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Congressional action on housing bill follows freedmen forum

WASHINGTON – The Congressional Black Caucus denied Cherokee Nation participation in a forum on the freedmen Sept. 26, but Congress singled them out in a housing bill Sept. 27.

The bill, H.R. 2786, reauthorizing the Native American Housing and Self-Determination Assistance Act, passed the Senate on Sept. 25 and the House of Representatives on Sept. 27 with a section that channels funding to the Cherokee Nation of Oklahoma provided a tribal court injunction against freedmen disenrollment remains in place, or until the nation and the freedmen settle their differences out of court.

The CBC had previously threatened to derail the housing bill and its funding for all of Indian country if the freedmen, descendants of slaves kept by the Cherokee (and other Southeastern tribes) in the 19th century, were not restored to full citizenship in the tribe following the cancellation of their voting rights in a referendum that disenrolled them. Following a tribal court injunction that protected freedmen rights pending litigation, the caucus compromised by supporting a bill to withhold NAHASDA funds from the Cherokee only.

In the meantime, a federal appeals court ruled the abolition of freedmen voting rights to be among the “badges and incidents of slavery,” outlawed by the 13th Amendment to the Constitution. But the decision recognized tribal sovereign immunity from lawsuit and exposed the tribe’s officers to liability.

Still, passage of the bill without penalty to the Cherokee remained uncertain until near the close of the current 110th Congress. When the dust had settled, Section 801 of the bill had produced a further compromise that represented, essentially, resistance in the legislative branch to trumping the authority of the courts.

Cherokee Nation of Oklahoma Principal Chief Chad Smith said the compromise bill extends the appellate court’s recognition of tribal sovereignty. Tribes, led by the National Congress of American Indians and its president, Joe Garcia, have rallied around the Cherokee, arguing that any erosion of a tribal government’s right to determine its own citizenship undermines sovereignty.

Foes of the Cherokee vote on freedmen have been equally outspoken, and they continued to speak out at the Sept. 26 forum of the CBC’s annual legislative conference in Washington. Actor Danny Glover, Rep. Diane Watson, freedmen activist Marilyn Vann, freedmen attorney Jon Velie and Cherokee historian David Cornsilk all deplored, in various words, what Watson called “the curse of hatred and racism, proceeding from our unresolved historical past.”

In an interview after the forum panel that excluded him, Smith acknowledged that the history in dispute is among the country’s ugliest, featuring not only the Civil War but the Fugitive Slave Act, the Kansas-Nebraska Act and the Dred Scott decision – concerted efforts by the Congress and Supreme Court of the era to encourage slaveholder states in the westward expansion, the political issue that ignited the Civil War.

But the Cherokee Nation did not volunteer for westward expansion. They moved west to Oklahoma Territory under force of federal arms, on the Trail of Tears. Their slaves accompanied them.

“Slavery is slavery,” Smith said. “But the way people inter-reacted was largely different between the Deep South and in Indian territories, especially among the Cherokee. If you go to the freedmen diaries and comments, almost without exception, they felt that they were treated well and fairly, and had a great affinity for Cherokee families and their social life. And so it’s wrong to cast us in the same broad brush as you would talk about slavery in the Deep South.”

Under the existential circumstances enforced by the war, Smith has explained, the Cherokee in Oklahoma sided with the Confederacy at the outset of the war, and with the Union later. The price of their post-war readmission to the Union was to ordain their former slaves as tribal citizens in an 1866 treaty, an interpretation upheld since in the courts.

Watson, a Democrat from California, denounced Congress for not intervening against the Cherokee Nation, adding that Rep. Nick Rahall, D-W.Va., chairman of Natural Resources, the committee of jurisdiction for most Indian issues in the House, has agreed to hold a hearing on the freedmen issue in the next Congress. Smith said Watson has never taken up numerous opportunities to meet with him, though other members of the CBC have been forthcoming.

Smith maintained his view that the freedmen issue isn’t one of race but of enrollment – anyone who can trace lineage to the Dawes Roll of 1906 is a Cherokee citizen, race aside. “I really believe if you strip away the hyperbole and the self-serving screens, you get down to the meat of the matter; and the meat of the matter is, there’s a conflict of whether a treaty provides a federal right to be a citizen of the Cherokee Nation if you’re not Indian. Who decides that? Well, the courts do.”

He said the nation will abide by court decisions in the freedmen case.

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