Blood, race and sovereignty in Cherokee Freedmen dispute

Thursday, April 26, 2007

A frank discussion at an Indian law conference last week underscored the heated emotions surrounding the recent ouster of the Cherokee Freedmen.

On March 3, voters of the Cherokee Nation of Oklahoma approved a change to their constitution that denied citizenship to the descendants of African slaves. The move overturned a tribal court decision that upheld the membership rights of the Freedmen.

Since the election, the national news media has covered the story with a focus on the racial aspects of the controversy. Leaders of the Cherokee Nation responded that the vote was about their inherent ability to define their identity.

Speakers at the Federal Bar Association's Indian law conference didn't necessarily disagree with that contention at a panel on the dispute. But they said the attempt to shift the debate to one of sovereignty ignores some key issues, including an 1866 treaty at the heart of the dispute, as well as racial discrimination.

"Cherokee Nation leaders are making statements that they can break the treaty any time they want to," said Marilyn Vann, the president of the Descendants of the Freedmen of the Five Civilized Tribes and the lead plaintiff in a lawsuit that challenges how African descendants have been treated by the tribe.

"I would be alarmed by that," added Vann, who noted that the tribe has cited the treaty to defend its rights in other cases. "If a tribe can break the agreement, the fed government can break the agreement."

Carla Pratt, a professor at the Penn State Dickinson School of Law, charged that the removal of the Freedmen really was about race. Traditional notions of tribal citizenship weren't always based on blood quantum, she told attendees of the conference.

"Do we really honor ancestors when we refuse to recognize their descendants?" she said. "I really hope tribes can get away from this notion of blood as the essence of Indian identity."

Kevin Noble Mallard, a professor at the Syracuse University School of Law, said the attempt to remove African descendants from tribal rolls amounted to a "redwashing" of history. His tribe, the Seminole Nation of Oklahoma, lost federal funding after voters tried to deny citizenship to the Freedmen by instituting a blood component to their constitution.

"Seminoles of African descent became pariahs within the Seminole Nation," he said. "It stigmatized Black people whether they were Freedmen or blood Indians." Mallard has African ancestors but descends from the Mekusukey Band, which is not one of the two Freedman bands of the Seminole Nation.

Some attendees of the conference sympathized with the efforts of the Freedmen. Steve Emery, a member of the Cheyenne River Sioux Tribe of South Dakota, said tribes who limit membership strictly by blood aren't respecting their relatives.

"Today at Cheyenne River, there is no such thing as a blood quantum," he said, citing traditional Lakota notions of family that go beyond blood. "We know who each other are."

Emery spoke of daughter's mixed-race children, whom he helps provide care for since their father was critically disabled in an accident. "We need other blood in our cultures," he said. "We always had it."

Others were conflicted because they believe tribes should be able to define membership without outside interference. "Sovereignty is the right to make a bad decision," said Gavin Clarkson, a member of the Choctaw Nation of Oklahoma.

Clarkson, however, said tribes should take a broader view of citizenship because it could aid in areas like criminal jurisdiction. "There might some kind of long term benefit for Indian Country if we can adopt some expansive notion of Indian identity," he said.

Heather Dawn Thompson, also Cheyenne River, was the only person who outright opposed the Freedmen efforts. She accused Vann of undermining the sovereignty of all tribes and she criticized the Freedmen for seeking support from the Congressional Black Caucus.

"This is already having extensive impacts on the appropriations process," said Thompson, who serves as legislative affairs director for the National Congress of American Indians in Washington, D.C. She said "friends" on Capitol Hill have discussed proposals to allow tribal membership disputes to be heard in federal courts, although she didn't identify by name any of the lawmakers.

"If you identify as Indian," the Freedmen shouldn't challenge a decision made by the tribe, Thompson argued. "If you identify as Black," the Freedmen should pursue other means of enforcing the treaty.

After the conference ended, Thompson contacted Indianz.Com to clarify that the comments she expressed were her personal views, not those of NCAI.

Representatives of the Cherokee Nation or the Bureau of Indian Affairs didn't take part in the panel. Cherokee Chief Chad Smith has repeatedly called the vote an exercise of the tribe's right to define citizenship.

The BIA hasn't yet taken a stand on the ouster of the Freedmen, although the agency took action against the Seminole Nation under similar circumstances. Assistant secretary Carl Artman has said he is studying the issue.

Meanwhile, the Cherokee Nation is appealing a federal judge's ruling that subjected the tribe to the Vann lawsuit. The tribe argued that the case couldn't proceed without its involvement. At the same time, the tribe argued that it couldn't be sued without its consent.

In December, Judge Henry H. Kennedy in Washington added the tribe to the case. He said the 1866 treaty, along with the Thirteenth Amendment against slavery, abrogated the tribe's immunity.

Kennedy, however, refused to stop the March 3 election, citing respect for tribal sovereignty and the democratic process. But left open the possibility for court to take action if tribal voters ended up ousting the Freedmen.

Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19, 2006)

Jim Cason Letter:
Cherokee Nation Constitution (August 30, 2006)

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