The recent letter from six members of Congress to Attorney General Eric Holder asking for an investigation of the “Five Civilized Tribes” illustrates ignorance regarding the non-Indian descendants of freedmen who were citizens of Indian nations between 1866 and the Dawes era. Their letter speaks of the five nations as if their treaties of 1866 are the same. There are surprising differences.
Additionally, their letter doesn’t mention the 54 acts of Congress which elaborated new agreements with the five Indian nations in the Dawes allotment era (roughly between 1890 and 1906) that ended entitlements to enrollment and cleared the way for founding the state of Oklahoma. “The Lands of the Five Civilized Tribes,” published in 1919 contains these acts of Congress and describes the various agreements as “in many details, fundamentally dissimilar.”
The Dawes era marks a pivotal point in Indian history in the United States. Congress was determined to dissolve the governments of Indian nations and to divide and redistribute their lands and resources to individual citizens of Indian nations, as well as non-Indian interests. The forced agreements with the five nations opened Indian land for non-Indian settlers, oil and gas drilling, and coal mining companies, among others.
The six members of Congress don’t mention that the equal share of Cherokee assets that went to each freedman citizen and their living descendants amounted to more than double the reparations promised, but never delivered, by the U.S. government.
Representative Barney Frank was one of the six asking for an investigation, but he also sent a separate letter to Holder claiming that “These  treaties remain in full force and effect” and “Neither this Act [the Five Civilized Tribes Act of 1906], nor any other Act of Congress, modified or abrogated the Treaties of 1866.” If that is true, the state of Oklahoma, the corporations and the non-Indian settlers might consider returning Indian lands.
For instance, the Act of July 1, 1902 (granting each living Cherokee citizen 110 acres of land as well as equal shares of the assets of the Nation) specifically provides in Sec. 73 that “no Act of Congress or treaty provision inconsistent with this agreement shall be in force,” a fact ignored by Frank.
These agreements were bilateral, however imposed. Even though the U.S. had ceased making treaties with Indian nations some 30 years earlier, the five bilateral agreements required Congress and the Indian nations to ratify them. And they did.
The six members of Congress don’t mention that the equal share of Cherokee assets that went to each freedman citizen and their living descendants amounted to more than double the reparations promised, but never delivered, by the U.S. government. They don’t mention that the Dawes era left no functioning Cherokee government to enroll anyone for almost 70 years. Nor do they mention that all nations, including Indian nations, have the inherent right to determine their own identity or membership.
That same act of 1902 unequivocally states that “no child born to a citizen [after Sept. 1, 1902]. … shall be entitled to enrollment” in the Cherokee Nation. The date of birth was later changed to March 4, 1906 along with an amended residency requirement. In the legal papers of that time, the words “entitled to enrollment” were generally used to describe those who became citizens through a provision of law, not ancestry.
But even if these dates of birth ended entitlement to enrollment for descendants of every Cherokee citizen (individual rights based on the Cherokee Constitution of that time), it did not and could not affect the collective, inherent and inalienable right of the Cherokee Nation (as an indigenous people) to determine the requirements for Cherokee citizenship. The Cherokee Nation’s government was “allowed” to begin rebuilding in the 1970s; a new constitution was approved and the nation exercised its right and responsibility to determine its own identity and membership.
According to the UN Declaration on the Rights of Indigenous Peoples, Article 33, “Indigenous peoples [Indian nations] have the right to determine their own identity or membership in accordance with their customs and traditions.” It could be argued that since the United States was one of four countries opposing the adoption of the UN Declaration, this right does not apply. However, the opposite is true. The Declaration does not create new rights, but merely interprets how existing human rights apply to indigenous peoples.
In the more than 20 years of negotiations on the Declaration, the U.S. did not oppose all its provisions. In fact, it repeatedly affirmed the “inherent” and “collective” right to “self-government” (an aspect of the right of self-determination) includes the right to determine membership, a right recognized in international human rights law.
It could be argued that since the United States was one of four countries opposing the adoption of the UN Declaration, this right does not apply. However, the opposite is true.
Recently, the U.S. re-affirmed its commitment to “meet our international human rights obligations” in its pledge to the UN Human Rights Council. It further reaffirmed that the U.S. is a party to ICERD (the UN treaty on the elimination of racism) and “is committed to seeing the goals of this covenant fully realized.” In 2008, the monitoring committee (CERD) recommended “that the declaration be used as a guide to interpret the state party’s obligations under the convention relating to indigenous peoples.”
When UN Special Rapporteur on contemporary forms of racism, Doudou Diène visited the U.S. last summer, a meeting took place with Chad Smith, Cherokee Nation principal chief, Diène was presented original documents, transcriptions of congressional debate, and a copy of the Cherokee Nation Report to CERD.
Diène released his findings at the end of April. Instead of seeing the Cherokee Nation as violating the rights of others, he commented in his report that he was “particularly sensitive to the statements made by the Principal Chief of the Cherokee Nation” and emphasized “the need for constant vigilance for the situation of Native Americans, which should be the subject of particular attention in view of the historical legacy of discrimination against them.”
If the UN Special Rapporteur on Racism didn’t see the current situation regarding the non-enrollment of the non-Indian descendants of freedmen as discriminatory, what are the six members of Congress missing? According to the only Native member of Congress, Representative Tom Cole of Oklahoma (Chickasaw), they are “not well-informed.”
Suzanne Jasper is the director of First Peoples Human Rights Coalition, a nonprofit educational organization specifically focusing on the human rights of indigenous peoples.