It was Monday, May 5 when news began to spread that Indian country had lost one of its greatest treaty rights activists, Billy Frank Jr. The 83 year-old died that day along the Nisqually River where he had fought so tirelessly to defend the right to hunt and fish along its shores, four decades earlier. Today, Pacific Northwest tribes enjoy a stable economy buttressed from the salmon harvest—a payoff in large part due to Frank’s devotion to uphold a promise the federal government made to the region’s tribes in the mid-1850s. In a 2007 interview, Frank told me of his activism, “Treaties were what it was all about.”
For those who know anything about Native Americans in this country, most are aware that the treaties they signed with the United States is what sets Native peoples apart from other ethnicities in the country. Yet, with so many of these historic pacts broken over time, it’s no surprise then that a popular mantra among Native American rights groups has been to “Honor the Treaties.”
And so it has been with great wonderment to witness the decades-long drama unfold about the Cherokee freedmen, a class of African-American citizenry in the Cherokee Nation of Oklahoma who risk losing their place in the tribe despite an 1866 treaty that promised their ancestors otherwise.
On the very day of Frank’s passing, a senior federal district judge in Washington, D.C. heard what could be final arguments in the case, Cherokee Nation vs. Nash, et al, litigation that has cost the Cherokee Nation millions of dollars in a fight to keep the freedmen out of the tribe.
The case, is a culmination of 11 years of legal wrangling involving multiple lawsuits, argued in a variety of venues, now pared down into one single and significant lawsuit. It means Vann vs. the Department of the Interior, the first complaint filed in this dispute back in 2002, has been eliminated.
Historically, the Cherokee freedmen were former African slaves of wealthy Cherokee masters. They were held in bondage beginning in the early 19th century until the end of the Civil War. In that time, the tribe enacted and enforced a series of slave codes, and when it came to defend chattel slavery, it fought on the side of the Confederacy. Cherokee Brigadier General Stand Watie was the last in the field to accept defeat. As a result of losing this battle, the tribe begrudgingly signed the Treaty of 1866, freeing its slaves, and promising them and “their descendants, all the rights of Native Cherokees.”
An esteemed cast of scholars deserves credit for unveiling much of this history in recent years. Until then, few people knew anything about slavery among the Indians, least of all, that upon their emancipation, these freed men and women were also seen as vibrant members of tribal society. In the Cherokee Nation, for instance, former slaves were elevated to positions of leadership, elected as tribal councilors, and actively exercised their right to vote. Political cartoons from the 1880s show how candidates courted the freedmen, seen then as a valued swing vote.
Today, the freedmen continue to be a popular target for campaign fodder. In 2011, the group saw their Cherokee citizenship and voting rights revoked in the days leading up to the tribe’s general election. Their status was restored only after then-Chairman of the House Financial Services Committee Barney Frank pressured the government to withhold $33 million in tribal funding from the Cherokee until the Freedmen were reinstated in the tribe. In addition, the Department of the Interior’s Bureau of Indian Affairs sent a letter. “Honor the treaty,” urged Assistant Secretary Larry Echo Hawk, or else an election held without the freedmen would not be recognized by the United States.
The core question presented before U.S. District Judge Thomas Hogan is whether the Treaty of 1866 granted the Cherokee freedmen eternal and everlasting citizenship in the Cherokee Nation, a claim the tribe has repeatedly denied. As a sovereign Indian Nation, tribal leaders have argued that only it has the right to determine its own citizenry. Yet, in oral arguments May 5, legal counsel for the DOI, Amber Blaha, told Judge Hogan that tribal sovereignty—the right of tribes to govern their own affairs, including tribal citizenship— is “caveated” whenever treaty law is involved.
Judge Hogan adjourned the days hearing, saying he will publish an opinion on the matter soon. A senior jurist appointed under the Regan administration, Hogan was the presiding judge that approved a $3.4 billion settlement to Native American landowners involved in the Cobell class-action trust lawsuit. Today, that 2011 decision represents the largest settlement ever imposed on the United States.
Judge Hogan is now poised to make another landmark decision for Indian country—one that legal observers say will be much discussed for years to come. While it remains unclear which way his ruling will tilt, the weight of the issue boils down to treaty rights, and not just for the Cherokee or the freedmen, but in essence, for all of Indian country.
Jon Velie, attorney for the Cherokee freedmen, argues that a ruling in favor of expelling his clients from the Cherokee Nation would be a ruling in favor of invalidating the Treaty of 1866. “It’s really difficult to rule for [the tribe] because you’re going to have to find that a treaty can easily be abrogated, and that’s really dangerous for all tribes in the future,” he said.
The fear is that an opinion favorable to the Cherokee Nation could send the wrong message; that tribes undervalue their treaty obligations much in the way the United States has woefully cast aside these agreements over time. In addition, there is concern that such a decision could set a risky precedent the next time someone like Billy Frank sets out to defend Indian treaties. The challenges Frank faced were great even back then, having faced arrest more than 50 times. Imagine the obstacles if Indian country had had the reputation of breaking its own treaties?
To date, there is no known record of treaty abrogation by a tribal nation. Whether that holds true will depend on Judge Hogan’s interpretation. The Cherokee Nation says it will wait for the court’s opinion before determining whether it will continue its fight against the Cherokee freedmen. Meantime, the freedmen say they aren’t backing down. If pressed, they’ve vowed to take the case as far as the U.S. Supreme Court, just as Frank did when the high court upheld the historic Boldt Decision in 1979. All parties are hoping for a decision sometime this summer.