot of the pro-Confederate Cherokee delegation hoped to achieve separate status for a Southern Cherokee Nation and wanted the US government to pay for the relocation of Freedmen out of the Cherokee Nation. The pro-Union Cherokee delegation led by John Ross wanted to adopt Freedmen into the tribe as members and allocate land for their use. The US officials ignored the factional divisions, addressed the Cherokee as one entity, and insisted on further conditions for an agreement. One of the terms insisted by the commission was that the Cherokee, as well as the other Five Civilized Tribes, abolish slavery and grant the Cherokee Freedmen full citizenship, with rights to annuities and land. The two factions prolonged negotiations for a period of time with additional meetings held in Washington DC between the two and the US government. While negotiations took place, the US Department of the Interior tasked the newly established Freedmen's Bureau, headed by Brevet Major General John Sanborn, to observe the treatment of Freedmen in Indian Territory and regulate relations.
A series of treaty drafts were offered by the Cherokee factions to the US government with Cooley giving both sides twelve stipulations for the treaties. The Pro-Union Cherokee rejected four of those stipulations while agreeing with the rest. While the Pro-Confederate Cherokee treaty had some support, the treaty offered by Ross' faction was ultimately selected. The Pro-Union faction was the sole Cherokee group that the US government settled treaty terms with. Issues such as the Cherokee Freedmen's status and the voiding of the Confederate treaty were previously agreed upon and both sides compromised on issues such as amnesty for Cherokee that fought for the Confederacy. On July 19, 1866, delegates representing the Cherokee Nation signed a reconstruction treaty with the United States in Washington DC. The treaty granted Cherokee citizenship to the Freedmen and their descendants (article 9). The treaty also set aside a large tract of land for Freedmen to settle with 160 acres for each person (article 4) and granted them voting rights and self-determination
within the constraints of the greater Cherokee Nation (article 5 and article 10).
The Seminole
, Choctaw
, and Creek
of the Five Civilized Tribes also signed treaties with the U.S. government in 1866 with articles concerning their respective Freedmen.. While the treaties granted citizenship to their respective Freedmen, the Choctaw had stricter limitations on Freedmen citizenship. The Chickasaw Nation refused to include Freedmen as citizens. After considerable tribal debate, the Choctaw Nation granted Choctaw and Chickasaw Freedmen citizenship in 1885. The Cherokee Nation Constitution was amended in a special convention on November 26, 1866. The constitution amendments reiterated the treaty's language concerning the Freedmen as well as the six-month deadline for Freedmen to return to the Cherokee Nation in order to be counted as citizens. Essentially, Cherokee and other tribal freedmen were allowed the choice to reside as citizens with the tribes, or to have United States citizenship outside the tribal nations.
The 1866 treaty did not lead to immediate acceptance of freedmen in the Cherokee Nation. In addition to factionalism from the war, resistance to their full inclusion was based on economic factors related to the allotment of lands and distribution of monies related to land sales. In 1880, the Cherokee compiled a census to distribute per capita funds related to recent land sales. The 1880 census did not include those Freedmen who had never left. In the same year, the Cherokee senate voted to deny citizenship to Freedmen who had failed to comply with the 1866 treaty by returning to the Cherokee Nation within six months.
The Cherokee claimed that the 1866 treaty with the US granted civil and political rights to Cherokee Freedmen, but not the right to share in tribal assets. The Cherokee Chief Dennis Wolf Bushyhead (1877–1887) opposed the exclusion of Cherokee Freedmen from distribution of assets, but was overridden by the Tribal Council. The federal government became involved on behalf of the Freedmen; in 1888 the US Congress passed An Act to secure to the Cherokee Freedmen and others their proportion of certain proceeds of lands, Oct. 19, 1888, 25 Stat. 608. The US Indian agent John W. Wallace was commissioned to create a roll, now known as the Wallace Roll, to aid in the per-capita distribution of federal money. The Wallace Roll included 3,524 Freedmen.
The Cherokee Nation continued to challenge the rights of the Freedmen. In 1890, by passing "An act to refer to the U.S. Court of Claims certain claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee Nation", Oct. 1, 1890, 26 Stat. 636, the US Congress authorized the U.S. Court of Claims to hear suits by the Freedmen against the Cherokee Nation for recovery of proceeds denied them. The freedmen won the claims court case that followed, Whitmire v. Cherokee Nation and The United States (1912) (30 Ct. Clms. 138(1895)), which was appealed to the US Supreme Court. It related to treaty obligations of the Cherokee Nation to the United States. The Claims Court ruled that payments could not be restricted to "particular class of Cherokee citizens, such as those by blood", which was upheld by the Supreme Court. As the Cherokee Nation had already distributed the funds they had received for sale of the Cherokee Outlet, the US government as co-defendant was to pay the award to the Cherokee Freedmen. It commissioned the Kern-Clifton roll, completed in 1896, as a record of 5,600 freedmen to receive a portion of the land sale funds in the following decade as settlement.
During this distribution of proceeds, Congress passed the Dawes Act of 1887. It was a measure to promote assimilation of Native Americans by requiring the extinguishing of tribal government and the allotment of communal lands to individual households of citizens registered as tribal members. The US government would declare remaining lands "surplus" to communal Indian needs and allow it to be acquired and developed European Americans.
As a part of the act and subsequent bills, the Dawes Commission
required registration of the American Indians of each tribe in the Indian Territory. Individuals were identified by tribe on the Dawes Roll under the categories: Indians by blood (they could identify only one tribe, even if descended from more than one), intermarried whites, and Freedmen. Although many Indians were of more than one tribal ancestry, they had to choose only one. In addition, although freedmen frequently had Cherokee ancestry and sometimes living Cherokee parents, the Dawes commissioners generally listed all freedmen exclusively on the Freedmen Roll rather than recognizing individual's percentage of Cherokee ancestry. The Dawes Rolls
of 1902 listed 41,798 citizens of the Cherokee Nation, and 4,924 persons separately listed as Freedmen. The genealogist Angela Y. Walton-Raji said that together, the Five Civilized Tribes had nearly 20,000 freedmen listed on the Dawes Rolls, which were completed from 1902-1906.
The 1908 Curtis Act authorized the Dawes Commission to allot funds without the consent of tribal governments, and allowed the federal government to extract taxes from white citizens living in the Indian territories. (American Indians have considered both the Dawes and Curtis acts as restrictions on tribal sovereignty.) The government distributed allotments of land, although there have been many claims of unfair treatment and errors in the registration process. As the Cherokee Nation's government was officially dissolved, and Oklahoma
became a state (1907), the freedmen and other Cherokee had self-determination as US citizens. Some 1,659 freedmen listed on the Kern-Clifton roll were not included in the Dawes Roll, and therefore lost their Cherokee citizenship rights.
Some activists have criticized inconsistencies in the information collected in the Dawes Rolls. In previous censuses, persons of mixed African-Native American ancestry were classified as Native American. The Dawes Commission set up three classifications: Cherokee by blood, intermarried white, and Freedmen. In testimony as a member of the Cherokee Freedmen's Association, before the Indian Claims Commission on November 14, 1960, Gladys Lannagan reported, "I was born in 1896 and my father died August 5, 1897. But he didn't get my name on the roll. I have two brothers on the roll—one on the roll by blood and one other by Cherokee Freedman children's allottees." She stated that one of her grandparents was Cherokee and the other black. There have been cases of mixed-race Cherokee, of partial African ancestry, with as much as 1/4 Cherokee blood (equivalent to one grandparent being full-blood) not having been listed as "Cherokee by blood" in the Dawes Roll because of having been classified under only the Cherokee Freedmen category. Thus such individuals lost their "blood" claim to Cherokee citizenship despite having satisfied the criterion of having a Cherokee Indian ancestor.
In 1924, Congress passed a jurisdictional act that allowed the Cherokee to file suit against the United States to recover the funds paid to Freedmen in 1894 under the Kern-Clifton Roll. It held that the Kern-Clifton Roll was valid for only that distribution, and was superseded by the Dawes Rolls in terms of establishing the Cherokee tribal list of membership. The passing of the Indian Claims Commission Act of 1946 sparked interest in the status of the 1,659 Freedmen included in the Kern-Clifton Roll but not the Dawes roll and stirred activity among people claiming descent from the Kern-Clifton Freedmen.
began to provide certain benefits, such as free health care, to members of federally recognized tribes. Numerous descendants of Cherokee listed as "Cherokee by Blood" on the Dawes Roll enrolled as new members of the Cherokee Nation to receive the benefits. The government provided the benefits as well to the Cherokee Freedmen, as citizens of the Nation.
In 1983 Ross O. Swimmer
, then Principal Chief of the Cherokee Nation, began efforts to block the freedmen descendants from the tribe. He issued an executive order to require Cherokee Nation citizens to have a "Certificate Of Degree Of Indian Blood" (CDIB) card in order to vote. The CDIB cards were issued by the Bureau of Indian Affairs based on those listed on the Dawes Rolls as Indians by blood. Since the Cherokee Freedmen Roll had no record of Indian blood quantum listed (unlike the "Cherokee By Blood" Rolls), they could not obtain CDIB cards. Although they were Dawes enrollees, received funds resulting from tribal land sales via the U.S. Supreme Court ruling in Whitmire v. Cherokee Nation and United States (1912), and had previously voted in Cherokee Nation elections, the Cherokee Freedmen were turned away from the polls and told that they did not have the right to vote.
