The Cherokee Nation's New Battle

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A Freedmen family in the Oklahoma Territory, 1900.

Should Washington have a say in who is considered a full-fledged member of a Native American tribe?

That question has now moved to the forefront of a heated racial battle within the Cherokee nation, which earlier this year voted to exclude a group of blacks and multiracials known as the Freedmen from citizenship in the tribe. The Cherokee say they have the right to determine their membership, while the the Freedmen say their expulsion violates the tribe's post-Civil War treaty with the U.S. government. As the courts and the Interior Department mull over the case, Rep. Diane Watson, a Democrat from California, introduced legislation Thursday that would block the estimated $300 million in federal funds that the Cherokee receive annually and nullify their gaming rights unless the tribe reinstates equal membership to the Freedmen.

The Freedmen's expulsion would strip them of tribal voting, housing and health care rights (though they will keep those benefits until the case is resolved). The question of who decides Indian identity affects not just the 2,800 or so Freedmen and 100 times as many Cherokee Nation citizens, but the half a million people who identified themselves on the last census as being of Cherokee heritage but not belonging to the Cherokee Nation — as well as, potentially, the more than 4.3 million Americans who consider themselves at least part American Indian and who could find themselves randomly booted from their tribes. And it creates new complications for the relationship between blacks, who have long held a romantic view of their kinship with American Indians, and Native Americans, some of whom owned black slaves and fought for the Confederacy.

That's why the case has drawn the ire of the entire Congressional Black Caucus, which, in recognition of the shared suffering of Native and African Americans, has been a consistent champion of Indian causes. When Cherokee voters decided to strip the Freedmen of their full membership they were essentially legitimizing the one-drop rule. At the turn of the 19th century, the U.S. government relied on that racist tool, originally used to determine whether people were black or not, in combination with other factors for a census of people living on Native American tribal lands. Those who seemed Cherokee, or Cherokee mixed with white, were placed on a "Cherokee-by-blood" list. Those who seemed black, or Cherokee mixed with black, were generally placed on a "Freedmen" list. Both lists, known as the Dawes Rolls, were used to divest the collective tribe of its land holdings and apportion acreage to individual members — to make way for white settlers to move in and buy up the individual holdings. But spouses of Freedmen did not receive land allotments, while spouses of Cherokee-by-blood did, and land given to Freedmen was made available for sale sooner than Indian land.

The Cherokee Nation has not kicked out all people of African descent. Some of them were on the Cherokee-by-blood list, and some Cherokees-by-blood intermarried with blacks in the century since the lists were made. Tribal officials say this shows the movement to exclude the Freedmen isn't racist. "If you really look at the Cherokee population, we have a wide difference of appearances," says Principal Chief Chad Smith, who is hoping to retain his post in a general election this weekend.

But the Freedmen and their advocates contend that this historic inclusiveness only makes the sudden casting off of people with black blood more unfair. "There really is an ethnic cleansing going on," says Jon Velie, the attorney who represents the Freedmen. Adds Marilynn Vann, president on the Descendants of the Freedmen of the Five Civilized Tribes, "It's not a matter of Indians versus non-Indians. The majority of Freedmen can prove they have Indian blood, if not through DNA then through government documents."

Both sides, oddly enough, agree that tribal membership is a political designation, rather than a racial one. No one wants to use a strict blood quantum — say, a requirement of 1/16th Cherokee blood — to determine who belongs. "I refuse to create a sieve through which our grandchildren will fall out," says David Cornsilk, a Cherokee-by-blood who sides with the Freedmen. But each side sees very different implications. "What is identity?" posits Smith. "What is an Indian? What is a Cherokee? I would say it's someone part of a recognized community." Recognized, though, meaning on the proper Dawes List — not meaning active members of the tribe, as Vann asserts it should. "Even though Freedmen people didn't participate in tribal councils for many years, they have served in Cherokee schools and hospitals."

Perhaps more importantly, they have considered themselves Cherokee their whole lives. "There's a tremendous amount of cultural identification that former slaves felt with Native tribes, of shared homeland, food, familial ties," says Tiya Miles, a historian who runs the Native American Studies program at the University of Michigan. Cherokee had slaves. Cherokee also married, and slept with, blacks. And there were blacks who were adopted into the Cherokee tribe though they had no blood or slave ties. They all walked the Trail of Tears with the Cherokee, from the Deep South to Oklahoma.

These are the facts, but for blacks, especially, the mythology holds equally strong sway. A kinship with Native Americans has been a logical way to claim some sort of "non-black" status in a society where black is the most demeaned racial category. It's also helped ground many black people searching for an original homeland, says Miles. "Native America was connected to freedom," says Miles. "It was said slaves could run away to tribes and find shelter." Clearly that wasn't always the case, and the Cherokee controversy is, for Miles, "the end of innocence about what the historical relationship between African Americans and Native Americans really consisted of."

It is ironic that the tribe wants to use the Dawes Rolls, which discriminated against Native Americans collectively, as a tool of discrimination against a group of blacks. But the Cherokee case is not without precedent. Several years ago, the Seminoles tried to kick their Freedmen out of their tribe. So, the federal government declared the Seminoles in violation of their treaty and refused to recognize the tribe's sovereignty. As a result the Freedmen were reincorporated in the Seminole nation in 2003.

That could bode well for the Cherokee Freedmen, if Watson's bill passes. But Oklahoma Representatives Dan Boren, a Democrat, and Tom Cole, a Republican, have come out against any Congressional action right now, saying it would be premature. Most folks agree that this country owes the Cherokee a lot for centuries of theft and brutal oppression. But if the Cherokee won't reinstate the Freedmen, or both sides can't come to a mutually acceptable compromise, the U.S. government will have to take the impolitic step of overruling tribal sovereignty, withholding federal dollars, and ushering the Freedmen back into the fold.