This was originally a paper for a political science class, but it is an interesting topic so I thought I would repurpose it as a blog post. This is the first of three parts. The second will provide some legal and historical background, and the third will give my own views.
On March 3, Cherokee Nation citizens voted by a large margin to amend their constitution to limit citizenship to descendants of Indians by blood as listed on the Dawes Rolls, excluding those whose descendants were listed only as Freedmen or intermarried whites. Strong protests to the amendment were given by representatives of the Freedmen and members of the Congressional Black Caucus, both in Congress and the Oklahoma State House. The Bureau of Indian Affairs has yet to issue a response to the vote and to other changes made in the Cherokee Nation constitution since 2003.1
The Cherokee Nation’s annual budget is about $300 million, of which about 80 percent is provided by the federal government.2 The government is composed of three branches: an executive headed by the Principal Chief, a legislature composed of the Tribal Council, and a judiciary including the Cherokee Nation District Courts and the Judicial Appeals Tribunal.3 While leaders within the government have been primarily responsible for initiating the push to expel Freedmen, factions exist within and between branches.
Chief Smith and other supporters of the amendment have defended their views primarily on the basis of tribal sovereignty. Smith has denied that the rationale behind the amendment was to conserve economic resources, such as housing and health care subsidies. In an editorial for Indian Country Today, he writes, “The vast majority of Cherokees do not use the services of health care, housing and education. It seems that many Cherokees chose to exclude non-Indians because of a sense of identity.” Smith argues that the vote was a defense of Cherokee cultural heritage as the “indigenous and aboriginal people of this land.”4 Other supporters have echoed this sentiment. Jodie Fishinghawk, one of the leaders of the referendum drive, told NPR, “It’s an Indian thing, we do not want non-Indians in the tribe, our Indian blood is what binds us together.”5 In a letter to the Native American Times, Chris Russo wrote that “the Cherokee people have voted three times over the last three decades regarding citizenship criteria. They have voted consistently that you must be ‘Indian’ to be a citizen of our Indian tribe.”6
On the other side are the descendants of the Freedmen. Their organized efforts have been led by Marilyn Vann, president of the non-profit corporation, Descendants of Freedmen of the Five Civilized Tribes. Vann and other Freedmen descendants have sought citizenship rights primarily through lawsuits, in both Cherokee and federal courts. Most recently, Vann and four other Freedmen descendants filed an injunction in federal court to prevent the special election. The judge denied their claim but said they could continue to pursue a lawsuit if they were denied citizenship. “We will pursue the legal remedies that are available to us to stop people from not only losing their voting rights, but to receiving medical care and other services to which they are entitled under law,” Vann told the Cherokee Phoenix.7
The Freedmen descendants argue that a 1866 Treaty between the Cherokee Nation and the federal government required the tribe to guarantee citizenship to their former slaves after the Civil War. They say that this treaty overrides the otherwise sovereign rights of the Cherokee to determine their own citizenship. “You know there never was such a thing as the Cherokee race. Cherokee was a citizenship,” Vann told NPR. “The federal government doesn’t have government-to-government relations with races, only nations.”8 Their argument is not without precedent. In 2000, the Seminole Nation of Oklahoma voted out Freedmen descendants but let them back in after the federal government cut off funds to the tribe.9 Two years later, the BIA deposed the administration of Principal Chief Ken Chambers and replaced him with former Principal Chief Jerry Haney, a decision related to disputes over the Seminole Freedmen.10
Another strong voice in support of the Freedmen descendants’ claim has been the Congressional Black Caucus, which represents 43 African-American U.S. Senators and Representatives. Rep. Diane Watson (D-Calif) and two dozen other members of the CBC recently sent a letter to the Interior Department asking the government to intervene on behalf of the Freedmen descendants. “It’s blatantly apparent that the Cherokee Nation violated their constitution,” Watson told the Associated Press. “The Department of Interior has a fiduciary duty to act … They should be going after them. It shouldn’t take me and the other members of the Congressional Black Caucus to pursue the issue.”11 Watson told the AP that she is authoring legislation to cut off federal funding for the Cherokees and plans to introduce it next week. While many CBC members are supporting Watson, the organization has not yet taken an official position.
Oklahoma Republican Senator Tom Coburn has spoken out strongly in favor of the Freedmen. “I think a commitment was made to them, and not keeping that commitment is entirely immoral,” Coburn told KGOU News.12 Democratic Representative Dan Boren, on the other hand, has not taken a position on the issue. “That’s an issue that the Cherokee Nation is working on,” Boren told KGOU News. “No one from the Congressional Black Caucus has talked to me about it.”13 A spokesman for House Speaker Nancy Pelosi also commented on the issue, saying “discrimination in any form is troubling. We hope that the Department of Interior would look at this issue closely.”14
The American Indian Policy and Media Initiative is a project funded by tribal, philanthropic and corporate grants and located at Buffalo State College in New York. Their stated mission is to “provide an independent, academic and dignified venue to address the intersection of (1) the concerns and journalistic practices of mainstream media, and (2) a range of public policy issues affecting American Indians.”15 In March, AIPMI released a report examining media coverage of the Cherokee-Freedmen story. While the media’s handling of the story is not directly relevant to our decision, the report effectively illuminates the principles involved. Amendment supporters welcomed AIPMI’s conclusion that coverage emphasizing racial discrimination was “another instance of mainstream media failing to understand the complexity of an issue involving American Indians and their oversimplification of a complex situation.”16 However, the report overall provides a more even-handed perspective than the partisans of either side. Author Ronald D. Smith writes:
Few saw it as the case of two distinct and mixed disenfranchised groups pitted against each other 100 years ago by the federal government that had little interest in either side, a struggle that is still being played out today. Fewer still saw it as a complicated story rooted in the importance of lineage within a wider society in which lineage does not have the political weight it does in Native America.17
Data from the 2005 American Community Survey of the U.S. Census Bureau provides a good example of the difficult economic situation in which these disputes play out. Per capita incomes in American Indian areas are somewhat commensurate with the states in which they are located. However, looking at the American Indian population alone reveals another drop, with all populations showing significantly lower incomes than the states as a whole. Per capita income shows a steady decline associated with race: $20,709 in Oklahoma as a whole; $18,727 in the Cherokee Oklahoma Tribal Statistical Area; $14,072 among American Indians alone in the Cherokee OTSA; $13,809 for those descending from two or more races in the Cherokee OTSA; and $12,728 among blacks or African Americans alone in the Cherokee OTSA.
