It has been one year since the descendants of the Cherokee Freedmen won their long dispute against a constitutional amendment that terminated them as citizens from the Dawes Rolls—only later to be overturned. The amendment promoted the misery and exploitation of treaty and human rights on the basis of blood politics.
The Cherokee, along with Choctaw, Chickasaw, Creek and Seminole Nations collectively became known as the “Five Civilized Tribes” because they adopted many conventions of the south, including ownership of black slaves. Tony Seybert writes, in "Slavery and Native Americans in British North America" and the United States, “By 1824, it is estimated that the Cherokee owned 1,277 black slaves; the Choctaw and Chickasaw held over 5,000 blacks in slavery by 1860. Some “mixed-blood” Indians, such as Choctaw Chief Greenwood Lefore, and Cherokee Chief John Ross, owned between 100 and 400 enslaved blacks. Between 1830 and1840, when southeastern Indians were forcefully marched west to present-day Oklahoma by the American government along the infamous Trail of Tears, many as 15,000 enslaved blacks were taken with them.”
During the American Civil War, the Cherokee Nation was divided between the Union and Confederate States. At that time, Principal Chief John Ross had adopted a policy of neutrality between the two opposing sides. And in 1861, Ross signed a treaty with the Confederacy, and the Cherokee joined the other Five Civilized Tribes in a pro-Confederate alliance. Ross and his Band eventually sided with the Union and renounced the Confederate treaty. Stand Watie, leader of the pro-Confederate Cherokee, became Principal Chief of the Southern Band in 1862. Four years later, the United States Government passed “An Act Providing for the Abolition of Slavery in the Cherokee Nation” to emancipate all enslaved blacks “ as well as all free colored persons and all their descendants within the limits of the Cherokee Nation, stating “shall have all the rights of native Cherokees.”
Prior to the 14th Amendment, the U.S. Supreme Court ruling (1857) held that blacks could not be citizens of the United States (Dred Scott v Sandford). Herein lays the confusion and judicial fiction of jurisdiction over the Freedmen and their rights under the Treaty of 1866. A year after the Cherokee abolished the practice of slavery by Act of the Cherokee National Council in 1863 the Cherokee Freedmen became citizens of the Cherokee Nation. In accordance with a treaty entered with the United States government in 1866, this status was expanded to include “free colored persons” who were not citizens of the Cherokee but resided amongst them. Refer to 1857 when Supreme Court ruled that blacks could not become citizens of the United States, and consider the Cherokee are forced under treaty to naturalize both Freedmen and free colored persons as citizens in 1866, and, as a matter of convenience, the United States subjugated Freedmen et al, and the Cherokee Nation, to the ultimate jurisdiction of a foreign power to decide citizenship of its Nation. Freedmen were eventually incorporated into the fabric of tribe holding positions on council, receiving education, health benefits and other services. While the Freedmen et al, had “all the rights of a native Cherokee,” this was reduced to a privilege, then dissolved to constructive denial of treaty rights, at all levels, to include voting and membership at the convenience of the leadership of the Cherokee Nation.
In 1983, Cherokee tribal leadership began to block Freedmen from registering and voting with the tribe, although they did not have a constitutional right to do so. In 2006, the tribal court said Freedmen were citizens and could not be kept from registering and voting. The following year, Chad “Corntassel” Smith, principle-chief at the time, held an election amending the Cherokee Constitution in response to the ruling, requiring that citizenship depended on direct decent from an ancestor listed on the “Cherokee by Blood” section of the federal Dawes Rolls in the allotment era:
In 1887, Massachusetts Senator Henry Dawes, for whom the rolls are named, created the Allotment Act for the regulation of Indian affairs, their legal, economic and social integration into the United States. This Act remained the keystone of federal Indian policy until 1943. The United States government empowered the Dawes Commission to set-up rolls so that each member would receive a share of tribal resources in accordance with the tribe and government. Individuals believed to be of African descent were categorized as Freedmen, thus creating separate “Freedmen” and “Indian by Blood” categories. Although Freedmen in many cases could list an Indian father or grandfather on applications for enrollment, in no instances was degree of Indian blood recorded on these final rolls. Those with admixtures of white and Indian ancestry were enrolled by the Dawes Commission as “Indians,” with no reference to Indian blood degree; there was no such concept prior to the turn of the century regarding blood degree in the Five Nations, only the concept of tribal citizenship or non-citizenship.
As a result, the 2007 amendment was not enforced due to federal intervention and agreed court order. The assistant Secretary of the Interior stated the 2007 election would not be recognized without Freedmen voting. In 2011, Freedmen asked federal judges for an injunction; an agreement was reached where the Cherokee Nation, Freedmen, Department of Interior and Department of Justice all agreed that Freedmen would not be removed from the tribe while the federal court continued to look at Freedmen “issues.” At present, the tribe is not registering additional members, although Freedmen who are recognized members are protected under the court order. Some Cherokee members on the tribal council support the 1866 treaty rights of Freedmen, while others do not.
The Cherokee are as much the victim in this travesty of status as are the Freedmen. Most wanted neutrality, but were forced to adopt a people they otherwise would never have considered as eligible members of their Nation. The Cherokee are sovereign, having the right to self-govern, including varying eligibility criteria for membership without interference from the outside. Let’s not forget that sovereignty begins with moral and legal obligations, tempered in an ethical pursuit to right the wrongs imposed upon them and others through treaties skewed to benefit the United States to the detriment of all “civilized people.”
For more information on the Descendants of Freedmen go to Freedmen5Tribes.com.
Julianne Jennings is a Ph.D. Student at Arizona State University.