The ongoing case of the Cherokee freedmen has elicited a good deal of commentary, most of it critical of its moral implications. Equally important is what it may bode for the general idea of indigenous nationhood per se.
Earlier this year, the Cherokee Nation of Oklahoma voted to disenfranchise descendants of black slaves who were made full citizens of the nation in the 1866 Treaty. The official reason for this has been ''blood,'' although in fact the issue has always been about texts.
Led by Principal Chief Chad Smith, the anti-freedmen contingent has demanded that citizenship be granted on the basis of descent from an Indian ancestor listed on the 1906 Dawes Roll created during the allotment era. Since freedmen were enrolled separately, the argument goes, they can be stripped of citizenship because they are not ''Cherokee by blood.''
It's worth mentioning that for decades, the Cherokee Nation has been famous (and large) for its principled decision not to employ the dubious racial geometry of ''blood quantum'' to establish citizenship. So despite the obvious blackness of the freedmen, this supposedly has nothing to do with protecting a particular phenotype or promoting an imagined sense of Cherokee racial purity. It's really about the importance of that 1906 text.
In a March 2007 commentary, Smith wrote, ''The Dawes Roll is the base roll of 1906 and if you had Indian blood, you are listed as an Indian.'' Accusing his critics of playing a ''race card,'' Smith asked why the freedmen would ''play victim rather than explaining to the Cherokee people why these descendants should be citizens of the Cherokee Nation.''
Well, the explanation all along has been that other important text: the 1866 Treaty, Article 9 of which plainly states, ''all freedmen ... and their descendants shall have all the rights of native Cherokees.'' When is a descendant no longer a descendant?
Quid pro quo, the United States has responded with the threat of what might be called a ''temporary termination.'' A bill proposed by Rep. Diane Watson, D-Calif., and supported by a dependable Indian ally, the Congressional Black Caucus, House Bill 2824 threatens to discontinue relations with Cherokee Nation, including ''all financial obligations'' and the ''authority to conduct gaming,'' until the freedmen are restored to ''full tribal citizenship.''
This has led some to cry paternalism, but in fact H.R. 2824 conceives of the American/Cherokee political relationship in a remarkably nation-to-nation manner. Watson didn't play a race card. She played a nation card.
Using national terms, H.R. 2824 threatens to suspend diplomatic relations with the Cherokee Nation until the latter ''fulfills its treaty obligations with the Government of the United States.'' In other words, it threatens economic sanctions. The same logic informed North Carolina Democrat Rep. Melvin Watt's September amendment to a federal housing bill that would have denied funding to the Cherokee Nation until it kept its treaty promises. That funding was saved at the last minute, but only temporarily.
As Eric Cheyfitz has noted, it's no small irony when the ultimate treaty-breaker suddenly insists upon the sanctity of treaties, but that does not suggest a new game of tit-for-tat is in order. To the contrary, treaties have always been the strongest legal foundation for the idea of indigenous nationhood, so Indians should hold them sacrosanct in every case. If we start breaking them, it says they no longer matter to us.
Even though they are colonized - or ''domestic dependent,'' as the lawyers like to remind us - indigenous nations must always act like nations lest the appellation be placed at risk. That means not discrediting the texts that make nations meaningful. American Indian history is largely a story about peoples resisting the imposition of a ''racial'' identity and defending a sense of national autonomy, and more often than not the great Cherokee Nation has carried the torch in this epic struggle. It should do so now by honoring its treaty.
Acting and thinking as a nation means more than respecting one's treaties; it also means using national terminology and conceptual frameworks to characterize what is going on. For instance, it would be more appropriate to use the word ''denaturalization'' instead of ''disenrollment'' to accurately describe what is happening to the freedmen, who, after all, have long been citizens of the Cherokee Nation regardless of blood.
Denaturalization is legally losing your citizenship, and the idea didn't exist until World War I when France, Belgium, Italy and other European nations passed laws revoking the citizenships of ''enemies of the state.'' Those laws targeted individuals, but it wasn't long before ethnic groups were denaturalized, too. The Nazi Nuremberg Laws of 1935 stripped citizenship from non-''Aryans'' using a system that eerily resembles today's Indian blood quantum formulas. Four German grandparents made one a German, three or four Jewish grandparents made another a Jew, while one or two Jewish grandparents made one a ''mischling'' or mixed-blood. We all know how that social experiment ended.
From its inception, denaturalization has been considered a human rights issue of major importance because the global community generally loathes seeing citizenship revoked. Citizenships are considered permanent in ways that ''memberships'' are not. When a country club grants memberships to whites only, that's rightly decried as racism but not considered to be a national emergency. When a nation does the same thing to its existing citizens, it raises concerns about ethnic cleansing, refugees and other national matters.
Ethnic cleansing is the deportation of an ethnic population from a national territory, and the last time it happened at the Cherokee Nation it was called ''removal.'' If the freedmen were purged today, they wouldn't become ''non-Indians.'' All propaganda aside, Indian identity is not really in question here. It's citizenship. The freedmen would become refugees.
Even if we bracket the moral ramifications of such a move, the political implications of denaturalization make it ill-advised. No Indian nation should sacrifice its hard-won national identity on the altars of blood and race. While nation and race are not mutually exclusive categories - in fact, many nations today grant citizenship on the basis of ''jus sanguinis'' (''law of blood'') - they are still different paradigms, each possessing its own logic, concepts and implications. When one paradigm is privileged over the other (and that is inevitable), different consequences ensue.
Right now it appears that some Cherokees are privileging race over nation, and doing so retroactively. That might make it easier to abrogate a treaty and talk about ''Indian blood'' today, but it will usher in a new set of assumptions for everyone to live by tomorrow. Where do you think racial paradigms logically lead?
By contrast, privileging the national paradigm would start with the recognition that for well over a century the Cherokee Nation has been a multiracial nation, one whose sovereignty rests largely upon treaty-based relationships with others. Blood can be a part of that story, but not the story itself because texts will always be more important than blood to the cause of national legitimacy. In fact, since the very beginning of Cherokee Nation, every one of its citizens has been Cherokee by text.
Philosophically, these paradigms are apples and oranges. It would be tragic to see the Cherokees transformed into a racial minority overnight in the name of privileging one text (Dawes Roll) over another (1866 Treaty), but such would be the effect of that third text now in play (H.R. 2824). If it happened, even in the form of a temporary termination, the very notion of indigenous nationhood would be dealt a stunning blow.
Scott Richard Lyons, Leech Lake Ojibwe/Mdewakanton Dakota, teaches Native American literature at Syracuse University and is a columnist for Indian Country Today.