Cherokee Freedmen Controversy

Cherokee freedmen controversy

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A Cherokee Nation political advertisement (2007)

The Cherokee Freedmen Controversy is an ongoing political and tribal dispute between the administration of the Cherokee Nation of Oklahoma and descendants of the Cherokee Freedmen. After the American Civil War, the Cherokee Freedmen were made citizens of the tribe in accordance with a treaty made with the United States government in 1866. The Freedmen were Cherokee citizens until the early 1980s when the Cherokee Nation's administration stripped them of voting rights and citizenship for more than two decades.

In March 2006, the Cherokee Nation's courts ruled that the descendants of the Cherokee Freedmen were allowed to register and become enrolled citizens of the Cherokee Nation. Principal Chief Chad "Corntassel" Smith, one of the most vocal opponents of the Freedmen's citizenship, wanted an election to amend the constitution. A petition for a vote to remove the Freedmen descendants was circulated and Chief Smith held an emergency election, rather than including the issue on the June 23, 2007 ballot.[1] The Freedmen descendants were removed from the Cherokee Nation due to the election, but they have continued to press for recognition.[2]

This issue concerns the continual membership of the descendants of the Cherokee Freedmen within the Cherokee Nation.

Contents
[hide]

• 1The Cherokee Freedmen
• 2History
• 2.1Slavery among the Cherokee
• 2.2Treaty of 1866
• 2.3Rolls
• 2.4Loss of membership
• 2.5Activism of the 1940s-2000s
• 3Current issues
• 3.1Reinstatement and loss of citizenship
• 3.2BIA controversy and temporary reinstatement
• 3.3Introduction of Bill H.R. 2824
• 4Feelings on the controversy
• 5See also
• 6References
• 7External links

[edit]The Cherokee Freedmen

"Freedmen" is one of the terms given to African slaves after slavery was abolished in the United States. In this context, "Cherokee Freedmen" includes African slaves and former slaves of the Cherokee Nation before and after the Trail of Tears, and the offspring of the slaves, former slaves, and tribal members. Some members of the Cherokee Nation claim there are an estimated 2,800 members of the Cherokee Nation considered to be Freedmen descendants.[3] However, the New York Times reports that there are as many as 25,000 Cherokee Freedmen descendants.[4]

After they were granted citizenship and "all the rights of native Cherokees" by the Treaty of 1866, the Cherokee Freedmen and their descendants remained wholly accepted as a legitimate part of the Cherokee Nation for many decades. Some have been active in the tribe, voted in elections, attended Cherokee stomp dances, knew Cherokee traditions and folklore, and even served in tribal council. One freedman councilor, Joseph "Stick" Ross, has several companies and landmarks named after him including StickRossMountain in Tahlequah, Oklahoma. Leslie Ross, Stick's great-grandson, says "He knew sign language and spoke Cherokee and Seminole. He was a trapper and a farmer and a rancher. And he was sheriff at one time, too. He was pretty renowned in Tahlequah."[5] The civic position for Freedmen increased after the Dawes Commission in 1907, and in 1971 the Freedmen participated in the first tribal elections for the office of principal chief since the Curtis Act of 1908.[6] In spite of the historic connection, more recently some Cherokee freedmen are ambivalent about their ties and no longer see being Cherokee as part of their personal identity.[7]

[edit]History

[edit]Slavery among the Cherokee

In oral tradition, Cherokees saw slavery as the result of failure in warfare, and as a temporary status pending adoption or release.[8] In colonial times, the British took Cherokee slaves, but from the 1830s to 1860s, some Cherokee began to hold a more British view,[9] and Cherokees held the greatest number of slaves of any group in Indian Territory.[10] Slavery was a component of Cherokee society even prior to European contact,[11] and in the early 1800s some Cherokee plantation owners in the American south took slaves.[12] The 1809 Meigs Census counted 583 "Negro slaves" of Cherokee owners,[13] while in 1835 that number was 1,592, with 7.4% of families owning slaves.[14] Owning slaves was less common among full blood Cherokee.[15]

The nature of slavery in Cherokee society often mirrored that of white slave-owning society. The law barred intermarriage of Cherokees and blacks, whether slave or free. Blacks who aided slaves were punished with one hundred lashes on the back. In Cherokee society, blacks were barred from holding office, bearing arms, and owning property, and it was illegal to teach blacks to read and write.[16][17] There were slave revolts, such as the Cherokee Slave Revolt of 1842 in which 25 Cherokee slaves owned by Joseph Vann rebelled and tried to escape to Mexico, but were captured. During the American Civil War, the Cherokee Nation, represented by Chief John Ross, was largely conflicted between the north and the south[18], and on June 25, 1863, two years before the Thirteenth Amendment to the United States Constitution, all slaves within the limits of the Cherokee Nation were emancipated by an act of the Cherokee National Council.

