Are Blacks Being Victimized Twice by the Cherokee?
The Cherokee nation rejected the CSC’s verdict and called for a special election to settle the question once and for all. On March 3, 2007, Cherokee tribal members decided overwhelmingly by a vote of 70 percent to expel the Freedmen. Consequently, on June 21, 2007, the Congressional Black Caucus called on Congress to withhold funding from the Cherokee nation until such time that the Freedmen are fully restored.
The Cherokee nation has an annual budget of $300 million of which 80 percent is derived from federal aid. Withholding such aid would no doubt have a detrimental effect on the tribe. The measure passed the House. The CBC is now pressuring the Senate to do the same. In response to the CBC’s activism on behalf of the Freedmen, Tim Giago published an article on the Huffington Post entitled, “Congressional Black Caucus Attacks Sovereign Status of Indian Nations.” Giago asserted that such activism is an assault upon tribal sovereignty. Nevertheless, positing the CBC’s call for sanctions against the Cherokee nation as an “attack” on tribal sovereignty ignores over two centuries of Black – Cherokee relations, and the current issue which is not tribal sovereignty, but rather human rights.
As a means of "civilizing" American Indians, Southern whites introduced chattel slavery to what are now known as The Five Civilized Tribes: Creeks, Seminoles, Choctaws, Chickasaws, and Cherokees. The Cherokees exceeded their Indian counterparts in embracing southern white culture and they profited the most from slave ownership. By 1809 there were 600 enslaved blacks living in the Cherokee nation; the number increased to 1,600 by 1835. When Andrew Jackson signed the Indian Removal Act forcing Cherokees on a death march out west--the infamous "Trail of Tears"--they carried their black slaves with them.
Slavery in Indian Country (now the state of Oklahoma) proved far more profitable to the tribes than it had been in the Southeast. By 1860 there were 4,000 slaves living in the Cherokee nation alone. Slavery in Indian Country over time came to differ little from white slavery in the Southern states as slave codes were strictly enforced to maintain the hierarchy between slave owner and slave society. For example, a Cherokee could be expelled from the tribe for teaching a slave to read and write; the penalty for a slave who raped a Cherokee woman was death. Also the tribe fully cooperated with the federal government in enforcing fugitive slave laws. Runaway Cherokee slaves were not uncommon. In 1842, four years after removal, 35 Cherokee slaves accompanied by their Seminole allies staged a slave revolt and attempted to escape through Creek territory. They were apprehended and brought back to their masters. Although the number of slave owners in Indian Country only amounted to approximately ten percent of the population, similar to southern society, the Indian planter class held sway over the tribes, many of whom resented both the Anglo-Saxon lifestyle and the peculiar institution.
The Cherokee nation under the leadership of Principal Chief John Ross, himself a slave owner, reluctantly sided with the Confederacy during the Civil War. Stand Watie, a Cherokee and the only Indian Confederate to obtain the rank of Brigadier General, was the last among the Confederate Generals to surrender to Union troops on June 25, 1865. In September of that year the Cherokees entered into a treaty with the United States which terms included establishing permanent peace among themselves and the federal government, the abolition of slavery, the partial ceding of lands, and the consolidation of all tribal governments within the Indian Territory. A subsequent treaty, made with the five tribes in July 1866, granted full citizenship rights to newly free slaves (Freedmen) in Indian Country. Article nine of the treaty reads in part:
They [Cherokee Government] 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.
Since the signing of the 1866 treaty, the Freedmen’s existence in the Cherokee nation has been tenuous to say the least. Tribal policies on behalf of the Freedmen have been informed by well entrenched southern attitudes toward people of African descent. Hence, the Freedmen’s struggle for equality and the recognition of full citizenship, while in some ways different, mirrors the struggle African Americans have endured as citizens in the United States since after the Civil War.