Swimmer's executive order was analyzed by some observers as one way Swimmer excluded people who were supporting a rival candidate, Perry Wheeler, for Principal Chief. After the 1983 Cherokee Nation elections and the reelection of Swimmer, Wheeler and his running mate, Agnes Cowen, initiated a series of legal proceedings such as filing cases with the Cherokee Judicial Appeals Tribunal, petitioning the Bureau of Indian Affairs to conduct an investigation of the election, and filing a case with the US District Court. Wheeler and Cowan alleged that the election was a violation of federal and tribal law and that the Cherokee Freedmen were unjustly removed from voting because they were allies of Wheeler. All cases and subsequent appeals were defeated.
Swimmer’s successor, Chief Wilma P. Mankiller
, elected in 1985, issued an Executive Order requiring all enrolled members of the Cherokee Nation to have a CDIB card. This completed the disfranchisement
of the Cherokee Freedmen descendants within the Cherokee Nation by excluding them from citizenship. (Note: Article III, Section 1 of the Cherokee Nation's 1975 Constitution stated that all members of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls. Although the Dawes Rolls contained three groups: Cherokee by blood, freedmen, and intermarried whites, the Cherokee Nation continued the practice of granting citizenship only to descendants of Indians by blood.)
In 1975 the Cherokee passed a new constitution, defining as citizens those listed in the Dawes Rolls, including Delaware and Creek. Later the National Council passed legislation restricting voting members to those who were descended from a Cherokee on the Dawes Rolls. The Cherokee Freedmen's Association was faced with two issues. On one hand, the Dawes Rolls, a federally mandated tally, were accepted as defining who were legally and politically Cherokee citizens. But, the Council had passed legislation that was more restrictive than the constitution.
On July 7, 1983, Reverend Roger H. Nero and five other Cherokee Freedmen were turned away from the Cherokee polls. They filed suit in Claims Court. The Claims Commission considered the Freedmen's claims for voting rights in the 1980s as a Cherokee Nation matter and outside of the US government's jurisdiction, as by that time there was more emphasis on American Indian sovereignty
..
Nero and colleagues sent a complaint to the Civil Rights
Division of the Department of Justice. On June 18, 1984, the freedmen descendants filed a class action suit against Principal Chief Ross Swimmer, the tribal registrar, a tribal council member, the tribal election committee, the United States, the Office of the President, the Department of the Interior, the Office of the Secretary, the Bureau of Indian Affairs
(BIA), and three BIA employees, claiming discrimination on the basis of race. The suit sought nearly $750 million in damages and asked for the 1983 tribal election to be declared null and void. The court in that case and an appeal heard in 1989 ruled against the plaintiff Freedmen because of jurisdictional issues. The court held that the case should have been filed in the Court of Claims due to the amount asked in the lawsuit; no judgment was made as to the merits of the case.
In 2001, Bernice Riggs, a Freedmen descendant, sued the tribal registrar Lela Ummerteskee for citizenship in the case of Riggs v. Ummerteskee. The Judicial Appeals Tribunal (now the Cherokee Nation Supreme Court) ruled that Riggs adequately documented her Cherokee blood ancestry, but was denied membership because her partially Cherokee ancestors were listed only as Freedmen on the Dawes Rolls. This decision also relied on the Nero ruling in part.
More than 800 Freedmen descendants have enrolled in the Cherokee Nation since the ruling was made – out of up to 45,000 potentially eligible people. Within days, the former Principal Chief Chad Smith stated his opposition to the ruling. He supported a referendum for a constitutional amendment to restrict tribal membership. Former Chief Smith, disbanded the Judicial Appeals Tribunal and created a new Cherokee Supreme Court under the new Constitution. A question remains regarding the legitimacy of the Court as the United States has not approved the Constitution as required under the previous Cherokee Constitution.
During a Cherokee Tribal Council meeting on June 12, 2006, the Cherokee Tribal Council voted in a 13–2 decision to amend the constitution to restrict Cherokee citizenship to descendants of Cherokee on the Dawes Rolls, but denied a resolution calling for a special election on the issue. Supporters of the special election, including John Ketcher, former deputy chief of the Cherokee Nation, and Cherokee citizens siding with Smith, circulated a petition for a vote to remove the Freedmen descendants as members. Chief Smith announced that the issue of the membership for Cherokee Freedmen was being considered for a vote related to proposed amendments to the Cherokee Nation Constitution.
Freedmen descendants opposed the election. Vicki Baker filed a protest in the Cherokee Nation Supreme Court over the legality of the petition and allegations of foul play involved in the petition drive. Though the Cherokee Supreme Court ruled against Baker, two justices in the Cherokee Supreme Court, Darrell Dowty and Stacy Leeds
, filed separate dissenting opinions against the ruling. Justice Leeds wrote an 18-page dissent concerning falsified information in the petition drive and fraud by Darren Buzzard and Dwayne Barrett, two who circulated the petition. Leeds wrote,
Jon Velie filed a Motion for Preliminary Injunction in the Vann action in DC District Court. However, Judge Henry H. Kennedy ruled against the Freedmen descendants’ motion to halt the upcoming election because the election may not have voted out the Freedmen. After a few delays, the tribe (excluding Cherokee Freedmen) voted on March 3, 2007 on whether to amend the constitution to exclude Cherokee Freedmen from citizenship. . The referendum results removed the Freedmen from the Cherokee Nation by a 77% (6,693) to 23% (2,040) margin; a total of 8,700 total votes were cast. As the journalist Steve Russell noted in a 2011 article, the turnout in the special election was 8,743 of about 35,000 registered voters, of which 6,702 voted to disfranchise their follow citizens. By comparison, the last Cherokee general election turnout had totaled 13,914.
The Freedmen descendants protested their ouster from the tribe with demonstrations at the BIA office in Oklahoma and at the Oklahoma state capital. Due to the issues of citizenship in the election and the resulting exclusion of freedmen descendants, the Cherokee Nation has been criticized by United States groups such as the Congressional Black Caucus
and the National Congress Of Black Women. On March 14, 2007, twenty-six members of the Congressional Black Caucus sent a letter to Carl J. Artman, Assistant Secretary for Indian Affairs, urging the Bureau of Indian Affairs
to investigate the legality of the March 3rd election . The election has been criticized for having been conducted under a constitution that was not approved by the Secretary of Interior.
According to Chief Smith, the 1975 Indian Self Determination Act overrode the 1970 Principal Chiefs Act, and the Cherokee Nation had the sovereign right to determine its citizenship requirements. The United States has required and the Cherokee Nation has abided by the 1970 Principal Chiefs Act in 2007 and 2011 elections. Despite this, Smith has stated that the Cherokee Supreme Court ruled that Cherokee Nation could take away the approval authority it had granted the federal government. He said that the Nation would abide by its Supreme Court's decision.. The issue of amending the process of federal approval was placed on the ballot for the June 23, 2007 election. Cherokee voters approved the amendment (not to require federal approval) by a 2–1 margin, but the BIA still has to approve. Jeanette Hanna, director of the BIA's Eastern Oklahoma Regional Office, said that the regional office has recommended approval of the vote on removal of Secretarial oversight.
Heading into the 2007 election, the Cherokee Nation was not permitting the Freedmen to vote. Attorney Jon Velie again filed a motion for preliminary injunction.
On May 15, 2007, Cherokee District Court Judge John Cripps signed an order for the Cherokee Freedmen descendants to be temporarily reinstated as citizens of the Cherokee Nation while appeals are pending in the Cherokee Nation court system. This was due to an injunction filed by the Freedmen descendants' court-appointed attorney for their case in tribal court. The Cherokee Nation’s Attorney General Diane Hammonds complied with the court order. . Velie, on behalf of Marilyn Vann, six Freedmen descendants, and the Freedmen Band argued the late actions that protected 2,800 Freedmen but not all that were entitled to citizenship was insufficient, but Judge Henry Kennedy denied the motion. On June 23, 2007 Chad Smith was reelected for a four-year term as Principal Chief with 58.8% of the vote
On December 19, 2006, Federal Judge Henry Kennedy ruled that the Freedmen descendants could sue the Cherokee Nation for disfranchisement. The Cherokee Nation's administration appealed the decision on the grounds that as a sovereign nation, the tribe is protected by sovereign immunity
and cannot be sued in US court. On July 29, 2008, the Washington D.C. Circuit Court Of Appeals unanimously ruled that the Cherokee Nation was protected by sovereign immunity and could not be listed as a defendant in the lawsuit. But, it stated that the Cherokee Nation's officials were not protected by the tribe's sovereign immunity, and Freedmen descendants could proceed with a lawsuit against the tribe's officers. The ruling also stated the 13th Amendment and the Treaty of 1866 whittled away the Cherokees right to discriminate against the Freedmen.The ruling means that the case will go back to district court. Velie stated this was a great victory for the Freedmen and Indian people who can bring actions against the elected officials of their Native Nations and the United States.
In February 2009, the Cherokee Nation filed a separate Federal lawsuit against individual Freedmen in an attempt at what some called "venue shopping". The case was sent back to Washington to join the Vann case. "On July 2, the Honorable Judge Terrance Kern of the Oklahoma Northern District Court transferred the Cherokee Nation v. Raymond Nash et al case that was filed in his court in February 2009 to D.C. Already awaiting judgment in D.C. is the case of Marilyn Vann et al v. Ken Salazar filed in August 2003." Kern would not hear the Nash case, filed by the Cherokee Nation, due to the cases resembling each other in parties and the subject matter of Freedmen citizenship; in addition, the first-to-file rule meant that the Vann case needed to be heard and settled before any court heard the Nash case.
As the Cherokee Nation waived its sovereign immunity to file the Cherokee Nation v. Nash case, it is now subject to the possibility of Judge Kennedy's enjoining the Cherokee Nation to the original case, after they had won immunity. "Finally, the Court is not, as argued by the Cherokee Nation, depriving the Cherokee Nation of 'the incidents of its sovereign immunity' by transferring this action pursuant to the first to file rule. The Cherokee Nation voluntarily filed this action and waived its immunity from suit. It did so while the D.C. Action was still pending."
