UIC Law Review

Volume 47 Issue 4 Article 5

Summer 2014

Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, and the Colonial Feedback Loop, 47 J. Marshall L. Rev. 1227 (2014)

Jeremiah Chin

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Recommended Citation Jeremiah Chin, Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, and the Colonial Feedback Loop, 47 J. Marshall L. Rev. 1227 (2014)

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RED LAW, WHITE SUPREMACY: CHEROKEE FREEDMEN, TRIBAL SOVEREIGNTY, AND THE COLONIAL FEEDBACK LOOP

JEREMIAH CHIN *

I. Introduction ...... 12291228 II. Conflict in Context: Historical origins of Cherokee Freedmen and P ending Litigation ...... 12311230 A. Slavery and Reconstruction in the Cherokee Nation and the United States ...... 12321231 1. Slavery in the Cherokee Nation and the beginnings of African enslavement ...... 12321231 2. Removal and Civil War Alliances ...... 12341235 3. “Cherok ee by Blood” and the Dawes Rolls...... 12371236 B. Interlude: The Cherokee Nation and Freedmen in the 20th Century ...... 12401239 C. Pending Litigation: Vann v. United States DOI and Cher ok ee Nation v. Nash ...... 12411240 1. Case Origins 2003-2006: Vann v. Kempthorne and Allen v. Cherok ee Nation...... 12411240 2. Appeals and Amendments 2007-2009: 2007 Amendment, Vann II and H.R. 2824...... 12431242 3. Cherokee Nation Responds 2009- 2012:Cherokee Nation v. Nash and Vann ...... 12441245 III. Story Frames: Doctrines of Federal Indian Law and Critical Race Theory...... 12471246 A. Doctrines of Federal Indian Law arising in Vann and Nash...... 12461248 B. The Mancari Paradox: Critical Race Theory and Federal Indian Law ...... 12491251 IV. The Colonial Feedback Loop: Vann and Nash through a CRT Lens ...... 12541253 A. “Judicial Notice of Racial Diversity:” Cherokee Nation Registrar v. Nash ...... 12551253 B. The Right to Exclude: Martinez, Vann and CRT ...... 12571256

* M.S., Justice Studies, 2014; J.D. candidate, Sandra Day O’Connor College of Law, Arizona State University; Ph.D. student, Justice and Social Inquiry, Arizona State University. Special thank you to Professor Rebecca Tsosie for starting me along this project and for all the feedback and support, Dr. Mary Romero for helping it to grow into a Master’s-in-Passing thesis, and Dr. Bryan Brayboy and Jessica Solyom for all their advice and support along the way. Finally, thank you to LatCrit, and all the great scholars involved, for selecting me as a Student Scholar for 2013, and for all the wonderful feedback and information I received at LatCrit 2013 in Chicago.

12271228 1228Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12281168 Vol. 122947:4 differentV. Ending from the itsColonial predecessors, Feedback particularly Loop; or Howsince Iit Learnedhad the benefitto of two Stopyears White of planning. Supremacy and Love the Declaration on the LikeRights the ofshift Indigenous in conference P eoples. scheduling, ...... other changes have 12591258 1258 taken A.place Proposals within the for RecognizingLatCrit entity Cherok, including ee Freedm concerted en ...... efforts 1260 B. Reciprocal Recognitions: Realizing the DRIP for to continue a process of institutionalization. In recent years, there Cher ok ee Freedmen...... 12631261 VI.has Concbeen lusion a growing ...... focus on how to capitalize on its critical niche, 12691267 continue cultivating the next generation of critical scholars, and ensure that the baton of outsider jurisprudence is passed along. I. INTRODUCTION 1 Internally, the organization has shifted, including a gradual changing of the guard in leadership, so to speak, as well as a Sovereignty and self-determination are cornerstones of downsizing in administration. For example, from 2008 to the arguments for Indigenous rights in the geographic United States. present, the Board of Directors was intentionally downsized, with Both concepts assert an existence as Indigenous peoples, and a growing number of Board seats being occupied by junior law reinforce status as nations with citizens and governments, rights professors. 6 and responsibilities, determined by Indigenous communities. In Another major development is LatCrit’s acquisition of a 2006, the Judicial Appeals Tribunal of the Cherokee Nation physical space for the organization. The property, Campo Sano recognized that Lucy Allen and fellow Cherokee Freedmen, (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is descendants of African slaves once owned by Cherokee, are a ten-acre parcel of land located in Central Florida. 7 Purchased by citizens of the Cherokee Nation and had been citizens of the LatCrit in 2011, the space is home to The Living Justice Center Cherokee Nation since the 1866 treaty with the United States. 2 and the LatCrit Community Campus. 8 The physical facility serves Less than a year later, the Cherokee Nation amended its as a means “to level the playing field and give LatCrit activists a constitution to limit citizenship to descendants of those listed on fighting chance to be heard.”9 The space is intended the Dawes Roll as Cherokee, Delaware or Shawnee—effectively terminating the citizenship of all 2,800 citizens who are Cherokee to serve as the hub of their educational, research, Freedmen descendants. 3 This new amendment effectively advocacy and activism to remedy the imbalance and excludes Blacks who cannot identify an ancestor who was listed as deficiencies of the current legal system. Having an “Cherokee by Blood” on the Dawes Rolls, even though Cherokee independent physical base has become critical as Freedmen often maintain deep cultural connections to Cherokee universities and law schools increasingly are even less values and ways of being. 4 Cherokee Freedmen therefore exist at

Naming1 Playing and onLaunching Frantz Fanon’s a New classic Discourse BLACK of S KINCritical, WHITE Legal MASKS Scholarship (1952), the, 2 titleHARV of. L ATINOthis article L. REV suggests. 1 (1997). that laws enacted by the Cherokee Nation to excludeSee Chealsorokee LatCrit Freedmen Biennial are rootedConferences in White, LAT SupremacistCRIT: LATINA conceptions & LATINO of property,CRITICAL doctrinesLEGAL TofHEORY slavery,, I NCand., nationality.http://latcrit.org/content/conferences/latcrit Fanon described the conditions- ofbiennial Black- conferences/peoples who (lasttook visitedon White July colonial 5, 2013) attitudes (providing to cope a list with of the the previoushostility theyconferences, face in andanti providing-Black environm direct ents.links toThis view article sympos arguesia articles that thefor some2007 Cherokeeyears (found Amendment by following solidified the respective the Jeffersonian year’s link tofantasy its corresponding of Indian assimilationwebpage). by adopting one of the key features of White Supremacy in U.S. Laws:Additionally, anti-Blackness LatCrit and has Black developed exclusion. a substantial body of scholarship from several2 Allen other v. standCherokee-alone Nat’l symposia: Triba l interCouncil, alia No.the SouthJAT-04-North-09, 1, Exchange, 9 Okla. Trib. the 255,Study 2006 Space WL 6122535Series, the (Cherokee International Nation andJud. ComparativeApp. Trib., Mar. Colloquia. 7, 2006). LatCrit Symposia3 Associated, LATC Press,RIT: L CherokeesATCRIT: L ATINAVote to &Limit LATINO Tribal C RITICALMembership LEGAL, W ASHTHEORY. , PINCOST., , Mar.http://latcrit.org/content/publications/latcrit 4, 2007, http://www.washingtonpost.com/wp-symposium/- (last visited Julydyn/content/article/2 5, 2014). 007/03/03/AR2007030301705.html 46 S.These Alan includeRay particularly Professors notes Marc the-Tizoc cultural González, connections Andrea between Freeman, Cherokee and Césarvalues Cuahtémocand norms Garcíaand Freedmen Hernández. who See have About been LatCrit raised, assupra part note of Cherokee 3 (listing theculture: professors “Many onFreedmen's the LatCrit descendants Board of Directors‘possess andas theirmuch respectiveif not more law schools).Cherokee culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn7 Campo Vann Sano has , said,LAT CFreedmen'sRIT: LATINA descendantsAND LATINO “know CRITICAL a lot L EGALmore TaboutHEORY a, stompINC, http://www.latcrit.org/content/campo dance, hog fry, and wild onion dinner-sano/ than (last anything visited Julyabout 5, Africa.’2014). This suggests8 Id. that some descendants may share assumptions with ‘blood’ Cherokees9 Id. regarding the cosmos and its familial interconnections.” Ray, A 1230Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1230 Vol.1229 47:4 aV. Endingtroubling the intersectionColonial Feedback of race Loop; and or sovereignty,How I Learned connecting to conversationsStop White on Supremacyslavery and and reparations Love the Declaration to self-determination on the and natRightsion building. of Indigenous Are P eoples.there limits...... to the power to define 1259 membershipA. Proposals and exclude? for Recognizing Who has Cherokauthority ee Freedm to determine en ...... those 1260 B. Reciprocal Recognitions: Realizing the DRIP for boundaries? What are the rights and remedies of those who are Cher ok ee Freedmen...... 1263 VI.defined Conc lusionout of ...... a nation; Blacks who had their citizenship 1269 terminated by peoples who once called their ancestors property?

Are U.S. federal courts the proper forum to address or remedy I. INTRODUCTION 1 discriminatory legislation in Indian Country? This paper attempts to unpack these questions at the Sovereignty and self-determination are cornerstones of intersections of race and sovereignty by analyzing two federal arguments for Indigenous rights in the geographic United States. court cases involving Cherokee Freedmen 5 and citizenship: Vann Both concepts assert an existence as Indigenous peoples, and v. United States DOI6 and Cherokee Nation v. Nash. 7 As a reinforce status as nations with citizens and governments, rights sovereign nation, the Cherokee have the inherent power and and responsibilities, determined by Indigenous communities. In authority to determine membership by defining citizenship. In 2006, the Judicial Appeals Tribunal of the Cherokee Nation 2011, the Supreme Court of the Cherokee Nation, formerly the recognized that Lucy Allen and fellow Cherokee Freedmen, Judicial Appeals Tribunal of the Cherokee Nation, 8 found the 2007 descendants of African slaves once owned by Cherokee, are Amendment constitutional, dismissing the Cherokee Freedmen’s citizens of the Cherokee Nation and had been citizens of the claims for lack of standing and subject matter jurisdiction. 9 The Cherokee Nation since the 1866 treaty with the United States. 2 federal case, Vann, thus became the only pending lawsuit to Less than a year later, the Cherokee Nation amended its restore the Freedmen’s citizenship. I argue that the Cherokee constitution to limit citizenship to descendants of those listed on Nation’s reliance upon the Dawes Rolls—rather than treaties—in the Dawes Roll as Cherokee, Delaware or Shawnee—effectively redefining citizenship to exclude Blacks whose ancestors were not terminating the citizenship of all 2,800 citizens who are Cherokee considered “Cherokee by blood,” by U.S. surveyors, the Cherokee Freedmen descendants. 3 This new amendment effectively Nation has entered what I call the “colonial feedback loop:” excludes Blacks who cannot identify an ancestor who was listed as reaffirming the history of colonization and White Supremacy in “Cherokee by Blood” on the Dawes Rolls, even though Cherokee implementing U.S. White Supremacist concepts of citizenship that Freedmen often maintain deep cultural connections to Cherokee are anti-Black. This paper therefore aims to expand international values and ways of being. 4 Cherokee Freedmen therefore exist at

Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendants1 Playing, on12 FrantzMich. J. Fanon’s Race & classic L. 387, B LACK461 (2007)SKIN, W(quotingHITE M CASKSLAUDIO (1952), SAUNT the, titleBLACK of, thisWHIT articleE, AND suggests INDIAN : thatRACE laws AND enacted THE U byNMAKING the Cherokee OF AN ANationMERICAN to excludeFAMILY 65Che (Oxfordrokee FreedmenUniv. Press are 2005)). rooted in White Supremacist conceptions of property,5 I use doctrines the terms of slavery,“Cherokee and Freedmen”nationality. and Fanon “Freedmen” described to the refer conditions to the descendantsof Black peoples of Africans who took enslaved on White by colonial Cherokee attitudes citizens to whocope werewith thelater hostility freed andthey adoptedface in intoanti -theBlack C herokeeenvironm Nation.ents. ThisThough article I recognize argues thatthe genderedthe 2007 Cherokeeimplications Amendmentof “Freedmen,” solidified I use thethe term Jeffersonian to respect thefantasy name ofchoice Indian by assimilationMarilyn Vann by andadopting the “Descendantsone of the key of featuresthe Freedmen of White of Supremacythe Five Civilized in U.S. Laws:Tribes” anti who-Blackness are at the andcenter Black of the exclusion. litigation discussed in this article. 62 VannAllen v. U.Cherokee S. Dep’t Nat’lof Interior, Tribal Council,701 F.3d No.927 JAT(D.C.-04 Cir.-09, 2012) 1, 9 Okla.rev’g VannTrib. v.255, Salazar, 2006 WL 883 6122535 F. Supp. (Cherokee 2d 44 (D.D.C. Nation 2011) Jud. (rehearingApp. Trib., ofMar. previous 7, 2006). appellate decision3 Associated in Vann Press, v. Kempthorne, Cherokees Vote 534 toF.3d Limit 741 Tribal (D.C. MembershipCir. 2008),) , aff’gWASH in. part rev’gPOST ,in Mar. part 4,, Vann 2007, v. http://www.washingtonpost.com/wp Kempthorne, 467 F. Supp. 2d 56 (D.D.C.- 2006)). dyn/content/article/27 Cherokee Nation007/03/03/AR2007030301705.html v. Nash, 724 F. Supp. 2d 1159 (N.D. Okla, 2010). 84 TheS. Alan Cherokee Ray particularly Nation changed notes thethe cultural name of connections its highest betweenappeals court Cherokee from Judicialvalues and Appeals norms Tribunal and Freedmen to Supreme who haveCourt been in raised2006, effectuatingas part of Cherokee changes madeculture: in “Many1999 toFreedmen's the Cherokee descendants Constitution. ‘possess Comp as aremuch Cherokee if not Nationmore CherokeeCONST. art. cul VIIture’ (1975) than (creating ‘many [W]hiteand descri-Cherokeesbing the Cherokeeenrolled inNation’s the tribe.’ highest As Marilyncourt, the Vann Judicial has Appealssaid, Freedmen's Tribunal), withdescendants Cherokee “know Nation a lotCONST more. art. about VIII a§ 1stomp (1999) dance, (changing hog fry,the nameand wild to theonion Supreme dinner Court than anythingof the Cherokee about Africa.’ Nation). This suggests9 Cherokee that Nationsome Registrardescendants v. Nash,may No.share SC -2011assu-mptions02, 10 Am. with Tribal ‘blood’ Law Cherokees307 (Cherokee regarding Nation theS.C., cosmos Aug. 22 and 2011). its familial interconnections.” Ray, A 1230Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12301168 Vol. 123147:4 conceptionsdifferent from of itsindigeneity predecessors, under particularly the Declaration since itof had the the Rights benefit of Indigenousof two years Peoplesof planning. (DRIP), offering potential solutions outside U.S. Likecourts the by usingshift inDRIP’s conference protections scheduling, in Cherokee other courts.changes have takenSect placeion withinI lays theout LatCritthe historical entity, backgroundincluding concerted and discusses efforts tolegal continue cases anda process legislation of institutionalization. surrounding the 2007In recent Amendment years, there and hascurrent been federala growing litigation, focus onthen how outlines to capitalize the currenton its critical litigation niche, in continuefederal courts, cultivating including the nextimportant generation political of andcritical judicial scholars, decisions and ensurein the Cherokeethat the batoNationn of alongoutsider the jurisprudenceway. Section isII passeddescribes along. the Internally,underlying doctrinesthe organization of Federal has Indian shifted, Law including and establishes a gradual a changingCritical Raceof the Theory guard in(CRT) leadership, framework so to forspeak, analyzing as well theseas a downsizingdecisions. Sectionin administration. III therefore For places example, the current from 2008litigation to thein present,context ofthe Federal Board Indianof Dire Lawctors andwas CRT. intentionally Finally, downsized,in section IV,with I apresent growing an numberargument of forBoard Cherokee seats Freedmenbeing occupied citizenship by junior through law professors.U.N. Declaration6 on the Rights of Indigenous Peoples, rather than federalAnother courts. major development is LatCrit’s acquisition of a physical space for the organization. The property, Campo Sano (SpanishII. CONFLICT for “Camp IN C ONTEXTHealthy,”: H orISTORICAL more literally, ORIGINS “Camp OF CHEROKEE Sanity”), is a ten-acre parcelF ofREEDMEN land located AND PinENDING Central L ITIGATIONFlorida. 7 Purchased by LatCrit in 2011, the space is home to The Living Justice Center and theThe LatCrittelling Communityof this past Campus. (history),8 Thelike physicalall stories, facility is repleteserves withas a meanings,means “to andlevel asthe with playing most fieldnarratives, and give its LatCrit very telling activists is an a expressionfighting chance of power. to be10 heard.” 9 The space is intended Although litigation is often defined by finite boundaries— from tofiling serve to ashearings the hub and of rulingstheir —educational,cases like research,that of the Cherokeeadvocacy Freedmen and activismare deeply to remedytied tothe complex imbalance histories and of oppression,deficiencies colonization of the and current racialization legal system.that unfortunately Having an have no signindependent of finality. Geraldphysical Torres base and has Kathryn become Milun critical note thatas the legal storytelliuniversitiesng inand courts law “isschools more increasinglylike a gathering are ofeven material less for an index than the telling of a classic narrative. Facts are assembled to tell a story whose conclusion is determined by others.” 11 Stories in the “confines of legal discourse” 12 can Naming and Launching a New Discourse of Critical Legal Scholarship, 2 obfuscateHARV. LATINO important L. REV. 1 (1997).histories, particularly for oppressed peoples, in aSee search also forLatCrit finite Biennial evidence. Conferences Stories of, L“‘otherness’ATCRIT: LATINA can be& toldLATINO in severalCRITICAL ways.LEGAL WhetherTHEORY, thatINC., storyhttp://latcrit.org/content/conferences/latcrit could be told in a way that is- legallybiennial -conferences/relevant, while (last visitedstill Julyencompassing 5, 2013) (providing the multiple a list of theparadoxes previous conferences, and providing direct links to view symposia13 articles for some ofyears gene (foundral inquiry,by following remains the respectivethe central year’s problem.” link to its Therefore,corresponding in webpage). Additionally, LatCrit has developed a substantial body of scholarship from several10 Gerald other Torresstand-alone & Kathryn symposia: Milun, inter Translating alia the South Yonnondio-North Exchange, by Precedent the andStudy Evidence: Space Series,The Mashpee the International Indian Case, and1990 ComparativeDuke L.J. 625, Colloquia. 627. LatCrit Symposia11 Id.at, 646.LATC RIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.12, Id.http://latcrit.org/content/publications/latcrit at 647. -symposium/ (last visited July13 5, Id 2014).. at 652. Torres and Milun’s discussion of the Mashpee’s struggle for recognition6 These isinclude particularly Profe ssorssalient Marc to the-Tizoc Cherokee González, Freedmen Andrea litigation.Freeman, Theand CésarMashpee’s Cuahtémoc suit initially García was Hernández. a claim to See recover About lands LatCrit taken, supra from note the 3 tribe(listing in theviolation professors of the on Non the-Intercourse LatCrit Board Act ofof 1790,Directors yet onceand theirthe trialrespective began lawthe schools).defendant Town of Mashpee responded by challenging and denying the Mashpee’s7 Campo status Sano as, aL ATTribeCRIT under: LATINA federal AND standards. LATINO CRITICAL LEGAL THEORY, INC,[T]he http://www.latcrit.org/content/campo defense argued (to the all-white- sano/jury) that (last "black visited intermarriage July 5, 2014). made the8 Id. Mashpees' proper racial identification black instead of Indian." Because9 Id. of the racial composition of the community, that the jury would be 1232Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1232 Vol.1231 122947:4

orderV. Ending to contextualize the Colonial theFeedback current Loop; Cherokee or How Freedmen I Learned litigation, to this sectionStop White begins Supremacy with aand brief Love historical the Declaration overview on theof the developmentRights ofof Indigenouschattel slavery P eoples. in ...... the Cherokee Nation 1259and emancipatioA. Proposalsn, then movefor Recognizing briefly through Cherok the ee Freedm 20th century en ...... 1260and B. Reciprocal Recognitions: Realizing the DRIP for conclude with the ongoing litigation in Cherokee and Federal Cher ok ee Freedmen...... 1263 VI.courts. Conc lusion ...... 1269

