Cherokee freedmen controversy
The Cherokee Freedmen Controversy is an ongoing political and tribal dispute between the Cherokee Nation of Oklahoma and descendants of the Cherokee Freedmen regarding tribal citizenship. During the American Civil War, the Cherokee who supported the Union abolished the practice of African slavery by act of the Cherokee National Council in 1863. The Cherokee Freedmen became citizens of the Cherokee Nation in accordance with a treaty made with the United States government a year after the Civil War ended. In the early 1980s, the Cherokee Nation administration amended citizenship rules to require direct descent from an ancestor listed as "Cherokee by Blood" on the Dawes Rolls. The change stripped descendants of the Cherokee Freedmen of citizenship and voting rights unless they satisfied this new criterion. About 25,000 Freedmen were excluded from the tribe.
On March 7, 2006, the Cherokee Supreme Court ruled that the descendants of the Cherokee Freedmen were unconstitutionally kept from enrolling as citizens and were allowed to enroll in the Cherokee Nation. Chad "Corntassel" Smith, then-Principal Chief of the Cherokee Nation, called for an emergency election to amend the constitution in response to the ruling. After a petition was circulated, a special election held on March 3, 2007 resulted in a constitutional amendment that disenrolled the Cherokee Freedmen descendants. This led to several legal proceedings in United States and Cherokee Nation courts in which the Freedmen descendants continued to press for their treaty rights and recognition as Cherokee Nation members. The 2007 constitutional amendment was voided in Cherokee Nation district court on January 14, 2011, but was overturned by a 4-1 ruling in Cherokee Nation Supreme Court on August 22, 2011, before the special run-off election for Principal Chief. The ruling excluded the Cherokee Freedmen descendants from voting in the special election.
After the freezing of $33 million in funds by the Department of Housing and Urban Development and a letter from the Assistant Secretary of the Bureau of Indian Affairs in response to the ruling, an agreement in federal court between the Cherokee Nation, the Freedmen descendants and the US government allowed the Freedmen to vote in the special election. Bill John Baker was elected Principal Chief in the special election and inaugurated in October 2011. The Cherokee Supreme Court dismissed an appeal of the election results by former chief Chad Smith.
Both sides filed complaints in federal court in Tulsa, Oklahoma, by July 2012; the Cherokee say the 1866 treaty does not require them to give full citizenship to the Freedmen, who continue to seek full rights. The first hearing on the merits of the case was held in May, 2014 in the U.S. District in Washington, D.C.
- 1 The Cherokee Freedmen
- 2 History
- 3 Current issues
- 4 Reactions to the controversy
- 5 See also
- 6 References
- 7 Sources
- 8 External links
The Cherokee Freedmen
Freedmen is one of the terms given to emancipated slaves and their descendants after slavery was abolished in the United States following the American Civil War. In this context, "Cherokee Freedmen" refers to the African-American men and women who were formerly slaves of the Cherokee before and after removal to Indian Territory. It includes the descendants of the former slaves, as well as those born in unions between formerly enslaved or enslaved African Americans and Cherokee tribal members.
After their emancipation and subsequent citizenship, the Cherokee Freedmen and their descendants had to struggle to be accepted as a legitimate part of the Cherokee Nation. Some Freedmen have been active in the tribe, voted in elections, ran businesses, attended Cherokee stomp dances, knew Cherokee traditions and folklore, knew the Cherokee language, and served on the tribal council, with several holding district seats. Joseph Brown was elected as the first Cherokee Freedman councilman in 1875, followed by Frank Vann in 1887, and Jerry Alberty in 1889. Joseph "Stick" Ross was elected to the council in 1893. Born into slavery and owned by Principal Chief John Ross before his family's emancipation, Stick Ross became a civic leader. Several companies and landmarks were named after him, including Stick Ross Mountain in Tahlequah, Oklahoma. Leslie Ross, Stick's great-grandson, says,
The civic position for Freedmen increased by the time of the Dawes Commission in 1906, which broke up tribal land into allotments and created the Dawes Rolls to list Cherokee citizens. With the extinction of tribal government by the Curtis Act of 1898, the Freedmen as well as other Cherokee citizens were counted as US citizens. After the Cherokee Nation reorganized and re-established its government via passage of the Principal Chiefs Act, the Freedmen participated in the 1971 tribal elections held for the office of principal chief, the first election held since the passage of the Curtis Act and before Oklahoma statehood in 1907.
Several Cherokee Freedmen descendants have continued to embrace this historical connection. Others, after having been excluded from the tribe for two decades in the twentieth century and given the continuing citizenship struggle, have become ambivalent about their ties and no longer consider identifying as Cherokee as necessary to their personal identity.
Slavery among the Cherokee
Slavery was a component of Cherokee society prior to European contact. By their oral tradition, the Cherokee viewed slavery as the result of an individual's failure in warfare and as a temporary status, pending release or the slave's adoption into the tribe. In colonial times, the English and later the British purchased or impressed Cherokee as slaves during the Indian Slave Trade.
From the late 1700s to the 1860s, the Five Civilized Tribes were involved in the institution of African slavery as planters and several tribal members began acquiring African-American slaves for field work, domestic work, and various trades. The 1809 census taken by Cherokee agent Colonel Return J. Meigs, Sr. counted 583 "Negro slaves" held by Cherokee slaveowners. By 1835, that number increased to 1,592 slaves, with more than seven percent (7.4%) of Cherokee families owning slaves, a greater percentage than across the South, where about 5% of families owned slaves. Slaves marched with Cherokee slaveowners and other citizens on the Trail of Tears, the forced relocation of Native Americans from their original lands to Indian Territory. Of the Five Civilized Tribes in Indian Territory, the Cherokee held the most enslaved African Americans. Prominent Cherokee slaveowners included the families of Joseph Lynch, Joseph Vann, Major Ridge, Stand Watie, Elias Boudinot, and Principal Chief John Ross.