On January 14, 2011, Cherokee tribal district court judge John Cripps ruled that the 2007 constitutional amendment was invalid because it conflicted with the 1866 treaty with the United States, which guaranteed the Freedmen's rights. On June 24, 2011, the Cherokee Nation held an election for its Principal Chief. Bill John Baker was declared the winner by 11 votes. The following day, the Election Committee determined that Chad Smith had won the election by 7 votes. In a recount Bill John Baker was declared the winner by 266 votes. Smith appealed to the Cherokee Supreme Court that ruled that a winner could not be determined with mathematical certainty. On August 21, 2011, prior to the re-do of the Cherokee election, the Cherokee Nation Supreme Court reversed the decision of the Cherokee District Court. Justice Darell Matlock Jr. ruled that the Cherokee people had the sovereign right to amend the Cherokee Nation constitution and to set citizenship requirements. The decision was 4 to 1 with justice Darrell Dowty dissenting. Many questioned the timing of the decision as the Cherokee Freedmen voters, which totaled over 500 were disenfranchised going into the election. The Decision of the Supreme Court removed the injunction of the District Court which kept 2,800 of the Freedmen in the Nation.
The U.S. Department of Housing and Urban Development has temporarily frozen $33 million in funds for the Cherokee Nation while it studies the issue.
The Cherokee Supreme Court ruling meant that the Freedmen descendants, who voted in the general election in July 2011, would not be eligible to vote in the scheduled September 24, 2011 special election for principal chief. It was to settle the runoff election between Bill John Baker
, the challenger and longtime member of the National Council, and Chad Smith
, the incumbent (who opposed Freedmen membership in the tribe). In the previous election, voting was too close to call. In response, Velie and the Freedmen descendants filed another motion for preliminary injunction in federal district court asking to reinstate their rights for the election.
On September 11, 2011, the Cherokee Nation sent letters to 2800 Freedmen descendants, informing them of exclusion from citizenship, voting and tribal benefits. The Department of Interior immediately wrote to the chief, ordering the restoration of voting rights and benefits. The letter said that the September 24, 2011 election would be considered unconstitutional if Freedmen descendants were excluded from voting, as guaranteed by the 1866 treaty and the 13th Amendment to the US Constitution. The Freedmen filed suit in federal court to delay the election until they were allowed to vote. The Cherokee Attorney General recommended on September 14 reopening the case, with the previous reinstatement to be applied while oral arguments are scheduled. The Cherokee Election Commission is working to get ballots to the Cherokee Freedmen in time for the September 24 election. On September 20, Judge Henry Kennedy of the US District Court heard arguments from the Velie on behalf of the Freedmen, US officials, and Dean Luthey on behalf of the Cherokee Nation. Following arguments, the Judged adjourned and the parties announced the Cherokee Nation, Freedmen plaintiffs and US government had come to an agreement to allow the Freedmen full citizenship rights including the right to vote, with voting to continue two additional days. The Cherokee Nation was to inform the Freedmen of their citizenship rights no later than September 22nd.
On September 23, 2011, Velie returned to the Court with the other parties as virtually none of the Freedmen had received notification with the election happening the next day. Judge Kennedy signed an additional agreed upon Order between the parties requiring additional time for absentee ballots foir Freedmen and five days of walk-in voting for all Cherokees.
In October 2011, Judge Kennedy dismissed the Vann case for technical reasons and transferred the Nash cash back to Federal District Court in Tulsa, OK. Velie informed the Court in a status Conference report that the Freedmen will appeal the Vann dismissal. The date for appeal is November 29, 2011.
(D-California), one of the 25 Congressional Black Caucus members who signed a letter asking the BIA to investigate the Freedmen situation, introduced H.R. 2824. This bill seeks to sever the Cherokee Nation’s federal recognition, strip the Cherokee Nation of their federal funding (estimated $300 million annually), and stop the Cherokee Nation’s gaming operations if the tribe does not honor the Treaty of 1866. H.R. 2824 was co-signed by eleven Congress members and was referred to the Committee Of Natural Resources and the Committee Of The Judiciary.
Chief Smith issued a statement saying that the introduction of this bill is "really a misguided attempt to deliberately harm the Cherokee Nation in retaliation for this fundamental principle that is shared by more than 500 other Indian tribes." The National Congress of American Indians (NCAI) expressed their disapproval of the bill..
On September 26, 2008, Congress cleared the housing bill H.R. 2786. The reauthorization of the Native American Housing and Self-Determination Act included a provision stating that the Cherokee Nation can receive federal housing benefits as long as a tribal court order allowing the citizenship for Cherokee Freedmen descendants is intact or some settlement is reached in the citizenship issue and litigation involving the Cherokee Freedmen descendants . The House Of Representatives version of the bill would have denied funds unless the Freedmen descendants were restored to citizenship. The Senate version of the bill had no mention of the Cherokee Nation or the Cherokee Freedmen descendants. Paul Lumley, executive director of the National American Indian Housing Council (NAIHC), said that the NAIHC worked with members of the Congressional Black Caucus to create a compromise, resulting in the addition of the Cherokee Freedmen stipulation in the bill .
Individual Cherokee and Freedmen have in the past been ignorant about the issue all together. Circe Sturm (1998) wrote in her book on the Freedmen descendants that many had little sense of the historic connection with the Cherokee, and are ambivalent about getting recognized. Cherokee members have also been ignorant of the historic issues. Cara Cowan Watts, a tribal council member who opposed membership for Freedmen descendants, admitted in 2007 that she didn’t know anything about the Freedmen or their history before the court case. Chief Smith said, "A lot of Cherokee don't know who the Freedmen are," and that he was not familiar with them when growing up.
Some Cherokee who oppose membership for Freedmen descendants support Chief Smith's position: that the Freedmen are not Cherokee citizens because their ancestors were listed on the Freedmen Roll of the Dawes Rolls
and not on the "Cherokee By-Blood" Roll (although some were of Cherokee blood). Smith and supporters claim that the Freedmen and their descendants have not been active in the tribe for 100 years, the Freedmen were compensated for slavery with their Dawes land allotments and not tribal membership, they were forced on the tribe by the US under the Treaty of 1866, and they want to share in the tribe's resources and Cherokee Nation's federally funded programs.
Those supporting membership of Freedmen descendants believe they have a rightful place in Cherokee society based on their long history in the tribe before and after forced removal, with a history of intermarriage and active members. In addition, they cite as precedent the legal history, such as the Treaty Of 1866, the 1894 Supreme Court case of Cherokee Nation vs. Journeycake http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=413863, and the 1975 Cherokee Constitution. Ruth Adair Nash, a Freedmen from Bartlesville, Oklahoma, carries her Cherokee citizenship card she was issued in 1975.
Some Cherokee by blood have pushed to garner full citizenship for Freedmen. David Allen Cornsilk
, editor of the independent newspaper The Cherokee Observer and founder of the Cherokee National Party, was the lay advocate for the Lucy Allen case. He sees the issue of honoring the 1866 treaty as an issue of sovereignty. Other non-White Cherokee have expressed solidarity with freedmen due to their similarities of religion (Southern Baptist) and the sense of community (albeit African American) found among freedmen.
In a June 2007 message to members of United Keetoowah Band Of Cherokees, Principal Chief George Wickliffe expressed his concern about threats to sovereignty by this case. He said that the Cherokee Nation's refusal to abide by the Treaty of 1866 threatened the government-to-government relationships of other Native American nations, which had struggled to make the US live up to its treaty obligations.
Supporters of the Freedmen descendants note that the Cherokee have historically included as members other non-Cherokee or people of partial Cherokee ancestry, adopting captives into the tribe. The Delaware
and Shawnee
tribes, two non-Cherokee tribes, are members of the Cherokee Nation via the Delaware Agreement of 1867 and the Shawnee Agreement of 1869. Another issue is that of a tribe's breaking a treaty protected by Article Six of the United States Constitution
. Daniel F. Littlefield Jr., director of the Sequoyah Research Center at the University of Arkansas-Little Rock, stated that the Treaty of 1866 granted freedmen their rights as citizens, and the case should not be made into a racial issue.
Race is another issue. Taylor Keen, a Cherokee Nation tribal council member, said,
Cherokee Nation citizen Darren Buzzard, one of the circulators of the 2006 petition, wrote a letter to Cherokee Councilwoman Linda O’Leary, with passages which many observers deemed to be racist and bigoted. Circulated widely on the Internet, the letter was quoted in numerous articles related to the Freedmen case.
Chuck Trimble, former executive director of the National Congress of American Indians
, criticized the Cherokee Supreme Court's 2011 ruling for what he called "the Cherokee Dred Scott
decision," for depriving people of citizenship.
Cherokee Nation
The Cherokee Nation is the largest of three Cherokee federally recognized tribes in the United States. It was established in the 20th century, and includes people descended from members of the old Cherokee Nation who relocated voluntarily from the Southeast to Indian Territory and Cherokees who...
of Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
and descendants of the Cherokee Freedmen regarding tribal citizenship. In 1863, by an act of the Cherokee National Council during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, the Cherokee who supported the Union
Union (American Civil War)
During the American Civil War, the Union was a name used to refer to the federal government of the United States, which was supported by the twenty free states and five border slave states. It was opposed by 11 southern slave states that had declared a secession to join together to form the...
abolished the practice of African slavery in the Cherokee Nation. In accordance with a treaty made with the United States government in 1866, the Cherokee granted the Cherokee Freedmen full citizenship, with voting rights and equal sharing in annuities and land settlements. Those who left would become United States citizens, under its constitutional amendments following the Civil War.