A. Slavery and ReconstructionI. INTRODUCTION in the Cherokee1 Nation and the United States Sovereignty and self-determination are cornerstones of 1.argumentsSlavery in for the Indigenous Cherokee Nationrights andin the the geographicbeginnings Unitedof African States. Bothenslavement concepts assert an existence as Indigenous peoples, and reinforce status as nations with citizens and governments, rights and Slaveryresponsibilities, in the determinCherokeeed byNation Indigenous predates communities. contact with In Europeans.2006, the JudicialOriginally, Appeals Cherokee Tribunal would takeof the prisoners Cherokee of warNation as indenturedrecognized thatworkers, Lucy someAllen of andwhom fellow were Cherokee adopted Freedmen,into the 14 Cherokeedescendants Nation. of African However, slaves oncethis formowned of byslavery, Cherokee, by mostare historicalcitizens of accountthe Cherokees, greatly Nation differed and fromhad beenthe chattelcitizens slaveryof the broughtCherokee through Nation Europeansince the colonization1866 treaty since with it thedid Unitednot involve States. the2 useLess of thanpeople aas yeara commodity later, thefor individualCherokee profitNation and amended did not exist its 15 asconstitution a structured to limitinstitution. citizenship European to descendants colonists ofin thoseNorth listedAmerica on the Dawes Roll as Cherokee, Delaware or Shawnee—effectively terminating the citizenship of all 2,800 citizens who are Cherokee composed exclusively of white people virtually was guaranteed by the voir 3 Freedmendire in which descendants. prospective jurors wereThis askednew whether amendment they were themselveseffectively excludesIndian, Bhadlacks any whoknown cannot Indian identifyrelatives, anor hadancestor ever been who identified was listed with as “Cherokeeorganizations by Blood”involved onin "Indianthe Dawes causes."' Rolls, White even inter - thoughmarriage Cherokeewas Freedmenmentioned often only inmaintain passing. . .deep . cultural connections to Cherokee The court interpreted Mashpee adaptation to the dominant culture, values and ways of being. 4 Cherokee Freedmen therefore exist at necessary for their survival as an independent people, as proof the Tribe had surrendered its identity. That interpretation in- corporates a dominant motif in the theory and practice of modem American pluralism. Ethnic distinctiveness1 Playing on Frantz often Fanon’smust be classicsacrificed BLACK in exchange SKIN, W HITEfor social MASKS and (1952), econom theic titlesecurity. of this article suggests that laws enacted by the Cherokee Nation to excludeId. atChe 650rokee-51 (footnotes Freedmen omitted). are rooted The in First White Circuit’s Supremacist inability conceptions to recognize of property,that the doctrinesMashpee ofcould slavery, actually and nationality.grow and Fanonchange described over time the whileconditions still ofremaining Black peoples a distinct who tookpeople on Whiteand nationcolonial highlightsattitudes to that cope thewith waythe hostilitycourts, theyparticularly face inWhite, anti- BlackUnited environm States courts,ents. recognizeThis article tribes argues as distinct that feedsthe 2007 into Cherokeea colonial paradigmAmendment that deniessolidified tribal the nations Jeffersonian any type offantasy cultural of pluralism Indian assimilationwhile forcing by assimilation. adopting one of the key features of White Supremacy in U.S. Laws:14 Historian anti-Blackness Celia L.and Naylor Black notes exclusion. that: 2[i]f Allen a clan v. choseCherokee not to Nat’ladopt Triba a warl Council,captive, however,No. JAT- 04this-09, person 1, 9 Okla.would Trib. 255,remain 2006 WL outside 6122535 the clan (Cherokee and thus Nation without Jud. any App. formal Trib., orMar. informal 7, 2006). kinship 3connection. Associated ThePress, Cherokees Cherokees patently Vote to distinguished Limit Tribal Membership between those, W warASH . POSTcaptives, Mar. 4, who 2007, had http://www.washingtonpost.com/wp been adopted within a clan and those- without any clan dyn/content/article/2affiliation. The Ch007/03/03/AR2007030301705.htmlerokees granted no rights to di ge tsi na tla ti, who had 4no S. clan Alan association. Ray particularly Whereas notes the the Cherokees cultural connections conferred tribal between membership Cherokee valuesto adopted and norms captives, and Freedmenneither membership who have norbeen related raised liberties as part wereof Cherokee culture:extended “Many to unadopted Freedmen's di gedescendants tsi na tla i. ‘possess as much if not more Cherokee culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As MarilynCELIA L. Vann NAYLOR has, Asaid,FRICAN Freedmen's CHEROKEES descendants in INDIAN “knowTERRITORY a lot: FmoreROM CaboutHATTEL a TOstomp CITIZENS dance, 8 hog(2008) fry, (footnotes and wild omitted).onion dinner than anything about Africa.’ This suggests15 See thatid. (statingsome thatdescendants captives maywithout share any assuclan mptionsassociation with increased ‘blood’ productivityCherokees regardingin certain the aspects cosmos of Cherokeeand its familial society, interconnections.” but this was not doneRay, toA 1232Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12321168 Vol. 123347:4 originaldifferently from relied its onpredecessors, European indenturedparticularly servants since it hadand theoften benefit took Indiansof two years as slaves.of planning.16 Cedric J. Robinson observes that “African laborLike in thethe Westernshift in conferencehemisphere scheduling, became necessary other changes only whenhave takennative placelabor withinwas exhausted the LatCrit and entityEuropean, including labor becameconcerted evidently efforts toinadequate.” continue 17a process The proximity of institutionalization. of Indigenous InNations recent toyears, European there hasColonies been a madegrowing the focus enslavement on how to capitalize of natives on its criticaldifficult niche, to continueinstitutionalize cultivating as enslaved the next natives generation would of oftencritical escape scholars, to theirand ensurehomelands that or the start bato warsn of withoutsider colonial jurisprudence slavers. 18 Thisis passed problem along. did Internally,not cease with the theorganization growth of Africanhas shifted, slavery includingin North Americaa gradual as changing18th century of theadvertisements guard in leadership, for runaway so to slaves speak, often as welldescribed as a downsizingpeople escaping in administration. to Indian nations, For example, occasionally from with2008 toNative the present,partners. the19 Board of Directors was intentionally downsized, with a growingThough number it would of beBoard easy seatsto romanticize being occupied Native by nations junior aslaw a professors.safe harbor6 for escaped Africans and an early collaboration based on sharedAnother oppression major developmentunder slavery, is historianLatCrit’s Tiya acquisition Miles explains of a physicalthat the relationshipspace for the is farorganization. more complex: The property, Campo Sano (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is a ten[A]s-acre Cherokees parcel of land took notelocated of thein Centralfixed and Florida. inferior7 Purchasedposition of by LatCritthe inAfricans, 2011, thea position space is increasingly home to Theconnected Living toJustice their Center and the‘blackness’ LatCrit in Community the minds andCampus. laws 8of The the physicalBritish, theyfacility may serves as a havemeans begun “to ltoevel associate the playing dark fieldskin withand givelow status.LatCrit . activists. . Thus, a fightingeven chance as Cherokees to be heard.” and Africans9 The space developed is intended alliances and dependencies in the early decades of their encounters, they alsoto betrayedserve as andthe battled hub ofone their another, educational, vying for libertyresearch, and authorityadvocacy inand the activismexpanding to morass remedy of Europeanthe imbalance colonial and rule.deficiencies20 of the current legal system. Having an independent physical base has become critical as Membersuniversities of theand Cherokee law schools Nation increasingly participated are not even only less in the institution of slavery in incorporating Africans as slaves in

creaNamingte surplus and Launching to sell in aexternal New Discourse markets) ;of Id.; Critical R. H ALLIBURTONLegal Scholarship, JR., R,ED 2 HOVERARV . LBATINOLACK: L.B LACKREV. 1S (1997).LAVERY AMONG THE CHEROKEE INDIANS 5 (1977) (suggestingSee also that LatCrit many Biennialearly historians Conferences interchanged, LATC RITthe: wordsLATINA “slavery” & LATINO and “prisoner”CRITICAL inLEGAL reference THEORY “to those, INC in., possessionhttp://latcrit.org/content/conferences/latcrit of various Indian tribes.”). - biennial16 JOHN-conferences/ W. BLASSINGAME (last visited, T HEJuly S LAVE5, 2013) COMMUNITY (providing: aP LANTATIONlist of the previousLIFE IN THEconferences, ANTEBELLUM and SprovidingOUTH 4 (1979).direct links to view symposia articles for some years17 C(foundEDRIC byJ. followingROBINSON ,the BLACK respective MARXISM year’s: THE link MAKING to its OFcorresponding THE BLACK Rwebpage).ADICAL T RADITION 124 (2d. 2000). 18Additionally, See BLASSINGAME LatCrit has, supra developed note a16, substantial at 5 (illustrating body of scholarship the difficulties from Europeanseveral other colonists stand encountered-alone symposia: when inter trying alia to theenslave South Africans).-North Exchange, the Study19 HistorianSpace Series, Tiya Milesthe International notes that enslavedand Comparative Africans andColloquia. Natives LatCrit were oftenSymposia grouped, LAT underCRIT: theLAT sameCRIT :categorization LATINA & L asATINO “Negro” CRITICAL and indicated LEGAL that:THEORY , INC.[N]ewspaper, http://latcrit.org/content/publications/latcrit advertisements for runaway slaves-symposium/ indicate not only(last thevisited Julyroutes 5, 2014). that slaves took to find their freedom but also the reality of 6intermarriage These include between Professors blacks Marc and -IndiansTizoc González, in the colonial Andrea and Freeman, early and Césarnational Cuahtémoc periods. García [Public Hernández. Historian SeeWilliam About Lore LatCritn] Katz, supra observed: note 3 (listing the “[r]ewardprofessors notices on the in colonialLatCrit newspapersBoard of Directors now told andof African their slavesrespective who law schools).‘ran off with his Indian wife’ or ‘had kin among the Indians’ or is ‘part- 7Indian Campo and Sano speak, LtheirATCRIT language: LATINA good.” AND LATINO CRITICAL LEGAL THEORY, INC, http://www.latcrit.org/content/campoTiya Miles, TIES THAT BIND: THE-sano/ STORY (last OF visited AN AJulyFRA 5,-C HEROKEE2014). FAMILY8 Id. SLAVERY AND FREEDOM 29 (2005). 209 Id. Id. at 30-31. 1234Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1234 Vol.1233 122947:4 plantationV. Ending theeconomies, Colonial but Feedback also in theLoop; capture or How and I tradeLearned of escapedto AfricanStop slaves. White21 SupremacyStill other Cherokeesand Love the“valued Declaration slaves noton thejust for their Rightsphysical of Indigenouslabor but Palso eoples. for ...... intellectual skills such 1259 as knowledgeA. Proposalsof English for Recognizingand of Euro Cherok-American ee Freedm mores. en ...... A 1260few B. Reciprocal Recognitions: Realizing the DRIP for Cherokees even married slaves or free blacks and enfolded them Cher ok ee Freedmen22 ...... 1263 VI.into Conc their lusion kinship ...... circles.” These interpersonal relationships 1269 were discouraged by British colonists. Part of the civilizing mission of colonization was the incorporation of European styled I. INTRODUCTION 1 agricultural and social practices, including the acquisition of African slaves. 23 Intermarriage with European colonists brought Sovereignty and self-determination are cornerstones of “entrenched and systematized” slaveholding in Cherokee arguments for Indigenous rights in the geographic United States. territory.24 White men who married into the Cherokee Nation, Both concepts assert an existence as Indigenous peoples, and frequently bringing slaves with them, were granted formal, legal reinforce status as nations with citizens and governments, rights adoption into Cherokee Nation through a constitutional provision, and responsibilities, determined by Indigenous communities. In which simultaneously barred the citizenship of Blacks or 2006, the Judicial Appeals Tribunal of the Cherokee Nation descendants of Black Cherokee. 25 Children of white men and recognized that Lucy Allen and fellow Cherokee Freedmen, Cherokee women would gain the benefits of matrilineal Cherokee descendants of African slaves once owned by Cherokee, are citizenship in the traditional clan system and patrilineal, citizens of the Cherokee Nation and had been citizens of the European-styled, property inheritance. 26 Cherokee Nation since the 1866 treaty with the United States. 2