While slavery was less common among full-blood Cherokee, there were both full-blood and mixed-blood Cherokee slaveowners. An example of the former is Tarsekayahke, also known by the name "Shoe Boots". A full-blood Cherokee slaveowner, farmer, and veteran war hero who fought for the Cherokee in the Battle of Horseshoe Bend during the Creek War, Shoe Boots fathered three children with a woman named Doll, a slave whom he acquired in the late 1700s. Since the children were born to a slave, they inherited Doll’s slave status. On October 20, 1824, Shoe Boots petitioned the Cherokee National Council to grant emancipation for his children and have them recognized as free Cherokee citizens. Shoe Boots stated in his petition,
"These is the only children I have as Citizens of this Nation, and as the time I may be called to die is uncertain, My desire is to have them as free citizens of this nation. Knowing what property I may have, is to be divided amongst the Best of my friends, how can I think of them having bone of my bone and flesh of my flesh to be called their property, and this by my imprudent conduct, and for them and their offspring to suffer for generations yet unborn, is a thought too great a magnitude for me to remain silent any longer"
After consideration, his request was granted by the Cherokee National Council on November 6, 1824. While Shoe Boots was ordered by the council to cease fathering children with Doll, he fathered two twin sons before his death in 1829. The children of Shoe Boots were later forced into slavery with his twin sons inherited as property to his sisters, who unsuccessfully attempted to petition the council to grant emancipation and citizenship for the twins.
The nature of enslavement in Cherokee society often mirrored that of European-American slave society, with little difference between the two. The Cherokee instituted their own slave code and laws that were lenient towards Cherokee and whites, but discriminated against slaves and free blacks. Cherokee law barred intermarriage of Cherokee and blacks, whether the latter were enslaved or free. African Americans who aided slaves were to be punished with 100 lashes on the back. Cherokee society barred those of African descent from holding public office, bearing arms, voting, and owning property. It was illegal for anyone within the limits of the Cherokee Nation to teach blacks to read or write. This law was amended so that the punishment for non-Cherokee citizens teaching blacks was a request for removal from the Cherokee Nation by authorities.
Several revolts and escape attempts in Indian Territory attested to the enslaved Africans' desire for freedom. In the Cherokee Slave Revolt of 1842, several African slaves in Indian Territory, including 25 held by Cherokee planter Joseph Vann, left their respective plantations near Webbers Falls, Oklahoma to escape to Mexico. The slaves were captured by a Cherokee militia under the command of Captain John Drew of the Cherokee Lighthorse near Fort Gibson. On December 2, 1842, the Cherokee National Council passed "An Act in regard to Free Negroes" banning all free blacks from the limits of the Cherokee Nation by January 1843, except those freed by Cherokee slaveowners. In 1846, an estimated number of 130-150 African slaves escaped from several plantations in Cherokee territory. Most of the slaves were captured in Seminole territory by a joint group of Cherokee, Creek, and Seminole slaveowners.
Civil War and abolition of slavery
During the American Civil War, the Cherokee Nation was divided between support for the Union and support for the Confederate States of America. Principal Chief John Ross originally adopted a policy of neutrality in regard to the Civil War and relations with the two opposing forces. The Cherokee officially joined the other Five Civilized Tribes in a Pro-Confederate alliance when Ross signed a treaty with General Albert Pike of the Confederacy on October 7, 1861. After Ross' capture on July 15, 1862 and his parole, he sided with the Union and repudiated the Confederate treaty. He remained in Union territory for his safety until the end of the war. Stand Watie, a longtime rival of Ross and a leader of the majority Pro-Confederate Cherokee, became Principal Chief of the Southern Cherokee on August 21, 1862. A wealthy planter and slaveholder, Watie served as an officer in the Confederate Army and was the last Brigadier General to surrender to the Union.
Cherokee loyal to Ross pledged support to the Union and acknowledged Ross as Principal Chief of the Cherokee Nation, while pro-Confederate Cherokee sided with the Southern Cherokee faction. Following the US Emancipation Proclamation, the Cherokee National Council, consisting of Pro-Union Cherokee and headed by acting Principal Chief Thomas Pegg, passed two emancipation acts that freed all enslaved African Americans within the limits of the Cherokee Nation.
The first, "An Act Providing for the Abolition of Slavery in the Cherokee Nation", was passed on February 18, 1863.
Be it enacted by the Natl Council, That in view of the difficulties and evils which have arisen from the Institution of Slavery and which seem inseparable from its existence in the Cherokee Nation, The Delegation appointed to proceed to Washington are impowered and instructed to assure the President of the U States of the desire of the Authorities and People to remove that Institution from the statures and Soil of the Cherokee Nation and of their wish to provide for that object at once upon the Principle of Compensation to the owners of Slaves not disloyal to the Government of the United States as tendered by Congress to States which shall abolish Slavery to their midst.
Be it enacted by the National Council: That all negro and other slaves within the lands of the Cherokee Nation be and they are hereby emancipated from slavery, and any person or persons who may have been held in slavery hereby declared to be forever free.
The acts became effective on June 25, 1863 and any Cherokee citizen who held slaves was to be fined no less than one thousand dollars or more than five thousand dollars. Officials who failed to enforce the act were to be removed and deemed ineligible to hold any office in the Cherokee Nation. While the Cherokee became the only nation of the Five Civilized Tribes to abolish slavery during the war, few slaves were freed as Cherokee loyal to the Confederacy held more slaves than pro-Union Cherokee. Despite agreeing to end slavery, pro-Union Cherokee did not provide for civil and social equality for Freedmen in the Cherokee Nation.
