Once, at a tribal consultation meeting, Larry Echo Hawk, Assistant Secretary of Indian Affairs, asked me to join him for lunch. Upon learning that I was a member of the Cherokee Nation of Oklahoma, he asked about my opinion of the Freedmen issue. I said "as a Bureau of Indian Affair's employee, I can't state my opinion." Everyone laughed. He asked me again and I responded in the same manner. Everyone laughed again. Mr. Echo Hawk’s staff member reminded me that he was the Assistant Secretary and "you can answer his question."
I have always been proud to be a member of the Cherokee Nation of Oklahoma. I wasn’t looking for benefits, or because it was trendy, I’ve received no other tribal perks other than health services, attending Haskell Indian Junior College and eventually a career with the BIA. But, it gave me a purpose and identity of who and what I am – part of a people who respect life and others. What else is there?
Native Americans have always been a people who made room for others. We didn't embrace these ways, but we made room for it. Making room in our homes for family and friends when necessary isn't always easy, but it's what we do. I grew up in north Tulsa, Oklahoma, and it wasn't your normal little white picket fence neighborhood. There were Indians, blacks, some of this and some of that. Racism to me didn't exist. We made room for everyone. The Cherokees are part of the Five Civilized Tribes not because we turned from our cultural and religious ways, but we made room for those who came to our land. We couldn't use all of it so we made room for others. But, a house has only so much space, and when it's full, we either have to add on, or shut the door on others. We never shut the door on those who belong in the house. Tribal sovereignty refers to the fact that each tribe has the inherent right to govern itself. Each tribe has the right to shape the course of its future that will ensure the continued and ongoing general welfare of its people without outside interference. What is an Indian? That is the question that divides us. Who is an Indian is better left up to the individual and the path they have chosen to follow.
Santa Clara Pueblo v. Martinzez, 436 U.S. 49 (1978), involved a request denying tribal membership to children born to female tribal members who married outside of the tribe. The U.S. Supreme Court held that suits against the tribe under the Indian Civil Rights Act of 1968 (ICRA) are barred by the tribe's sovereign immunity from suit. Martinez sought injunctive relief under 25 U.S.C. § 1302(a)(8) regarding denial of rights.
In August 2011, the Cherokee Nation Supreme Court (Court) reversed and vacated a Cherokee Nation district court decision in Vann, et. al, v. Department of the Interior immediately terminating the tribal citizenship of about 2,800 non-Indians. The decision stated that the 2007 referendum amending the Cherokee constitution to exclude Freedmen descendants from tribal citizenship was conducted in compliance with the tribe's laws, and the court does not have the authority to overturn its results. The Court's opinion said that if the treaty had guaranteed citizenship, then the only party that would have proper standing to sue is the federal government, not the Freedmen descendants.
In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), Marshall defined the legal status of the Cherokees, describing the tribe as a "distinct political society that was separated from others, capable of managing its own affairs, and governing itself." In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832), Marshall’s opinion denied the state of Georgia's right to impose its laws on a Cherokee reservation within the state's borders.
The Freedmen issue is itself discrimination against tribes because some factions of the Cherokees supported the southern effort against the United States of America, and we all paid the price. If it wasn't discrimination, then why weren't the non-Indian southern slave owners required to grant "family or member" status to their former slaves?
Furthermore, in the Treaty with Cherokee (treaty), 1866, July 19, 1866, 14 Stats., 799., Article 9 of the treaty, ratified July 27, 1866, proclaimed slavery would no longer exist came more than three years after the Cherokee Nation voluntarily abolished slavery by a Cherokee National Council act in February 1863. The Emancipation Proclamation, which created the thirteenth Amendment to the Constitution of the United States wasn't adopted until December 6, 1865.
Furthermore, Article 9 of the treaty stipulates that the rights applied to those slaves “who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.” Who compiled that list? Where is the list? The Dawes Act was enacted in 1893 and the Dawes Commission was established in 1893. Did those Freedmen who registered for the Dawes Roll meet the requirements of the treaty found at Article 9? Does a now living Freedmen's non-residency within the fourteen counties of Cherokee Nation's jurisdictional service area terminate their rights as a tribal member?
There are still many questions to be decided and who better to make those decisions than the Cherokee Nation members. Once again we are taken back to a time of the non-Indian mentality that Indians cannot manage our own affairs, but need to be told what we can and can't do. And finally, contrary to the beliefs by many, your grandmother wasn't a Cherokee Princess! Maybe she was pretty, elegant, suave, and educated, but "we" had no Cherokee Princesses! There, I have wanted to say that publicly for the past forty years.
Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at RoundouseTalk.com.