Less than a year later, the Cherokee Nation amended its constitution21 Halliburton to recountslimit citizenship a delegation to of Cherokeedescendants to London of those who listedagreed onto theexchange Dawes escaped Roll Africanas Cherokee, slaves for Delaware “shall receive or Shawneea Match [Watch]—effecti Coatvely whereupon we give a Box of vermillion, 10,000 Gun Flints and six Dozen of terminating the citizenship of all 2,800 citizens who are Cherokee Hatchets.” HALLIBURTON, supra note 15, at 8. Miles notes that this history is 3 somewhatFreedmen dubiousdescendants. as the delegation This “was new not amendmentfully transparent, effectively officially sanctioned,excludes B orlacks unilateral. who cannot. . . Interaction identify between an ancestor Africans who and Cherokewas listedes was as like“Cherokee the proverbial by Blood” box of onchocolates: the Dawes you never Rolls, knew even what though you were Cherokee going to get.”Freedmen MILES , oftensupra maintainnote 19, at 31deep-32. cultural connections to Cherokee 22 MILES, supra note 19, at 33. values and ways of being. 4 Cherokee Freedmen therefore exist at 23 Id. at 36; NAYLOR, supra note 15, at 13; HALLIBURTON, supra note 15, at 20. 24 MILES, supra note 19, at 34. 251 Playing FAY A.on FrantzYARBROUGH Fanon’s, classicRACE B LACKAND SKINTHE, WCHITEHEROKEE MASKS (1952),NATION: the StitleOVEREIGNTY of this article IN THEsuggests NINETEENTH that laws enacted CENTURY by the29 (2008). Cherokee Nation to exclude26 Yarbrough Cherokee notesFreedmen that arethe rootedadoption in ofWhite White Supremacist men into conceptionsthe Cherokee of Nationproperty, helped doctrines to dramatically of slavery, shiftand nationality.traditional notions Fanon describedof gender theand conditions property: “Forof Black instance, peoples Cherokee who took legislators on White adopted colonial someattitudes American to cope understandings with the hostility of propertythey face and in inheritanceanti-Black lawsenvironm so thatents. white This men article could leaveargues property that the to their2007 Cherokee children.Amendment This shiftsolidified was a therevolutionary Jeffersonian change fantasy in thinking of Indian for a traditionallyassimilation bymatrilineal adopting societyone of inthe which key featureschildren ofinherited White Supremacyproperty and in U.S.clan identityLaws: anti through-Blackness their andmothers.” Black Id.exclusion. (footnotes omitted). Ray2 Allen further v. Cherokee suggests Nat’lthat Tribathis leadl Council, to racialized No. JAT class-04- 09,systems 1, 9 Okla.within Trib. the Cherokee255, 2006 WLnation 6122535 itself: (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). [O]wnership3 Associated Press,of Black Cherokees slaves was Vote not to evenlyLimit Tribalacross Membershipthe Cherokee, W populationASH. POSTaccording, Mar. 4, to2007, race. http://www.washingtonpost.com/wp “Mixed-bloods” owned a disproportionately- high share of dyn/content/article/2the slaves. . . . It 007/03/03/AR2007030301705.html would be misleading, however, to suggest that Cherokee plantation4 S. Alan Ray slavery particularly at this timenotes was the exclusivelycultural connections the provenance between of Cherokeewealthy values“White and- Cherokees”norms and whereFreedmen some who “full -havebloods” been (albeit raised a minority) as part of also Cherokee culture:participated “Many inFreedmen's the system. descendants. . . The success ‘possess of plantation as much slavery if amongnot more an Cherokeeelite of cultheture’ Cherokees than ‘manyin the first[W]hite three-Cherokees decades of enrolled the nine teenthin the century,tribe.’ As Marilyntherefore, Vann required has said, a constellationFreedmen's descendants of factors, among “know which a lot were: more about a stompgovernment dance, hog policies fry, and favoring wild onion “civilization” dinner than through anything yeoman about husbandry; Africa.’ This an suggestsinflux ofthat capital some from descendants the sale of certain may tribalshare lands; assu anmptions adequate with and ‘blood’ Cherokeesreliable regarding supply of productivethe cosmos forces and . its. . ;familial the subordination interconnections.” of clan- based Ray, A 1234Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12341168 Vol. 123547:4

different from its predecessors, particularly since it had the benefit 2.ofRemoval two years and of planning.Civil War Alliances Like the shift in conference scheduling, other changes have takenDespite place withinconflicts the with LatCrit colonial, entity and, including later State concerted governments, efforts theto continue Cherokee a processNation ofremained institutionalization. entrenched Inin recent the systematizedyears, there enslavementhas been a growing of Africans focus for on their how economy.to capitalize Though on its the critical majority niche, of Cherokeecontinue cultivatingdid not own the slaves, next generationthe lack of of individualized critical scholars, property and withinensure Cherokeethat the Territorybaton of outsidermade slaves jurisprudence “one of the is mostpassed valuable along. kindsInternally, of property the organizationa Cherokee personhas shifted,could own.” including27 The U.S.a gradual Agent changingassigned toof thethe Cherokee guard in Nation leadership, particularly so to feltspeak, that as the well adoption as a downsizingof slavery wasin administration.crucial to colonization For example, or “civilizing” from 2008 of toNative the present,peoples: the“I believeBoard ifof everyDirectors family was of intentionallythe wild roving downsized, tribes were with to aown growing a negro number man and of Boardwoman seats who beingwould occupiedteach them by tojunior cultivate law professors.the soil . . 6. it would tend more to civilize them than any other plan that Anothercould be adopted.”major development28 is LatCrit’s acquisition of a physicalBy thespace time for of the Indianorganization. Removal The Act property,in 1830, theCampo institution Sano of(Spanish slavery for caused “Camp fissures Healthy,” within or more the literally,Cherokee “CampNation. Sanity”), Wealthy, is slavea ten -acreowning parcel Cherokee of land removedlocated in early Central and Florida.voluntarily7 Purchased to Indian by TerritoryLatCrit in i n2011, 1835 thewith space their is slaves, home whileto The a Livinggroup ofJustice traditionalist Center and themiddle LatCrit-to-lower Community class Cherokee, Campus. some8 The ofphysical whom ownedfacility slaves,serves remainedas a means in “tothe level Cherokee the playing homelands. field and29 Threegive LatCrit years activistslater, the a remainingfighting chance Cherokee to be heard.”in the 9South The space were isforced intended to remove, taking African slaves with them along the Trail of Tears. The Cherokee Nationto thusserve became as the the hublargest of theirslaveholders educational, in Indian research, Territory, with advocacya slave codeand comparableactivism to in remedy comprehension the imbalance and severity and to many deficienciessouthern States. of the30 Overcurrent two legalhundred system. Black Havingslaves froman the Cherokeeindependent and Creek physical Nations base rebelled has inbecome 1842, criticalattempting as to escapeuniversities to the Southwest and law and schools Mexico, increasingly but many arewere even tracked less and returned to slavery by a search party organized by the Cherokee National Council. 31 By 1860, the Cherokee Nation consisted of approximately 17,000 Cherokee and 4,000 Slaves, making Black Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997). See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICALobligations LEGAL to theTHEORY rule of, AmericanINC., http://latcrit.org/content/conferences/latcrit law; . . . the transformation of gendered- bienniallabor- conferences/roles within (last Cherokee visited society; July 5, and 2013) intermarriage (providing a with list ofWhites the previous and conferences,the creation and of providingcorrespondi directng bonds links of tointimacy view symposand obligationia articles with for the some yearsdominant (found society.by following the respective year’s link to its corresponding Ray,webpage). supra note 4, at 425-28 (internal citations omitted). 27Additionally, MILES, supra LatCrit note 19,has atdeveloped 39. a substantial body of scholarship from several28 William other standG. McLoughlin,-alone symposia: Red Indians, inter alia Black the SouthSlavery-North and Exchange,White Racism: the America’sStudy Space Slaveholding Series, the Indians International, 26 AM. Q.and 367, Comparative 375 fn. 11 (Oct. Colloquia. 1974) (quotingLatCrit SymposiaGeorge M., Butler,LATCRIT Cherokee: LATCRIT Indian: LATINA Agent, & inL ATINO1859). C RITICAL LEGAL THEORY, INC.29, Seehttp://latcrit.org/content/publications/latcrit Circe Sturm, Blood Politics: Race, Culture,-symposium/ and Identity(last invisited the CherokeeJuly 5, 2014). Nation of Oklahoma 62-63 (2002) (discussing how in the face of removal6 These slav eryinclude caused Profe increasingssors Marc class-Tizoc division González, among Andreathe Cherokee). Freeman, and César30 Id.Cuahtémoc at 68; Halliburton, García Hernández. supra note See 15, About at 69. LatCrit Halliburton, supra notesnote 3that (listing the themotive professors for the Cherokeeon the LatCrit slave codesBoard were of Directors“comprehensive and their and respectivecomparable law in schools).its harshness to the laws of the southern states. The motive for these laws was the 7 sameCampo also. Sano They, L wereATCRIT designed: LATINA toAND preserve LATINO the C RITICALslave mentality, LEGAL T protectHEORY, IagainstNC, http://www.latcrit.org/content/campo insurrection, control free blacks,-sano/ prevent (last miscegenation, visited July 5, and2014). control virtually8 Id. all personal and group activities of slaves.” Id. 319 Id. Id. at 84; STURM, supra note 29, at 69; MILES supra note 19, at 172. 1236Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1236 Vol.1235 122947:4 slavesV. Ending over the20% Colonial of the total Feedback Cherokee Loop; population. or How 32I Learned to TheStop large White number Supremacy of Black and slaves Love andthe Declarationslave-owning on Cherokee the within Rightsthe Nation of Indigenous caused furtherP eoples. fractionalization ...... at the start 1259 of the U.S.A. CivilProposals War. forSlave Recognizing owning CherokeeCherok ee desiredFreedm ento ...... maintain 1260 B. Reciprocal Recognitions: Realizing the DRIP for their ownership of people and side with the Confederacy, Cher ok ee Freedmen...... 1263 VI.organizing Conc lusion as ...... the secretive Knights of the Golden Circle; Blacks 1269 enslaved by Cherokees generally supported the Union, while conservative traditionalists, the Keetowah Society, favored non- I. INTRODUCTION 1 intervention and “opposed the ‘whitening’ of Cherokee culture and the political influence of mixed-race white Cherokees.” 33 Cherokee Sovereignty and self-determination are cornerstones of leadership at first supported the Confederacy to maintain slave arguments for Indigenous rights in the geographic United States. owning interests, signing a treaty with the Confederacy in 1861 Both concepts assert an existence as Indigenous peoples, and promising to “unite their fortunes now and forever with those of reinforce status as nations with citizens and governments, rights the Confederate States, and take up arms for the common and responsibilities, determined by Indigenous communities. In cause.” 34 Many Cherokee never approved of the short-lived 2006, the Judicial Appeals Tribunal of the Cherokee Nation alliance with the Confederacy; two years later the expansion of recognized that Lucy Allen and fellow Cherokee Freedmen, war into the west and the capture of Principal Chief John Ross descendants of African slaves once owned by Cherokee, are brought pro-Union Thomas Pegg to power in the Cherokee citizens of the Cherokee Nation and had been citizens of the Nation. 35 Pegg soon mirrored Abraham Lincoln’s Emancipation Cherokee Nation since the 1866 treaty with the United States. 2 Proclamation in 1863, repudiating alliances with the Confederacy Less than a year later, the Cherokee Nation amended its and nominally freeing all Blacks enslaved within the Cherokee constitution to limit citizenship to descendants of those listed on nation, though many slave-owning Cherokee simply ignored the the Dawes Roll as Cherokee, Delaware or Shawnee—effectively proclamation. 36 Like the emancipation proclamation, the Cherokee terminating the citizenship of all 2,800 citizens who are Cherokee declaration granted only freedom—Freedmen were still not Freedmen descendants. 3 This new amendment effectively citizens under Cherokee law. excludes Blacks who cannot identify an ancestor who was listed as At the end of the Civil War, the Cherokee Nation and United “Cherokee by Blood” on the Dawes Rolls, even though Cherokee States began negotiations on a peace treaty. Historian R. Freedmen often maintain deep cultural connections to Cherokee Halliburton, Jr. explains there were four potential forms for a values and ways of being. 4 Cherokee Freedmen therefore exist at peace treaty: a segregated district for colonization by Freedmen; a r emoval plan for separate Freedmen colonies funded by the Cherokee Nation and the United States; adoption and citizenship 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the title of this article suggests that laws enacted by the Cherokee Nation to exclude Cherokee Freedmen are rooted in White Supremacist conceptions of property,32 See McLoughlin,doctrines of slavery,supra note and 28, nationality. at 380; Ray Fanon, supra described note 4, atthe 425. conditions of Black33 M ILESpeoples, supra who notetook 19,on Whiteat 186; colonial See e.g., attitudes STURM to, supracope with note the 29, hostility at 72; HtheyALLIBURTON face in , antisupra-Black note environm15, at 126;ents. and ThisNAYLOR article, supra argues note that 13, atthe 136 2007-37 (explainingCherokee generallyAmendment the valuessolidified of the the Keetowah Jeffersonian society). fantasy of Indian assimilation34 HALLIBURTON by adopting, supra one noteof the 15, key at features127. The of CherokeeWhite Supremacy Nation Councilin U.S. Laws:would issueanti-Blackness a declaration and aBlack few days exclusion. later: 2Whatever Allen v. Cherokeecauses the Nat’l Cherokee Tribal Council,people mayNo. JAThave-04 -had09, 1,in 9the Okla. past Trib. to 255,complain 2006 ofWL some 6122535 of the (Cherokee Southern Nation States, Jud. theyApp. Trib.,cannot Mar. but 7,feel 2006). that their interests3 Associated and destiny Press, are Cherokees inseparably Vote connectedto Limit Tribal with Membershipthose of the, South.WASH. The PwarOST ,now Mar. waging 4, 2007, is http://www.washingtonpost.com/wp a war of Northern cupidity and -fanaticism against the institutiondyn/content/article/2 of African007/03/03/AR2007030301705.html servitude; against the commercial freedom of the South, and4 S.against Alan Raythe particularlypolitical freedom notes the of cultural the States, connections and itsbetween objects Cherokee are to valuesannihilate and the norms sovereignty and Freedmen of those who states have and been utterly raised change as partthe natureof Cherokee of the culture:General Government.“Many Freedmen's descendants ‘possess as much if not more Cherokee Id. culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn35 Id. Vannat 131; has STURM said,, supraFreedmen's note 29, descendants at 73-74; M “knowILES, supra a lot notemore 19, about at 187 a- 88.stomp dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests36 HALLIBURTON that some, supra descendants note 14, atmay 132; share STURM assu, supramptions note 29,with at 73‘blood’-74; CherokeesMILES, supra regarding note 19, theat 188. cosmos and its familial interconnections.” Ray, A 1236Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12361168 Vol. 123747:4