At first glance, the Freedmen dilemma appears to be a case of civil rights vs. tribal sovereignty. In 1968 Congress passed the Indian Civil Rights Act which guaranteed to tribal citizens due process and equal protection under the law. However, in 1975 Nixon signed the Indian Self - Determination Act, assuring Native nations that they can be autonomous while at the same time supported by the federal government. Consequently, tribal sovereignty, vaguely defined as a tribe’s right to have complete control of its internal affairs without interference from the Federal government, became the cornerstone of the new federal policy toward recognized Indian tribes. Nevertheless, tribal sovereignty was soon pitted against civil rights as can be seen in the landmark case of Santa Clara Pueblo v Martinez.
In 1978, Julia Martinez, a member of the Santa Clara Pueblo Tribe located near Santa Fe, New Mexico sought tribal membership for her two children, who were fathered by a Navajo Indian. According to tribal law, children fathered by non-members could not receive tribal enrollment. This law did not apply to the children of Santa Clara Pueblo men sired with non-member women. Martinez attempted to sue on grounds that the tribe’s refusal to enroll her children was discriminatory and violated her civil rights. The case went all the way to the Supreme Court. The Court sided with the tribe. The justices used the case to broaden the power of Indian tribes ruling that providing a federal forum in which tribal members could sue tribal governments on the basis of civil rights undermined tribal self determination [read; tribal sovereignty]. Ironically, the justice who wrote the majority opinion in this case was celebrated African-American civil rights lawyer Thurgood Marshal.
Tribal sovereignty is the bedrock of Indian national identity. The right to chose one’s tribal members is a sacred aspect of tribal sovereignty. As noted by Fergus Bordewich in Killing the White Man’s Indian: Reinventing Native Americans at the End of the Twentieth Century (1997): “To abrogate tribal decisions, particularly in the delicate area of membership, for whatever ‘good’ reasons, is to destroy cultural identity under the guise of saving it” (87). Unfortunately, federally recognized tribes have used tribal sovereignty as a cover for discrimination against Native women, black Indians and other “mixed bloods.” After Martinez, the number of cases reported to the U.S. Commission on Civil Rights against tribal governments dropped considerably due to the growing consensus among tribal members that filing such complaints would provide little recourse.
Despite the Freedmen’s uphill battle for full tribal recognition, a minority within the Cherokee nation have expressed outrage over their expulsion. Most notably, David Cornsilk, a Cherokee nationalist, has called for his counterparts to exercise true sovereignty by embracing a traditional definition of Cherokee which predates Euro-American contact. As quoted in Scott L. Malcolmson’s One Drop of Blood: The American Misadventure of Race (2000), Cornsilk states:
These people [Freedmen] live like Cherokee. . . Many of them even speak Cherokee. There’s a lot of them who, their grandparents spoke the Cherokee language, and they even have passed it down. They might be more Cherokee than most Cherokees. . . . Throughout the history of our tribe, we have always made people who came into our tribe and established a true connection to us—either through marriage or adoption---we made them one of us. And then suddenly to have an entire branch of our family, the freedmen branch of our family, to be cut off, to be simply severed and told, ‘Now you’re no longer one of us,’ for political reasons, for racial reasons, is more than I can tolerate [120].
Not only does Cornsilk call for a redefinition of Cherokee based in traditional Cherokee identity, he also calls on his tribe to live up to its treaty obligations to the Freedmen just as they demand the federal government honor its treaty obligations to federally recognized tribes. Nullifying the 1866 treaty would be the height of hypocrisy, he argues. While many Cherokee resent the activism of the CBC on behalf of the Freedmen, Cornsilk believes the CBC is well within its right to call for an embargo against the Cherokee nation.
