The truth is that the practice of slavery will forever cast a shadow on the great Cherokee Nation.”—Wilma Mankiller
I remember my first encounter with the Cherokee Freedmen as if it were yesterday: March 8, 2006. The day was overcast and grey, and a gusty breeze had caused two hand-painted signs staked low to the ground to casually flap in the wind. One placard featured a big black arrow pointing left down a spindly gravel road. Next to the sign was another poster: “Freedmen,” it read, and beneath it, the ubiquitous cuneiform that spelled out the nation’s namesake in the squiggly letters of the Cherokee alphabet—the syllabary invented by Sequoyah.
That the Freedmen were meeting in South Coffeyville, a community nestled on the most outer edge of the Cherokee Nation of Oklahoma, seemed emblematic of the times. The Cherokee Freedmen, descendants of former Cherokee-owned slaves, had been expelled from the tribe for 23 years. On this day, it was their first collective reentry to the nation as eligible tribal citizens. A recent court ruling had reversed their banishment earlier in the month. The first steps they’d take together then, in reclaiming their tribal identities, to me, came with an apparent nervous steadfastness.
“We’ve gone quite a bit ways in the last few years but we got a ways to go,” said Marilyn Vann at the time. She wore thick glasses and red lipstick and spoke with a casual drawl before a room full of mostly African-Americans—about 60 people who were seated among rows of long tables dotted with plates of potluck food.
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For the preceding five years leading up to the 2006 event, Vann had systematically led a grassroots campaign to secure the tribal citizenship rights for an estimated 40,000 Cherokee Freedmen—a dogged fight in response to pushback from the Cherokee Nation, one of the largest and most powerful tribes in America. Her advocacy had been ignited after she had applied for tribal citizenship only to be denied. The reason, according to a letter sent by the tribal registrar: Vann had failed to present documentation that proved Cherokee bloodlines.
“I said, ‘This is a scam. Fraud!’,” Vann recalled today. “And, ‘Something needed to be done.’ ” Moments earlier, she had just learned that her nearly 20-year-long battle for justice had met with a favorable resolution.
On Wednesday, August 30, 2017, U.S. District Judge Thomas Hogan became the latest in a line of judicial authorities to reinforce a historic treaty clause that has, for more than a century, defined Cherokee Freedmen as citizens of the tribe. In an exhaustive 78-page ruling of Cherokee Nation v. Nash, et al, a lawsuit of which Vann is a lead plaintiff, Hogan ruled that “the Cherokee Freedmen’s right to citizenship in the Cherokee Nation is directly proportional to Native Cherokees’ right to citizenship.”
The decision from the court, in part, hinged on interpretation of the Treaty With the Cherokee, 1866, the formal title of the last treaty the Cherokee Nation signed with the federal government at the end of the Civil War. It guaranteed freedom to as many as 2,500 Cherokee-owned slaves and, as stated in Article 9, granted them and all their descendants “all the rights of native Cherokees.”
“This is a wonderful victory for the Freedmen who regained their identities as equal citizens in their nation,” said Jon Velie in a public statement. The attorney has been advocating on behalf of the Freedmen in varied sorts for more than a quarter century— mostly pro-bono.
“It is a win for Native Americans,” he added. “The Federal Courts have enforced both treaty rights of citizenship while maintaining Tribes’ and elected officials’ rights to determine citizenship and self-determination pursuant to law.”
As early as 1883, 17 years after the treaty was ratified, the Cherokee Nation began a steady attempt to abate these “rights of native Cherokees” to the Freedmen, particularly whenever Cherokee lands were up for sale. Shared proceeds were only intended for “Cherokees by Blood,” argued by certain greedy leaders and tribal citizens. But jurists, legislators and Indian agents consistently disputed otherwise, oftentimes under punishable circumstances.
It’s somewhat extraordinary, then, that these blood politics carried over into the modern dispute over the Cherokee Freedmen.
In March 2007, tribal citizens turned out to vote in a special election. On the ballot was a measure that would amend the Cherokee Nation constitution “to limit citizenship in the Nation to only those persons who were Cherokee, Shawnee or Delaware by blood.”