ofdifferent the fromfreedmen; its predecessors, and finally, particularly opening sinceIndian it hadTerritory the benefit for colonizationof two years byof planning.Black Freedmen from across the United States. 37 The Likefinal thetre atyshift was in signedconference on Julyscheduling, 19, 1866, other ceding changes areas have of takenCherokee place territory within tothe the LatCrit United entity States, includingfor White concerted settlement efforts and tobuilding continue of a railroads,process of institutionalization.while granting a Inright recent for years, Cherokee there hasFreedmen been a togrowing “settle focus in onand how occupy to capitalize the Canadian on its critical District,” niche,38 continueabolishing cultivating slavery thein nextterms generation mirroring of criticalthe United scholars, States’ and ensureThirteenth that Amendment,the baton of andoutsider most jurisprudenceimportantly ismandating passed along. that Internally,“all freedmen the . . organization. and their descendants, has shifted, shall including have all athe gradual rights changingof native of Cherokees.”the guard 39in Theleadership, Cherokee so toNation speak, amendedas well as itsa downsizingconstitution into reflectadministration. the terms Forof theexample, treaty, fromlegally 2008 recognizing to the present,the Freedmen the Board as members of Dire ctorsof the wasCherokee intentionally Nation. downsized, with a growing number of Board seats being occupied by junior law 3.professors.“Cherokee6 by Blood” and the Dawes Rolls Another major development is LatCrit’s acquisition of a physicalYet, spacelike thefor Unitedthe organization. States’ emancipation The property, amendments Campo Sanoand (SpanishReconstruction, for “Camp40 the Heal freedomthy,” orand more rights literally, proscribed “Camp by Sanity”), the 1866 is aTreaty ten-acre and parcel Cherokee of land Constitution located in Centralwere not Florida. easily 7 upheldPurchased within by LatCritthe Cherokee in 2011, Nation.the space The is homeCherokee to The NationLiving Justiceresisted Center the andincorporation the LatCrit of CommunityFreedmen, despiteCampus. the8 The terms physical of the facility Treaty serves and Cherokeeas a means Constitution, “to level the creating playing fieldcitizenship and give courts LatCrit to activistsdetermine a citizenshipfighting chance on toa becase heard.”-by-case9 The basis. space41 isThe intended Cherokee census of 188042 “did not include a single Cherokee freedman, ‘it being the positionto ofserve those as of theCherokee hub ofblood their that educational, the Treaty research, of 1866 had grantedadvocacy freedmen and civil activism and politicalto remedy rights the but imbalance not the andright to share deficienciesin tribal assets.’” of the43 “Tribalcurrent assets”legal system.in this contextHaving represent an per capitaindependent distribution physical of profits base fromhas salesbecome of tribally critical held as land, thus evenuniversities though andFreedmen law schools may haveincreasingly had some are form even of lesspolitical