Treaty of 1866
After the Civil War ended in 1865, the factions of Cherokee who supported the Union and those who supported the Confederacy continued to be at odds. On September 1865, each side was represented along with delegations from the other Five Civilized Nations to negotiate with the Southern Treaty Commission headed by the US Commissioner of Indian Affairs Dennis N. Cooley at Fort Smith, Arkansas. Stand Watie and Elias Cornelius Boudinot of the Southern Cherokee delegation hoped to achieve separate status for a Southern Cherokee Nation and wanted the US government to pay for the relocation of Freedmen out of the Cherokee Nation. The Pro-Union Cherokee delegation led by John Ross wanted to adopt Freedmen into the tribe as members and allocate land for their use. The US officials ignored the factional divisions, addressed the Cherokee as one entity, and insisted on further conditions for an agreement. One of the terms insisted by the commission was that the Cherokee, as well as the other Five Civilized Tribes, abolish slavery and grant the Cherokee Freedmen full citizenship, with rights to annuities and land. The two factions prolonged negotiations for a period of time with additional meetings held in Washington DC between the two and the US government. While negotiations took place, the US Department of the Interior tasked the newly established Freedmen's Bureau, headed by Brevet Major General John Sanborn, to observe the treatment of Freedmen in Indian Territory and regulate relations.
The two Cherokee factions offered a series of treaty drafts to the US government with Cooley giving each side twelve stipulations for the treaties. The Pro-Union Cherokee rejected four of those stipulations while agreeing with the rest. While the Southern Cherokee treaty had some support, the treaty offered by Ross' faction was ultimately selected. The Pro-Union faction was the sole Cherokee group that the US government settled treaty terms with. Issues such as the status of Cherokee Freedmen and the voiding of the Confederate treaty were previously agreed upon and both sides compromised on issues such as amnesty for Cherokee that fought for the Confederacy. On July 19, 1866, six delegates representing the Cherokee Nation signed a reconstruction treaty with the United States in Washington DC. The treaty granted Cherokee citizenship to the Freedmen and their descendants (article 9). The treaty also set aside a large tract of land for Freedmen to settle with 160 acres for each person (article 4) and granted them voting rights and self-determination within the constraints of the greater Cherokee Nation (article 5 and article 10).
"The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of the national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime, whereof the party shall have been duly convicted, in accordance with laws applicable to all the members of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees: Provided, That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated." - Article 9 of The Treaty Of 1866
Other nations of the Five Civilized Tribes also signed treaties with the U.S. government in 1866 with articles concerning their respective Freedmen and the abolishing of slavery. While the Chickasaw Nation was the sole tribe that refused to include Freedmen as citizens, the Choctaw Nation granted citizenship to Choctaw and Chickasaw Freedmen in 1885 after considerable tribal debate.
The Cherokee Nation Constitution was amended in a special convention on November 26, 1866. The constitutional amendments removed all language excluding people of African descent and reiterated the treaty's language concerning the Freedmen. The constitution also reiterated the treaty's six-month deadline for Freedmen to return to the Cherokee Nation in order to be counted as citizens. Essentially, Cherokee and other tribal freedmen were allowed the choice to reside as citizens with the tribes, or to have United States citizenship outside the tribal nations.
"All native born Cherokees, all Indians, and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be, citizens of the Cherokee Nation." - 1866 Amendments to Article 3, Section 5 of the 1836 Cherokee Nation Constitution
Efforts were made to incorporate the Cherokee Freedmen into the Cherokee Nation such as the creation of several segregated Freedmen schools and the inclusion of Freedmen in political office. Despite the progress, the 1866 treaty did not lead to immediate acceptance of Freedmen in the tribe. In addition to factionalism from the war, resistance to their full inclusion was based on economic factors related to the allotment of lands and distribution of monies related to land sales. In 1880, the Cherokee compiled a census to distribute per capita funds related to recent land sales. The 1880 census did not include those Freedmen who had never left. In the same year, the Cherokee senate voted to deny citizenship to Freedmen who had failed to comply with the 1866 treaty by returning to the Cherokee Nation within six months.
The Cherokee claimed that the 1866 treaty with the US granted civil and political rights to Cherokee Freedmen, but not the right to share in tribal assets. Principal Chief Dennis Wolf Bushyhead (1877–1887) opposed the exclusion of Cherokee Freedmen from distribution of assets, but was overridden by the Cherokee National Council. The federal government became involved on behalf of the Freedmen; in 1888 the US Congress passed An Act to secure to the Cherokee Freedmen and others their proportion of certain proceeds of lands, Oct. 19, 1888, 25 Stat. 608. Special Agent John W. Wallace was commissioned to create a roll, now known as the Wallace Roll, to aid in the per-capita distribution of federal money. The Wallace Roll included 3,524 Freedmen.
The Cherokee Nation continued to challenge the rights of the Freedmen. In 1890, by passing "An act to refer to the U.S. Court of Claims certain claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee Nation", Oct. 1, 1890, 26 Stat. 636, the US Congress authorized the U.S. Court of Claims to hear suits by the Freedmen against the Cherokee Nation for recovery of proceeds denied them. The freedmen won the claims court case that followed, Whitmire v. Cherokee Nation and The United States (1912) (30 Ct. Clms. 138(1895)), which was appealed to the US Supreme Court. It related to treaty obligations of the Cherokee Nation to the United States. The Claims Court ruled that payments could not be restricted to "particular class of Cherokee citizens, such as those by blood", which was upheld by the Supreme Court. As the Cherokee Nation had already distributed the funds they had received for sale of the Cherokee Outlet, the US government as co-defendant was to pay the award to the Cherokee Freedmen. It commissioned the Kern-Clifton roll, completed in 1896, as a record of 5,600 freedmen to receive a portion of the land sale funds in the following decade as settlement.
During this distribution of proceeds, Congress passed the Dawes Act of 1887. It was a measure to promote assimilation of Native Americans by requiring the extinguishing of tribal government and the allotment of communal lands to individual households of citizens registered as tribal members. The US government would declare remaining lands "surplus" to communal Indian needs and allow it to be acquired and developed by European Americans.
