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Newcomb: The Cherokee Nation's contradictory stance

The Cherokee Nation has received a great deal of heated criticism for its decision to eject the black freedman from their national rolls. The freedmen are the descendants of blacks who were once held as slaves by some wealthy members of the Cherokee Nation. Under a Cherokee treaty of 1866, the Cherokees agreed to make the freedmen citizens of the Cherokee Nation; the freedmen were also supposed to be given a district of their own in order to have some degree of self-rule.

Today, however, the Cherokee Nation argues that its right of self-determination gives it the right to disregard these treaty provisions. The Cherokee response to the controversy has been twofold: 1. Every Indian nation has the right to determine its own citizenship; and 2. Only people with ''Indian blood'' ought to be allowed to be citizens of the Cherokee Nation.

As to the second point, many people of Shawnee and Delaware ancestry have been counted as Cherokee citizens even though they are not Cherokee by ancestry. This is because Shawnees and Delawares, in separate transactions in the mid-19th century, purchased lands from the Cherokee Nation, within the Indian Territory, and thereafter began living among the Cherokees. In the 1867 agreement between the Delaware Tribe and the Cherokee Nation, the Delawares paid $1 per acre for some 157,000 acres within the territory of the Cherokee Nation.

Based on the 1867 agreement, individual Delawares were afforded the right of Cherokee citizenship, but the Delawares also believed that they would retain the right to a separate collective identity and a right of self-government. The Delawares did not concede to the idea that the Cherokees would have a property right to the Delaware people, or to govern the Delaware as a whole.

In any event, the recent Cherokee message to the black freedman is pretty straightforward: ''Get out.'' Yet, ironically and contradictorily, just a couple of years ago the Cherokee Nation - claiming rights under a similar provision to their 1866 treaty - essentially argued that the Cherokees had an exclusive right to govern the Delaware Tribe. In some sense, the Cherokees argue that they have a property right to the Delaware people.

In 1978, at the paternalistic instigation of then-Cherokee Principal Chief Ross Swimmer, the Cherokee Nation sought to have the United States no longer recognize the Delaware Tribe as a separate Indian nation. As a consequence, the United States, through the BIA, withdrew federal recognition of the Delaware Tribe headquartered in Bartlesville, Okla. In 1996, the BIA reversed its decision and the Delaware Tribe was once again federally recognized. In a 2002 decision, U.S. District Court Judge Sven Holmes issued a partial order in favor of the BIA's decision to restore federal recognition to the Delaware Tribe of Indians.

Then, in November 2004, in response to a lawsuit filed by the Cherokee Nation against the Department of the Interior, the 10th Circuit Federal Court of Appeals reversed Holmes' decision by ruling that the Delawares had abandoned their Delaware identity to become Cherokee citizens in the 19th century.

The 10th Circuit Court of Appeals relied upon an 1894 U.S. Supreme Court ruling, Cherokee Nation v. Journeycake, which declared that individual Delawares had all the rights of Cherokee citizens. The Cherokees were receiving a large per capita payment from the sale of lands, and the Delawares argued that they had purchased their Cherokee citizenship on a per capita basis based on the total value of the Cherokee Nation and should have the right to share in per capita payments. The U.S. Supreme Court ruled that the Delaware could receive a portion of the monies because they had all the rights of Cherokee citizens.

In 1977, the U.S. Supreme Court declared that despite its association with the Cherokee Nation, the Delaware Tribe was a separately federally recognized tribal entity. However, in its 2004 decision, the 10th Circuit Court ruled that because the 1894 Supreme Court ruling held that the Delawares had all the rights of Cherokee citizens, the Delawares living among the Cherokees had not been recognized since 1867. Further, the court ruled that the BIA failed to use proper procedures to restore recognition of the Delawares, and declared unlawful the 1996 BIA ruling to recognize the Delawares. Consequently, Interior was forced to withdraw federal recognition from the Delaware Tribe.

With regard to the black freedmen issue, the Cherokee Nation is now saying that giving the black freedmen the ole ''heave ho'' is simply an exercise of Cherokee sovereignty. After all, every nation has the right to determine its own membership, right? But if this is the opinion of the Cherokee Nation, then the Delaware Tribe has the right to determine its own membership with its own federal recognition. We have our separate histories, our separate national identities, with our own respective treaties with the United States, and we have our own separate languages, cultures and traditions.

The Cherokees' argument that the Delaware Tribe does not have a right to its own nationhood because it is situated within the boundaries of the Cherokee Nation (as those boundaries existed after Indian removal) is the type of argument also used against Indian nations generally by the most virulent anti-Indian activists. Such activists argue that Indian nations should have no national identity separate from the United States because those nations are geographically located on lands now considered to belong to the United States. It is this same kind of specious and empty argument that the Cherokee Nation has been using against the Delawares.

The Cherokee Nation is free to do what it wants with its reputation and its legacy. And if that includes throwing out the descendents of slaves that some Cherokees once owned, in contradiction to its 1866 treaty with the United States, that's its business. Beneath the actions of the Cherokee Nation is the tacit argument that it is not bound by its 1866 treaty with the United States, but that the Delawares are bound by their 1867 agreement with the Cherokee Nation. As a descendent of both Shawnee and Delaware grandparents and other relatives on the Dawes Rolls, I say the Cherokee Nation should stop blocking the Delaware Tribe from obtaining its own rightful federal recognition and stop dictating terms to the Delaware people.

Steven Newcomb, Shawnee/Lenape, is the indigenous law research coordinator for the Sycuan Education Department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, a fellow with the American Indian Policy and Media Initiative at Buffalo State College, and a columnist with Indian Country Today.