37 Halliburton further notes that: “The Cherokees were willing to make someNaming provisions and Launching for their a New freedmen Discourse but of wereCritical opposed Legal Scholarshipto adoption.”, 2 HALLIBURTONARV. LATINO, L.supra REV .note 1 (1997). 15, at 134. See38 Treaty also withLatCrit the Cherokee,Biennial U.S.Conferences-Cherokee, LNation,ATCRIT :art. LATINA IV, July & 19,L ATINO1866. CImportantlyRITICAL L EGALthis districtTHEORY was, INC also., http://latcrit.org/content/conferences/latcritthe site of the slave uprising of 1842.- biennialHALLIBURTON-conferences/, supra (lastnote visited15, at July 84; 5,S T2013)URM, (providingsupra note a list29, ofat the 74; previous MILES, supraconferences, note 1 9,and at 188.providing direct links to view symposia articles for some years39 Treaty(found with by thefollowing Cherokee, the U.S.respective-Cherokee year’s Nation, link art to IX, its July corresponding 19, 1866. webpage).40 W.E.B. Du Bois wrote poetically of the failures of reconstruction in the UnitedAdditionally, States: LatCrit has developed a substantial body of scholarship from severalOne otherreads standthe truer,-alone deeper symposia: facts interof Reconstruction alia the South with-North a great Exchange, despair. the StudyIt isSpace at once Series, so simple the and International human, yet and so futile. Comparative There is Colloquia.no villain, noLatCrit Symposiaidiot, no, L saint.ATCRIT There: LAT CareRIT just: L ATINAmen; men& LwhoATINO crave CRITICAL ease and L EGALpower, T menHEORY , INC.who, http://latcrit.org/content/publications/latcrit know want and hunger, men who have crawled.-symposium/ They all(last dream visitedand Julystrive 5, 2014). with ecstasy of fear and strain of effort, balked of hope and hate. W.E.B.6 These DU B OISinclude, BLACK Profe RECONSTRUCTIONssors Marc-Tizoc IN González,AMERICA: 1860Andrea-1880 Freeman, 728 (1935). and César41 SCuahtémocTURM, supra García note 29, Hernández. at 75. See About LatCrit, supra note 3 (listing the 42professors This census on thewas LatCrit an accounting Board of Directorsmeasure and“for theirmaking respective per capita law distributionsschools). of communal funds received from” the sale of tracts of land in the Cherokee7 Campo Outlet. Sano Id., L ATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,43 http://www.latcrit.org/content/campo Id. (quoting Bill Sampson, Justice -forsano/ the (lastCherokees: visited Julythe Outlet 5, 2014). Awards of 19618 Id. and 1972 (1972) (Master’s thesis, Department of History, University of Tulsa).9 Id. 1238Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1238 Vol.1237 122947:4 recognitionV. Ending theat theColonial time, Feedbackthey were Loop; not deemed or How eligible I Learned for the to full, economic,Stop ben Whiteefits Supremacy of citizenship. and Love the Declaration on the CherokeeRights of racialIndigenous attitudes P eoples. towards ...... Blacks were not kind; 1259 many A.believed Proposals “that forthe Recognizing blacks were Cherok intellectually ee Freedm and en ...... morally 1260 B. Reciprocal Recognitions: Realizing the DRIP for inferior,” and feared increases in the Black population in the Cher ok ee Freedmen...... 1263 VI.Cherokee Conc lusion Nation ...... as Freedmen from the U.S. South moved west 1269 to escape Southern racism. 44 The Freedmen attempted to solve their struggle for citizenship within the Cherokee Nation through I. INTRODUCTION 1 Cherokee and U.S. federal courts, organizing to ensure their rights under the 1866 treaty and winning a few victories. 45 Sovereignty and self-determination are cornerstones of By 1887, the United States passed the General Allotment Act, arguments for Indigenous rights in the geographic United States. also known as the Dawes Act, that sought to restructure Tribal Both concepts assert an existence as Indigenous peoples, and land holdings to individuals—breaking down existing Tribal reinforce status as nations with citizens and governments, rights powers on reservations and increasing White settlement. Part of and responsibilities, determined by Indigenous communities. In the allotment of land was the creation of rolls to list the members 2006, the Judicial Appeals Tribunal of the Cherokee Nation of the Cherokee Nation by standards of blood quantum, listing recognized that Lucy Allen and fellow Cherokee Freedmen, people either as “Cherokee by Blood,” “Freedmen” or “Intermarried descendants of African slaves once owned by Cherokee, are white.” 46 This categorization of peoples was primarily to account citizens of the Cherokee Nation and had been citizens of the for, and divide Tribal lands among, individual citizens of the Cherokee Nation since the 1866 treaty with the United States. 2 Cherokee nation, but how people were grouped was largely Less than a year later, the Cherokee Nation amended its determined by an application process that did not recognize constitution to limit citizenship to descendants of those listed on overlapping, intersecting identities among those in the Cherokee the Dawes Roll as Cherokee, Delaware or Shawnee—effectively Nation. 47 Miles observes that “there was no . . . category for terminating the citizenship of all 2,800 citizens who are Cherokee intermarried blacks” and the “Freedmen” roll was overbroad, Freedmen descendants. 3 This new amendment effectively excludes Blacks who cannot identify an ancestor who was listed as “Cherokee by Blood” on the Dawes Rolls, even though Cherokee Freedmen44 DANIEL often F. maintainLITTLEFIELD deep, JR ., culturalTHE C HEROKEEconnections FREEDMEN to Cherokee: FROM EMANCIPATION TO AMERICAN CITIZENSHIP 68 (1978). See also MILES, supra values and ways of being. 4 Cherokee Freedmen therefore exist at note 19, at 193 (discussing actions taken by the Cherokee to regain authority over African Americans living in Cherokee territory including denial of citizenship); STURM, supra note 29, at 75 (noting the Cherokee Nation’s resistance1 Playing to recognizingon Frantz Fanon’s freedmen classic as citizens). BLACK SKIN, WHITE MASKS (1952), the title45 of L ITTLEFIELDthis article, suggestssupra note that 44,laws at enacted133. Littlefield by the Cherokee details the Nation conflict to excludeprimarily Che to rokeeensure Freedmen their per are-capita rooted payme in Whitents as Supremacist citizens of conceptionsthe Cherokee of property,nation, primarily doctrines for of sharesslavery, of and Congressional nationality. appropriationsFanon described for the farming conditions and ofsustenance Black peoples in Oklahoma.who took on WhiteFor a colonial more attitudesdetailed toanalysis, cope with see the generally hostility theyLittlefield, face suprain anti note-Black 44. environments. This article argues that the 2007 Cherokee46 The RollsAmendment would account solidified for thethe name,Jeffersonian age, sex, fantasyblood quantum, of Indian and censusassimilation card bynumber adopting of each one personof the listed.key features Interestingly of White only Supremacy those individuals in U.S. appearingLaws: anti on-Blackness the “Cherokee and Black by exclusion.Blood” or similar rolls of American Indians contain2 Allen any v. indication Cherokee of Nat’l blood Triba quantum.l Council, The No. Cherokee JAT-04-09, by 1,Blood 9 Okla. rolls Trib. for example255, 2006 listWL “Blood” 6122535 ranging (Cherokee from Nation “1-128” Jud. to “Full,”App. Trib., while Mar. some 7, on2006). the “Final Roll3 AssociatedDelaware Press,Cherokee” Cherokees would Vote range to Limit from Tribal “Full” Membership to “White,”, W ASHwith. no explanationPOST, Mar. 4,of 2007, their http://www.washingtonpost.com/wp status or reasoning for why they- are listed. Freedmen anddyn/content/article/2 “Intermarriage”007/03/03/AR2007030301705.html rolls only list name, age, sex, and census card number. This4 S.is Alanparticularly Ray particularly troubling notesfor Freedmen the cultural who connections may have between intermarried, Cherokee or beenvalues descendedand norms fromand FreedmenCherokee whoand haveAfrican been parents, raised as yet part still of Cherokeeremained enslaved.culture: “Many See, e.g.,Freedmen's The Commission descendants and Commissioner‘possess as muchto the Fiveif not Civilized more TriCherokeebes, Index cul ture’to the than Final ‘many Rolls of[W]hite Citizens-Cherokees and Freedmen enrolled of thein theFive tribe.’ Civilized As TribesMarilyn in Vann Indian has Territory, said, Freedmen's 239, 469, descendants470, 472 (June “know 21, a1906), lot more available about ata http://research.archives.gov/description/300321.stomp dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests47 STURM that, supra some note descendants 29, at 80 -81;may L ITTLEFIELDshare assu, supramptions note with 44, at‘blood’ 239; MCherokeesILES, supra regarding note 1819, the at cosmos194-95. and its familial interconnections.” Ray, A 1238Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12381168 Vol. 123947:4 includingdifferent from“former its predecessors,slaves of Cherokees, particularly Afro since-Cherokees, it had the and benefit free blacksof two yearswho hadof planning. lived in Cherokee territory at least since the start of theLike Civil the War shift.”48 in conference scheduling, other changes have takenThough place withina significant the LatCrit number entity of blacks, including in the concerted Nation claimed efforts toand continue could demonstratea process of Cherokeeinstitutionalization. ancestry andIn recentidentity, years, the therevast hasmajority been awould growing not focusbe listedon how on to the capitalize ‘Cherokee on its by critical Blood’ niche, roll. continueBecause cultivatingthey appeared the next‘black’ generation to Dawes of criticalcommissioners scholars, and ensurebecause thatthey the were bato nusually of outsider identified jurisprudence as former is passedslaves, along.Afro- CherokeesInternally, werethe listedorganization on the “freedmen”has shifted, roll, includingwhich did anot gradual record degreechanging of Cherokeeof the guard ‘[B]lood.’ in 49leadership, so to speak, as well as a downsizingCirce Sturmin administration. also recounts theFor stories example, of Black from Cherokees 2008 to whothe present,were listed the on Board the Freedmenof Directors roll was for economiintentionallyc greed downsized, and to rebuke with amultiracial growing numberpeoples resultingof Board fromseats unions being whichoccupied broke by taboosjunior overlaw professors.interracial 6 sex. 50 Sturm tells the story of Mary Walker, “a woman of multiracialAnother majorheritage development who was supposedly is LatCrit’s one- eightacquisition black, threeof a- physicaleighths Cherokee,space for andthe organization.four eighths wThehite.” property,51 Although Campo Walker Sano (Spanishwas able forto “Campdescribe Heal herthy,” parent’s or more names, literally, and “Camp degree Sanity”), of Indian is ablood ten -acreto the parcel Dawes of commission,land located “someonein Central comes Florida. in 7and Purchased says, ‘She by LatCritain’t no Cherokee.in 2011, the She’s space a nigger. is home That to Thewoman Living is a niggerJustice and Center you andare goingthe LatCrit to put herCommunity down as Campus.a nigger.8’” 52The Dawes physical rolls facilitythus followed serves theas aone means-drop “torule l evelof hypodescent, the playing fieldanyone and with give “oneLatCrit drop” activists of Black a fightingblood” was chance Black, to 53be andheard.” would9 The not space be isconsidered intended for any sort of multiracial status, leaving people like Walker to the Freedmen roll, despiteto serve mixed as Cherokeethe hub lineof age.their54 educational, research, Cherokeeadvocacy citizensand activism with mixed to remedy White, theEuropean imbalance ancestry and and Cherokeedeficiencies ancestry of thewere currentdeemed legal citizens system. “by Havingblood,” anwhile Cherokeeindependent citizens withphysical Black, base African has becomeancestry criticalor Black as and Cherokeeuniversities ancestry and werelaw schoolsgiven increasinglydistinct statuses are even in lessfederal records—despite shared Cherokee heritage. Even though the Dawes commission reviewed applications and heard testimony from witnesses who could verify the heritage and status of Naming and Launching a New Discourse of Critical Legal Scholarship, 2 individualsHARV. LATINO toL. RbeEV . 1listed, (1997). phenotype and blood quantum became instrumentsSee also LatCritof categorization, Biennial Conferences assimilation, LAT CandRIT: allotment.LATINA & LTheseATINO finalCRITICAL rolls, LEGAL fully T HEORYcompleted, INC ., inhttp://latcrit.org/content/conferences/latcrit 1914, would become the basis of- Cherokeebiennial-conferences/ Citizenship (last visitedfor the July 20th5, 2013) Century, (providing incorporateda list of the previous into conferences, and providing direct links to view symposia articles for some Cherokeeyears (found Constitutional by following thedefinitions respective of year’s citizenship link to itsthat corresponding ostensibly includedwebpage). anyone who could trace their heritage to some section of the Additionally,Dawes rolls. LatCrit has developed a substantial body of scholarship from several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.48, MILEShttp://latcrit.org/content/publications/latcrit, supra note 19, at 195. -symposium/ (last visited July49 5, Id. 2014). 506 TheseSTURM ,include supra noteProfe 29,ssors at 189. Marc -Tizoc González, Andrea Freeman, and César51 Id.Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the 52professors Id. on the LatCrit Board of Directors and their respective law schools).53 See Id. at 188; Ray, supra note 4, at 47. 547 CampoThe Dawes Sano Final, LAT CRollsRIT: doLATINA list MaryAND LWalker,ATINO CaRITICAL 51 year L oldEGAL woman, THEORY as, CherokeeINC, http://www.latcrit.org/content/campo Freedmen, with no indication- sano/of quantum. (last visited See RollJuly No.5, 2014). 1329, The Commission8 Id. and Commissioner to the Five Civilized Tribes, supra note 46, at 480.9 Id. 1240Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1240 Vol.1239 122947:4

