Cherokee Freedmen pt. 2

Cherokee Principal Chief Chad Smith The recent controversy is only the latest in a dispute going back to the 19th century and described by the Tulsa Tribune in 1960 as a “judicial jungle.”1 Following the Civil War, in which the Cherokee Nation allied with the Confederacy, the Treaty of 1866 officially extended “all the rights of Native Cherokees” to the tribe members’ former slaves. The tribe never fully accepted the Freedmen, and in 1883 the Cherokee Tribal Council passed a statute excluding them and others who did not have Cherokee blood. The U.S. Congress responded in 1888 with a law that required the tribe to share its assets with the excluded groups. The Wallace Roll identified 3,524 Cherokee Freedmen in 1889, and in 1890 Congress gave the federal courts jurisdiction over their claims.2 In Whitmire v. Cherokee Nation and the United States, the Supreme Court ruled that the Freedmen were owed a portion of $903,365 from the sale of tribal lands. The tribe said all of the funds had already been distributed among blood members, so it fell on the federal government to pay as the other defendant in the lawsuit. In the 1986 Kern-Clifton Roll, the United States identified 5,600 Freedmen and distributed the money among them.3

At the same time, the Dawes Commission had begun making its own roll of all Cherokees in the Indian Territory. The Dawes Roll came as part of the process set up by the 1887 Dawes Act and 1893 Indian Appropriations Act. The legislation, which was seen as a severe blow to Indian sovereignty, sought to convert tribal lands to individual ownership and increase federal control over their territory. The Dawes Roll categorized the Cherokees into three groups: Indians by blood, Freedmen, and intermarried whites.

The most recent opinion on this issue from the U.S. District Court for the District of Columbia highlighted the difficulties in relying solely on the Dawes Roll for proof of Indian blood:

An individual possessing any African blood was placed on the Freedmen Roll, whereas an individual possessing any Indian blood was placed on the Blood Roll, as long as that individual did not possess any African blood. For example, an individual who was half Black and half Cherokee was placed on the Freedmen Roll, whereas an individual who was one-quarter Indian but three-quarters White was designated Cherokee by blood.4

In the end, out of 41,798 listed, 4,924 were identified as Freedmen. This group excluded 1,659 of those who had been listed on the Kern-Clifton Roll, setting the stage for the next episode of the dispute.5

In Whitmire v. the United States, in U.S. Court of Claims initially ruled in favor of the Freedmen, but in 1912 the Supreme Court reversed that decision. In 1924, Congress passed legislation allowing the Cherokee Nation to sue the United States for money distributed under Kern-Clifton. Litigation continued until 1937, when the U.S. Court of Claims denied recovery of the money but also ruled that Kern-Clifton was a one-time only process that would not affect future questions of reimbursement or citizenship. In 1946, the Indian Claims Commission Act established another possible forum for the Freedmen. The Cherokee Freedmen’s Association was established in the late 1940s, and in 1951 filed their first petition with the Indian Claims Commission in Tulsa. That litigation lasted for another 10 years. The ICC finally denied their claim, ruling that it had no jurisdiction in what was deemed an internal tribal matter. Thus the last avenue was closed to Kern-Clifton Freedmen who had been excluded by Dawes.6

Congress passed the Principal Chiefs Act in 1970. The Act required that the Five Civilized Tribes elect leaders based on established procedures, and “such established procedures shall be subject to approval by the Secretary of the Interior.”7 The uneasy legal resolution in the Cherokee Nation lasted until 1983, when Roger Nero and four other freedmen were turned away when they tried to vote for principal chief. New regulations were implemented under the Cherokee Constitution of 1976, which stated that “all members of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls.” While the language does not mention limiting by blood, and freedmen were clearly listed on the Dawes Rolls, Cherokee officials interpreted it to mean they could require a Certificate of Degree of Indian Blood along with a Dawes Roll ancestor to register as a citizen or voter. Nero had voted as recently as 1979, but that was the last election that allowed members to use older registration cards.8

Nero and five others filed a complaint with the Civil Rights Division of the Department of Justice, and in 1984 they launched a class-action lawsuit for $750 million in damages and a voiding of the election. In Nero v. Cherokee Nation, the 10th Circuit Court of Appeals ruled that the dispute was an intratribal matter in which it had no jurisdiction.9 The opinion of the court stated that “‘No right is more integral’ to a tribe’s self-governance ‘than its ability to establish its membership.'”10 In 1988, the Cherokee Tribal Council approved the new regulations by statute.

Another constitution was approved in 2003, along with a change removing the requirement that all amendments be approved by the Assistant Secretary for Indian Affairs. A letter was sent in by Chief Smith 2001 to notify the BIA of the planned amendment. Neal McCaleb, at that time the assistant secretary of Indian Affairs, at first responded that he would not oppose the amendment, as long the Freedmen’s right to vote was protected and their citizenship was not taken away without Congressional authorization. However, McCaleb wrote to Smith several months later that, “I did not sign the March 15 letter and did not authorize the use of the autopen to engross my signature on the letter. The letter is of no validity or effect and should be disregarded.” He wrote that he had no problem with the amendment, but, referring back to the Principal Chiefs Act of 1970, said the tribe would still require Secretarial approval for election procedures. It was not explained how the original letter was sent without his approval.11

In 2006 the Cherokee Nation Supreme Court found the language found in both previous constitutions was too vague to exclude Freedmen, but said it could be established with a constitutional referendum. The referendum took place on March 3, 2007.12 Principal Chief Chad Smith and a majority on the Tribal Council supported the expulsion, and referendum results were extremely lopsided, with 6,702 for expulsion to only 2,041 against. Although the turnout sounds small compared to the total Cherokee Nation population of more than 260,000, it is comparable to previous constitutional referendums. Cherokees are spread all over the United States, but elections are likely dominated by those living in the tribal territory in Northeast Oklahoma. Approximately 2,800 Freedmen descendants stand to be affected by the amendment.13

1As cited in Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

2Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

3Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

4Marilyn Vann, et al. v. Dirk Kempthorn, et al. (2006). United States District Court for the District of Columbia. Retrieved May 9, 2007, from http://www.indianz.com/docs/court/freedmen/order121906.pdf

5Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

6Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

7Marilyn Vann, et al. v. Dirk Kempthorn, et al. (2006). United States District Court for the District of Columbia. Retrieved May 9, 2007, from http://www.indianz.com/docs/court/freedmen/order121906.pdf

8Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

9Sturm, C. (2002). Blood politics: Race, culture, and identity in the Cherokee Nation of Oklahoma. Berkeley: University of California Press.

10Cherokee Nation. (2007). We are Cherokee. Retrieved May 8, 2007 from http://www.cherokee.org/docs/MISC/Diversity-Hi.pdf

11Marilyn Vann, et al. v. Dirk Kempthorn, et al. (2006). United States District Court for the District of Columbia. Retrieved May 9, 2007, from http://www.indianz.com/docs/court/freedmen/order121906.pdf

12Daffron, B. (2007, March 30). Freedmen descendants struggle to maintain their Cherokee identity. Indian Country Today. Retrieved April 22, 2007 from http://www.indiancountry.com/content.cfm?id=1096414754

13Chavez, 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

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