The Freedmen were Cherokee Nation citizens until the early 1980s, when the Cherokee Nation amended membership rules to require direct descent from an ancestor listed in the "Cherokee By Blood" section of the Dawes Rolls
Dawes Rolls
The Dawes Rolls were created by the Dawes Commission. The Commission, authorized by United States Congress in 1893, was required to negotiate with the Five Civilized Tribes to convince them to agree to an allotment plan and dissolution of the reservation system...
. This change stripped descendants of Cherokee Freedmen of citizenship and voting rights unless they satisfied this new criterion. This situation lasted for more than two decades, although the Cherokee Freedmen challenged it in the Cherokee Nation's courts and United States federal court.
In March 2006, the Cherokee Supreme Court ruled that the descendants of the Cherokee Freedmen were unconstitutionally kept for more than 20 years from enrolling as citizens. With that ruling, they were allowed to enroll as citizens of the Cherokee Nation based on descent from ancestors listed in the Dawes Rolls. The Principal Chief Chad "Corntassel" Smith called for an emergency election to amend the constitution. A special election was held on a constitutional amendment on the citizenship issue. As a result of the amendment's approval, the Cherokee Nation removed Freedmen descendants from tribal rolls. They have continued to press for their treaty rights and recognition
Native American recognition in the United States
Native American recognition in the United States most often refers to the process of a tribe being recognized by the United States federal government, or to a person being granted membership to a federally recognized tribe. There are 565 federally recognized tribal governments in the United States...
as tribal members. A tribal district court ordered the Cherokee Freedmen reinstated in 2007, ruling that the special election was unconstitutional, as they were not allowed to vote.
But, the Cherokee Supreme Court ruled on August 22, 2011 that the special election for the amendment was constitutional. In September 2011, the tribe sent letters to the more than 2800 Cherokee Freedmen descendants to exclude them from tribal citizenship and benefits, prior to the scheduled special run-off election of September 24, 2011 for the office of the Principal Chief. The US Department of Housing and Urban Development notified the Cherokee that it had put a freeze on $33 million in funding pending its legal review of the issues. On September 14, 2011, the Cherokee Attorney General recommended reinstituting the stay (which would allow Freedmen to vote) and scheduling oral arguments in the Nation's Supreme Court on the issue. The Cherokee Election Commission is working to provide ways for the Freedmen to vote in the scheduled special election for Principal Chief.
The Cherokee Freedmen
Freedmen is one of the terms given to emancipated slaves and their descendants after slavery was abolished in the United States following the American Civil WarAmerican Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. In this context, "Cherokee Freedmen" refers to the African-American men and women who were formerly slaves of the Cherokee before and after removal to Indian Territory
Trail of Tears
The Trail of Tears is a name given to the forced relocation and movement of Native American nations from southeastern parts of the United States following the Indian Removal Act of 1830...
. It includes the descendants of the former slaves, as well as those born in unions between formerly enslaved or enslaved African Americans and Cherokee tribal members.
After their emancipation and subsequent citizenship, the Cherokee Freedmen and their descendants had to struggle to be accepted as a legitimate part of the Cherokee Nation . Some Freedmen have been active in the tribe, voted in elections, run businesses, attended Cherokee stomp dances, knew Cherokee traditions and folklore, knew the Cherokee language, and served on the tribal council, with several holding district seats. For instance, Joseph "Stick" Ross, a Cherokee Freedman, served on the Cherokee Tribal Council in 1893. He had several companies and landmarks named after him, including Stick Ross Mountain in Tahlequah, Oklahoma
Tahlequah, Oklahoma
Tahlequah is a city in Cherokee County, Oklahoma, United States located at the foothills of the Ozark Mountains. It was founded as a capital of the original Cherokee Nation in 1838 to welcome those Cherokee forced west on the Trail of Tears. The city's population was 15,753 at the 2010 census. It...
. Leslie Ross, Stick's great-grandson, says,
"He knew sign language and spoke Cherokee and Seminole. He was a trapper and a farmer and a rancher. And he was sheriff at one time, too. He was pretty renowned in Tahlequah."The civic position for Freedmen increased after the Dawes Commission
Dawes Commission
The American Dawes Commission, named for its first chairman Henry L. Dawes, was authorized under a rider to an Indian Office appropriation bill, March 3, 1893...
in 1906. With the extinction of tribal government, they and the Cherokee were all counted as US citizens.
In 1971, after the Cherokee Nation had reorganized and re-established its government, the Freedmen participated in the first tribal elections held for the office of principal chief since passage of the Curtis Act of 1908. While there are Cherokee Freedmen who have embraced this historical connection, after having been excluded from the tribe for two decades in the twentieth century and with the continuing citizenship struggle, some Freedmen have become ambivalent about their ties. They no longer consider identifying as Cherokee as necessary to their personal identity.
Slavery among the Cherokee
Slavery was a component of Cherokee society prior to European contact. In oral tradition, Cherokees saw slavery as the result of an individual's failure in warfare and as a temporary status, pending release or the slave's adoption into the tribe. Adoption provided full citizenship in the tribe The Cherokee were then a society with slaves, as the boundary between slaves and citizens was permeable. In early colonial times, the British purchased or impressed Cherokee as slaves during the Indian Slave Trade.From the 1830s to 1860s, some Cherokee began to hold a more European-American view of chattel slavery. The Five Civilized Tribes
Five Civilized Tribes
The Five Civilized Tribes were the five Native American nations—the Cherokee, Chickasaw, Choctaw, Creek, and Seminole—that were considered civilized by Anglo-European settlers during the colonial and early federal period because they adopted many of the colonists' customs and had generally good...
adopted the practice of buying African or African-American slaves. Cherokee plantation owners and tribal members acquired Africans for slave labor as they started cultivating larger plots of land and commodity crops. The 1809 Meigs Census counted 583 "Negro slaves" held by Cherokee.. p690 By 1835, that number increased to 1,592 slaves, and more than seven percent (7.4%) of Cherokee families owned African slaves, a greater percentage than across the South, where about 5% of families owned slaves. Enslaving Africans was less common among full-blood than mixed-race Cherokee. Of the Five Civilized Tribes in Indian Territory
Indian Territory
The Indian Territory, also known as the Indian Territories and the Indian Country, was land set aside within the United States for the settlement of American Indians...
, the Cherokee held the largest numbers of enslaved African Americans.
The nature of enslavement in Cherokee society often mirrored that of the European-American slave society, with little difference. The Cherokee instituted their own slave code and laws that were lenient towards Cherokee and whites, but discriminated against slaves and free blacks. Cherokee law barred intermarriage of Cherokee and blacks, whether the latter were enslaved or free. African Americans who aided slaves were to be punished with 100 lashes on the back. Cherokee society barred those of African descent from holding public office, bearing arms, and owning property. It was illegal for anyone to teach blacks to read and write.
Revolts attested to the Africans' desire for freedom. In the Cherokee Slave Revolt of 1842, several African slaves, including 25 held by the Cherokee plantation owner Joseph Vann
Joseph Vann
Joseph H. Vann was a Cherokee leader who owned Diamond Hill , many slaves, taverns, and steamboats that he operated on the Arkansas, Mississippi, Ohio, and Tennessee Rivers. He born at Spring Place, Georgia on February 11, 1798...
, left their respective plantations near Webbers Falls, Oklahoma
Webbers Falls, Oklahoma
Webbers Falls is a town in Muskogee County, Oklahoma, United States. The population was 726 at the 2000 census. The name comes from a 7 foot falls in the Arkansas River, itself named in honor of Walter Webber, a Cherokee leader who lived there in the early 19th Century.-The I-40 Bridge Disaster:The...
to escape to Mexico. They were captured by Cherokee near Fort Gibson
Fort Gibson
Fort Gibson, now located in Oklahoma and designated Fort Gibson Historical Site, guarded the American frontier in Indian Territory from 1824 until 1890...
. On December 2, 1842, the Cherokee National Council passed "An Act in regard to Free Negroes" banning all free blacks from the limits of the Cherokee Nation by January 1843, except those freed by Cherokee slaveowners.
During the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, the Cherokee Nation was divided between the North and the South. At first the Principal Chief John Ross
John Ross (Cherokee chief)
John Ross , also known as Guwisguwi , was Principal Chief of the Cherokee Native American Nation from 1828–1866...
and his supporters adopted a policy of neutrality in regards to the Civil War and relations with the two parties. He then made a treaty with the Confederacy, responding to majority Cherokee sentiment, but repudiated it during the war. Ross was captured by Union forces in 1862 and stayed away until the end of the war.
Thomas Pegg became chief of the pro-Union Cherokee. On February 18, 1863, the pro-Union Cherokee National Council passed "An Act Providing for the Abolition of Slavery in the Cherokee Nation" to emancipate all enslaved African Americans within the limits of the Cherokee Nation. The act became effective on June 25, 1863 and any Cherokee citizen that held slaves were punished by fine in accordance with the act.
While the Cherokee became the only nation of the Five Civilized Tribes to abolish slavery during the war, few slaves were freed, as they were held mostly by those Cherokee loyal to the Confederacy. Despite agreeing to end slavery, pro-Union Cherokee were unwilling to allow civil and social equality for Freedmen in the Cherokee Nation.
Stand Watie
Stand Watie
Stand Watie , also known as Standhope Uwatie, Degataga , meaning “stand firm”), and Isaac S. Watie, was a leader of the Cherokee Nation and a brigadier general of the Confederate States Army during the American Civil War...
took over as chief of the pro-Confederacy Cherokee from 1862-1866. He served in the Confederate Army and was commissioned as Brigadier General.
