Once at a tribal consultation meeting, Larry Echo Hawk, Assistant Secretary of Indian Affairs, asked me to join him for lunch. Upon learning that I was a member of the Cherokee Nation of Oklahoma, asked my opinion of the Freedmen issue. I said “as a Bureau of Indian Affair’s employee, I can’t state my opinion.” Everyone laughed. He asked me again and I responded in the same manner. Everyone laughed again. I was reminded by a staff member that he was the Assistant Secretary and “you can answer his question.” No I couldn’t and didn’t.
Native Americans have always been a people who made room for others. Making room in our homes for family and friends when necessary isn’t always easy, but it’s what we do. We made room for those who came into our land. We never shut the door on those who belong in the house. Tribal sovereignty refers to the fact that each tribe has the inherent right to govern itself and to shape the course of its future to ensure the continued and ongoing general welfare of its people without outside interference.
Santa Clara Pueblo v. Martinzez, 436 U.S. 49 (1978), involved an application denying tribal membership to children born to female tribal members who married outside of the tribe. The U.S. Supreme Court held that suits against the tribe under the Indian Civil Rights Act of 1968 (ICRA) are barred by the tribe’s sovereign immunity from suit. The tribe’s right to determine their membership prevailed.
In August 2011, the Cherokee Nation Supreme Court (Court) reversed and vacated a Cherokee Nation district court decision in Vann, et. al, v. Department of the Interior immediately terminating the tribal citizenship of about 2,800 non-Indians. The decision stated that the 2007 referendum amending the Cherokee constitution to exclude Freedmen descendants from tribal citizenship was conducted in compliance with the tribe’s laws, and the court does not have the authority to overturn its results. The Court’s opinion said that the only party that would have proper standing to sue is the federal government, not the Freedmen descendants.
In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), Marshall defined the legal status of the Cherokees, describing the tribe as a “distinct political society that was separated from others, capable of managing its own affairs, and governing itself.”
In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832), Marshall’s opinion denied the state of Georgia’s right to impose its laws on a Cherokee reservation within the state’s borders.
The Freedmen issue is discrimination against tribes because non-Indian southern slave owners weren’t required to grant “family or member” status to their former slaves?
Furthermore, the Treaty with Cherokee (treaty), 1866, July 19, 1866, 14 Stats., 799., Article 9 of the treaty, ratified July 27, 1866, proclaimed slavery would no longer exist and occurred more than three years after the Cherokee Nation voluntarily abolished slavery by a Cherokee National Council act in February 1863. The Emancipation Proclamation, or the thirteenth Amendment to the Constitution of the United States wasn’t adopted until December 6, 1865, which occurred after the Cherokee Nation resolution abolished slavery in 1863.
Article 9 of the treaty also stipulates that the rights applied to those slaves “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.” Did those Freedmen who registered for the Dawes Roll meet the requirements of the treaty found at Article 9? Does a now living Freedmen’s non-residency within the fourteen counties of Cherokee Nation’s jurisdictional service area terminate their rights as a tribal member?
There are still many questions to be decided and who better to make those decisions than the Cherokee Nation members. Once again we are taken back to a time of the non-Indian mentality that Indians cannot manage our own affairs. And finally, contrary to the beliefs by many, your grandmother wasn’t a Cherokee Princess! Maybe she was pretty, elegant, suave, and educated, but “we” had no Cherokee Princesses! There, I have wanted to say that publicly for the past forty years.
Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com.