“We’re voting something out that’s by treaty,” said Ed Crittendon, a Cherokee Nation citizen and Freedman sympathizer, the day of the vote.
“Treaty?” said an elder sitting in the passenger seat. He seemed surprised at hearing this news.
Crittendon and a few others had situated themselves outside a voting precinct in the Cherokee Nation’s capital, Tahlequah, in an effort to try and sway voters to decide against a measure that would expel the Cherokee Freedmen from the tribe. On the ballot that day, it clearly stated that a vote in favor of a constitutional amendment would result in direct expulsion of such citizens as the Cherokee Freedmen.
The campaign to disenroll these descendants of Cherokee-owned slaves followed soon after that potluck lunch gathering in South Coffeyville a year earlier. A month had passed when the reigning chief at the time, Chad Smith, called on the tribal council to decide whether to hold a special election that could amend the constitution to include a blood requirement for Cherokee citizenship.
At a regularly scheduled tribal council meeting in April 2006, Smith posed a question to the panel of elected officials. “The issue at hand is what classes of people should be entitled as citizens of the Cherokee Nation and who should be making that decision—the courts or the Cherokee people themselves?”
The council struck Chief Smith’s proposal down, but only narrowly—by an 8 to 7 vote.
Meantime, racial tensions were reaching a boiling point. By June of that year, a petition calling for a special election had started to circulate, in part, by Darren Buzzard, who had also sent out an angry email to Cherokee citizens. The message was widely seen as bigoted.
“Oklahoma is appalled that we would allow blacks without the Cherokee blood into our tribe,” said Buzzard in the message. “They will suck you dry.”
To drum up support for the special election, Chief Smith held a series of public meetings, including one that took place across state lines in a Cherokee community in Wichita, Kansas. Marilyn Vann was present at nearby lobbying event.
“Someone has raised the issue of whether the white people would be left in the tribe if this amendment passes,” said Vann speaking to a sparse group gathered in the auditorium. “Adopted white people who are on the Cherokee-by-Blood roll will remain in the tribe,” she continued, waving one of the dozens of documents that she had resorted to printing and filing away for moments like this. (As many as 50 white people historically adopted into the Nation were categorized as “Cherokee By Blood” in the tribe’s base roll used to determine citizenship, otherwise known as the Dawes Roll.)
Honor the Treaty
In the fall of 2007, the Cherokee Freedmen advanced their cause, turning the tribe’s Cherokee-blood debate into one focused on treaty rights. It was in direct response to the special election held earlier that year in March. According to the tribe, 2,867 Cherokee Freedmen citizens were disenrolled—the number of descendants who managed to register within the one-year window since March 2006, the year they were eligible again for citizenship.
“I want you to know that only five percent of their membership voted for this,” said then–U.S. Representative Diane Watson (D-California).. Her comments were part of a streaming broadcast with ABC News.
Outraged, the congresswoman and other sympathetic lawmakers with the Congressional Black Caucus banded together and threatened to seize funding from the Cherokee Nation unless it reinstated the 2,867 Cherokee Freedmen who had been expelled.
“We can withhold money and withhold programs too unless they clarify this issue,” said Watson referring to the Cherokee Nation leadership. “The Treaty of 1866…included the Cherokee Freedmen and their descendants.”
Watson’s crusade, which led to House Resolution 2824, would have cost an estimated 7,000 Cherokee Nation employees their jobs and as many as 7,500 families their housing assistance, according to figures released by Chad Smith’s administration in 2008. Because of this, the tribe had adopted naming the legislation “the Termination Bill,” reflective of mid-20th-century policies by the federal government to dismantle tribal governments.
By this time, to combat these threats, the tribe had also begun spending upwards of a million dollars a year in an effort to disenfranchise the Cherokee Freedmen, according to tribal government expenditure documents on the Cherokee Nation’s website as well as public lobbying reports.
Meanwhile the lawsuits were stacking up. At once there were as many as three cases being reviewed in three different jurisdictions at the tribal, state and federal level. One of them was to reinstate the citizenship of the estimated 2,800 Freedmen who had been expelled. But it would take years of more outside federal government pressure to meet those results.
