Mixed Race Studies

Cherokee Nation Strikes Down Language That Limits Citizenship Rights ‘By Blood’

National Public Radio
2021-02-25

Mary Louise Kelly, Host
All Things Considered

Rena Logan, a member of a Cherokee Freedmen family, shows her identification card as a member of the Cherokee tribe at her home in Muskogee, Okla., in this photo from October 2011. She is among the some 8,500 people whose ancestors were enslaved by the Cherokee Nation in the 1800s.David Crenshaw/Associated Press

The Cherokee Nation’s Supreme Court ruled this week to remove the words “by blood” from its constitution and other legal doctrines.

The words, added to the constitution in 2007, have been used to exclude Black people whose ancestors were enslaved by the tribe from obtaining full Cherokee Nation citizenship rights.

There are currently some 8,500 enrolled Cherokee Nation members descended from these Freedmen, thousands of whom were removed on the Trail of Tears along with tribal citizens.

“The Freedmen, until this Cherokee Nation Supreme Court ruling, they couldn’t hold office, they couldn’t run for tribal council and they couldn’t run for chief,” says Graham Lee Brewer, an editor for Indigenous affairs at High Country News and KOSU in Oklahoma. “And I would argue that that made them second-class citizens.”…

Read the entire story here. Download the story (00:04:10) here.

Race and American Indian Tribal Nationhood

February 2009
44 pages

Matthew L. M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center
Michigan State University

Forthcoming in a 2011 University of Wyoming Law Review issue.

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation—mired in the politics and law of disenfranchising the Cherokee Freedmen—continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe in Rhode Island on an important land case, perhaps, because the tribe’s citizens did not have significant blood quantum collectively.

But in most other cases, the Court is skeptical of tribal government authority because tribal citizenship is based at least in part on race. This means for the Court, especially Justice Kennedy, that non-Indians by blood or ancestry can never be citizens of an Indian tribes. And the Court worries that a tribal government seeking to assert jurisdiction over these persons somehow violates the social contract.

I argue, perhaps for the first time, that Indian tribes must move beyond race and ancestry as the single most important means of determining tribal citizenship. It will not be easy for Indian tribes to move beyond race and ancestry, but it is necessary if Indian nations wish to move beyond their status as an afterthought in the American constitutional structure and develop into more complete sovereign nations. I suggest several ways for Indian tribes to alter their citizenship criteria and recommend an incremental solution based on immigration law and policy.

Read the entire paper here.

A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendents

bepress Legal Series
Working Paper 1570
2006-08-17
72 pages

S. Alan Ray, President
Elmhurst College, Elmhurst, Illinois

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian “blood quantum” requirement for citizenship. If approved, potentially thousands of African-descended citizens would be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize and reject definitions of Cherokee political identity based on either the federal Dawes Rolls of the allotment era, or notions of “Indian blood.” Both, he argues, are heteronymous authorities for determining tribal citizenship criteria and should be replaced by the critical hermeneutic of indigenous cultural resources. Professor Ray offers a model for constructing tribal citizenship criteria that attempts to deliver ancestry from biology, and law from legal fetishism of the Dawes Rolls. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen’s descendents and Cherokees by ancestry, not the “quick fix” of the political process.

Table of Contents

• INTRODUCTION
• I. LUCY ALLEN AND THE CHEROKEE FREEDMEN CONTROVERSY
• II. THE FREEDMEN CONTROVERSY AS A CRISIS OF POLITICAL AND SOCIAL IDENTITY
  • A. A Race or a Nation? Identity by Blood or Base Roll
  • B. Cherokee Identity: Legal Definitions and their Limits
    • 1. Collective Definitions: The Cherokee Nation
    • 2. Individual Definitions: Citizenship in the Cherokee Nation
    • 3. The Limits of Legal Definitions of Citizenship
  • C. Cherokee Identity: Biological Definitions and their Limits
    • 1. The Construction of the “Red” Race
    • 2. The Construction of “Black” by “Red”
    • 3. Cherokee Slavery and Cherokee Nation
    • 4. The Limits of Biological Definitions of Citizenship
  • D. From Biology to Ancestry, From Legal Fetishism to Law
• III. RADICAL INDIGENISM AS A RESOURCE FOR RESOLVING THE FREEDMEN CONTROVERSY
  • A. Foundational Commitments
  • B. Assumptions of the Model
    • 1. Role of Practical Knowledge
    • 2. Relationship to Spiritual Heritage
    • 3. Effective History of Colonization
  • C. Critical Hermeneutics of Ancestry and Reciprocity
    • 1. Relationship to Ancestry
    • 2. Responsibility to Reciprocity
• CONCLUSION

