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Citizenship Denied: The Latest in the Cherokee Freedmen Saga

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.

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.”

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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.