Treaty of 1866
After the Civil War ended in 1865, the factions of Cherokee who supported the Union and those who supported the Confederacy continued to be at odds. On September 1865, each side was represented with delegations from the other Five Civilized Nations to negotiate with a commission headed by the US Commissioner of Indian Affairs Dennis N. Cooley at Fort Smith, Arkansas. Stand WatieStand Watie
Stand Watie , also known as Standhope Uwatie, Degataga , meaning “stand firm”), and Isaac S. Watie, was a leader of the Cherokee Nation and a brigadier general of the Confederate States Army during the American Civil War...
and Elias C. Boudinot of the pro-Confederate Cherokee delegation hoped to achieve separate status for a Southern Cherokee Nation and wanted the US government to pay for the relocation of Freedmen out of the Cherokee Nation. The pro-Union Cherokee delegation led by John Ross wanted to adopt Freedmen into the tribe as members and allocate land for their use. The US officials ignored the factional divisions, addressed the Cherokee as one entity, and insisted on further conditions for an agreement. One of the terms insisted by the commission was that the Cherokee, as well as the other Five Civilized Tribes, abolish slavery and grant the Cherokee Freedmen full citizenship, with rights to annuities and land. The two factions prolonged negotiations for a period of time with additional meetings held in Washington DC between the two and the US government. While negotiations took place, the US Department of the Interior tasked the newly established Freedmen's Bureau, headed by Brevet Major General John Sanborn, to observe the treatment of Freedmen in Indian Territory and regulate relations.
A series of treaty drafts were offered by the Cherokee factions to the US government with Cooley giving both sides twelve stipulations for the treaties. The Pro-Union Cherokee rejected four of those stipulations while agreeing with the rest. While the Pro-Confederate Cherokee treaty had some support, the treaty offered by Ross' faction was ultimately selected. The Pro-Union faction was the sole Cherokee group that the US government settled treaty terms with. Issues such as the Cherokee Freedmen's status and the voiding of the Confederate treaty were previously agreed upon and both sides compromised on issues such as amnesty for Cherokee that fought for the Confederacy. On July 19, 1866, delegates representing the Cherokee Nation signed a reconstruction treaty with the United States in Washington DC. The treaty granted Cherokee citizenship to the Freedmen and their descendants (article 9). The treaty also set aside a large tract of land for Freedmen to settle with 160 acres for each person (article 4) and granted them voting rights and self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
within the constraints of the greater Cherokee Nation (article 5 and article 10).
"The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of the national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime, whereof the party shall have been duly convicted, in accordance with laws applicable to all the members of said tribe alike. They further agree 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: Provided, That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated." -Article 9 of The Treaty Of 1866
The Seminole
Seminole
The Seminole are a Native American people originally of Florida, who now reside primarily in that state and Oklahoma. The Seminole nation emerged in a process of ethnogenesis out of groups of Native Americans, most significantly Creeks from what is now Georgia and Alabama, who settled in Florida in...
, Choctaw
Choctaw
The Choctaw are a Native American people originally from the Southeastern United States...
, and Creek
Creek people
The Muscogee , also known as the Creek or Creeks, are a Native American people traditionally from the southeastern United States. Mvskoke is their name in traditional spelling. The modern Muscogee live primarily in Oklahoma, Alabama, Georgia, and Florida...
of the Five Civilized Tribes also signed treaties with the U.S. government in 1866 with articles concerning their respective Freedmen.. While the treaties granted citizenship to their respective Freedmen, the Choctaw had stricter limitations on Freedmen citizenship. The Chickasaw Nation refused to include Freedmen as citizens. After considerable tribal debate, the Choctaw Nation granted Choctaw and Chickasaw Freedmen citizenship in 1885. The Cherokee Nation Constitution was amended in a special convention on November 26, 1866. The constitution amendments reiterated the treaty's language concerning the Freedmen as well as the six-month deadline for Freedmen to return to the Cherokee Nation in order to be counted as citizens. Essentially, Cherokee and other tribal freedmen were allowed the choice to reside as citizens with the tribes, or to have United States citizenship outside the tribal nations.
"All native born Cherokees, all Indians, and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as 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 from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be, citizens of the Cherokee Nation.".
Rolls
The Cherokee claimed that the 1866 treaty with the US granted civil and political rights to Cherokee Freedmen, but not the right to share in tribal assets. The Cherokee Chief Dennis Wolf Bushyhead (1877–1887) opposed the exclusion of Cherokee Freedmen from distribution of assets, but was overridden by the Tribal Council. The federal government became involved on behalf of the Freedmen; in 1888 the US Congress passed An Act to secure to the Cherokee Freedmen and others their proportion of certain proceeds of lands, Oct. 19, 1888, 25 Stat. 608. The US Indian agent John W. Wallace was commissioned to create a roll, now known as the Wallace Roll, to aid in the per-capita distribution of federal money. The Wallace Roll included 3,524 Freedmen.
The Cherokee Nation continued to challenge the rights of the Freedmen. In 1890, by passing "An act to refer to the U.S. Court of Claims certain claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee Nation", Oct. 1, 1890, 26 Stat. 636, the US Congress authorized the U.S. Court of Claims to hear suits by the Freedmen against the Cherokee Nation for recovery of proceeds denied them. The freedmen won the claims court case that followed, Whitmire v. Cherokee Nation and The United States (1912) (30 Ct. Clms. 138(1895)), which was appealed to the US Supreme Court. It related to treaty obligations of the Cherokee Nation to the United States. The Claims Court ruled that payments could not be restricted to "particular class of Cherokee citizens, such as those by blood", which was upheld by the Supreme Court. As the Cherokee Nation had already distributed the funds they had received for sale of the Cherokee Outlet, the US government as co-defendant was to pay the award to the Cherokee Freedmen. It commissioned the Kern-Clifton roll, completed in 1896, as a record of 5,600 freedmen to receive a portion of the land sale funds in the following decade as settlement.
During this distribution of proceeds, Congress passed the Dawes Act of 1887. It was a measure to promote assimilation of Native Americans by requiring the extinguishing of tribal government and the allotment of communal lands to individual households of citizens registered as tribal members. The US government would declare remaining lands "surplus" to communal Indian needs and allow it to be acquired and developed European Americans.
As a part of the act and subsequent bills, the Dawes Commission
Dawes Commission
The American Dawes Commission, named for its first chairman Henry L. Dawes, was authorized under a rider to an Indian Office appropriation bill, March 3, 1893...
required registration of the American Indians of each tribe in the Indian Territory. Individuals were identified by tribe on the Dawes Roll under the categories: Indians by blood (they could identify only one tribe, even if descended from more than one), intermarried whites, and Freedmen. Although many Indians were of more than one tribal ancestry, they had to choose only one. In addition, although freedmen frequently had Cherokee ancestry and sometimes living Cherokee parents, the Dawes commissioners generally listed all freedmen exclusively on the Freedmen Roll rather than recognizing individual's percentage of Cherokee ancestry. The Dawes Rolls
Dawes Rolls
The Dawes Rolls were created by the Dawes Commission. The Commission, authorized by United States Congress in 1893, was required to negotiate with the Five Civilized Tribes to convince them to agree to an allotment plan and dissolution of the reservation system...
of 1902 listed 41,798 citizens of the Cherokee Nation, and 4,924 persons separately listed as Freedmen. The genealogist Angela Y. Walton-Raji said that together, the Five Civilized Tribes had nearly 20,000 freedmen listed on the Dawes Rolls, which were completed from 1902-1906.
The 1908 Curtis Act authorized the Dawes Commission to allot funds without the consent of tribal governments, and allowed the federal government to extract taxes from white citizens living in the Indian territories. (American Indians have considered both the Dawes and Curtis acts as restrictions on tribal sovereignty.) The government distributed allotments of land, although there have been many claims of unfair treatment and errors in the registration process. As the Cherokee Nation's government was officially dissolved, and Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
became a state (1907), the freedmen and other Cherokee had self-determination as US citizens. Some 1,659 freedmen listed on the Kern-Clifton roll were not included in the Dawes Roll, and therefore lost their Cherokee citizenship rights.
Some activists have criticized inconsistencies in the information collected in the Dawes Rolls. In previous censuses, persons of mixed African-Native American ancestry were classified as Native American. The Dawes Commission set up three classifications: Cherokee by blood, intermarried white, and Freedmen. In testimony as a member of the Cherokee Freedmen's Association, before the Indian Claims Commission on November 14, 1960, Gladys Lannagan reported, "I was born in 1896 and my father died August 5, 1897. But he didn't get my name on the roll. I have two brothers on the roll—one on the roll by blood and one other by Cherokee Freedman children's allottees." She stated that one of her grandparents was Cherokee and the other black. There have been cases of mixed-race Cherokee, of partial African ancestry, with as much as 1/4 Cherokee blood (equivalent to one grandparent being full-blood) not having been listed as "Cherokee by blood" in the Dawes Roll because of having been classified under only the Cherokee Freedmen category. Thus such individuals lost their "blood" claim to Cherokee citizenship despite having satisfied the criterion of having a Cherokee Indian ancestor.
In 1924, Congress passed a jurisdictional act that allowed the Cherokee to file suit against the United States to recover the funds paid to Freedmen in 1894 under the Kern-Clifton Roll. It held that the Kern-Clifton Roll was valid for only that distribution, and was superseded by the Dawes Rolls in terms of establishing the Cherokee tribal list of membership. The passing of the Indian Claims Commission Act of 1946 sparked interest in the status of the 1,659 Freedmen included in the Kern-Clifton Roll but not the Dawes roll and stirred activity among people claiming descent from the Kern-Clifton Freedmen.