Read the entire paper here.

Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma

University of California Press
March 2002
267 pages
Paperback ISBN: 9780520230972

Circe Dawn Sturm, Associate Professor of Anthropology
University of Texas, Austin

• Finalist in the Non-fiction category of the Oklahoma Book Awards, Oklahoma Center for the Book
• 2002 Outstanding Book on Oklahoma History, Oklahoma Historical Society

Circe Sturm takes a bold and original approach to one of the most highly charged and important issues in the United States today: race and national identity. Focusing on the Oklahoma Cherokee, she examines how Cherokee identity is socially and politically constructed, and how that process is embedded in ideas of blood, color, and race. Not quite a century ago, blood degree varied among Cherokee citizens from full blood to 1/256, but today the range is far greater—from full blood to 1/2048. This trend raises questions about the symbolic significance of blood and the degree to which blood connections can stretch and still carry a sense of legitimacy. It also raises questions about how much racial blending can occur before Cherokees cease to be identified as a distinct people and what danger is posed to Cherokee sovereignty if the federal government continues to identify Cherokees and other Native Americans on a racial basis. Combining contemporary ethnography and ethnohistory, Sturm’s sophisticated and insightful analysis probes the intersection of race and national identity, the process of nation formation, and the dangers in linking racial and national identities.

Table of Contents

• List of Illustrations
• Acknowledgments
• Chapter One. Opening
• Chapter Two. Blood, Culture, and Race: Cherokee Politics and Identity in the Eighteenth Century
• Chapter Three. Race as Nation, Race as Blood Quantum: The Racial Politics of Cherokee Nationalism in the Nineteenth Century
• Chapter Four. Law of Blood, Politics of Nation: The Political Foundations of Racial Rule in the Cherokee Nation, 1907-2000
• Chapter Five. Social Classification and Racial Contestation: Local Non-National Interpretations of Cherokee Identity
• Chapter Six. Blood and Marriage: The Interplay of Kinship, Race, and Power in Traditional Cherokee Communities
• Chapter Seven. Challenging the Color Line: The Trials and Tribulations of the Cherokee Freedmen
• Chapter Eight. Closing
• Notes
• Bibliography
• Index

Tribal Rights vs. Racial Justice: Was the Cherokee Nation’s expulsion of black Freedmen an act of tribal sovereignty or of racial discrimination?

The New York Times
Room for Debate
2011-09-15

Kevin Maillard, Associate Professor of Law
Syracuse University

Matthew L. M. Fletcher, Professor of Law
Michigan State University

Cara Cowan-Watts, Acting Speaker
Cherokee Nation Tribal Council

Rose Cuison Villazor, Associate Professor of Law
Hofstra University

Heather Williams, Cherokee citizen and Freedman Descendent
Cherokee Nation Entertainment Cultural Tourism Department

Carla D. Pratt, Professor of Law and Associate Dean of Academic Affairs
Pennsylvania State University, Dickinson School of Law

Tiya Miles, Professor of History and Chair of the Department of Afro-American and African Studies
University of Michigan

Joanne Barker (Lenape), Associate Professor of American Indian studies
San Francisco State University

Introduction

When the Cherokee were relocated from the South to present-day Oklahoma in the 1830s, their black slaves were moved with them. Though an 1866 treaty gave the descendants of the slaves full rights as tribal citizens, regardless of ancestry, the Cherokee Nation has tried to expel them because they lack “Indian blood.”