By 2011, the tribe had taken a financial hit that it could no longer ignore. Thirty-three million dollars in federal housing funds had been blocked to the Nation by the Obama administration as punishment over the Freedmen’s languishing banishment from the tribe. The more than 2,800 Freedmen then, were returned their status as Cherokee citizens by virtue of a tribal government provision.
In the end, Watson’s core treaty argument presented the framework for resolution to another central issue in Judge Hogan’s ruling this week—a determination of whether the 2007 vote to remove the Freedmen from the tribe violated Article 9 of the 1866 Treaty and thus, deeming the special ballot unlawful. In careful conclusion, Hogan’s findings were in favor of both the tribe’s sovereign right to determine its own citizenry, but also in defense of the Freedmen’s treaty rights.
“The Cherokee Nation can continue to define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and the descendants of Cherokee freedmen,” Hogan said. “In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of native Cherokees.”
For its part, the Cherokee Nation has accepted Hogan’s ruling despite raising concerns in the lawsuit that the court’s intervening in citizenship determination could set a dangerous precedent for tribe’s moving forward. “Should the Court embrace the Freedmen’s position and find that the Nation’s electorate was forestalled by the 1866 Treaty from making such a citizenship determination, it will be the first time a United States court has ever infringed upon such an inherent tribal sovereignty right.”
Time will tell what impact the decision may have for future citizenship debates across Indian country, if any. For now, the focus for the Cherokee Nation is to move forward in a way that represents its entire citizenry, including the Freedmen.
“The Cherokee Nation respects the rule of law, and yesterday we began accepting and processing citizenship applications from Freedmen descendants,” said Todd Hembree, Attorney General for the Cherokee Nation. I do not intend to file an appeal.” His remarks were posted online about 24 hours after the historic ruling came down.
“As the Attorney General, I see this as an opportunity to resolve the Freedmen citizenship issue and allow the Cherokee Nation to move beyond this dispute.”
Hembree’s comments on Thursday were reminiscent of sentiments shared the day Bill John Baker delivered his inaugural address upon being elected the tribe’s new Principal Chief in November 2011.
“Now we link arms and march forward,” said Baker. “We heal.”
He was referring to what had been described as one of the more hotly contested political matches in the history of the modern Cherokee Nation. In that general election between Baker and incumbent Chief Chad Smith, what resulted was a tidal wave of controversy. Attack ads mailed by Smith labeled Baker a Freedmen sympathizer. Then, just one month before voters would head to the polls, it happened again: The nearly 3,000 Cherokee Freedmen citizens who had at once been expelled and returned to the tribal rolls had suddenly found themselves again, disenrolled.
Some saw this latest round of disenrollment as a way to deter the Freedmen from serving as some kind of perceived swing voting bloc in favor of Baker. In other words, the Freedmen had inadvertently become political pawns.
Recounts of ballots were called, and yet even more lawsuits were filed. In the end, Baker surfaced as the victor, with a message that all Cherokees—no matter their bloodline—come from “one fire.”
A Call for Unity
It’s noteworthy to reflect on the timing of Judge Hogan’s ruling delivered on the eve of the Cherokee Nation’s most celebrated event all year, the Cherokee National Holiday. In the heart of the capital, Tahlequah, thousands are expected to flock to the tribal community to take part in ceremonial and traditional ways just as they do every year. But this Labor Day weekend, the fellowship of citizenry, currently numbered to more than 300,000 people, will no doubt be talking in tight circles about the honest return of their fellow Cherokee Freedmen citizens who did what tribal citizens have been doing for decades to preserve their rights—they took a treaty stand.
“We can actually point to this agreement where leaders have historically backed up our rights,” said Vann. “So for many years later to try to make a false history and ignore the accomplishments of what the Freedman have done to help the tribe through the Trail of Tears or serve on the tribal council—to be tossed out because we don’t want to support this chief or that one—no!”
“It’s not right,” Vann said.
Although Chief Baker will be making remarks during his State of the Nation address on Saturday, perhaps it will be Marilyn Vann who may influence her fellow citizens most this weekend—and with one important message at the start of a new beginning.
“This is a new day, and I am hoping that the tribe can come together in unity where we are no longer Cherokee Freedmen, but simply seen as Cherokee.”