Loss of membership
Under the Principal Chief Act of 1970, the US Congress required the former Five Civilized Tribes, Choctaw, Seminole, Cherokee and Creek peoples, to have voter qualifications "broad enough to include the enrolled Freedmen citizens of the respective nations, together with the descendants of such enrollees.” In the 1970s, under pressure from Indian activists, the Bureau of Indian AffairsBureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
began to provide certain benefits, such as free health care, to members of federally recognized tribes. Numerous descendants of Cherokee listed as "Cherokee by Blood" on the Dawes Roll enrolled as new members of the Cherokee Nation to receive the benefits. The government provided the benefits as well to the Cherokee Freedmen, as citizens of the Nation.
In 1983 Ross O. Swimmer
Ross Swimmer
Ross O. Swimmer is the Special Trustee for American Indians at the U.S. Department of the Interior. Swimmer attended the University of Oklahoma, where he received both his Bachelor of Arts and Juris Doctor degrees...
, then Principal Chief of the Cherokee Nation, began efforts to block the freedmen descendants from the tribe. He issued an executive order to require Cherokee Nation citizens to have a "Certificate Of Degree Of Indian Blood" (CDIB) card in order to vote. The CDIB cards were issued by the Bureau of Indian Affairs based on those listed on the Dawes Rolls as Indians by blood. Since the Cherokee Freedmen Roll had no record of Indian blood quantum listed (unlike the "Cherokee By Blood" Rolls), they could not obtain CDIB cards. Although they were Dawes enrollees, received funds resulting from tribal land sales via the U.S. Supreme Court ruling in Whitmire v. Cherokee Nation and United States (1912), and had previously voted in Cherokee Nation elections, the Cherokee Freedmen were turned away from the polls and told that they did not have the right to vote.
Swimmer's executive order was analyzed by some observers as one way Swimmer excluded people who were supporting a rival candidate, Perry Wheeler, for Principal Chief. After the 1983 Cherokee Nation elections and the reelection of Swimmer, Wheeler and his running mate, Agnes Cowen, initiated a series of legal proceedings such as filing cases with the Cherokee Judicial Appeals Tribunal, petitioning the Bureau of Indian Affairs to conduct an investigation of the election, and filing a case with the US District Court. Wheeler and Cowan alleged that the election was a violation of federal and tribal law and that the Cherokee Freedmen were unjustly removed from voting because they were allies of Wheeler. All cases and subsequent appeals were defeated.
Swimmer’s successor, Chief Wilma P. Mankiller
Wilma Mankiller
Wilma Pearl Mankiller was the first female Chief of the Cherokee Nation. She served as principal chief for ten years from 1985 to 1995.-Early life:...
, elected in 1985, issued an Executive Order requiring all enrolled members of the Cherokee Nation to have a CDIB card. This completed the disfranchisement
Disfranchisement
Disfranchisement is the revocation of the right of suffrage of a person or group of people, or rendering a person's vote less effective, or ineffective...
of the Cherokee Freedmen descendants within the Cherokee Nation by excluding them from citizenship. (Note: Article III, Section 1 of the Cherokee Nation's 1975 Constitution stated that all members of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls. Although the Dawes Rolls contained three groups: Cherokee by blood, freedmen, and intermarried whites, the Cherokee Nation continued the practice of granting citizenship only to descendants of Indians by blood.)
Activism of the 1940s–2000s
In the 1940s, the Cherokee Freedmen's Association was formed by more than 100 descendants of freedmen on the Wallace, Kern-Clifton, and Dawes Rolls. The group filed a petition with the Indian Claims Commission in 1951, which was denied in 1961. The Commission said the claims were individual in nature and outside its jurisdiction. Appeals stretched to 1971, but all were denied.In 1975 the Cherokee passed a new constitution, defining as citizens those listed in the Dawes Rolls, including Delaware and Creek. Later the National Council passed legislation restricting voting members to those who were descended from a Cherokee on the Dawes Rolls. The Cherokee Freedmen's Association was faced with two issues. On one hand, the Dawes Rolls, a federally mandated tally, were accepted as defining who were legally and politically Cherokee citizens. But, the Council had passed legislation that was more restrictive than the constitution.
On July 7, 1983, Reverend Roger H. Nero and five other Cherokee Freedmen were turned away from the Cherokee polls. They filed suit in Claims Court. The Claims Commission considered the Freedmen's claims for voting rights in the 1980s as a Cherokee Nation matter and outside of the US government's jurisdiction, as by that time there was more emphasis on American Indian sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
..
Nero and colleagues sent a complaint to the Civil Rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
Division of the Department of Justice. On June 18, 1984, the freedmen descendants filed a class action suit against Principal Chief Ross Swimmer, the tribal registrar, a tribal council member, the tribal election committee, the United States, the Office of the President, the Department of the Interior, the Office of the Secretary, the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
(BIA), and three BIA employees, claiming discrimination on the basis of race. The suit sought nearly $750 million in damages and asked for the 1983 tribal election to be declared null and void. The court in that case and an appeal heard in 1989 ruled against the plaintiff Freedmen because of jurisdictional issues. The court held that the case should have been filed in the Court of Claims due to the amount asked in the lawsuit; no judgment was made as to the merits of the case.
In 2001, Bernice Riggs, a Freedmen descendant, sued the tribal registrar Lela Ummerteskee for citizenship in the case of Riggs v. Ummerteskee. The Judicial Appeals Tribunal (now the Cherokee Nation Supreme Court) ruled that Riggs adequately documented her Cherokee blood ancestry, but was denied membership because her partially Cherokee ancestors were listed only as Freedmen on the Dawes Rolls. This decision also relied on the Nero ruling in part.
Reinstatement and loss of citizenship
During the pending Federal litigation, on September 26, 2004, Lucy Allen, a Freedmen descendant, filed a lawsuit with the Cherokee Nation Supreme Court, asserting that the acts barring Freedmen descendants from tribal membership were unconstitutional, in the case of Allen v. Cherokee Nation Tribal Council. On March 7, 2006, the Cherokee Nation Judicial Appeals Tribunal ruled in Allen’s favor in a 2–1 decision that the descendants of the Cherokee Freedmen were Cherokee and were allowed to register to become enrolled citizens of the Cherokee Nation. This was based on the facts that the Freedmen were listed as members on the Dawes Rolls, and that the 1975 Cherokee Constitution did not exclude them from citizenship, nor did it have a blood requirement for membership in the tribe. This ruling overturned the previous ruling in Riggs v. Ummerteskee.More than 800 Freedmen descendants have enrolled in the Cherokee Nation since the ruling was made – out of up to 45,000 potentially eligible people. Within days, the former Principal Chief Chad Smith stated his opposition to the ruling. He supported a referendum for a constitutional amendment to restrict tribal membership. Former Chief Smith, disbanded the Judicial Appeals Tribunal and created a new Cherokee Supreme Court under the new Constitution. A question remains regarding the legitimacy of the Court as the United States has not approved the Constitution as required under the previous Cherokee Constitution.
During a Cherokee Tribal Council meeting on June 12, 2006, the Cherokee Tribal Council voted in a 13–2 decision to amend the constitution to restrict Cherokee citizenship to descendants of Cherokee on the Dawes Rolls, but denied a resolution calling for a special election on the issue. Supporters of the special election, including John Ketcher, former deputy chief of the Cherokee Nation, and Cherokee citizens siding with Smith, circulated a petition for a vote to remove the Freedmen descendants as members. Chief Smith announced that the issue of the membership for Cherokee Freedmen was being considered for a vote related to proposed amendments to the Cherokee Nation Constitution.
Freedmen descendants opposed the election. Vicki Baker filed a protest in the Cherokee Nation Supreme Court over the legality of the petition and allegations of foul play involved in the petition drive. Though the Cherokee Supreme Court ruled against Baker, two justices in the Cherokee Supreme Court, Darrell Dowty and Stacy Leeds
Stacy Leeds
Stacy L. Leeds is a Law professor, scholar, and judge for several tribes. She was a candidate for Principal Chief of the Cherokee Nation in 2007.-Education:...
, filed separate dissenting opinions against the ruling. Justice Leeds wrote an 18-page dissent concerning falsified information in the petition drive and fraud by Darren Buzzard and Dwayne Barrett, two who circulated the petition. Leeds wrote,
"In this initiative petition process, there are numerous irregularities, clear violations of Cherokee law, and it has been shown that some of the circulators perjured their sworn affidavits. I cannot, in good conscience, join in the majority opinion.” .Despite the dissent and the removal of 800 signatures from the petition, the goal of 2,100 signatures was met.
Jon Velie filed a Motion for Preliminary Injunction in the Vann action in DC District Court. However, Judge Henry H. Kennedy ruled against the Freedmen descendants’ motion to halt the upcoming election because the election may not have voted out the Freedmen. After a few delays, the tribe (excluding Cherokee Freedmen) voted on March 3, 2007 on whether to amend the constitution to exclude Cherokee Freedmen from citizenship. . The referendum results removed the Freedmen from the Cherokee Nation by a 77% (6,693) to 23% (2,040) margin; a total of 8,700 total votes were cast. As the journalist Steve Russell noted in a 2011 article, the turnout in the special election was 8,743 of about 35,000 registered voters, of which 6,702 voted to disfranchise their follow citizens. By comparison, the last Cherokee general election turnout had totaled 13,914.
The Freedmen descendants protested their ouster from the tribe with demonstrations at the BIA office in Oklahoma and at the Oklahoma state capital. Due to the issues of citizenship in the election and the resulting exclusion of freedmen descendants, the Cherokee Nation has been criticized by United States groups such as the Congressional Black Caucus
Congressional Black Caucus
The Congressional Black Caucus is an organization representing the black members of the United States Congress. Membership is exclusive to blacks, and its chair in the 112th Congress is Representative Emanuel Cleaver of Missouri.-Aims:...
and the National Congress Of Black Women. On March 14, 2007, twenty-six members of the Congressional Black Caucus sent a letter to Carl J. Artman, Assistant Secretary for Indian Affairs, urging the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
to investigate the legality of the March 3rd election . The election has been criticized for having been conducted under a constitution that was not approved by the Secretary of Interior.