As a part of the act and subsequent bills, the Dawes Commission required registration of the American Indians of each tribe in the Indian Territory. Individuals were identified by tribe on the Dawes Roll under the categories: Indians by blood (they could identify only one tribe, even if descended from more than one), intermarried whites, and Freedmen. Although many Indians were of more than one tribal ancestry, they had to choose only one. In addition, although freedmen frequently had Cherokee ancestry and sometimes living Cherokee parents, the Dawes commissioners generally listed all freedmen exclusively on the Freedmen Roll rather than recognizing individual's percentage of Cherokee ancestry. The Dawes Rolls of 1902 listed 41,798 citizens of the Cherokee Nation, and 4,924 persons separately listed as Freedmen. The genealogist Angela Y. Walton-Raji said that together, the Five Civilized Tribes had nearly 20,000 freedmen listed on the Dawes Rolls, which were completed from 1902-1906.
The 1908 Curtis Act authorized the Dawes Commission to allot funds without the consent of tribal governments, and allowed the federal government to extract taxes from white citizens living in the Indian territories. (American Indians have considered both the Dawes and Curtis acts as restrictions on tribal sovereignty.) The government distributed allotments of land, although there have been many claims of unfair treatment and errors in the registration process. As the Cherokee Nation's government was officially dissolved, and Oklahoma became a state (1907), the freedmen and other Cherokee had self-determination as US citizens. Some 1,659 freedmen listed on the Kern-Clifton roll were not included in the Dawes Roll, and therefore lost their Cherokee citizenship rights.
Some activists have criticized inconsistencies in the information collected in the Dawes Rolls. In previous censuses, persons of mixed African-Native American ancestry were classified as Native American. The Dawes Commission set up three classifications: Cherokee by blood, intermarried white, and Freedmen. In testimony as a member of the Cherokee Freedmen's Association, before the Indian Claims Commission on November 14, 1960, Gladys Lannagan reported, "I was born in 1896 and my father died August 5, 1897. But he didn't get my name on the roll. I have two brothers on the roll—one on the roll by blood and one other by Cherokee Freedman children's allottees." She stated that one of her grandparents was Cherokee and the other black. There have been cases of mixed-race Cherokee, of partial African ancestry, with as much as 1/4 Cherokee blood (equivalent to one grandparent being full-blood) not having been listed as "Cherokee by blood" in the Dawes Roll because of having been classified under only the Cherokee Freedmen category. Thus such individuals lost their "blood" claim to Cherokee citizenship despite having satisfied the criterion of having a Cherokee Indian ancestor.
In 1924, Congress passed a jurisdictional act that allowed the Cherokee to file suit against the United States to recover the funds paid to Freedmen in 1894 under the Kern-Clifton Roll. It held that the Kern-Clifton Roll was valid for only that distribution, and was superseded by the Dawes Rolls in terms of establishing the Cherokee tribal list of membership. The passing of the Indian Claims Commission Act of 1946 sparked interest in the status of the 1,659 Freedmen included in the Kern-Clifton Roll but not the Dawes roll and stirred activity among people claiming descent from the Kern-Clifton Freedmen.
Loss of membership
On October 22, 1970, the former Five Civilized Tribes had the right to vote for their tribal leaders restored by Congress via the Principal Chiefs Act. In 1971, the Department of the Interior stated that one of the fundamental conditions for election procedures was that the voter qualifications of the Cherokee, Choctaw, Creek, and Seminole must be broad enough to include the enrolled Freedmen citizens of their respective nations. The Cherokee Nation, headed by Principal Chief W. W. Keeler, issued voter cards to citizens and the Freedmen participated in the first Cherokee elections since the 1900s. A new Cherokee Nation constitution was drafted in 1975 and defined citizens as those proven by reference to the final Dawes Commission Rolls, including the adopted Delaware and Shawnee.
In the 1970s, the Bureau of Indian Affairs began to provide several federal services and benefits, such as free health care, to members of federally recognized tribes. Numerous descendants of Cherokee listed as "Cherokee by Blood" on the Dawes Commission Rolls enrolled as new members of the Cherokee Nation. As members of the Cherokee Nation, certain federal benefits and services were also provided to the Cherokee Freedmen.
Efforts to block the Freedmen descendants from the tribe began in 1983. Ross O. Swimmer, then-Principal Chief of the Cherokee Nation, issued an executive order stating that all Cherokee Nation citizens must have a "Certificate of Degree of Indian Blood" (CDIB) card in order to vote instead of the previous Cherokee Nation voter cards that were used since 1971. The CDIB cards were issued by the Bureau of Indian Affairs based on those listed on the Dawes Commission Rolls as Indians by blood. Since the Dawes Commission never recorded Indian blood quantum on the Cherokee Freedmen Roll or the Freedmen Minors Roll, the Freedmen could not obtain CDIB cards. Although they were Dawes enrollees, received funds resulting from tribal land sales via the U.S. Supreme Court ruling in Whitmire v. Cherokee Nation and United States (1912), and voted in previous Cherokee Nation elections, the Cherokee Freedmen descendants were turned away from the polls and told that they did not have the right to vote.
Swimmer's executive order was analyzed by some observers as one way Swimmer excluded people who were supporting a rival candidate, Perry Wheeler, for Principal Chief. After the 1983 Cherokee Nation elections and the re-election of Swimmer, Wheeler and his running mate, Agnes Cowen, initiated a series of legal proceedings such as filing cases with the Cherokee Judicial Appeals Tribunal, petitioning the Bureau of Indian Affairs to conduct an investigation of the election, and filing a case with the US District Court. Wheeler and Cowan alleged that the election was a violation of federal and tribal law and that the Cherokee Freedmen were unjustly removed from voting because they were allies of Wheeler. All cases and subsequent appeals were defeated.