V. B.EndingInterlude: the Colonial The Cherokee Feedback Nation Loop; and or FreedmenHow I Learned in the 20thto Stop White Supremacy andCentury Love the Declaration on the Rights of Indigenous P eoples...... 1259 A. Proposals for Recognizing Cherok ee Freedm en ...... 1260 Near the end of the Allotment era, the United States Federal B. Reciprocal Recognitions: Realizing the DRIP for governmentCher prepared ok ee Freedmen to recognize...... the Indian Territory as the 1263new stateVI. Conc of lusionOklahom ...... a. In order to incorporate Oklahoma as a state, 1269 Congress dissolved the Indian Territory through separate acts for 55 each tribe. The governingI. INTRODUCTION structures 1of the Tribes, however, remained somewhat intact under the Five Tribes Act which continuedSovereignty “the tribal and existence self-determination and present aretribal cornerstonesgovernments of thearguments Choctaw, for Chickasaw, Indigenous Cherokee,rights in Creek,the geographic and Seminole United tribes States. or nationsBoth concepts . . . in assertfull force an andexistence effect foras allIndigenous purposes authorizedpeoples, and by 56 law,reinforce until status otherwise as nations provided with by law.”citizens Oklahomaand governments, statehood rights also codifiedand responsibilities, segregation indetermin the territoryed by Indigenousalong a Black/White communities. binary, In recognizing2006, the JudicialCherokee Appealsand other Tribunal American of Indiansthe Cherokee as White. Nation The Oklahomarecognized Constitutionthat Lucy Allenprovided and a “Definitionfellow Cherokee of Races” Freedmen, which followeddescendants the oneof dropAfrican rule: slaves defining once “colored” owned or by“negro” Cherokee, to apply are to “allcitizens pers onsof theof African Cherokee descent. Nation The and term had ‘white been race’ cit izensshall includeof the 57 allCherokee other Nationpersons.” since theHistorian 1866 treatyCeclia withNaylor the notesUnited that States. the2 codifiedLess than racialization a year later,of Oklahoma the Cherokee instituted Nation an earlyamended reign itsof Whiteconstitution Supremacy: to limit “by citizenship conceding tohonorary descendants white ofstatus those to listed Indians on ofthe the Dawes Five Tribes,Roll as the Cherokee, ‘civilization’ Delaware process orhas Shawnee concluded—effecti withvely the 58 legalterminating whitening the ofcitizenship Indians in of the all new2,800 state citizens of Oklahoma.” who are Cherokee Thus Freedmenalthough Cherokees descendants. and 3Freedmen This continuednew amendment to live in Oklahoma,effectively excludesOklahoma’s Blacks statehood who cannot limited identify the exercise an ancestor of Cherokee who was authority listed as “Cherokeeover Freedmen. by Blood” Still, on theFreedmen Dawes Rolls,continued even tothough participate Cherokee in 59 FrCherokeeeedmen ceremonies,often maintain traditions deep andcultural ways. connections Segregation to Cherokeeoperated withinvalues andOklahoma ways ofstate being. laws4 Cherokeeand institutions Freedmen until therefore legal victoriesexist at in the mid-twentieth century. 60 However in 1970, Congress passed the Principal Chiefs act which1 Playing restored on Frantz the Fanon’selectoral classic and B LACKconstitutional SKIN, WHITE authority MASKS (1952), of thethe titleCherokee of this Nation,article suggestssubject thatto thelaws approvalenacted byof thethe Cherokee Secretary Nation of the to excludeInterior. Che61 rokee The Freedmen Cherokee are Nationrooted informed White Supremacista new constitution conceptions inof property,1975 which doctrines defined of slavery, citizenship and nationality. broadly baFanonsed describedon “reference the conditions to the of Black peoples who took on White62 colonial attitudes to cope with the hostility theyDawes face Commission in anti-Black Rolls.” environm Thusents. allThis Cherokee article argues citizens, that including the 2007 thoseCherokee whose Amendment ancestors solidifiedare listed the “by Jeffersonian Blood” or “Freedmen”fantasy of underIndian assimilation by adopting one of the key features of White Supremacy in U.S. Laws: anti-Blackness and Black exclusion. 552 AllenAct ofv. JulyCherokee 1, 1902, Nat’l ch. Triba 1375,l Council,32 Stat. No.716, JAT 725,-04 §-09, 63 1,(dissolving 9 Okla. Trib. the Cherokee255, 2006 WLNation 6122535 government (Cherokee and Nationterritory). Jud. App. Trib., Mar. 7, 2006). 563 Associated Act of Apr. Press, 26, 1906, Cherokees § 28, 34 Vote Stat. to 148.Limit Tribal Membership, WASH. POST57, NMar.AYLOR 4, ,2007, supra http://www.washingtonpost.com/wp note 14, at 308 fn. 64 (quoting Murray- R. Wickett, The Feardyn/content/article/2 of ‘Negro Domination’:007/03/03/AR2007030301705.html The Rise of Segregation and Disenfranchisement in Oklahoma4 S. Alan ,Ray 78 CparticularlyHRON. OF O notesKLA. 18,the 57cultural (Spring connections 2000)). between Cherokee values58 Id. and at norms198. and Freedmen who have been raised as part of Cherokee culture:59 See “Many STURM , Freedmen'ssupra note 29,descendants at 198. ‘possess as much if not more Cherokee60 See generallyculture’ , thanSipuel ‘many v. Board [W]hite of Regents-Cherokees of the enrolled University in theof Oklahoma tribe.’ As, Marilyn322 U.S. Vann631 (1948);has said, McLaurin Freedmen's v. Oklahomadescendants State “know Regents a lot, more339 U.S.about 637 a stomp(1950). dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests61 Pub. thatL. No. some 91-495, descendants 84 Stat. 1091. may share assumptions with ‘blood’ Cherokees62 Cherokee regarding Nation the Const. cosmos Art. VIIand (1975).its familial interconnections.” Ray, A 1240Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12401168 Vol. 124147:4

thedifferent original from rolls, its predecessors,participated inparticularly the 1975 sinceelections it had ratifying the benefit that constitution.of two years 63of planning. However in 1993, the Cherokee Nation Tribal CouncilLike passed the shifta resolution in conference limiting scheduling, tribal membership other changes to “proof have of takenCherokee place blood within on thethe FinalLatCrit Rolls.” entity64, includingAlthough concertedsome Freedmen efforts towere continue denied acitizenship process of underinstitutionalization. the 1993 council In resolutionrecent years, and there filed hassuit, been the Cherokeea growing Courts focus ondid how not torule capitalize on the matteron its critical until 2001, niche,65 continuewhen the cultivating Cherokee theJudicial next generationAppeals Tribunal of critical (“JAT”) scholars, decided and ensureRiggs v.that Ummerteskee the baton .of66 outsiderIn a brief, jurisprudence 3 page opinion, is passed the along. JAT Internally,decided the thecouncil organization resolution “ishas consistent shifted, andincluding permitted a gradualby [the changingCherokee Constitution].of the guard .in . leadership,. The Cherokee so to speak,Nation asneed well not as goa downsizingbeyond it’s [sic]in administration.Constitution to determineFor example, citizenship.” from 200867 Thus to the present,Cherokee the Nation’sBoard of Direhighestctors wascourt intentionally decided downsized, that withthe adisenfranchisement growing number ofof Freedmen,Board seats despite being treatyoccupied and byconstitutional junior law professors.provisions 6which appear to read to the contrary, was within the sovereignAnother authority major of developmentthe Cherokee is Nation. LatCrit’s acquisition of a physical space for the organization. The property, Campo Sano (SpanishC. Pending for “Camp Litigation: Heal thy,”Vann orv. Unitedmore literally, States DOI “Camp and Sanity”),Cherokee is a ten-acre parcel of land locatedNation in v.Central Nash Florida. 7 Purchased by LatCrit in 2011, the space is home to The Living Justice Center 1.andCase the Origins LatCrit 2003 Community-2006: Vann Campus. v. Kempthorne8 The physical and Allen facility v. serves asCherokee a means Nation “to level the playing field and give LatCrit activists a fighting chance to be heard.”9 The space is intended In 2003, Marilyn Vann and four other Cherokee Freedmen descendantsto serve filed as suitthe inhub U.S. of federaltheir educational,court seeking research, declaratory judgmentadvocacy invalidating and activism the 2003to remedy election the of imbalance Cherokee andleaders becausedeficiencies Freedmen ofwere the unconstitutionallycurrent legal system. prohibited Having from an voting as a badgeindependent of slavery, physical in violation base ofhas the Thirtebecomeenth critical and Fifteenth as Amendmentsuniversities to the and U.S. law constitution schools increasingly (Vann I). 68are One even year less later, while a decision in Vann I was still pending, Lucy Allen, another descendent of Cherokee Freedmen, filed suit in the Judicial

NamingAppeals and Tribunal Launching of thea New Cherokee Discourse Nation of Critical (JAT). LegalAllen Scholarship argued that, 2 HtheARV 1983. LATINO code L. RamendingEV. 1 (1997). citizenship, 11 C.N.C.A. §12, violated the 1975See Cherokeealso LatCrit Constitution Biennial Conferencesby redefining, LAT membershipCRIT: LATINA to& excludeLATINO CFreedmen.RITICAL LEGAL69 Both THEORY cases, INCdrew., http://latcrit.org/content/conferences/latcrit on the 1866 Treaty between the- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous Cherokeeconferences, Nationand providing and thedirect United links toStates, view sympos abolishingia articles slavery for some in years (found by following the respective year’s link to its corresponding webpage). 63Additionally, See STURM ,LatCrit supra notehas 29,developed at 196. a substantial body of scholarship from several64 11 otherC.N.C.A. stand §12-alone (1993). symposia: inter alia the South-North Exchange, the Study65 ThisSpace is, inSeries, part, duethe toInternational a general “constitutionaland Comparative crisis” Colloquia. in the Cherokee LatCrit Symposianation when, LAT inC RIT199: 7L ATtheC RITPrincipal: LATINA Chief & LattemptedATINO CRITICAL to impeach LEGAL the T HEORYentire, IJudicialNC., http://latcrit.org/content/publications/latcritAppeals Tribunal, who was in turn investigating-symposium/ the Principal(last visited Chief Julyfor criminal5, 2014). libel and misappropriation of funds. See generally, Denette A. Mouser,6 These A Nation include in ProfeCrisis:ssors The MarcGovernment-Tizoc González, of the Cherokee Andrea Nation Freeman, Struggles and Césarto Survive Cuahtémoc, 23 AM. IGarcíaNDIAN Hernández.L. REV. 359, See359 -About66 (1998 LatCrit-1999)., supra note 3 (listing the 66professors Riggs v. Ummertskeeon the LatCrit, J.A.T. Board No. of97 -Directors03-K, 9 Okla.and theirTrib. respective653, 2001 lawWL 36169899schools). (Cherokee, Dec. 7, 2001). 677 Id.Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,68 http://www.latcrit.org/content/campo Vann v. Kempthorne, 467 F. Supp. -2dsano/ 56, aff’d (last invisited part rev’dJuly 5,in 2014).part, Vann v. Kempthorne8 Id. , 534 F.3d 741. 699 Id. Allen , No. JAT-04-09, at 1, 9 Okla. Trib. 255, 2006 WL 6122535. 1242Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1242 Vol.1241 122947:4

