Freedmen vs. The Cherokee Nation (Sovereignty or Racial Discrimination?)

In March of 2007, the Cherokee Nation of Oklahoma held a special election that amended its Constitution regarding citizenship in the Nation. That action disenrolled black citizens, called Freedmen, who had been members since 1866. Was this the decision of a sovereign nation rightfully declaring who can be a citizen or an act of racial discrimination? The answer will be decided in federal court in the next few weeks, but let’s look at some of the critical issues leading up to the disenrollment.

Who are “Freedmen,” and what is, or was their connection to the tribe? The answer to that question lurks in the early 19th century when southern tribes struggled between continuing their historical culture or assimilating white Christian life. The five largest southern tribes, Choctaw, Chickasaw, Creek, Cherokee, and Seminole, commonly known as “The Five Civilized Tribes,” began adopting an Anglo lifestyle. Along with farming and animal husbandry, they also adopted the European version of slavery. In fact, even though few held as many slaves as their white neighbors, the percentage of Cherokees owning slaves was greater (about 7.5% vs. 5%).

By 1830, the Cherokee, through intermarriage, education, Christian conversion, farming, ranching, and slaveholding, could barely be told apart from their American counterparts. That, of course, wasn’t good enough. They were still “heathen Indians,” and were removed west to Indian Country, Oklahoma. The event will forever be known as the “Trail of Tears.” It was a brutal hardship resulting in heavy loss of life, but they didn’t suffer the tragedy alone. With them on that desperate journey were their slaves.

During the Civil War, the Cherokee, like the other “Civilized Tribes,” eventually fought for the Confederacy. The loss resulted in the Treaty of 1866 which required the abolition of slavery and incorporation of slaves as citizens into the tribe. A copy of the wording is shown here:

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.

Immediately following the signing of the treaty, the Cherokee National Committee amended its Constitution and declared citizenship for all former slaves and their dependents residing in the Nation. The wording of the amendment is shown here:

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. – 1866 Amendments to Article 3, Section 5 of the 1836 Cherokee Nation Constitution.

At this point, it seems clear; Freedmen are officially adopted into the tribe. Fast forward now to 1898, when white America again showed it knew best what was good for Indians and passed the Dawes Act, also known as The General Allotment Act. The purpose was to speed assimilation of Indians into white society by taking communal land and dividing among tribal members (of course, surplus land was to be sold to non-Indians). To complete the process, a list of citizens had to be attained. From 1898 to 1914, Cherokees were required to account themselves, and registrars would categorize them as one of three classes. Those “of blood,” those who had “intermarried,” and “Freedmen.”

In the thirty-two years span from the end of the war, many former slaves did in fact, intermarry with Cherokee by blood, and their offspring would, therefore, have qualified in the “of blood” group. Unfortunately, large numbers were either erroneously or purposely listed as “Freedman” by the white registrars. Hence, when the National Council voted to amend its Constitution to define citizenship as only those who could show direct lineage to “By Blood” citizens of the Dawes Roll, everything changed.

The court must decide whether the tribe has a right, as a sovereign nation, to determine who it allows as its members, or if the Treaty of 1866, regardless of the classifications of the Dawes Act, prevails. Cherokee Nation Attorney General, Todd Humbree, who is arguing the case, said “After eleven long years of litigation, the Cherokee Nation is looking forward to having a judge decide the longstanding issue of what rights, if any, the freedmen descendants are granted under the Treaty of 1866. The Cherokee Nation believes strongly in treaty rights and believes the correct interpretation of the treaty would allow the Cherokee people to determine who is a Cherokee citizen.” What do you think?

Leave a Reply

Your email address will not be published. Required fields are marked *