In late March, freedmen rallied supporters at the state capitol in Oklahoma City.

Citizenship Denied: The Latest in the Cherokee Freedmen Saga

Brian Daffron
9/8/11

This story was researched and developed last week and will be in the September 21 issue of This Week From Indian Country Today.

The late Cherokee Nation Principal Chief Wilma Mankiller wrote in her autobiography the following words: “The truth is that the practice of slavery will forever cast a shadow on the great Cherokee Nation.”

The repercussions of slavery are still being felt within the Cherokee Nation, as a five-year legal battle between the Cherokee Nation and the descendants of freed Cherokee slaves ended on August 22, with the Cherokee Nation Supreme Court ruling against freedmen who had sought to have their status as citizens of the Cherokee Nation validated.

The ruling upheld a 2007 Cherokee Nation Constitutional amendment that requires the nation’s citizens to have at least one Indian ancestor on the Dawes Rolls, the primary document used to determine Cherokee Nation eligibility. That amendment was passed after the Cherokee Nation Supreme Court ruled in 2006 that the freedmen could qualify for tribal citizenship.

This latest ruling immediately revoked the citizenship of approximately 2,800 non-Indians, whose enrollment had been reinstated by a Cherokee Nation District Court four years ago. This ends the membership of Cherokee Nation members who are descendants of freedmen or of intermarried whites who had been granted Cherokee Nation citizenship.

The Cherokee Nation Supreme Court’s vote was 4-1. In the majority decision written by Chief Justice Darrell Matlock, the court said it does not have authority over the will of the people.

Principal Chief Smith

One of the main legal arguments of the freedmen was based on a treaty between the Cherokee Nation and the U.S. government in 1866, after the end of the Civil War. Article 9 of that treaty states that the Cherokee Nation abolished slavery by 1863 and 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.”

According to the Cherokee Nation Supreme Court ruling, “The Cherokee Freedmen were never afforded citizenship in the Cherokee Nation by the Treaty of 1866. A fair reading of the Treaty of 1866 indicates that it was an expression by the parties that the freedmen would be treated as equals to the citizens of the Cherokee.... The freedmen at that time gained citizenship status in the Cherokee Nation by the Cherokee people’s sovereign expression in the 1866 Constitutional Amendment to the 1839 Cherokee Nation Constitution.

“It stands to reason that if the Cherokee people had the right to define the Cherokee Nation citizenship in the above mentioned 1866 Constitutional Amendment they would have the sovereign right to change the definition of Cherokee Nation citizenship in their sovereign expression in the March 3, 2007 Constitutional Amendment.”

The Court’s ruling sparked outrage from some and brought relief for others. “I think it’s a huge injustice,” said Marilyn Vann, Cherokee Freedmen and president of the Descendants of Freedmen of the Five Civilized Tribes Association. “Number one, the freedmen people have citizenship based on the 1866 treaty. Our ancestors helped build up the tribe. [Citizenship] was something promised by the U.S. government and the tribal government, just as every nation that has enslaved or [colonized] people has brought those minorities into their society. Ancient Rome; the U.S. with the blacks in the Deep South; Romania, which enslaved Gypsies—they’ve all done it. That’s only the right and proper thing to do.”

Taylor Keen, who was a Cherokee Nation council member at the time of the 2007 vote, openly supported and still supports the efforts of the freedmen. In a 2007 interview with Indian Country Today, he talked about how his father, the late Ralph Keen—who was the first Chief Justice for the Cherokee Nation when its tribal government was reorganized under a new constitution in the 1970s—told him that it was paramount that the freedmen be a recognized part of the Cherokee Nation. Taylor Keen says he is now concerned that what he calls “a Jim Crow law” could jeopardize federal funding and recognition for the Cherokee Nation.

