Who is A Cherokee? And Who Decides?

JB

Cherokees, along with Choctaws, Chickasaws, Creeks and Seminoles, were long known as the "Five Civilized Tribes" because they adopted many of the ways of their white neighbors in the South, including the holding of black slaves.

Many of the Cherokees' slaves accompanied the tribe when it was expelled from its traditional lands in North Carolina and Georgia and forced to migrate in 1838 and 1839 to Indian Territory, in what is now Oklahoma. Thousands of Cherokees died during the trip, which became known as the "Trail of Tears." It is not known how many of their slaves also perished.

The tribe fought for the Confederacy. In defeat, it signed a federal treaty in 1866 committing that its slaves, who had been freed by tribal decree during the war, would be absorbed as citizens of the Cherokee Nation.

By the late 1880s, Washington started opening up tribal lands in Oklahoma to white settlers, breaking previous pledges to the tribes. As a step toward ending tribal ownership of Indian Territory, Congress initiated a new census of the "Five Civilized Tribes" -- a census known as the Dawes Commission. It is that head count that the Cherokee Nation would use to determine the eligibility of freedmen.

Past censuses of the tribes had noted both the Indian and the African ancestry of freedmen, counting those of mixed heritage as Native Americans. The Dawes Commission took a different approach.

Setting up tents in fields and at crossroads, the census takers eyeballed and interviewed those who came before them, separating them into different categories. If someone seemed to be Indian or white with Indian blood, the commission listed that person as whole or part Indian, historians say. People who the officials thought looked black were listed as freedmen, and no Indian lineage was noted, according to freedmen and historians.

"In cases of mixed freedmen and Indian parents," Kent Carter wrote in his book "The Dawes Commission," applicants were "not given credit for having any Indian blood."

Baldridge's ancestors are recorded as freedmen in the Dawes rolls. Roy Baldridge, J.D.'s son, said that for the Dawes Commission, "if you had a drop of black blood, you were black."

"That's false," said Smith, the Cherokee chief. "I think there was not a fixed policy that if you were dark, you were put on the freedmen roll."

Still, whether people were listed as Indians or freedmen, they were, under the 1866 treaty, considered citizens of the Cherokee Nation. Today's vote could revoke that designation for freedmen.

The census recorded about 20,000 freedmen for the five tribes, said Angela Y. Walton-Raji, a genealogist whose research has been seminal for freedmen tracing their roots.

Descendants of those freed tribal slaves would number in the hundreds of thousands today, Walton-Raji said.

But segregation and the civil rights movement separated native members of the tribes from freedmen. Today, no more than a few thousand descendants of the slaves are officially members of the five tribes, leaving their prospects of defeating the Cherokee referendum slim. By late last month, about 2,800 had re-registered in time to vote.

"A lot of Cherokees don't know who the freedmen are," Smith said. Did he, growing up? "No."

The Cherokee Nation expelled many descendants of slaves in 1983 by requiring them to show a degree of Indian blood through the Dawes rolls. A tribal court reinstated them in March 2006. That spurred today's special election, which received a go-ahead Feb. 21 when a federal judge in Washington denied the freedmen's request for an injunction to halt the balloting.

Advocates of expelling the freedmen call it a matter of safeguarding tribal resources, which include a $350 million annual budget from federal and tribal revenue, and Cherokees' share of a gambling industry that, for U.S. tribes overall, takes in $22 billion a year. The grass-roots campaign for expulsion has given heavy play to warnings that keeping freedmen in the Cherokee Nation could encourage thousands more to sign up for a slice of the tribal pie.

"Don't get taken advantage of by these people. They will suck you dry," Darren Buzzard, an advocate of expelling the freedmen, wrote last summer in a widely circulated e-mail denounced by freedmen. "Don't let black freedmen back you into a corner. PROTECT CHEROKEE CULTURE FOR OUR CHILDREN. FOR OUR DAUGHTER[S] . . . FIGHT AGAINST THE INFILTRATION."

The United States has imposed on itself-- in the Fourteenth Amendment-- significant limitations on who can be expelled from membership in the community of American citizens (although Congress, for example, has refused to recognize the citizenship of some children born of American fathers overseas.). The Cherokee have given themselves a much freer hand to determine who is a Cherokee and who may therefore be legally expelled from their nation. (Although the proposed change is technically an amendment to the Cherokee Constitution, the procedure for enacting the change-- basically a referendum-- is far less difficult than amending the U.S. Constitution).

It is also worth noting that the 1866 Treaty which recognized the former slaves of the Cherokee as members of the Cherokee Nation came the same year as the Civil Rights Act of 1866, in which the Reconstruction Congress declared that the former slaves in this country were American citizens. Because of doubts about the Act's constitutionality, the Congress then pushed through the Fourteenth Amendment, whose first sentence-- the Citizenship Clause-- declares that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

One reason why the Reconstruction Republicans may have added the Citizenship Clause to the Fourteenth Amendment was a fear that once they lost power, the former defenders of the slaveocracy might seek to strip black freedmen of their citizenship status. If so, it was not an entirely idle fear, as this case demonstrates. The legacy of slavery is still very much with us in the vote over the status of freedmen in the Cherokee Nation.

Advocates for expulsion of black freedmen from the Cherokee may appropriately be worried about large number of people making fraudulent claims of membership, or large numbers of people seeking entry who have too attenuated a connection to the tribe. If that is so, there are less restrictive alternatives than booting out all descendants of freedmen from the Nation-- including those descendants who are currently in the tribal rolls and have lived as Cherokees for generations. Moreover, these alternatives for restricting membership would not distinguish, as the proposed policy does, between those whose ancestors were or were not slaves. Following the Civil War the American Nation accepted that its former slaves were members of its national community; the Cherokee Nation should do so as well.