Skip to main content

Clarkson: Conflicting language clouds freedmen resolution

At a recent Congressional Black Caucus panel on the freedmen issue, I saw firsthand the anger directed toward the Cherokee Nation of Oklahoma. While I agree that the Cherokee Nation violated the 1866 treaty by disenrolling the freedmen, I found it highly ironic for a member of Congress to be complaining about tribal treaty violations given the federal government's deplorable track record on upholding its own treaty obligations.

That being said, the disenrollment of the freedman clearly violates Article 9 of the 1866 treaty. That treaty - as well as several contemporaneous treaties - has been violated multiple times by the United States. The most relevant treaty violation by the United States occurred when the Supreme Court eliminated tribal criminal jurisdiction over non-Indians in Oliphant v. Suquamish. That decision has been roundly criticized for years, and regular readers of Indian Country Today are well aware of Oliphant's sordid legacy of non-Indian-on-Indian domestic violence and child sexual abuse. The treaty granting freedmen citizenship, however, actually demonstrates the intellectual dishonesty of that opinion.

When Justice Rehnquist wrote that the Choctaw Nation had asked for jurisdiction over non-Indians but never received it, he ignored the 1866 Choctaw treaty in which the Choctaw Nation specifically claimed jurisdiction over anyone in its territory: black, white or Indian. In addition to addressing the citizenship of the freedmen, articles 4 and 38 of that treaty contain expansive jurisdictional language:

''All laws shall be equal in their operation upon Choctaws, Chickasaws, and Negroes, and that no distinction affecting the latter shall at any time be made ...

Every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw Nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw Nations according to his domicile, and to prosecution and trial before their tribunals, and to punishment according to their laws in all respects as though he was a Native Choctaw or Chickasaw.''

While such treaty language, ratified by Congress, clearly demonstrates the intellectual sloppiness and dishonesty of the Oliphant decision, such language also highlights the challenge in resolving the freedmen issue. Rep. Diane Watson, D-Calif., is lamenting the violation of provisions of the 1866 Cherokee treaty and has introduced H.R. 2824 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 ... and fulfills all its treaty obligations with the Government of the United States.'' Ironically, the treaty violation contained in Oliphant prevents the Cherokee Nation from fulfilling its treaty obligation.

At the Congressional Black Caucus panel, and in subsequent conversations with some freedmen supporters, I have encountered substantial resistance to tying the freedmen issue to Oliphant, but the two are inextricably linked in the very language of the 1866 Cherokee treaty.

Article 5 of that treaty states that all Cherokee citizens, whether freedmen or Indian, shall have the right to:

''Control all their local affairs, and to establish all necessary police regulations and rules for the administration of justice in said district, not inconsistent with the constitution of the Cherokee Nation or the laws of the United States; ... Provided also, That if any such police regulations or rules be adopted which, in the opinion of the President, bear oppressively on any citizen of the nation, he may suspend the same. And all rules or regulations in said district, or in any other district of the nation, discriminating against the citizens of other districts, are prohibited, and shall be void.''

Thus, the 1866 Cherokee treaty requires that the Cherokee Nation treat freedmen the same as other citizens, but the Oliphant decision makes that same required equal treatment impossible. For example, Oliphant prevents the tribe from prosecuting non-Indians who might harm a freedman, and the state would not be able to prosecute someone who commits a crime against a freedmen citizen, either. Once the freedmen are restored to citizenship, Oliphant would prevent the tribe from exercising criminal jurisdiction over the freedmen, and the state would not have criminal jurisdiction over them either, since the relevant Supreme Court case, U.S. v. McBratney, only confers state jurisdiction for white-on-white crime in Indian country.

Scroll to Continue

Read More

As a result of such conflicting language from the courts, enabling the Cherokee Nation to fulfill its treaty obligations to the freedmen requires addressing the Oliphant decision. Furthermore, the relationship between any nation and its citizens is dictated by the ability of that nation to exercise jurisdiction over those citizens and also to prosecute crimes committed against those citizens.

If tied to a repeal of the Oliphant decision, however, restoring the citizenship of the freedmen would actually have benefits for all of Indian country.

In 1978, at the end of the Oliphant decision, the Supreme Court directed the Congress to repair the jurisdictional void it had just created. For nearly 30 years, however, Congress has done nothing. Given that Indian women are sexually assaulted two and a half times more than any other group, and 90 percent of those offenders are non-Indian; given that non-Indian drug dealers are purposefully setting up operations on reservations to escape prosecution; and given that non-Indian pedophiles are intentionally trolling on reservations for child victims, the time has come for tribes to be able to assert jurisdiction over anyone who commits a crime on tribal land.

Ultimately, I have two questions for the two leaders at the forefront of this issue.

Is Watson willing to amend her legislation to overturn the demonstrably racist Oliphant decision if freedmen citizenship is restored?

Is Principal Chief Chad Smith willing to accept freedmen citizenship if it means that his tribe can increase its ability to protect all Cherokee citizens from the epidemic of non-Indian-on-Indian crime?

If the answer to both questions is yes, resolving the freedmen issue could be a catalyst for tribes to reassert criminal jurisdiction over anyone who commits a crime in Indian country, regardless of race.

Rather than cherry-picking treaty violations, let's fix as many violations as is practicable at one time.

Besides, how can protecting women from rapists and children from pedophiles ever be a bad idea?

Gavin Clarkson, Choctaw Nation of Oklahoma, is an assistant professor at the University of Michigan in the School of Information, School of Law and Native American Studies.