Swimmer’s successor, Principal Chief Wilma P. Mankiller, elected in 1985, issued an Executive Order requiring all enrolled members of the Cherokee Nation to have a CDIB card. From that point on, Cherokee Nation citizenship was granted only to individuals with Cherokee blood ancestry from a direct ancestor on the Dawes Commission Rolls. This completed the disfranchisement of the Cherokee Freedmen descendants.
Activism of the 1940s–2000s
In the 1940s, more than 100 descendants of freedmen from the Wallace Roll, Kern-Clifton Roll, and the Dawes Rolls formed the Cherokee Freedmen's Association. The organization filed a petition with the Indian Claims Commission in 1951 over their exclusion from citizenship, but the petition was denied in 1961. The Indian Claims Commission stated that their claims to tribal citizenship were individual in nature and outside the US government’s jurisdiction. The Cherokee Freedmen's Association was faced with two issues regarding their case. On one hand, the Dawes Rolls, a federally mandated tally, was accepted as defining who were legally and politically Cherokee and most of the CFA members were not of Dawes Rolls descent. On the other, the courts saw their claims as a tribal matter and outside of their jurisdiction. Appeals stretched to 1971, but all were denied with only few legal victories to show for their twenty-year effort.
On July 7, 1983, the Reverend Roger H. Nero and four other Cherokee Freedmen were turned away from the Cherokee polls as a result of the newly instituted Cherokee voting policy. A Freedman who voted in the 1979 Cherokee election, Nero and colleagues sent a complaint to the Civil Rights Division of the Department of Justice, claiming discrimination on the basis of race. On June 18, 1984, Nero and 16 Freedmen descendants filed a class action suit against the Cherokee Nation. Principal Chief Ross Swimmer, tribal officials, the tribal election committee, the United States, the office of the President, the Department of the Interior, the Secretary of the Interior, the Bureau of Indian Affairs, and three Muskogee, Oklahoma BIA officials were named as defendants. The suit sought nearly $750 million in damages and asked for the 1983 tribal election to be declared null and void. The court ruled against the plaintiff Freedmen because of jurisdictional issues, with the same ruling made by the Court of Appeals on December 12, 1989. The courts held that the case should have been filed in claims court instead of district court due to the amount asked in the lawsuit. No judgment was made as to the merits of the case itself.
Bernice Riggs, a Freedmen descendant, sued the Cherokee Nation's tribal registrar Lela Ummerteskee in 1998 over the latter denying the former's October 16, 1996 citizenship application. On August 15, 2001, the Judicial Appeals Tribunal (now the Cherokee Nation Supreme Court) ruled in the case of Riggs v. Ummerteskee that while Riggs adequately documented her Cherokee blood ancestry, she was denied citizenship because her ancestors on the Dawes Commission Rolls were listed only on the Freedmen Roll.
Reinstatement and loss of citizenship
On September 26, 2004, Lucy Allen, a Freedmen descendant, filed a lawsuit with the Cherokee Nation Supreme Court, asserting that the acts barring Freedmen descendants from tribal membership were unconstitutional, in the case of Allen v. Cherokee Nation Tribal Council. On March 7, 2006, the Cherokee Nation Judicial Appeals Tribunal ruled in Allen’s favor in a 2–1 decision that the descendants of the Cherokee Freedmen were Cherokee citizens and were allowed to enroll in the Cherokee Nation. This was based on the facts that the Freedmen were listed as members on the Dawes Rolls and that the 1975 Cherokee Constitution did not exclude them from citizenship or have a blood requirement for membership. This ruling overturned the previous ruling in Riggs v. Ummerteskee. More than 800 Freedmen descendants have enrolled in the Cherokee Nation since the ruling was made – out of up to 45,000 potentially eligible people.
Chad "Corntassel" Smith, Principal Chief of the Cherokee Nation, stated his opposition to the ruling after the decision was made. Smith called for a constitutional convention or referendum petition to amend its constitution to deny citizenship to the Cherokee Freedmen descendants. During a meeting on June 12, 2006, the Cherokee Nation Tribal Council voted in a 13–2 decision to amend the constitution to restrict Cherokee citizenship to descendants of Cherokee on the Dawes Rolls, but denied a resolution calling for a special election on the issue. Supporters of the special election, including former Cherokee Nation deputy chief John Ketcher and Cherokee citizens siding with Smith, circulated a referendum petition for a vote to remove the Freedmen descendants as members. Chief Smith announced that the issue of the membership for Cherokee Freedmen was being considered for a vote related to proposed amendments to the Cherokee Nation Constitution.
Freedmen descendants opposed the election. Vicki Baker filed a protest in the Cherokee Nation Supreme Court over the legality of the petition and allegations of foul play involved in the petition drive. Though the Cherokee Supreme Court ruled against Baker, two justices in the Cherokee Supreme Court, Darrell Dowty and Stacy Leeds, filed separate dissenting opinions against the ruling. Justice Leeds wrote an 18-page dissent concerning falsified information in the petition drive and fraud by Darren Buzzard and Dwayne Barrett, two of the petition’s circulators. Leeds wrote,
"In this initiative petition process, there are numerous irregularities, clear violations of Cherokee law, and it has been shown that some of the circulators perjured their sworn affidavits. I cannot, in good conscience, join in the majority opinion.”.
Despite the dissent and the removal of 800 signatures from the petition, the goal of 2,100 signatures was met.
