Race, Citizenship, and the Cherokee Nation
American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.
Prior to their removal from their ancestral aboriginal homelands in
Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.
White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required 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.”
While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v.
This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.
Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.
The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.
When the white government of