Steve Russell: The hypocrisy of race and Cherokee citizenship

The claim for disenrolling the Cherokee freedmen in modern times is that “all the rights of native Cherokees” did not include citizenship. That is, the disenrollment advocates claim that the real choice for the freedmen was to be U.S. citizens or not be citizens of any nation on the earth, an absurd result. At that time, Indians were not U.S. citizens for most purposes. They could at will move from the status of “Indians not taxed” to “Indians taxed” by quitting their tribe, but that would not gain them the right to vote in U.S. elections.

Some non-lawyers have complained that the treaty ending the Civil War was invalid because it was “dictated” by the victorious nation. There are two problems with that. One is that the records of the negotiation show no objection by the Cherokee to absorbing the freedmen. The other is that if dictation of terms by the victor made a treaty void, no war would ever end by treaty.

By Cherokee tribal court decision, the citizenship of the freedmen was reaffirmed in 2006. The opinion was carefully reasoned and covered the modern history of Cherokee citizenship.

In response, a group of Cherokees undertook by referendum to amend the Cherokee Nation Constitution to limit which part of the Dawes Rolls one’s ancestor had to be on to support modern citizenship. The effect of this amendment would be to expel approximately 2,662 black Cherokees and eight white Cherokees. Delaware and Shawnee Cherokees were retained.

In 2007, “The Cherokee people” voted in a special election called by the chief rather than in a general election. In the last federal Census prior to that election, 729,533 individuals claimed to be Cherokee-American. About 268,000 of them were tribal citizens at the time, and three-quarters of those were of less than one-fourth Cherokee blood. The turnout in the special election was 8,743 of about 35,000 registered voters, of which 6,702 voted to disenroll their follow citizens. By comparison, the last Cherokee general election turnout had been 13,914.

This engineered election is used to argue that the Cherokee Nation has voted to abrogate a treaty with the U.S., something an Indian nation can do just like any other nation if it does not mind abandoning the moral high ground of being the aggrieved party in every other abrogation of an Indian treaty.