BIA controversy and temporary reinstatement
On May 22, 2007, the Cherokee Nation received notice from the BIA that the Cherokee Nation’s amendments to the 1975 Cherokee Nation Constitution were rejected because they required BIA approval, which had not been obtained. The BIA also stated concerns that the Cherokee Nation had excluded the Cherokee Freedmen from voting for the 2003 (1999) Constitutional amendments, since they had been improperly shorn of their rights of citizenship years earlier and were not allowed to participate in the constitutional referendum. This is considered a violation of the 1970 Principal Chiefs Act, which requires that all tribal members must vote.According to Chief Smith, the 1975 Indian Self Determination Act overrode the 1970 Principal Chiefs Act, and the Cherokee Nation had the sovereign right to determine its citizenship requirements. The United States has required and the Cherokee Nation has abided by the 1970 Principal Chiefs Act in 2007 and 2011 elections. Despite this, Smith has stated that the Cherokee Supreme Court ruled that Cherokee Nation could take away the approval authority it had granted the federal government. He said that the Nation would abide by its Supreme Court's decision.. The issue of amending the process of federal approval was placed on the ballot for the June 23, 2007 election. Cherokee voters approved the amendment (not to require federal approval) by a 2–1 margin, but the BIA still has to approve. Jeanette Hanna, director of the BIA's Eastern Oklahoma Regional Office, said that the regional office has recommended approval of the vote on removal of Secretarial oversight.
Heading into the 2007 election, the Cherokee Nation was not permitting the Freedmen to vote. Attorney Jon Velie again filed a motion for preliminary injunction.
On May 15, 2007, Cherokee District Court Judge John Cripps signed an order for the Cherokee Freedmen descendants to be temporarily reinstated as citizens of the Cherokee Nation while appeals are pending in the Cherokee Nation court system. This was due to an injunction filed by the Freedmen descendants' court-appointed attorney for their case in tribal court. The Cherokee Nation’s Attorney General Diane Hammonds complied with the court order. . Velie, on behalf of Marilyn Vann, six Freedmen descendants, and the Freedmen Band argued the late actions that protected 2,800 Freedmen but not all that were entitled to citizenship was insufficient, but Judge Henry Kennedy denied the motion. On June 23, 2007 Chad Smith was reelected for a four-year term as Principal Chief with 58.8% of the vote
Current legal issues
Marilyn Vann, president of the Descendants Of Freedmen Of the Five Civilized Tribes organization, and four Freedmen descendants filed a case with the United States Federal Court over the Cherokee Nation’s disfranchisement of the Freedmen descendants. Efforts have been made by the Cherokee Nation to dismiss the federal case.On December 19, 2006, Federal Judge Henry Kennedy ruled that the Freedmen descendants could sue the Cherokee Nation for disfranchisement. The Cherokee Nation's administration appealed the decision on the grounds that as a sovereign nation, the tribe is protected by sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
and cannot be sued in US court. On July 29, 2008, the Washington D.C. Circuit Court Of Appeals unanimously ruled that the Cherokee Nation was protected by sovereign immunity and could not be listed as a defendant in the lawsuit. But, it stated that the Cherokee Nation's officials were not protected by the tribe's sovereign immunity, and Freedmen descendants could proceed with a lawsuit against the tribe's officers. The ruling also stated the 13th Amendment and the Treaty of 1866 whittled away the Cherokees right to discriminate against the Freedmen.The ruling means that the case will go back to district court. Velie stated this was a great victory for the Freedmen and Indian people who can bring actions against the elected officials of their Native Nations and the United States.
In February 2009, the Cherokee Nation filed a separate Federal lawsuit against individual Freedmen in an attempt at what some called "venue shopping". The case was sent back to Washington to join the Vann case. "On July 2, the Honorable Judge Terrance Kern of the Oklahoma Northern District Court transferred the Cherokee Nation v. Raymond Nash et al case that was filed in his court in February 2009 to D.C. Already awaiting judgment in D.C. is the case of Marilyn Vann et al v. Ken Salazar filed in August 2003." Kern would not hear the Nash case, filed by the Cherokee Nation, due to the cases resembling each other in parties and the subject matter of Freedmen citizenship; in addition, the first-to-file rule meant that the Vann case needed to be heard and settled before any court heard the Nash case.
As the Cherokee Nation waived its sovereign immunity to file the Cherokee Nation v. Nash case, it is now subject to the possibility of Judge Kennedy's enjoining the Cherokee Nation to the original case, after they had won immunity. "Finally, the Court is not, as argued by the Cherokee Nation, depriving the Cherokee Nation of 'the incidents of its sovereign immunity' by transferring this action pursuant to the first to file rule. The Cherokee Nation voluntarily filed this action and waived its immunity from suit. It did so while the D.C. Action was still pending."
On January 14, 2011, Cherokee tribal district court judge John Cripps ruled that the 2007 constitutional amendment was invalid because it conflicted with the 1866 treaty with the United States, which guaranteed the Freedmen's rights. On June 24, 2011, the Cherokee Nation held an election for its Principal Chief. Bill John Baker was declared the winner by 11 votes. The following day, the Election Committee determined that Chad Smith had won the election by 7 votes. In a recount Bill John Baker was declared the winner by 266 votes. Smith appealed to the Cherokee Supreme Court that ruled that a winner could not be determined with mathematical certainty. On August 21, 2011, prior to the re-do of the Cherokee election, the Cherokee Nation Supreme Court reversed the decision of the Cherokee District Court. Justice Darell Matlock Jr. ruled that the Cherokee people had the sovereign right to amend the Cherokee Nation constitution and to set citizenship requirements. The decision was 4 to 1 with justice Darrell Dowty dissenting. Many questioned the timing of the decision as the Cherokee Freedmen voters, which totaled over 500 were disenfranchised going into the election. The Decision of the Supreme Court removed the injunction of the District Court which kept 2,800 of the Freedmen in the Nation.
The U.S. Department of Housing and Urban Development has temporarily frozen $33 million in funds for the Cherokee Nation while it studies the issue.
The Cherokee Supreme Court ruling meant that the Freedmen descendants, who voted in the general election in July 2011, would not be eligible to vote in the scheduled September 24, 2011 special election for principal chief. It was to settle the runoff election between Bill John Baker
Bill John Baker
Bill John Baker is a Cherokee Nation councilperson, businessman, and Principal Chief of the Cherokee Nation.-Background:Bill John Baker was born in Cherokee County, Oklahoma. He is 1/32 Cherokee by blood. He graduated from Tahlequah High School...
, the challenger and longtime member of the National Council, and Chad Smith
Chad Smith
Chad Smith is an American musician, best known as the longtime and current drummer of Red Hot Chili Peppers. Smith is also the drummer of the hard rock supergroup Chickenfoot which includes Sammy Hagar, Joe Satriani, and Michael Anthony, former Deep Purple vocalist Glenn Hughes' backing band and...
, the incumbent (who opposed Freedmen membership in the tribe). In the previous election, voting was too close to call. In response, Velie and the Freedmen descendants filed another motion for preliminary injunction in federal district court asking to reinstate their rights for the election.
On September 11, 2011, the Cherokee Nation sent letters to 2800 Freedmen descendants, informing them of exclusion from citizenship, voting and tribal benefits. The Department of Interior immediately wrote to the chief, ordering the restoration of voting rights and benefits. The letter said that the September 24, 2011 election would be considered unconstitutional if Freedmen descendants were excluded from voting, as guaranteed by the 1866 treaty and the 13th Amendment to the US Constitution. The Freedmen filed suit in federal court to delay the election until they were allowed to vote. The Cherokee Attorney General recommended on September 14 reopening the case, with the previous reinstatement to be applied while oral arguments are scheduled. The Cherokee Election Commission is working to get ballots to the Cherokee Freedmen in time for the September 24 election. On September 20, Judge Henry Kennedy of the US District Court heard arguments from the Velie on behalf of the Freedmen, US officials, and Dean Luthey on behalf of the Cherokee Nation. Following arguments, the Judged adjourned and the parties announced the Cherokee Nation, Freedmen plaintiffs and US government had come to an agreement to allow the Freedmen full citizenship rights including the right to vote, with voting to continue two additional days. The Cherokee Nation was to inform the Freedmen of their citizenship rights no later than September 22nd.
On September 23, 2011, Velie returned to the Court with the other parties as virtually none of the Freedmen had received notification with the election happening the next day. Judge Kennedy signed an additional agreed upon Order between the parties requiring additional time for absentee ballots foir Freedmen and five days of walk-in voting for all Cherokees.
In October 2011, Judge Kennedy dismissed the Vann case for technical reasons and transferred the Nash cash back to Federal District Court in Tulsa, OK. Velie informed the Court in a status Conference report that the Freedmen will appeal the Vann dismissal. The date for appeal is November 29, 2011.
Congressional issues
On June 21, 2007, US Rep. Diane WatsonDiane Watson
Diane Edith Watson is a former US Representative for , serving from 2003 until 2011. She is a member of the Democratic Party...
(D-California), one of the 25 Congressional Black Caucus members who signed a letter asking the BIA to investigate the Freedmen situation, introduced H.R. 2824. This bill seeks to sever the Cherokee Nation’s federal recognition, strip the Cherokee Nation of their federal funding (estimated $300 million annually), and stop the Cherokee Nation’s gaming operations if the tribe does not honor the Treaty of 1866. H.R. 2824 was co-signed by eleven Congress members and was referred to the Committee Of Natural Resources and the Committee Of The Judiciary.