The Cherokee Nation argues that it is one of the most diverse tribes in the nation because of the Dawes Roll Indian ancestor requirement. Diane Hammons, the Cherokee Nation Attorney General, points out that there are multiple racial groups who now have Cherokee ancestry. “The Cherokee Nation is among the most diverse of Indian tribes with thousands of citizens who share African, Latino, Asian, Caucasian and other ancestry,” says Hammons. “African Americans with an Indian ancestor on the Dawes Rolls have been, and will continue to be, citizens of the Cherokee Nation.” At the same time, she cited the importance of the tribe to determine who exactly can be members. “There is nothing more integral to a tribe’s right of self-governance than its ability to define its own membership.

“Now the nation will be going about the business of implementing the court ruling,” Hammons says. “It may take a little while to figure out how to properly, and fairly, implement the ruling. In the next few days we’ll know more and will notify the people affected.”

The removal of the freedmen could have an impact on the election on September 24 for principal chief; the race is between three-term incumbent Chad “Corntassel” Smith and Bill John Baker, who has served on the Cherokee Nation Tribal Council for 12 years.

The two have run against each other several times, and each election was decided by a razor-thin margin, so taking the freedmen out of the voting pool has the potential to cause a major shift in the September 24 election. About 44 percent of the 2,800 freedmen are registered to vote and, according to Vann, support for Smith is a long shot. “I will say this: Mr. Smith has certainly not done anything to endear himself to the freedmen people,” she said. “I don’t see anything where the Chief of the Cherokee Nation has done anything—I mean Mr. Smith—has done anything except exploit the freedmen issue for his own purposes.”

Smith wrote and spoke publicly in support of the 2007 constitutional amendment to remove freedmen from Cherokee Nation citizenship rolls if they had no documentable Indian blood. “Cherokees are Indians,” he wrote in a March 9, 2007 Indian Country Today editorial. “They are the indigenous and aboriginal people of this land and there is a commonality of history, language, heritage and culture. It finally came to a point that non-Indians were claiming to be Cherokee when, in fact, they are not. So the vote was an affirmation of identity as Indian for those voting.”

Smith provided written answers to questions from Indian Country Today Media Network (ICTMN) about whether or not this latest decision by the Supreme Court would impact this election. “The process has worked its way through the courts and we have to respect what our Supreme Court has decided,” he wrote. “The citizenship issue is important to our people, but I don’t think the decision will have an impact on the upcoming elections.” The rest of the response from Smith focused on his accomplishments in office.

Baker also declined to be interviewed for this story; instead, he sent a statement that was similar to Smith’s in regard to the ruling, adding that he would abide by any future Supreme Court decisions. “I have said from the beginning that this is in the hands of the court,” Baker’s statement said, “and I will abide by that through this ruling and the others that are bound to follow.”

Which leaves the freedmen out in the cold. Taylor Keen’s brother, Ralph Keen II, was the attorney for the freedmen in this case. In a statement to ICTMN he said that he was “disappointed and saddened” by the Supreme Court’s ruling. “Now, because the Cherokee Nation justice system has failed them, Cherokee Freedmen will have no option but to resort to the federal courts or the halls of Congress for the vindication of their rights.”

“It’s a blemish on Cherokee history,” Taylor Keen says about the Nation’s treatment of the freedmen, “and it’s going to be a tough one to unwind.”

To read about HUD denying Cherokee Nation funding in the latest Freedmen issue, see ICTMN’s story here.

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page

POST A COMMENT

Comments

nanaiya's picture
nanaiya
Submitted by nanaiya on
This article too has an untruth and an incorrect quote. Above it states that Chad Smith state publicly that they would only remove Freedmen who could not trace by blood ancestry, but that has apparently gone out the window. Marilyn Vann is a Freedmen and by blood descendant and she, like many others has lost her Citizenship. I would also like to see Indian Country getting all of her facts straight. On January 14th of this year the Cherokee Courts voted in favor of the Cherokee Freedmen. It's an important ruling that we should not omit.