On June 21, 2007, Congresswoman Diane E. Watson (D-CA) introduced House bill H.R. 2824 which calls on Congress “To sever United States' government relations with the Cherokee Nation of Oklahoma until such time as the Cherokee Nation of Oklahoma restores full tribal citizenship to the Cherokee Freedmen disenfranchised in the March 3, 2007, Cherokee Nation vote and fulfills all its treaty obligations with the Government of the United States, and for other purposes.” On March 13, 2008, the CBC sent a letter to Senate Majority Leader Harry Reid (D-Nev.), threatening to block House bill H. R. 2786, the Native American Housing and Assistance and Self-Determination Reauthorization Act of 2007, unless it included language that prevents the Cherokee Nation from receiving any benefits until it fully complies with its treaty obligations to the Freedmen. The Indian assistance bill which passed the House in September 2007 included such language; however, the Senate bill does not.
While Giago accuses the CBC of attacking tribal sovereignty, the case of the Freedmen is a human rights issue which places it beyond the domestic sphere and makes it a matter of international concern. It is undeniable that the tribe’s vote to override the 2006 Cherokee Supreme Court decision was racially motivated--a type of ethnic cleansing, as it were. To contend that only those of Cherokee “blood” can be a part of the Cherokee nation, not only distorts historical reality, but is a blatant denial of black-Cherokee kinship ties which occurred despite the enactment of tribal anti-miscegenation laws. Nevertheless, in an attempt to deflect attention from the issue at hand, Giago sensationalizes his account by drawing Barack Obama into the controversy. Given Obama's membership in the CBC, Giago suggests that the Democratic candidate for president, a champion of tribal sovereignty, is guilty of hypocrisy.
This is a time-worn game of guilt by association. There is no hard evidence that Obama has been directly involved in the proposed legislation. Watson’s bill (as well as the Reid letter) originated in the House not the Senate. According to an anonymous source in the CBC office, only 33 out of 43 members of the CBC signed the Reid letter, all of them members of the House. The CBC has not received a response from Reid. It appears that the Senate has yet to render a decision. Hence, to accuse Obama of being two-faced on Indian issues seems a bit premature.
Also, Giago states that the CBC is selective in its support of the Freedmen only because they are black:
It should be noted that California is one of the worst states in the Union where tribes are systematically removing and denying citizenship to members. Rep. Watson represents a voting district in that state. What has she done about this problem in her own district? And what about the rest of the Congressional Black Caucus? Are they not concerned that Indian people are often removed from tribes in California without even a democratic vote? Or will they only speak up when Black Americans are involved?
These statements are at once disingenuous and contradictory. First, the purpose of the CBC is to address the legislative concerns of African Americans and other minorities, which includes American Indians. Hence, the CBC has supported numerous legislative measures which benefit federally recognized tribes. Second, Giago’s article is based on the premise that efforts of the CBC on behalf of the Freedmen not only jeopardize the sovereignty of the Cherokee nation, but all recognized tribes within the boundaries of the United States. Are we now to assume that Giago is concerned about tribal sovereignty only when it involves the Cherokee nation? Does Giago mean to suggest that the CBC should be concerned with human rights violations within Indian tribes only when the violations are carried out undemocratically?
It is not my intent to be facetious or to make light of the matter at hand. I realize this is a sensitive situation. Its complexities are rooted in the divisiveness of racial politics, which have plagued our nation since its inception—what Condoleezza Rice recently referred to as “America’s birth defect.” American Indians, the most invisible minority within the borders of the U. S., have endured centuries of oppression. They continue to struggle for survival and autonomy. Nevertheless, tribal sovereignty should no longer be allowed to remain a shield for federally recognized tribes which engage in discriminatory practices. There must be some measure of accountability. The racially motivated vote to expel the Freedmen from the Cherokee nation by rejecting the 2006 Cherokee Supreme Court’s ruling, which deemed the act unconstitutional, is a human rights violation which the CBC and Congress should not ignore. Withholding funds from the Cherokee nation will send the clear message to Indian Country that while the protection of tribal sovereignty will continue to be honored by the federal government, engaging in the violation of human rights will not be tolerated, even if it is sanctioned by a democratic vote.
Related Links
News Story: Obama Reconciles CBC Membership with Tribal Sovereignty Support