Jon Velie, attorney for the Freedman descendants, filed a motion for a preliminary injunction in the Vann action in US District Court. Judge Henry H. Kennedy ruled against the Freedmen descendants’ motion to halt the upcoming election because the election may not have voted out the Freedmen. After a few delays, the tribe voted on March 3, 2007 on whether to amend the constitution to exclude the Cherokee Freedmen descendants from citizenship. Registered Cherokee Freedmen voters were able to participate in the election. The referendum results removed the Freedmen descendants from the Cherokee Nation by a 76% (6,702) to 24% (2,041) margin out of a total of 8,743 votes cast by registered voters. By comparison, the previous Cherokee general election turnout had totaled 13,914 registered voters.
The Freedmen descendants protested their ouster from the tribe with demonstrations at the BIA office in Oklahoma and at the Oklahoma state capital. Due to the issues of citizenship in the election and the resulting exclusion of freedmen descendants, the Cherokee Nation has been criticized by United States groups such as the Congressional Black Caucus and the National Congress of Black Women. On March 14, 2007, twenty-six members of the Congressional Black Caucus sent a letter to Carl J. Artman, Assistant Secretary for Indian Affairs, urging the Bureau of Indian Affairs to investigate the legality of the March 3rd election.
BIA controversy and temporary reinstatement
The 2007 election was criticized for having been conducted under a constitution that was not approved by the Secretary of the Interior. On May 22, 2007, the Cherokee Nation received notice from the BIA that the Cherokee Nation’s amendments to the 1975 Cherokee Nation Constitution were rejected because they required BIA approval, which had not been obtained. The BIA also stated concerns that the Cherokee Nation had excluded the Cherokee Freedmen from voting for the constitutional amendments, since they had been improperly shorn of their rights of citizenship years earlier and were not allowed to participate in the constitutional referendum. This is considered a violation of the 1970 Principal Chiefs Act, which requires that all tribal members must vote. Former Chief Smith, disbanded the Judicial Appeals Tribunal and created a new Cherokee Supreme Court under the new Constitution. A question remains regarding the legitimacy of the Court as the United States has not approved the Constitution as required under the previous Cherokee Constitution.
According to Chief Smith, the 1975 Indian Self Determination Act overrode the 1970 Principal Chiefs Act and the Cherokee Nation had the sovereign right to determine its citizenship requirements. Smith stated that the Cherokee Nation Supreme Court ruled that the Cherokee Nation could take away the approval authority it had granted the federal government and that the Nation will abide by the court's decision. Despite the ruling, the issue of amending the process of federal approval was placed on the ballot for the June 23, 2007 general election. Cherokee voters approved the amendment to remove federal oversight by a 2–1 margin, but the BIA still has to approve. Jeanette Hanna, director of the BIA's Eastern Oklahoma Regional Office, said that the regional office has recommended approval of the vote on removal of Secretarial oversight.
Heading into the 2007 election, the Cherokee Nation was not permitting the Freedmen to vote and attorney Jon Velie again filed a motion for preliminary injunction. On May 15, 2007, Cherokee District Court Judge John Cripps signed an order for the Cherokee Freedmen descendants to be temporarily reinstated as citizens of the Cherokee Nation while appeals are pending in the Cherokee Nation court system. This was due to an injunction filed by the Freedmen descendants' court-appointed attorney for their case in tribal court. The Cherokee Nation’s Attorney General Diane Hammons complied with the court order. Velie, on behalf of Marilyn Vann and six Freedmen descendants, argued the late actions that protected 2,800 Freedmen (but not all that were entitled to citizenship) were insufficient, but Judge Henry Kennedy denied the motion. On June 23, 2007 Chad Smith was reelected for a four-year term as Principal Chief with 58.8% of the vote
Federal court proceedings
Marilyn Vann, president of the Descendants Of Freedmen Of the Five Civilized Tribes organization, and four Freedmen descendants filed a case with the United States Federal Court over the Cherokee Nation’s disfranchisement of the Freedmen descendants. Efforts have been made by the Cherokee Nation to dismiss the federal case.
On December 19, 2006, Federal Judge Henry Kennedy ruled that the Freedmen descendants could sue the Cherokee Nation for disfranchisement. The Cherokee Nation's administration appealed the decision on the grounds that as a sovereign nation, the tribe is protected by sovereign immunity and cannot be sued in US court. On July 29, 2008, the Washington D.C. Circuit Court Of Appeals unanimously ruled that the Cherokee Nation was protected by sovereign immunity and could not be listed as a defendant in the lawsuit. But, it stated that the Cherokee Nation's officials were not protected by the tribe's sovereign immunity, and Freedmen descendants could proceed with a lawsuit against the tribe's officers. The ruling also stated the 13th Amendment and the Treaty of 1866 whittled away the Cherokee right to discriminate against the Freedmen descendants. The ruling means that the case will go back to district court. Velie stated this was a great victory for the Freedmen and Indian people who can bring actions against the elected officials of their Native Nations and the United States.
In February 2009, the Cherokee Nation filed a separate Federal lawsuit against individual Freedmen in what some[who?] called an attempt at "venue shopping". The case was sent back to Washington to join the Vann case. "On July 2, the Honorable Judge Terrance Kern of the Oklahoma Northern District Court transferred the Cherokee Nation v. Raymond Nash et al case that was filed in his court in February 2009 to D.C. Already awaiting judgment in D.C. is the case of Marilyn Vann et al v. Ken Salazar filed in August 2003." Kern would not hear the Nash case, filed by the Cherokee Nation, due to the cases resembling each other in parties and the subject matter of Freedmen citizenship; in addition, the first-to-file rule meant that the Vann case needed to be heard and settled before any court heard the Nash case.
As the Cherokee Nation waived its sovereign immunity to file the Cherokee Nation v. Nash case, it is now subject to the possibility of Judge Kennedy's enjoining the Cherokee Nation to the original case, after they had won immunity. "Finally, the Court is not, as argued by the Cherokee Nation, depriving the Cherokee Nation of 'the incidents of its sovereign immunity' by transferring this action pursuant to the first to file rule. The Cherokee Nation voluntarily filed this action and waived its immunity from suit. It did so while the D.C. Action was still pending."
