Blood rolls no more

Cherokee Nation v. Nash a successful challenge to black disenfranchisement

“Exclusion is never the way forward on our shared paths to freedom and justice.” —Bishop Desmond Tutu

The Cherokee Freedmen recently won a major legal victory in their continuing quest for recognition within the Cherokee Nation. Who are the Freedmen and what did they win?

In the 1830s and 1840s, the U.S. government forcibly removed the Five Civilized Tribes (Choctaw, Chickasaw, Muscogee (Creek), Cherokee, and Seminole) from their homelands in the Southeast to Indian Territory, present-day Oklahoma. Persons of African descent, some free, some enslaved, accompanied the tribes; they often intermixed with Indians socially, culturally, and intimately.

At the end of the Civil War, the federal government negotiated treaties (collectively the Treaty of 1866) under which the Muscogee, Cherokee, and Seminole Nations adopted persons of African ancestry in their midst and their descendants (collectively the “Freedmen”) as tribal members. The Choctaw and Chickasaw Nations jointly negotiated similar treaties, which included optional Freedmen adoption provisions. The Choctaws grudgingly adopted their Freedmen in 1883. The Chickasaws never did.

At the turn of the twentieth century, the federal government dissolved tribal nations and terminated their communal land ownership system. The Dawes Commission facilitated this process by dividing Indian lands and allotting them to individual tribe members. As the first step, Commission agents compiled registration rolls (the Dawes Rolls) for the tribes.

In each case, federal emissaries drew up a Dawes Blood Roll and a Dawes Freedmen Roll. The Blood Roll documented the enrollee’s Indian blood. Commission agents listed virtually all persons who showed evidence of African ancestry (meaning those who looked black) on the Freedmen Roll.

Given the longstanding ties between Native Americans and persons of African extraction and the prevalence of cross-cultural relationships, this binary configuration obscured the fact that some Freedmen possessed Indian blood. Thus, some Freedmen were denied their Indianness.

The federal government began conditioning some tribal benefits on an applicant’s ability to demonstrate possession of Indian blood. The Freedmen, lacking the requisite evidence, were not qualified for various tribal benefits, which adversely impacted their status and relative economic posture.

Some tribes, including the Cherokees, instituted measures requiring Indian blood not just for specified benefits, but for tribal membership. These tribes typically relied upon the Dawes Rolls as the single source of proof. One would have to trace an ancestor back to the Blood Rolls to evidence one’s entitlement to such benefits and, for Cherokees, to tribal membership.

Issues of Indian blood aside, the Treaty of 1866 offered the strongest argument for Freedmen citizenship within the Five Civilized Tribes. It sets forth what the Freedmen and others consider unassailable evidence of the Tribes’ intent to accord the Freedmen the same rights granted to other tribal members.

In recent years, the Freedmen debate raged most noticeably in the Cherokee Nation. In Lucy Allen v. Cherokee Nation Tribal Council (2006), the Cherokee Nation Supreme Court declared unconstitutional legislation designed to limit Cherokee tribal membership to those who could demonstrate their Cherokee-by-blood status.     The Court’s decision rested upon Article III of the 1975 Cherokee Nation Constitution. The Court held that the law impermissibly prescribed tribal membership criteria more restrictive than that set forth in the Constitution. After the Allen decision, the Cherokee Nation began accepting and processing Freedmen citizenship applications, enrolling more than one thousand.   

Then-Cherokee Nation Principal Chief Chadwick Smith led the opposition to Freedmen citizenship, culminating in a successful 2007 referendum petition that amended the Cherokee Nation Constitution. The measure limited Cherokee citizenship to those
of Indian ancestry listed in the Blood Rolls.

Following this setback, Freedmen advocate Marilyn Vann, attorney John Velie, and many Freedmen and their allies rallied the troops. Political and legal maneuvering, including court challenges and Congressional lobbying, kicked into high gear. A court granted provisional citizenship for Freedmen already enrolled as the battle languished in federal court.

The legal landscape changed on August 30, 2017. Thomas F. Hogan, a federal judge in Washington, D.C., upheld the citizenship rights of the Cherokee Freedmen in Cherokee Nation v. Nash.

Judge Hogan held that the Treaty of 1866 guaranteed citizenship for persons previously enslaved and their progeny. He opined: “The history, negotiations, and practical construction of the [Treaty of 1866] suggest no other result … Consequently, the Cherokee Freedmen’s right to citizenship in the Cherokee Nation is directly proportional to native Cherokees’ right to citizenship.”

Acceptance of the Nash decision by the current Cherokee Nation Principal Chief, Bill John Baker, settles the matter, ending a contentious and divisive chapter in Cherokee history.

Nash provides powerful, positive precedent of inclusion for the Freedmen of the other members of the Five Civilized Tribes. One would hope that these sovereign nations would seek a proactive approach to incorporating their Freedmen back into the fold.

Hannibal B. Johnson is a Harvard Law School graduate, author, attorney, consultant, and college professor. His books include “Black Wall Street,” “Tulsa’s Historic Greenwood District,” and “Apartheid in Indian Country?: Seeing Red Over Black Disenfranchisement.”