An Indian nation should be composed of people who are Indian by blood, the leader of the second largest tribe in the U.S. said last week.

During his State of the Nation address, Cherokee Nation Principal Chief Chad Smith criticized the tribe's highest court for engaging in what he considers to be judicial activism. He said the Judicial Appeals Tribunal, in a 2-1 decision on March 7, overturned the will of the Cherokee people by opening up the tribal rolls to the Freedmen, the descendants of African slaves who were made citizens of the tribe after the Civil War.

In response to the ruling, the Cherokee Nation began accepting applications from Freedmen whose ancestors appeared on the Dawes Roll, the document used to establish tribal citizenship. Although tens of thousands may be eligible, only 10 applied as of last week, The Oklahoman reported.

But in Smith's view, none of them should qualify because they do not have Cherokee Indian blood. He said Cherokee voters barred Freedmen from citizenship when they approved a new tribal constitution in 1975.

"Many Cherokees, including those who wrote the constitution in 1975, believed that Cherokee voters understood that a vote to approve the 1975 constitution would exclude Freedmen from citizenship," Smith said in his address made to the tribal council on March 13. "Many of those voting to exclude the Freedmen believe that an Indian nation should be composed of Indians."

Smith said he wasn't excluding anyone -- African-American or otherwise -- who can demonstrate he or she has Indian blood as recorded by the Dawes Roll. "They're unquestionably entitled to Cherokee Nation citizenship," he told the council.

Freedmen without Indian blood aren't in the same class because they were "compensated" with allotments after the Civil War, he argued. "Some Cherokees believe the Freedmen who did not help rebuild the Cherokee Nation in the last 100 years should not reap the benefits that the Cherokees have earned," he said.

Smith's line of though runs counter to the court decision. The two Smith-appointed judges said Article III of the constitution, the section dealing with citizenship, doesn't include a blood requirement and doesn't include any restrictions on the Freedmen. The constitution, however, does include Shawnee Indians and Delaware Indians, who were also made citizens of the tribe after the Civil War.

"There is no ambiguity to resolve," Justice Stacy L. Leeds wrote. "The words 'by blood' or 'Cherokee by blood' do not appear."

Any changes in Cherokee citizenship must be done "in the open," the court added. "It cannot be accomplished by silence," the decision stated.

The court left open the possibility that Cherokee voters, sometime in the future, could rewrite the rules. Seizing on that language, Smith advocated a constitutional convention or a referendum vote in order to resolve the issue.

That call drew opposition from Marilyn Vann, a Freedman descendant who traces her citizenship to the Dawes Roll. She attended last week's council meeting and was appalled by Smith's comments.

"Is the Cherokee nation a 'race' or a 'nation'?" she said. "The federal government does not have government to government relationships with 'races' but with nations."

With over 200,000 on the rolls, the Cherokee Nation is the second largest in the country in terms of membership. And since the constitution doesn't contain a blood quantum requirement, any Dawes Roll descendant is entitled to citizenship regardless of how far removed from that Indian ancestor.

The system prompted Sen. Tom Coburn (R-Oklahoma), during his Senate campaign against former Congressman Brad Carson, a member of the Cherokee Nation, to joke that the "the average Cherokee [blood] quantum is 1/512."

But as part of its requirements, the Cherokee Nation requires applicants to obtain a Certificate of Degree of Indian Blood, or CDIB, from the Bureau of Indian Affairs. That means the Freedmen, whose blood quantum was not recorded on the Dawes Roll, were unable to vote and receive other tribal benefits until the court decision earlier this month.

The Cherokee Nation isn't the only tribe in Oklahoma dealing with Freedmen issues. The Seminole Nation made headlines in 2002 after tribal voters adopted a constitution that explicitly removed African-American descendants from the rolls unless they could demonstrate Indian blood.

The BIA refused to approve the constitution, sending the tribe into a leadership dispute that lasted several months. The tribe was eventually forced to reinstate the Freedmen.

The Creek Nation is the target of a lawsuit filed by one of its Freedmen. A federal judge held a four-week trial last fall and is expected to rule in the coming months.

Audio and video of Smith's March 13 speech can be found on the Cheroke Nation's website at http://www.cherokee.org/home.aspx?section=councilminutes.

Judicial Appeals Tribunal Decision:
Allen v. Cherokee Nation (March 7, 2006)

Relevant Links:
Freedmen Of The Five Civilized Tribes - http://www.freedmen5tribes.com
Freedmen Conference - http://www.freedmenconference.com
Cherokee Nation - http://www.cherokee.org