In October 2011, Judge Kennedy dismissed the Vann case for technical reasons and transferred the Nash cash back to Federal District Court in Tulsa, OK. Velie informed the Court in a status Conference report that the Freedmen descendants will appeal the Vann dismissal. The date for the appeal was November 29, 2011.
On January 14, 2011, Cherokee District Court Judge John Cripps ruled in favor of the plaintiffs in the Raymond Nash et al v. Cherokee Nation Registrar case, reinstating Cherokee Nation citizenship and enrollment to the Freedmen descendants. Cripps ruled that the 2007 constitutional amendment that disenrolled the Freedmen descendants was void by law because it conflicted with the Treaty of 1866 that guaranteed their rights as citizens.
The Cherokee Nation held general elections for Principal Chief between challenger Bill John Baker, a longtime Cherokee Nation councilman, and Chad Smith, the incumbent Principal Chief, on June 24, 2011. Baker was declared the winner by 11 votes, but the Election Committee determined that Smith had won by 7 votes on the next day. In a recount, Baker was declared the winner by 266 votes but Smith appealed to the Cherokee Supreme Court that ruled that a winner could not be determined with mathematical certainty. A special election was scheduled for September 24, 2011. On August 21, 2011, prior to the scheduling of the Cherokee special election, the Cherokee Nation Supreme Court reversed the January 14th decision of the Cherokee District Court resulting in the disenrollment of the Freedmen descendants. Justice Darell Matlock Jr. ruled that the Cherokee people had the sovereign right to amend the Cherokee Nation constitution and to set citizenship requirements. The decision was 4 to 1 with Justice Darrell Dowty dissenting. Many observers questioned the timing of the decision as the Cherokee Freedmen voters, who voted in the June general election, were disenfranchised going into the election. The decision removed the injunction of the District Court which kept the Freedmen descendants in the Nation. On September 11, 2011, the Cherokee Nation sent letters to 2800 Freedmen descendants informing them of their disenrollment. In response, Jon Velie and the Freedmen descendants filed another motion for preliminary injunction in federal district court asking to reinstate their rights for the election.
As a result of the Cherokee Supreme Court ruling, the U.S. Department of Housing and Urban Development suspended $33 million in Cherokee Nation funds while it studied the issue of the Freedmen descendants' disenrollment. Larry Echo Hawk, Assistant Secretary for Indian Affairs, Department of the Interior, sent a letter to acting Principal Chief Joe Crittenden stating that the Department of the Interior never approved the Cherokee constitutional amendments that excluded the Freedmen descendents from tribal membership. Echo Hawk stated said that the September 24, 2011 election would be considered unconstitutional if the Freedmen descendants were excluded from voting, as guaranteed by the Treaty of 1866. On September 14, Cherokee Attorney General Diane Hammons recommended reopening the case with the previous reinstatement to be applied while oral arguments would be scheduled. In a preliminary federal court hearing on September 20, 2011, Judge Henry Kennedy heard arguments from Jon Velie representing the Freedmen descendants, Amber Blaha representing the US government, and Graydon Dean Luthey, Jr. representing the Cherokee Nation. Following arguments, the parties announced that the Cherokee Nation, Freedmen plaintiffs and US government had come to an agreement to allow the Freedmen descendants to be reinstated as citizens with the right to vote, with voting to continue two additional days. The Cherokee Nation was to inform the Freedmen of their citizenship rights no later than September 22.
On September 23, 2011, Velie returned to the Court with the other parties as virtually none of the Freedmen descendants had received notification with the election happening the next day. Judge Kennedy signed an additional agreed upon Order between the parties requiring additional time for absentee ballots for Freedmen descendants and five days of walk-in voting for all Cherokee.
In October 2011, Bill John Baker was inaugurated as Principal Chief after the Cherokee Supreme Court rejected an appeal of the election results by former chief Chad Smith.
Motions, developments and hearings 2012 to 2014
The Cherokee Nation amended their complaint in May 2012 and as a response, on July 2, 2012, the US Department of the Interior filed a counter lawsuit against the Cherokee Nation in U.S. District Court in Tulsa, Oklahoma seeking to stop the denial of tribal citizenship and other rights to the Freedmen. The Freedmen filed counterclaims against certain Cherokee Nation Officers and the Cherokee Nation with cross-claims against the Federal Defendants.
On October 18, 2012 the Vann case was heard by the United States District Court of Appeals for the District of Columbia. On December 14, 2012, the court reversed the initial finding of the lower court, stating "The Ex parte Young doctrine allows suits for declaratory and injunctive relief against government officials in their official capacities – notwithstanding the sovereign immunity possessed by the government itself. The Ex parte Young doctrine applies to Indian tribes as well". It remanded the case back to the lower courts. In March, 2013 a request by the tribe to reconsider the decision was denied.
On September 13, 2013, the parties to Vann and Nash, including the Cherokee, jointly petitioned the District Court for the District of Columbia to resolve by summary judgment the question of whether the Freedmen are entitled to equal citizenship in the Cherokee Nation under the Treaty of 1866. A hearing was scheduled for late April, 2014 but occurred on May 5, 2014. After reviewing the motion for summary judgment submitted in January by the Department of the Interior, Judge Thomas F. Hogan stated that "he was skeptical the treaty allows the tribe to change its constitution to require Indian blood for CN [Cherokee Nation] citizenship." The hearing was the first during the 11-year controversy to look at the merits, rather than procedural issues.
On June 21, 2007, US Rep. Diane Watson (D-California), one of the 25 Congressional Black Caucus members who signed a letter asking the BIA to investigate the Freedmen situation, introduced H.R. 2824. This bill seeks to sever the Cherokee Nation’s federal recognition, strip the Cherokee Nation of their federal funding (estimated $300 million annually), and stop the Cherokee Nation’s gaming operations if the tribe does not honor the Treaty of 1866. H.R. 2824 was co-signed by eleven Congress members and was referred to the Committee Of Natural Resources and the Committee Of The Judiciary.