The battle has been long fought. A recent ruling by the Cherokee Supreme Court upheld the tribe’s right to oust 2,800 Freedmen, as they are known, and cut off their health care, food stipends and other aid in the process.

But federal officials told the tribe that they would not recognize the results of a tribal election later this month if the citizenship of the black members was not restored. Faced with a cutoff of federal aid, a tribal commission this week offered the Freedmen provisional ballots, a half-step denounced by the black members.

Is the effort to expel of people of African descent from Indian tribes an exercise of tribal sovereignty, as tribal leaders claim, or a reversion to Jim Crow, as the Freedmen argue? Kevin Noble Maillard, a professor of law at Syracuse University and a member of the Seminole Nation of Oklahoma, organized this discussion of the issue.

Read the entire debate here.

Developing: Supreme Court vacates Freedmen ruling

Cherokee Phoenix
2011-08-23

Christina Good Voice, Senior Reporter

Tahlequah, Okla. – The Cherokee Nation Supreme Court issued a 16-page ruling Aug. 22 that reversed and vacated the decision of the CN District Court regarding the Cherokee Freedmen, stating that the Cherokee people had the right to amend the CN constitution and set citizenship requirements.

Acting Principal Chief Joe Crittenden addressed the ruling at the Aug. 22 council meeting in his State of the Nation.

“All of us, the council, the staff and myself got copies (of the ruling,)” he said. “I’m going to defer to our attorney general for some comments concerning this. I know there are a lot of questions on people’s minds.”

Hammons said the ruling, which was filed at 5 p.m. Monday evening, reverses the decision of the District Court…

…The court also found that the Treaty of 1866 only granted to Freedmen the rights of native Cherokees but that it was the constitution of the Cherokee people that granted them citizenship, she said.

“The freedmen at the time gained citizenship status in the Cherokee Nation by the Cherokee people’s sovereign expression in the 1866 constitutional amendment to the 1839 Cherokee Nation constitution,” according to the ruling. “It stands to reason that if the Cherokee People had the right to define the Cherokee Nation citizenship in the above mentioned 1866 Constitutional Amendment they would have the sovereign right to change the definition of the Cherokee Nation citizenship in their sovereign expression in the March 3, 2007 Constitutional Amendment.”…

Read the entire article here.

Race and the Cherokee Nation: Sovereignty in the Nineteenth Century

University of Pennsylvania Press
2007
200 pages
6 x 9, 7 illus.
Cloth ISBN 978-0-8122-4056-6

Fay A. Yarbrough, Associate Professor of History
University of Oklahoma

“We believe by blood only,” said a Cherokee resident of Oklahoma, speaking to reporters in 2007 after voting in favor of the Cherokee Nation constitutional amendment limiting its membership. In an election that made headlines around the world, a majority of Cherokee voters chose to eject from their tribe the descendants of the African American freedmen Cherokee Indians had once enslaved. Because of the unique sovereign status of Indian nations in the United States, legal membership in an Indian nation can have real economic benefits. In addition to money, the issues brought forth in this election have racial and cultural roots going back before the Civil War.

Race and the Cherokee Nation examines how leaders of the Cherokee Nation fostered a racial ideology through the regulation of interracial marriage. By defining and policing interracial sex, nineteenth-century Cherokee lawmakers preserved political sovereignty, delineated Cherokee identity, and established a social hierarchy. Moreover, Cherokee conceptions of race and what constituted interracial sex differed from those of blacks and whites. Moving beyond the usual black/white dichotomy, historian Fay A. Yarbrough places American Indian voices firmly at the center of the story, as well as contrasting African American conceptions and perspectives on interracial sex with those of Cherokee Indians.

For American Indians, nineteenth-century relationships produced offspring that pushed racial and citizenship boundaries. Those boundaries continue to have an impact on the way individuals identify themselves and what legal rights they can claim today.