candyo's picture
candyo
Submitted by candyo on
The Dawes Rolls were enacted to take away Tribal Land Holdings from the Five Civilized Tribes and divide their land into allotments that were given to each individual Indian Tribal Member however, the person had to name only one Tribe that they were a Member of even if, they had ancestry in more than one tribe. Therefore, the Dawes Rolls not only took away their land holdings but also, their claim of other tribal ancestry. Limiting their heritage to only one tribe kept the Native Americans from claiming other Tribal Lands of other Tribes when they may have ancestry members of their family in more than one tribe. Now, with this racially, generated ruling by the CNO Supreme Court it limits those people which the Dawes Rolls included in the beginning plus it becomes a divisive decision to those who were part of the Dawes Roll from the start. I think if anyone has ancestry to any tribe, be it Native American or African American they should be able to claim rights of their heritage in more than one Tribe. I don't think it is fair to limit ones heritage to only one Tribe if they have other ancestry of other Tribes. This rule should be changed.

dwighthayes's picture
dwighthayes
Submitted by dwighthayes on
It would be far easier if the Cherokee Nation just replaced the 'Dawes Rolls' with a DNA test and have the apps. pay for the cost of the test. If the DNA is a match, then you are part of Cherokee family. The freeman issue is a little harder to solve, because they were Cherokee own Slaves freed in 1863, who are claiming both Cherokee and United States citizenship. These freeman would of necessity need to show ancestry to a Cherokee slave who's master was on the Dawes Rolls, quite a trick for a slave at this late date.

sonny's picture
sonny
Submitted by sonny on
Thats why we need a strict blood quantum rule in Indian Country. When we got our one and only per cap payment back in the early 90's you should have seen all the african americans who showed up to collect their check from the tribe. I haven't seen them contribute to the reservation in all my years since.

ndnlady's picture
ndnlady
Submitted by ndnlady on
Ralph Keen says the freedmen descendants "have no option but to resort to the federal courts or the halls of Congress" He is wrong. The freedmen descendants could choose to respect the will of the Cherokee people and the decision of the Cherokee courts. Just like tens of thousands of Indian people do who don't meet their tribe's blood quantum or residency requirements. The fact is that indigenous peoples have certain inherent and inalienable human rights which would include the right to exist as a "distinct people" and the right to determine their owh identity through their citizenship laws. Though these rights are not based on race or color, indigenous rights are protected by the International Convention to End All Forms of Racism. To infringe on the rights of an indigenous people is an act of racism, no matter color they are, no matter what color you are. Marilyn Vann says their ancestors "helped build up the nation" They also helped tear it down. It is a fact that both Cherokees and freedmen objected to Article 9 of the Treaty of 1866. Freedmen requested land and American citizenship. Cherokees offered the land. The US refused in favor of tribal incorporation. The next forty years saw a bitter and divisive struggle between two very different peoples trying to go in two very different direction. Cherokees fought a desperate battle against allotment and the destruction of our government and freedmen allied with railroad and US interests in favor of allotment. At the turn of the century, the US forced allotment on us, shredding our treaty protections. Including Article 9 which US courts ruled was legislatively superceded by the 5 Tribes Act of 1906. Noted historian Daniel Littlefield said in his book that allotment was the freemen's greatest triumph but it devastated Cherokees. It would seem to me today that African-Americans, having fought for equal rights, would try to understand and respect indigenous rights, even if it means giving up something they want.

ndnlady's picture
ndnlady
Submitted by ndnlady on
Mr. Hayes, DNA testing cannot identify specifically Cherokee ancestry.

ndnlady's picture
ndnlady
Submitted by ndnlady on
nanaiya, though Ms Vann has made numerous claims in the media to having Cherokee ancestry, her geneaology does not bear out this claim. And the district court ruling overturning the Cherokee vote on the amendment was itself overturned by our Supreme Court.

nanaiya's picture
nanaiya
Submitted by nanaiya on
ndnlady, I am personally aware of the genealogy of Ms. Vann and no she isn't lying. Do you think their case would be coming before the Supreme Court of the United States if that weren't the case? If it were, her case would have long been thrown out. Chad Smith and his followers had that ruling overturned. It's unfortunate, and I hope and pray that the CNO doesn't lose it's federal status as a result.

