Key truths are consistently being obscured in the public debate over Cherokee Nation citizenship among the Freedmen descendants. According to attorney, professor, and Cherokee Nation citizen S. Alan Ray (and other sources), the 1866 Treaty conferring citizenship upon the Freedmen was a forced treaty. Its primary intent was punishment and to effectuate a land grab for whites from Indian Territory.
Indian agents of that era made the decisions on who was or was not to be included on the Dawes Roll and the Freedmen Roll, not the Cherokees themselves. A small, U.S.-supported and highly assimilated minority within the Cherokees were the slaveholders. Chattel slavery did not reflect Cherokee norms and values.
Cherokees fought on both sides of the U.S. Civil War for reasons not necessarily related to slavery. Cherokees also engaged in a separate civil war of their own over who signed which treaty with the United States, whether they were authorized to do so, and over the diminishment/discarding of Cherokee traditional values.
Cherokees did not own slaves as a nation, although most commentators in the public debate on the Freedmen descendants frame this slave ownership by individuals as somehow communal and beneficial to the Cherokees as a whole.
In contrast, the United States was a slaveholding nation from its beginning. Slaves were owned by individuals who were key figures in white society from the beginning and in accordance with Euro-American norms and values. White women, who could not otherwise own property, were allowed to own chattel slaves as property because they were white.
Slaveholders were extremely influential power brokers in the colonies, the Continental Congress, the drafting of the U.S. Constitution, the legislation of the U.S. Congress from its inception well into the 19th century, and in the U.S. Supreme Court from its inception to well past the end of the Civil War. After the Civil War, former slaveholders retained, regained, consolidated, and grew their power using the laws, political institutions, and social norms of the United States.
Yet no one who today advocates the dismantling of white supremacy argues that dismantling U.S. sovereignty is a prerequisite.
The United States is and always has been a nation-state. White supremacy defined its existence from its inception. As Ray recognizes in his article, the Cherokee Nation is a tribal nation.
Most public commentary appearing today neither acknowledges nor discusses the fundamental difference between a nation-state and a tribal nation, a distinction that has legal, political and social implications. Tribal sovereignty is portrayed as somehow being antithetical to the interests of Freedmen descendants.
Kinship or common descent is a defining feature of tribes. The public debate over Freedmen descendant’s citizenship has thus far either obscured or outright ignored this fundamental truth: Tribes are composed of people who are related to each other.
Granted, the use of the term “by blood” in the Cherokee Constitution did not adequately express this relatedness. The term “by blood” carries an enormous amount of excess baggage because of the white supremacist history (and present) of the United States. A more accurate and less loaded term that conveys what a tribe is would be to use a term like “by kinship” or “by common descent.”
Freedmen descendants surely understand the importance of descendancy and kinship even outside tribes, having relied on their own common descent from ancestors appearing in the Freedmen Rolls to assert their claims in the first place.
As a sovereign tribal nation, the Cherokee Nation could make a new treaty, amend its Constitution or enact legislation that uses terms like “by kinship” rather than “by blood.” The Cherokee Nation has the power to make a new treaty with the Freedmen, one that supersedes the problematic Treaty of 1866. Freedmen descendants could be recognized as Cherokee Nation citizens through this new treaty.
Under these scenarios, Cherokee Nation citizens could be “by kinship” and “by treaty.” Both would be Cherokee Nation citizens. The Cherokee Nation could use these terms in other legal mechanisms as well, such as through amending the Constitution or enacting legislation.
Issues surrounding the failure of Indian agents in 1866 to record Cherokee kinship with some of the Freedman are fundamental questions about kinship. Such questions surrounding relatedness could still be pursued within the proposed legal framework of “citizenship by kinship” and “citizenship by treaty” but in a way, that enhances rather than undermines tribal sovereignty.
Ray’s article in the Michigan Journal of Race and Law is well-worth reading. Having citizenship that is legally defined by kinship and by treaty could address important concerns surrounding Cherokee Nation tribal relatedness while also addressing the expressed concerns of Freedmen descendants surrounding the use of Cherokee Nation resources.
Freedmen descendants should be arguing for an assertion of tribal sovereignty rather than for a diminishment of it.
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