Chief Smith issued a statement saying that the introduction of this bill is "really a misguided attempt to deliberately harm the Cherokee Nation in retaliation for this fundamental principle that is shared by more than 500 other Indian tribes." The National Congress of American Indians (NCAI) expressed their disapproval of the bill..
On September 26, 2008, Congress cleared the housing bill H.R. 2786. The reauthorization of the Native American Housing and Self-Determination Act included a provision stating that the Cherokee Nation can receive federal housing benefits as long as a tribal court order allowing the citizenship for Cherokee Freedmen descendants is intact or some settlement is reached in the citizenship issue and litigation involving the Cherokee Freedmen descendants . The House Of Representatives version of the bill would have denied funds unless the Freedmen descendants were restored to citizenship. The Senate version of the bill had no mention of the Cherokee Nation or the Cherokee Freedmen descendants. Paul Lumley, executive director of the National American Indian Housing Council (NAIHC), said that the NAIHC worked with members of the Congressional Black Caucus to create a compromise, resulting in the addition of the Cherokee Freedmen stipulation in the bill .
Reactions to the controversy
A number of Cherokee Freedmen descendants feel that they have been gradually pushed out of the Cherokee Nation, and that the process has left each generation less aware of its rights and its history. As Freedman activist Reverend Roger H. Nero said in 1984, "Over the years they [Cherokee Nation officials] have been eliminating us [Freedmen] gradually. When the older ones die out, and the young ones come on, they won't know their rights. If we can't get this suit, they will not be able to get anything" .Individual Cherokee and Freedmen have in the past been ignorant about the issue all together. Circe Sturm (1998) wrote in her book on the Freedmen descendants that many had little sense of the historic connection with the Cherokee, and are ambivalent about getting recognized. Cherokee members have also been ignorant of the historic issues. Cara Cowan Watts, a tribal council member who opposed membership for Freedmen descendants, admitted in 2007 that she didn’t know anything about the Freedmen or their history before the court case. Chief Smith said, "A lot of Cherokee don't know who the Freedmen are," and that he was not familiar with them when growing up.
Some Cherokee who oppose membership for Freedmen descendants support Chief Smith's position: that the Freedmen are not Cherokee citizens because their ancestors were listed on the Freedmen Roll of the Dawes Rolls
Dawes Rolls
The Dawes Rolls were created by the Dawes Commission. The Commission, authorized by United States Congress in 1893, was required to negotiate with the Five Civilized Tribes to convince them to agree to an allotment plan and dissolution of the reservation system...
and not on the "Cherokee By-Blood" Roll (although some were of Cherokee blood). Smith and supporters claim that the Freedmen and their descendants have not been active in the tribe for 100 years, the Freedmen were compensated for slavery with their Dawes land allotments and not tribal membership, they were forced on the tribe by the US under the Treaty of 1866, and they want to share in the tribe's resources and Cherokee Nation's federally funded programs.
Those supporting membership of Freedmen descendants believe they have a rightful place in Cherokee society based on their long history in the tribe before and after forced removal, with a history of intermarriage and active members. In addition, they cite as precedent the legal history, such as the Treaty Of 1866, the 1894 Supreme Court case of Cherokee Nation vs. Journeycake http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=413863, and the 1975 Cherokee Constitution. Ruth Adair Nash, a Freedmen from Bartlesville, Oklahoma, carries her Cherokee citizenship card she was issued in 1975.
Some Cherokee by blood have pushed to garner full citizenship for Freedmen. David Allen Cornsilk
David Cornsilk
David Cornsilk is the managing editor of the Cherokee Observer, an independent newspaper, and one of the founders of the Cherokee National Party...
, editor of the independent newspaper The Cherokee Observer and founder of the Cherokee National Party, was the lay advocate for the Lucy Allen case. He sees the issue of honoring the 1866 treaty as an issue of sovereignty. Other non-White Cherokee have expressed solidarity with freedmen due to their similarities of religion (Southern Baptist) and the sense of community (albeit African American) found among freedmen.
In a June 2007 message to members of United Keetoowah Band Of Cherokees, Principal Chief George Wickliffe expressed his concern about threats to sovereignty by this case. He said that the Cherokee Nation's refusal to abide by the Treaty of 1866 threatened the government-to-government relationships of other Native American nations, which had struggled to make the US live up to its treaty obligations.
Supporters of the Freedmen descendants note that the Cherokee have historically included as members other non-Cherokee or people of partial Cherokee ancestry, adopting captives into the tribe. The Delaware
Lenape
The Lenape are an Algonquian group of Native Americans of the Northeastern Woodlands. They are also called Delaware Indians. As a result of the American Revolutionary War and later Indian removals from the eastern United States, today the main groups live in Canada, where they are enrolled in the...
and Shawnee
Shawnee
The Shawnee, Shaawanwaki, Shaawanooki and Shaawanowi lenaweeki, are an Algonquian-speaking people native to North America. Historically they inhabited the areas of Ohio, Virginia, West Virginia, Western Maryland, Kentucky, Indiana, and Pennsylvania...
tribes, two non-Cherokee tribes, are members of the Cherokee Nation via the Delaware Agreement of 1867 and the Shawnee Agreement of 1869. Another issue is that of a tribe's breaking a treaty protected by Article Six of the United States Constitution
Article Six of the United States Constitution
Article Six of the United States Constitution establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position and holds the United States under the...
. Daniel F. Littlefield Jr., director of the Sequoyah Research Center at the University of Arkansas-Little Rock, stated that the Treaty of 1866 granted freedmen their rights as citizens, and the case should not be made into a racial issue.
Race is another issue. Taylor Keen, a Cherokee Nation tribal council member, said,
"Historically, citizenship in the Cherokee Nation has been an inclusive process; it was only at the time of the Dawes Commission there was ever a racial definition of what Cherokee meant. The fact that it was brought back up today certainly tells me that there is a statute of racism."
Cherokee Nation citizen Darren Buzzard, one of the circulators of the 2006 petition, wrote a letter to Cherokee Councilwoman Linda O’Leary, with passages which many observers deemed to be racist and bigoted. Circulated widely on the Internet, the letter was quoted in numerous articles related to the Freedmen case.
Chuck Trimble, former executive director of the National Congress of American Indians
National Congress of American Indians
The National Congress of American Indians is a American Indian and Alaska Native indigenous rights organization. It was founded in 1944 in response to termination and assimilation policies that the U.S. government forced upon the tribal governments in contradiction of their treaty rights and...
, criticized the Cherokee Supreme Court's 2011 ruling for what he called "the Cherokee Dred Scott
Dred Scott
Dred Scott , was an African-American slave in the United States who unsuccessfully sued for his freedom and that of his wife and their two daughters in the Dred Scott v...
decision," for depriving people of citizenship.
See also
- Freedmen
- African Americans with Native Heritage
- Black SeminolesBlack SeminolesThe Black Seminoles is a term used by modern historians for the descendants of free blacks and some runaway slaves , mostly Gullahs who escaped from coastal South Carolina and Georgia rice plantations into the Spanish Florida wilderness beginning as early as the late 17th century...
- Choctaw FreedmenChoctaw FreedmenThe Choctaw freedmen were enslaved African Americans who became part of the Choctaw Nation with emancipation after the American Civil War, a requirement of the 1866 treaty the US made with the Choctaw. The Choctaw had sided with the Confederacy during the war....
Sources
- Carter, Kent. The Dawes Commission and the Allotment of the Five Civilized Tribes, 1893–1914. Orem, Utah: Ancestry.com Incorporated. 1999.
- Daffron, Brian (2007) "Freedmen descendants struggle to maintain their Cherokee identity", Indian Country Today, March 30, 2007. (Accessible as of July 13, 2007 http://www.indiancountry.com/content.cfm?id=1096414754)
- Debo, AngieAngie DeboAngie Elbertha Debo was an American historian who wrote 13 books and hundreds of articles about Native American and Oklahoma history...
. And Still the Waters Run: The Betrayal of the Five Civilized Tribes. Princeton: Princeton University Press, 1940. - Littlefield, Daniel F. Jr. The Cherokee Freedmen: From Emancipation to American Citizenship. Westport, CT: Greenwood Press, 1978.
- Mcloughlin, WG. "The Cherokees in Transition: a Statistical Analysis of the Federal Cherokee Census of 1835", Journal of American History, Vol. 64, 3, 1977, p. 678
- Nero, R H, et al. v. Cherokee Nation et al. Case Files of Jim Goodwin Attorney at Law of Goodwin and Goodwin, Tulsa, Oklahoma, regarding case number 84-7-557-C, US District for the Northern District of Oklahoma, Tulsa, Oklahoma
- Perdue, Theda. Slavery and the Evolution of Cherokee Society, 1540–1866. Knoxville: University of Tennessee Press, 1979.
- Ray, S. Alan. "A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendants". Michigan Journal of Race and Law. Vol. 12, p. 387, 2007 (Accessible on SSRN as of March 21, 2008 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=943521#PaperDownload).
- Russell, Steve (2002). "Apples are the Color of Blood", Critical Sociology Vol. 28, 1, 2002, p. 65
- Sturm, Circe. "Blood Politics, Racial Classification, and Cherokee National Identity: The Trials and Tribulations of the Cherokee Freedmen", American Indian Quarterly, Vol. 22, No. 1/2. (Winter – Spring, 1998), pp. 230–258.
- Thornton, Russell. The Cherokees: A Population History. Lincoln, University of Nebraska Press, 1990.
- "Treaty with the Cherokee, 1866". written July 19, 1866. 14 Statutes, 799. Ratified July 27, 1866. Proclaimed Aug. 11, 1866, online (Accessed May 16, 2007)
- "Cherokee leader wants to overturn freedmen decision", AP, KTEN.com, 2006, (Accessible as of July 13, 2007 here)