nanaiya's picture
nanaiya
Submitted by nanaiya on
I suggest you learn more about your history Sonny. MANY Cherokee Freedmen have contributed to the CNO in the past, present and will undoubtedly continue to do so in the future!

nanaiya's picture
nanaiya
Submitted by nanaiya on
ndnlady, hypothetically put yourself on the other side of this coin. If YOU stood to lose your Citizenship, would you stand idly by? Not if it's something you value. I believe a compromise is in order. ALL Freedmen with by blood ancestry should be readmitted into their respective Nations. Those who cannot trace their ancestry should not. Perhaps other have better ideas, but this shows respect to all, and honors the wishes of the CNO and the people.

nanaiya's picture
nanaiya
Submitted by nanaiya on
It's true, any person cannot take a DNA test to determine if they are Indian and what Tribe they are, however a DNA test CAN determine if a person is genetically linked to other Cherokee's quite accurately and I believe this is what Mr. Hayes is speaking of.

ndnlady's picture
ndnlady
Submitted by ndnlady on
I am aware of Ms. Vann's geneaology as well. There are two men with the same name; one of whom is Cherokee, the other is not. Ms. Vann claims the Cherokee man, but in order to be her ancestor, he would have had to father a child at the age of six. The Vann case is not in the Supreme Court. Along way away from that. The fact is that the Cherokee Nation has an inherent right to determine its own citizeship laws free from interference from federal courts or Congress. Freedmen descendants refuse to respect that right. They do not seem to understand that it is wrong to infringe on an indigenous people's rights simply because they have something you want. That's the oldest form of racism on this continent.

mattmc's picture
mattmc
Submitted by mattmc on
I understand your point about people taking money from the tribe yet not participating, but won't a strict blood quantum alienate the second or third generation? I doubt the genetic pool is large enough to sustain a healthy population in and of itself. This is just a casual observation. I'm not an expert or member of the tribe, I just added this site and found the story interesting.

ndnlady's picture
ndnlady
Submitted by ndnlady on
Nanaiya, what freedmen descendants do not seem to understand is that Indian people all over this country respect their tribe's right to set their own citizenship laws. Period. Even when that comes at their own personal expense. I know many Indians who cannot enroll due to a blood quantum their OWN tribe has set. And no, I don't see them out sueing in federal court or prowling the halls of Congress to damage their tribe. They know better. They know the collective right of their Indian nation is more important than their personal desire. So yes, if the Cherokee Nation instituted a blood quantum that I fell below I would certainly accept it. I could go on participating at my grounds, experiencing my community, expressing my culture, but I would in no way try to damage my people.

ndnlady's picture
ndnlady
Submitted by ndnlady on
Nanaiya, I am constantly hearing freedmen descendants berating Cherokees, saying we don't tell the truth about the fact that our laws once sanctioned slavery. I absolutely agree that history should be told truthfully. So why can't freedmen descendants tell the truth about the difficulties between Cherokees and freedmen during the 40 years of freedmen citizenship. What freedmen contributed to was the United States efforts to destroy our country and paralyze our government for over seventy years. This was in keeping with freedmen desire for land and American citizenship but it was wrong for Cherokees and we live with the effects of that treaty abrogation every day.

chico2dc's picture
chico2dc
Submitted by chico2dc on
All tribes should be supporting the cherokee nation in this issue....its at the center of determining tribal membership/citizenship....

nanaiya's picture
nanaiya
Submitted by nanaiya on
ndnlady, the Bureau of Indian Affairs does NOT agree with you. It would seen expedient at this time for the CNO to take a closer look at maintaining their status as a Federally recognized tribe.

anthonypeterson's picture
anthonypeterson
Submitted by anthonypeterson on
and theres the Miller Rolls too. Anyway u look at it, sovereignty should be a protected right and the Freeman should be allowed to form their own band, entity, cultural and legal systems under the protection of the U.S. govt. Is that not the case w/ the CNO using the identifiers of their choosing? Now lets see if this gets printed.
18