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Cheyfitz: The historical irony of H.R. 2824

On June 21, Rep. Diane Watson of the 33rd District of California introduced House Resolution 2824, the stated purpose of which is: ''To sever United States' government relations with the Cherokee Nation of Oklahoma until such time as the Cherokee Nation of Oklahoma restores full tribal citizenship to the Cherokee Freedmen disenfranchised in the March 3, Cherokee Nation vote and fulfills all its treaty obligations with the Government of the United States, and for other purposes.'' Severance of relations includes the cessation of ''all financial obligations'' and the ''authority to conduct gaming.'' The resolution, however, which is currently pending before two House committees, Natural Resources and Judiciary, does not propose to withhold federal recognition.

Watson is a member of the Congressional Black Caucus, as are 15 of the 21 co-sponsors of the bill. This sponsorship is relevant because, as the bill states, the Cherokee freedmen are the descendants of black slaves held by the Cherokee Nation ''who can trace their ancestry to individuals listed on the 1906 Dawes Commission Roles for the Cherokee Freedmen.'' The ancestors of these individuals achieved citizenship in the Cherokee Nation in accordance with the Treaty of 1866 between the Nation and the United States. Article 9 of the treaty states ''that all freedmen ... and their descendants, shall have all the rights of native Cherokees.'' But, clearly, the issue is not simply an issue that concerns only African-American and Indian citizens of the United States. It is a moral and legal issue that concerns us all.

Morally, the issue is clear: Why attempt to disenfranchise a particular group of Cherokee Nation citizens based, it would appear, solely on their race? The response from the government of the nation has been that this move, contrary to the way it appears, is not racist - there are black Cherokees on the ''blood'' rolls, it argues - but a matter of sovereignty, a question of who gets to decide tribal enrollments: the nation itself or the federal government. While under federal Indian law the tribes are granted autonomy in the area of enrollment, the Secretary of the Interior, under the same proviso, has a right to intervene in these decisions. Legal matters notwithstanding, a nation constituted by ''blood'' is a nation constituted by racial borders; and a nation constituted by this kind of exclusivity is by definition racist. The irony here is that the constitution of tribal rolls by blood quantum is a federal imposition of the Dawes era, a stricture that the tribes themselves later adopted in contradiction of traditional practices.

Legally, the issue is also clear: as noted above, Article 9 of the Treaty of 1866 grants the ''freedmen ... all the rights of native Cherokees.'' End of story. If Indian nations expect the federal government to abide by the treaties, which are the foundation of federal Indian law, recognizing the government-to-government relationship between Indian nations and the United States, then the federal government has a right to expect the same, even though the trail of treaties broken by the government is all too long. The irony here is also evident - the habitual treaty-breaker insists on the sanctity of the treaty - but does not negate the principle or fact of the law.

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What complicates the legal issue, but has gone unstated, is that the relationship between the tribes and the federal government, as determined by federal Indian law, is a colonial relationship, in which Congress has ''plenary power'' (final say) in Indian affairs. Within this structure, the tribes are ''domestic dependent nations'' (my emphasis), effectively minors before a law in which the federal government holds their lands in ''trust.''

One can only understand the Watson resolution, then, if one understands that the history driving it is not only the violent and troubled history of race in the United States but also the violent and troubled history of the struggle for sovereignty of colonized Indian nations with the colonizer. These two histories intersect and conflict in the context of H.R. 2824. While the Watson resolution implicitly contains the history of race in its text, in its first section it explicitly outlines the sovereignty struggle, without naming it as such, between the federal government and the Cherokee Nation, taking us in its 18 paragraphs from the Cherokee removals of the 1830s to the present conflict.

Paragraph 10 focuses this conflict: ''In May 2003, the Cherokee Nation held an election for its officers and the ratification of a new constitution. The new constitution removed the requirement that the United States Department of the Interior and the Bureau of Indian Affairs approve amendments to the Cherokee Nation constitution. The Cherokee Freedmen were not permitted to vote in this election. The election violated the Treaty of 1866, the 13th Amendment to the United States Constitution, and the Principal Chiefs Act of 1970.''

As this paragraph of the resolution makes clear, the government of the Cherokee Nation has chosen to make the rights of the freedmen an issue of sovereignty, of who controls the Cherokee Nation government in the form of its constitution. Abrogating the rights of a group of black citizens of the Cherokee Nation, descendants of slaves held by citizens of that nation, is, to say the least, an ironic way to challenge the colonizing power of the federal government in that it repeats the colonial situation of disenfranchisement against which it apparently struggles. And the Watson resolution itself is also characterized by the same unintentional irony in not recognizing the colonial situation of Indian country that has positioned the Cherokee Nation to present a challenge to federal authority that, in this particular case, it should not and cannot win.

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