It is difficult to take anything but the most general conclusions from this data, as the census categories are not subtle enough to account for the complex distinctions of race that this whole dispute is about. While mixed race individuals show a lower per capita income that Indians alone, it is not clear from the data what races these people may belong to. Nonetheless, the data reinforces the claim that inequalities are rooted in race, not simply geography. We can see that blacks on Cherokee lands are the most deprived group in an already poor region, and the action of the Cherokees may be somewhat motivated by a desire to conserve limited economic resources.
1The Associated Press. (2007, April 13). Vote to remove Freedmen not yet approved. Indian Country Today. Retrieved April 22, 2007 from http://www.indiancountry.com/content.cfm?id=1096414835
2Evans, B. (2007, April 22). Black lawmaker eyes funding cuts for Cherokee Nation. The Associated Press via the Montgomery Advertiser. Retrieved April 22, 2007 from http://www.montgomeryadvertiser.com/apps/pbcs.dll/article?AID=/20070420/NEWS02/704200317/1009
3Carroll, A. (2002/2003). Cherokee Nation tribal profile. Tribal Law Journal, 3. Retrieved April 22, 2007 from http://tlj.unm.edu/articles/volume_3/carroll/content.php
4Smith, C. (2007, March 9). Smith: Cherokees vote for Indian blood. Indian Country Today. Retrieved April 22, 2007 from http://www.indiancountry.com/content.cfm?id=1096414628
5Morris, F. (2007, March 10). Freedmen question divides Cherokees. National Public Radio. Retrieved Aprill 22, 2007 from http://www.npr.org/templates/story/story.php?storyId=7819829
6As cited in Cherokee Nation. (2007). We are Cherokee. Retrieved May 8, 2007 from http://www.cherokee.org/docs/MISC/Diversity-Hi.pdf
7Chavez, W. (2007, March 28). Voters amend constitution in special election. Cherokee Phoenix. Retrieved April 22, 2007 from http://www.cherokeephoenix.org/News/News.aspx?StoryID=2480
8Morris, F. (2007, March 10). Freedmen question divides Cherokees. National Public Radio. Retrieved Aprill 22, 2007 from http://www.npr.org/templates/story/story.php?storyId=7819829
9Bazar, E. (2007, March 4). Cherokee Freedmen to fight for inclusion. USA Today. Retrieved April 22, 2007 from http://www.usatoday.com/news/nation/2007-03-04-cherokee_N.htm
10Court decision rocks Seminole Nation. (2002, May 8). Indianz.com. Retrieved May 8, 2007, from http://www.indianz.com/News/show.asp?ID=pol02/05082002-1
11Evans, B. (2007, April 22). Black lawmaker eyes funding cuts for Cherokee Nation. The Associated Press via the Montgomery Advertiser. Retrieved April 22, 2007 from http://www.montgomeryadvertiser.com/apps/pbcs.dll/article?AID=/20070420/NEWS02/704200317/1009
12Oklahoma lawmakers weigh in on Cherokee Freedmen dispute. (2007, April, 3). KGOU. Retrieved May 8, 2007, from http://www.kgou.org/content/mp3/20070403_cherokee_freedmen.mp3
13Oklahoma lawmakers weigh in on Cherokee Freedmen dispute. (2007, April, 3). KGOU. Retrieved May 8, 2007, from http://www.kgou.org/content/mp3/20070403_cherokee_freedmen.mp3
14Evans, B. (2007, April 22). Black lawmaker eyes funding cuts for Cherokee Nation. The Associated Press via the Montgomery Advertiser. Retrieved April 22, 2007 from http://www.montgomeryadvertiser.com/apps/pbcs.dll/article?AID=/20070420/NEWS02/704200317/1009
15American Indian Initiative. (n.d.). Communication Department, Buffalo State College. Retrieved April 22, 2007 from http://www.buffalostate.edu/communication/x798.xml
16Smith, R. D. (2007, March). The Cherokee-Freedmen story: What the media saw. American Indian Policy and Media Initiative. Retrieved April 22, 2007 from http://www.buffalostate.edu/communication/documents/Cherokee2007.pdf
17Smith, R. D. (2007, March). The Cherokee-Freedmen story: What the media saw. American Indian Policy and Media Initiative. Retrieved April 22, 2007 from http://www.buffalostate.edu/communication/documents/Cherokee2007.pdf