[edit]Treaty of 1866

After the war, the factions of Cherokee who supported the Union and those who supported the Confederacy continued to be at odds. Those supporting the confederacy largely felt that the freedmen should be removed from Cherokee Country, while others felt that they should be adopted into the tribe [19]. Federal officials pushed for equal status between tribal members and freedmen, and on July 19, 1866, the Cherokee Nation signed a treaty with the United States extending Cherokee citizenship to the freedmen and their descendants (article 9). The treaty also set aside a large tract for freedmen to settle if they desired (article 4) and granted self-determination within the constraints of the greater Cherokee Nation (article 5). The Southern Cherokee Nation was given the Canadian District "The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of the national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime, whereof the party shall have been duly convicted, in accordance with laws applicable to all the members of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons 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: Provided, That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated." -Article 9 of The Treaty Of 1866[20]

Other tribes of the Five Civilized Tribes such as the Choctaw and Creek had similar treaties made with the United States government concerning their respective Freedmen.[21] The Cherokee Nation Constitution was amended in a special convention on November 26, 1866.

"All native born Cherokees, all Indians, and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be, citizens of the Cherokee Nation."[22].

[edit]Rolls

Cherokee Freedmen Enrollment Notice

The 1866 treaty did not, however, lead to full acceptance of freedmen in the Cherokee Nation. This resistance was largely due to economic factors. In 1880, a census was compiled in order to distribute per capita funds related to recent land sales. In the same year, the Cherokee senate voted to deny citizenship to freedmen who had failed to comply with the 1866 treaty by returning to the Cherokee Nation within six months. However the 1880 census did not even include those freedmen who had never left, claiming that the treaty granted civil and political rights, but not the right to share in tribal assets.[23] Cherokee Chief Dennis Wolf Bushyhead (1877-1887) opposed this action, but was overridden by the Council. The federal government intervened, passing a bill in 1888 mandating that adopted citizens of the Cherokee nation share in tribal assets, and compiled what was known as the Wallace Roll in 1889 to count those who were included (including 3,524 freedmen).[24] The freedmen won the claims court case that followed, Whitmore v. Cherokee Nation and United States (30 Ct. Clms. 138(1895)). The Cherokee had already distributed the funds, and the U.S. as co-defendant in the case, was to pay the award. The Kern-Clifton roll completed in 1896 listed 5,600 freedmen who received their portion of the funds in the following decade.[25]

In the midst of all of this, the Dawes Act of 1887 was passed, which converted tribal lands to individual ownership, which was to some degree an attempt at assimilating the Indians. As a part of the act and subsequent bills, the Dawes Commission required a roll which listed people in the Indian Territory under the categories, freedmen, intermarried whites, and Indians by blood. Freedmen were put on the Freedmen Roll regardless if the man or woman had Cherokee blood or not. The Dawes Rolls of 1902 listed 41,798 citizens of the Cherokee Nation, 4,924 of them freedmen. The 1908 Curtis Act authorized the Dawes Commission to allot funds without the consent of tribal government (both the Dawes and Curtis Acts are seen as great restrictions on tribal sovereignty), and allowed the federal government to extract taxes from white citizens living in the Indian territories. Allotments were distributed, although there have been many claims of unfair treatment,[26] and as the Cherokee Nation was officially dissolved and Oklahoma became a state (1907), by and large the freedmen had self-determination. There were 1,659 freedmen listed on the Kern-Clifton roll were not included in the Dawes Roll[27] who were not given Cherokee citizenship rights. Some have criticized inconsistencies of the Dawes Rolls themselves. For instance, freedwoman Gladys Lannagan in the testimony of members of the Cherokee Freedmen's Association before the Indian Claims Commission on November 14, 1960 reported, "I was born in 1896 and my father died August 5, 1897. But he didn't get my name on the roll. I have two brothers on the roll by blood--one on the roll by blood and one other by Cherokee freedman children's allottees." She stated that one of her grandparents was Cherokee and the other black.[28] Other cases of black Cherokee with at least 1/4 of their grandparents being full Cherokee not being listed as Cherokee by blood have been presented as well.[29]

In 1924, Congress passed a jurisdictional act, which allowed the Cherokees to file suit against the United States to recover the funds paid to freedmen under the Kern-Clifton Rolls in 1894. The result of this suit held that the Kern-Clifton Rolls were only valid for that one distribution, and were superseded by later rolls. The Indian Claims Commission Act of 1946 again stirred interest in the status of the 1,659 freedmen included in the Kern-Clifton but not the later roll.

[edit]Loss of membership

In the 1970s incentives instituted by the United States government such as free health care lured many descendants of Indians by blood Dawes enrollees to join the Cherokee Nation. These were extended to the Freedmen as well. However, as the makeup of the Cherokee Nation shifted, the sentiments of those in power shifted as well. Efforts to block the Freedmen descendants from the tribe started in 1983 when Ross O. Swimmer, Principal Chief Of The Cherokee Nation at the time, passed an act stating that all Cherokee citizens must have a Certificate Of Degree Of Indian Blood (CDIB) card in order to vote. Since the Freedmen Rolls had no record of Indian blood like the other Dawes Rolls, they were effectively removed from the tribal polls. The controversy surrounding this was that the freedmen descendants were supposedly voting for another chief candidate and not Swimmer. Although they were Dawes enrollees, and had received funds from the nation resulting from recent land sales, and had voted in 1979, they were turned away from the polls and told that they did not have the right to vote. Another act was passed years later by Swimmer’s successor, Chief Wilma P. Mankiller, stating that all enrolled members of the Cherokee Nation must have a CDIB card. This act cemented the Cherokee Freedmen descendants’ disenfranchisement from the Cherokee Nation.

