Robert Banks, Cherokee Freedman. © Peggy Fontenot (Potawatoml/Patawomack/Cherokee)
From the New York Times, "Slavery’s Long Shadow," by Carla D. Pratt (Professor of law and associate dean of academic affairs at Penn State University’s Dickinson School of Law), on 15 September 2011 -- It is said that knowing one’s history is the best way not to repeat it. If that is true, the Cherokees don’t fully understand their history. The Cherokee Nation Supreme Court’s recent decision to uphold the expulsion of most black Cherokees comes as no surprise given the tribe’s history of separation from and distaste for African Americans. The Cherokee were a people who apparently had no racial bias against people of African ancestry before European contact. Early in their history, they adopted a former slave woman of African ancestry into the tribe and exercised their sovereignty to keep her as a citizen of the tribe.
The argument that Freedmen can’t be tribal members because federal law requires Indian ancestry seems disingenuous at best.
But the ideology of the Cherokees changed as they assimilated into American culture. The offer of assimilation required the Cherokees not only to adopt the language, religion and agrarian lifestyle of whites, but also to adopt their antebellum prejudices. Indeed, Cherokees’ moves to separate themselves from blacks and to adopt black slavery were considered by whites to be evidence of the Cherokees’ civility and potential equality with whites.
When the Civil War erupted, the Cherokees fought alongside the Confederacy, and after defeat, entered into a treaty with the U.S. government in 1866. At that time, the Cherokees agreed to adopt their former slaves into the tribe. These former slaves were called “Freedmen” and their descendants enjoyed equal tribal citizenship, which was mandated by treaty language.
But in 2007, the Cherokee Nation Supreme Court determined that the Cherokee Nation was bound by the Treaty of 1866. This opinion, written by former Justice Stacy Leeds, held that the Freedmen were citizens of the Cherokee Nation. However, Chief Chad Smith refused to respect the tribal court’s decision and called for a constitutional referendum, which ultimately expelled the Freedmen.
In subsequent litigation by the Freedmen challenging the election that expelled them, the Cherokee Nation argued that it was expelling the Freedmen, not because they were black, but because they were not Indian, and that under federal law, only an Indian person can be a member of a federally recognized Indian tribe. Thus, citizenship required classification as Cherokee by blood, which automatically disqualifies anyone classified as Freedmen.
Freedmen classification categorically presumes the impossibility of Cherokee ancestry, even for mixed-race black Indians. For this group, citizenship in the Cherokee Nation rests primarily on their rights as beneficiaries under the 1866 treaty. The argument that Freedmen can’t be tribal members because federal law requires Indian ancestry seems disingenuous at best since it was federal law (the 1866 treaty) that mandated that they be citizens of the Cherokee nation. True freedom for the Freedmen won't materialize until their status in the Cherokee Nation is no longer connected to the badge of slavery. (source: The New York Times)