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Cheyfitz: The case of the Cherokee freedmen

Identity politics in Indian country

In his explanation of the vote to exclude Cherokee freedmen from the tribal rolls (''Cherokees vote for Indian blood,'' Vol. 26, Iss. 40), Cherokee Nation Principal Chief Chad Smith invoked the criteria of ''blood'' as that which defines the boundaries of Indian nations. And yet in the same explanation, Smith denied the charge of racism (exclusion by race) brought against the nation by the freedmen and accused the freedmen themselves of playing ''the race card.''

In denying the charge of racism, Smith points to the racially diverse citizenry of the Cherokee Nation. Yet at the same time, he does not consider that defining a nation by its blood is certainly defining it racially and that to exclude individuals or a group of people from citizenship in that nation because they lack the necessary blood quantum (however that is determined) is to exclude them racially, an act that certainly can be construed as racist.

In denying Cherokee racism while endorsing the practice of it in tribal politics, Smith finds himself caught in a contradiction of the colonial politics of Indian country, which he does not care to examine. Intentionally or not, this carelessness allows him to have his race-cake and eat it too.

As Smith noted, Cherokee citizenship is based on the Dawes Roll of 1906, where, in Smith's words, ''If you had Indian blood, you are listed as an Indian.'' But what is ''Indian blood'' and how was it determined in 1906? (We know today that there are no absolute genetic markers for determining race, which is itself a social construct.)

The fact is that ''Indian blood,'' particularly in its manifestation as blood quantum, is a colonial construct of the U.S. government, a legal fiction that came into its own in the Dawes era (1887 - 1934), where it was used both to construct the Dawes Rolls to decide who was an Indian and who wasn't for the purpose of determining who was eligible to receive parcels of tribal lands, and later to determine or aid in determining which Indians were ''competent'' to hold their lands in fee. The figure used in the latter case was a fraction of one-half Indian blood, those with less than one-half typically being deemed competent to be freeholders.

The model of competency here was clearly racist: the less Indian blood the federal government decided one had, that is, the more white blood one was deemed to have, the more competent one was judged to be by the government. And we might as well ask: What evidence of blood quantum was the government using in making its determinations? Genealogical documents? Anecdotes? Assessments of phenotype, which could only be based in a kind of stereotyping? Whether used to determine the competency of those Indians on the rolls or to construct the Dawes Rolls themselves, the colonial legal fiction of blood quantum, ultimately adopted by the tribes in varying fractions in order to determine tribal enrollments, was and is today clearly divisive, pitting Indian against Indian in a class structure of those privileged to be tribally enrolled and those beyond the tribal pale.

The term ''Indian'' was itself legally racialized or more precisely began to be so in U.S. v. Rogers (1846), where Chief Justice Roger Taney in his opinion for the U.S. Supreme Court decided that white men who were Cherokee citizens, in this case through marriage, were not ''Indians,'' even though, according to Rogers' testimony, they thought of themselves as ''Cherokee Indians.'' Not being Indians in the Supreme Court's eyes, these white Cherokees were subject to the jurisdiction of the U.S. federal courts in the case of murder (Rogers had murdered another white Cherokee, Jacob Nicholson, in a fight) and by extension of all major felonies.

Prior to the decision in Rogers, the category of ''biology,'' which began to take shape in Western thought around 1820 with the emergence of the term itself, was not a part of traditional Native thought; nor for that matter was the term ''Indian,'' a colonial bureaucratic homogenization of thousands of diverse cultures in the Americas. Former Principal Chief of the Cherokee Nation Wilma Mankiller sums up the situation of Cherokee identity prior to Rogers, maintaining ''that the influence of the United States government in the area of identifying Indians by degrees of native blood had not yet had its effect on our tribe. To the Cherokee mind at the time, one's identity as a Cherokee depended solely on clan affiliation'' in a system of matrilineal clans.

Thus, prior to the colonial imposition of the U.S. government, Cherokee identity - and this was true of all the Native communities in what would become the United States - was grounded in a cultural, not a biological, construction of identity. And as the historical record attests, this cultural construction of identity allowed indigenous communities to adopt outsiders into their social networks. No doubt inadvertently, Smith himself defined Indians as ''the indigenous and aboriginal people of this land and there is a commonality of history, language, heritage and culture.'' All of these commonalities are possible without any ''blood'' bonding being part of the equation.

In Morton v. Mancari (1974), the case that affirmed the Indian-preference-in-hiring clause of the Indian Reorganization Act (1934), the Supreme Court noted: ''The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in unique fashion.'' The definition of ''Indian'' supported here is political rather than racial and implies the treaty relationship between the tribes and the U.S. government, which is at the heart of Indian claims for sovereignty, ever since the Cherokees claimed and were unjustly denied their rights as an independent foreign nation before the Supreme Court in Cherokee Nation v. Georgia (1831).

In light of the central importance of the treaty relationship to all U.S. Indian tribes in the lower 48 states, one might have expected that Smith would have at least discussed the 1866 treaty between the United States and the Cherokees, granting Cherokee citizenship to the freedmen and their descendants. For Smith asserted in his ''Perspectives'' article: ''The history of non-Indians with the Cherokee Nation dates back a long time, and any discussion of the latest citizenship vote should include the basics of Cherokee history.'' It appears that the principal chief himself did not include some of the most important of those basics in his argument supporting the disenfranchisement of the Cherokee freedmen.

Eric Cheyfitz is the Ernest I. White Professor of American Studies and Humane Letters at Cornell University in Ithaca, N.Y.