[edit]Activism of the 1940s-2000s

In the 1940s, the Cherokee Freedmen's Association was formed of over 100 freedmen descendants of freedmen on the Wallace, Kern-Clifton, and Dawes Rolls. The group filed petition with the Indian Claims Commission in 1951, which were denied in 1961, since the claims were individual in nature and outside of the jurisdiction of the Indian Claims Commission. Appeals stretched to 1971, but all were denied. The Cherokee Freedmen's Association was faced with two issues. On one hand, the Dawes Rolls, a federally mandated tally, were accepted as defining who were legally and politically Cherokee, and on the other hand, the courts saw their claims as a tribal matter and outside of their jurisdiction. [30].

On July 7, 1983, Reverend Roger H. Nero and five other original enrollees were turned away from the polls. He along with others sent a complaint to the civil rights division of the Department of Justice, and on June 18, 1984. The freedmen descendants filed a class action suit against Principal Chief Ross Swimmer, the tribal registrar, a tribal council member, the tribal election committee, the United States, the Office of the President, the Department of the Interior, the Office of the Secretary, the Bureau of Indian Affairs, and three BIA employees claiming discrimination on the basis of race. The suit sought nearly $750 million and wanted the last election to be declared null and void. That case and an appeal heard in 1989 both were resolved against the freedmen on account of jurisdictional issues such the case should have been made in the court of claims due to the amount asked in the lawsuit.

In 2001, Bernice Riggs, a Freedmen descendant, sued the tribal registrar Lela Ummerteskee for citizenship in the case of “Riggs v. Ummerteskee”. It was ruled by the Judicial Appeals Tribunal (Now The Cherokee Nation Supreme Court) that Riggs did indeed have Cherokee blood, but was denied membership because her Cherokee ancestors are Freedmen on the Dawes Rolls.

Marilyn K. Vann, president of the Descendants Of Freedmen Of The Five Civilized Tribes organization, and Freedmen descendants filed a case with the United States Federal Court over the Cherokee Nation’s disenfranchisement of the Freedmen. Efforts to dismiss the federal case or move the case out of Washington by the Cherokee Nation have been denied so far. The federal case is still ongoing.

[edit]Current issues

[edit]Reinstatement and loss of citizenship

On September 26, 2004, Lucy Allen, a Freedmen descendant, filed a lawsuit with the Cherokee Nation Supreme Court over the acts that barred the Freedmen descendants from tribal membership being unconstitutional in the case of “Allen v. Cherokee Nation Tribal Council“. On March 7, 2006, the Cherokee Nation Supreme Court ruled in Allen’s favor in a 2-1 decision that the descendants of the Cherokee Freedmen are Cherokee and were allowed to register to become enrolled citizens of the Cherokee Nation.[31] This was based on the facts that the Freedmen were listed as members on the Dawes Rolls and that the 1975 Cherokee Constitution stated no language that the Freedmen were not members and no mention of a blood requirement for membership in the tribe [32] This ruling overturns the previous ruling in “Riggs v. Ummerteskee” and over 800 Freedmen descendants have enrolled in the Cherokee Nation since the ruling was made[33] -- out of up to 45,000 potentially eligible people.[34]

Principal Chief Chad Smith stated his disapproval of the ruling days after it was made and wanted the ruling overturned via constitutional referendum petition or convention to amend the constitution to restrict tribal membership [35]. The Cherokee Tribal Council agreed with Smith, and on June 12, 2006, voted to "exclude Freedmen from the tribe's rolls" in a 13-2 vote[36]. The council denied a motion to have a special election by Novermber, 2006 over the issue, but supporters of the special election, including John Ketcher, former deputy chief of the Cherokee Nation, and Cherokee citizens siding with Smith, circulated a petition for a vote to remove the Freedmen descendants[37]. Chief Smith announced that the issue of the membership for Cherokee Freedmen was being considered for a vote regarding proposed amendments to the Cherokee Nation Constitution. Freedmen descendants opposed the election, and one descendant, Vicki Baker, filed a protest in the Cherokee Nation Supreme Court over the legality of the petition and allegations of foul play involved in the petition drive [38]. Though the Cherokee Supreme Court ruled against Baker, two justices in Cherokee Supreme Court, Darrell Dowty and Stacy Leeds, filed two dissenting opinions against the ruling. Justice Leeds wrote an eighteen-page dissenting opinion concerning falsified information in the petition drive and fraud by Darren Buzzard and Dwayne Barrett, two of the petition’s circulators. Leeds wrote, "In this initiative petition process, there are numerous irregularities, clear violations of Cherokee law, and it has been shown that some of the circulators perjured their sworn affidavits. I cannot, in good conscience, join in the majority opinion” [39]. Despite the dissent and the removal of 800 signatures from the petition, the goal of 2,100 signatures was met.