Chief Smith issued a statement saying that the introduction of this bill is "really a misguided attempt to deliberately harm the Cherokee Nation in retaliation for this fundamental principle that is shared by more than 500 other Indian tribes." The National Congress of American Indians (NCAI) expressed their disapproval of the bill.
On September 26, 2008, Congress cleared the housing bill H.R. 2786. The reauthorization of the Native American Housing and Self-Determination Act included a provision stating that the Cherokee Nation can receive federal housing benefits as long as a tribal court order allowing the citizenship for Cherokee Freedmen descendants is intact or some settlement is reached in the citizenship issue and litigation involving the Cherokee Freedmen descendants. The House Of Representatives version of the bill would have denied funds unless the Freedmen descendants were restored to citizenship. The Senate version of the bill had no mention of the Cherokee Nation or the Cherokee Freedmen descendants. Paul Lumley, executive director of the National American Indian Housing Council (NAIHC), said that the NAIHC worked with members of the Congressional Black Caucus to create a compromise, resulting in the addition of the Cherokee Freedmen stipulation in the bill.
Reactions to the controversy
A number of Cherokee Freedmen descendants feel that they have been gradually pushed out of the Cherokee Nation, and that the process has left each generation less aware of its rights and its history. As Freedman activist Reverend Roger H. Nero said in 1984, "Over the years they [Cherokee Nation officials] have been eliminating us [Freedmen] gradually. When the older ones die out, and the young ones come on, they won't know their rights. If we can't get this suit, they will not be able to get anything".
Individual Cherokee and Freedmen have in the past been ignorant about the issue all together. Circe Sturm (1998) wrote in her book on the Freedmen descendants that many had little sense of the historic connection with the Cherokee, and are ambivalent about getting recognized. Cherokee members have also been ignorant of the historic issues. Cara Cowan Watts, a tribal council member who opposed membership for Freedmen descendants, admitted in 2007 that she didn’t know anything about the Freedmen or their history before the court case. Chief Smith said, "A lot of Cherokee don't know who the Freedmen are," and that he was not familiar with them when growing up.
Some Cherokee who oppose membership for Freedmen descendants support Chief Smith's position: that the Freedmen are not Cherokee citizens because their ancestors were listed on the Freedmen Roll of the Dawes Rolls and not on the "Cherokee By-Blood" Roll (although some were of Cherokee blood). Smith and supporters claim that the Freedmen and their descendants have not been active in the tribe for 100 years, the Freedmen were compensated for slavery with their Dawes land allotments and not tribal membership, they were forced on the tribe by the US under the Treaty of 1866, and they want to share in the tribe's resources and Cherokee Nation's federally funded programs.
Those supporting membership of Freedmen descendants believe they have a rightful place in Cherokee society based on their long history in the tribe before and after forced removal, with a history of intermarriage and active members. In addition, they cite as precedent the legal history, such as the Treaty Of 1866, the 1894 Supreme Court case of Cherokee Nation vs. Journeycake, and the 1975 Cherokee Constitution. Ruth Adair Nash, a Freedmen from Bartlesville, Oklahoma, carries her Cherokee citizenship card she was issued in 1975.
Some Cherokee by blood have pushed to garner full citizenship for Freedmen. David Allen Cornsilk, editor of the independent newspaper The Cherokee Observer and founder of the Cherokee National Party, was the lay advocate for the Lucy Allen case. He sees the issue of honoring the 1866 treaty as an issue of sovereignty. Other non-White Cherokee have expressed solidarity with freedmen due to their similarities of religion (Southern Baptist) and the sense of community (albeit African American) found among freedmen.
In a June 2007 message to members of United Keetoowah Band Of Cherokee, Principal Chief George Wickliffe expressed his concern about threats to sovereignty by this case. He said that the Cherokee Nation's refusal to abide by the Treaty of 1866 threatened the government-to-government relationships of other Native American nations, which had struggled to make the US live up to its treaty obligations.
Supporters of the Freedmen descendants note that the Cherokee have historically included as members other non-Cherokee or people of partial Cherokee ancestry, adopting captives into the tribe. The Delaware and Shawnee tribes, two non-Cherokee tribes, are members of the Cherokee Nation via the Delaware Agreement of 1867 and the Shawnee Agreement of 1869. Another issue is that of a tribe's breaking a treaty protected by Article Six of the United States Constitution. Daniel F. Littlefield Jr., director of the Sequoyah Research Center at the University of Arkansas-Little Rock, stated that the Treaty of 1866 granted freedmen their rights as citizens, and the case should not be made into a racial issue.
Race is another issue. Taylor Keen, a Cherokee Nation tribal council member, said,
"Historically, citizenship in the Cherokee Nation has been an inclusive process; it was only at the time of the Dawes Commission there was ever a racial definition of what Cherokee meant. The fact that it was brought back up today certainly tells me that there is a statute of racism."
Cherokee Nation citizen Darren Buzzard, one of the circulators of the 2006 petition, wrote a letter to Cherokee Councilwoman Linda O’Leary, with passages which many observers deemed to be racist and bigoted. Circulated widely on the Internet, the letter was quoted in numerous articles related to the Freedmen case.
Chuck Trimble, former executive director of the National Congress of American Indians, criticized the Cherokee Supreme Court's 2011 ruling for what he called "the Cherokee Dred Scott decision," for depriving people of citizenship.
Both sides filed complaints in federal court in Tulsa, Oklahoma in July 2012; the Cherokee say the 1866 treaty does not require them to give full citizenship to the Freedmen, but they continue to seek full rights.
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|Wikimedia Commons has media related to Cherokee census cards.|
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