CherokeeV. Ending landsthe Colonial and guaranteeing Feedback Loop; Freedmen or How “all I Learned the rights to of native StopCherokees.” White Supremacy70 and Love the Declaration on the TheRights JAT ofwas Indigenous first to rule P eoples. in March ...... of 2006, holding that Allen 1259 had beenA. Proposalswrongfully for Recognizingdenied membership Cherok ee Freedmbecause enthe ...... 1983 1260 B. Reciprocal Recognitions: Realizing the DRIP for legislation was an unconstitutional restriction on membership. Cher ok ee Freedmen...... 1263 VI.Writing Conc lusionfor the ...... majority, Justice Stacy L. Leeds overturned 1269 Ummerteske and recognized that the 1866 Treaty and 1975 constitution granted Freedmen full citizenship in the Cherokee I. INTRODUCTION 1 Nation, noting that after the 1866 Treaty the Cherokee Nation amended its constitution “to extend citizenship to the Freedmen as Sovereignty and self-determination are cornerstones of a matter of tribal law.”71 This commitment was reaffirmed in the arguments for Indigenous rights in the geographic United States. 1975 constitution that has no blood requirement and could not be Both concepts assert an existence as Indigenous peoples, and undone by an act of the Tribal Council. 72 Justice Leeds held that reinforce status as nations with citizens and governments, rights only a constitutional Amendment could redefine membership: “if and responsibilities, determined by Indigenous communities. In the Cherokee people wish to limit tribal citizenship, and such 2006, the Judicial Appeals Tribunal of the Cherokee Nation limitation would terminate the pre-existing citizenship of even one recognized that Lucy Allen and fellow Cherokee Freedmen, Cherokee citizen, then it must be done in the open. It cannot be descendants of African slaves once owned by Cherokee, are accomplished through silence.” 73 Freedmen are therefore citizens citizens of the Cherokee Nation and had been citizens of the under the 1866 Treaty and remain citizens. 74 Justice Matlock, the Cherokee Nation since the 1866 treaty with the United States. 2 lone dissenter and author of the majority opinion in Ummerteske, Less than a year later, the Cherokee Nation amended its argued that “common word definitions and elementary language constitution to limit citizenship to descendants of those listed on construction” of the 1975 constitution meant that “Cherokee the Dawes Roll as Cherokee, Delaware or Shawnee—effectively members” could only mean “Cherokee Indians,” implicitly terminating the citizenship of all 2,800 citizens who are Cherokee excluding Freedmen from citizenship and upholding the Freedmen descendants. 3 This new amendment effectively constitutionality of 11 C.N.C.A. §12. 75 excludes Blacks who cannot identify an ancestor who was listed as Months later, the District Court in Vann I denied Cherokee “Cherokee by Blood” on the Dawes Rolls, even though Cherokee Nation’s motion to dismiss under principles of Sovereign Freedmen often maintain deep cultural connections to Cherokee Immunity and granted the Plaintiff Freedmen’s motion to add the values and ways of being. 4 Cherokee Freedmen therefore exist at Cherokee Nation and its officials as defendants. 76 Although the court only briefly acknowledges the JAT ruling recognizing Freedmen’s Cherokee citizenship, the court finds that the 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the Freedmentitle of this mayarticle suesuggests the Departmentthat laws enacted of Interior, by the CherokeeCherokee Nation Nation to andexclude their Che rokeerespective Freedmen officials are rooted for in violationsWhite Supremacist of the conceptionsThirteenth of Amendment.property, doctrines The of slavery,court andfound nationality. that “Congress Fanon described has unequivocally the conditions indicatedof Black peoples its intent who took to abrogateon White colonialthe tribe’s attitudes immunity to cope with the regard hostility to they face in anti-Black environments. This article argues that the 200777 racialCherokee oppression Amendment prohibited solidified bythe the Jeffersonian Thirteenth fantasy Amendment,” of Indian assimilationasserting federalby adopting supremacy one of the over key Cherokee features ofmembership. White Supremacy in U.S. Laws: anti-Blackness and Black exclusion. 2 Allen v. Cherokee Nat’l Tribal Council, No. JAT-04-09, 1, 9 Okla. Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. POST, Mar. 4, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2007/03/03/AR2007030301705.html 704 S.Treaty Alan withRay particularlythe Cherokee, notes U.S. the-Cherokee cultural connectionsNation, art. betweenIX, July 19,Cherokee 1866. values71 Allen and , normsNo. JAT and-04 -Freedmen09, at 18. who have been raised as part of Cherokee culture:72 Id. “Many Freedmen's descendants ‘possess as much if not more Cherokee73 Id. at cul 2. ture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn74 Id. Vannat 22. has said, Freedmen's descendants “know a lot more about a stomp75 Id. dance, at 28. hog fry, and wild onion dinner than anything about Africa.’ This suggests76 Vann that v. Kempthorne some descendants, 467 F. Supp. may 2d atshare 56. assumptions with ‘blood’ Cherokees77 Id. at regarding69. the cosmos and its familial interconnections.” Ray, A 1242Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12421168 Vol. 124347:4

2.differentAppeals fromand Amendmentsits predecessors, 2007 particularly-2009: 2007 since Amendment, it had the Vann benefit II ofand two H.R.years 2824 of planning. Like the shift in conference scheduling, other changes have takenAfter place two within apparent the LatCrit victories entity in, includingboth U.S. concerted and Cherokee efforts tocourts, continue the a Freedmenprocess of institutionalization.were effectively terminatedIn recent years, from therethe hasCherokee been a Nationgrowing byfocus a on2007 how constitutionalto capitalize on amendment. its critical niche, The continueCherokee cultivatingconstitution the now next restricts generation membership of critical to people scholars, who andcan ensuretrace their that ancestry the bato ton ofsomeone outsider listed jurisprudence on the “Cherokee is passed by along.blood” Internally,section of thethe Dawesorganization Commission has shifted, Rolls. 78 includingHowever, a evengradual the changingAmendment of thevote guard was in cloudedleadership, with so tosuspicion speak, asas well e- mailsas a downsizingcampaigning in for administration. the 2007 Amendment For example, “invoked from the 2008 old fearto the of present,interracial the sex” Board by ofask Direing ctorsCherokee was intentionallyvoters to “FIGHT downsized, AGAINST with aTHE growing INFILTRATION” number of Board and seatsvote beingto exclude occupied Black by juniorCherokee law professors.Freedmen 6from membership. 79 The Amendment passed by a 77% majorityAnother vote. major80 Principal development Chief ofis theLatCrit’s Cherokee acquisition Nation Chadof a Smithphysical claimed space forit thewas organization.an “unexpectedly The property,high turnout,” Campo81 Sanobut commentators(Spanish for “Camp argued Heal thethy,” turnout or more was literally, relatively “Camp low Sanity”), and not is representativea ten-acre parcel of of“The land Cherokeelocated in People.” Central82 Florida. Of 35,0007 Purchased registered by voters,LatCrit 8,743in 2011, total the votes space were is casthome with to 6,702The Living voting Justicein favor Center of the Amendment,and the LatCrit83 in Community other words Campus. less than8 The one -physicalfourth of facilitythe Cherokee serves asvoting a means population “to level even the voted, playing and field only and 19% give of theLatCrit total activistsregistered a fightingvoting population chance to votedbe heard.” to disenroll9 The space the Freedmen. is intended84 On May 14, 2007, a Cherokee District Court temporarily enjoinedto Cherokeeserve as leadersthe hub from of enforcingtheir educational, the Amendment, research, which reinstatedadvocacy full citizenshipand activism for toFreedmen remedy theand imbalancesafe guarded and their right deficienciesto vote in ofthe the upcoming current Cherokeelegal system. national Having election. an 85 A group independentof Freedmen physicalsued Cherokee base hasRegistrar become Lee critical Ummerteskee, as seekinguniversities a preliminary and lawinjunction schools of increasingly the 2007 Amendment are even lessbecause it was “flawed, . . . cannot be enforced . . . [and] denie[s] one of the most fundamental rights of a citizen—the right to vote for Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997). See78 Cherokee also LatCrit CONST . Biennialart. IV, §1.Conferences See also Y,ARBROUGH LATCRIT,: supraLATINA note & 25 ,L atATINO 130 (discussingCRITICAL LtheEGAL sentiments THEORY, amongINC., thehttp://latcrit.org/content/conferences/latcrit Cherokee after this Amendment was- passedbiennial as-conferences/ well as the implications(last visited July of the 5, Allen2013) case (providing on this a issue). list of the previous conferences,79 YARBROUGH and, providingsupra note direct 25, at links 130. to view symposia articles for some years80 Cherokee(found by Nation following Special the Election respective Results, year’s Cherokee link to Nation its corresponding News webpage).Release, (Mar. 3 2007) available at http://www.cherokee.org/News/Stories/23303.aspx;Additionally, LatCrit has developed a substantial see body also Willof scholarship Chavez, Voters from severalamend Cherokeeother stand Constitution-alone symposia:, CHEROKEE inter PaliaHOENIX the , South April -North2007, atExchange, A1, the availableStudy Space at http://www.cherokeephoenix.org/uploads/2007/4/4636_2007 Series, the International and Comparative Colloquia. LatCrit- 04Symposia-01.pdf , LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.81, Id.http://latcrit.org/content/publications/latcrit -symposium/ (last visited July82 5, Steve 2014). Russell, Tsunami Warning from the Cherokee Nation, INDIAN COUNTRY6 These TODAY include (Sept. Profe 14,ssors 2011), Marc available-Tizoc atGonzález, Andrea Freeman, and http://iCésar ndiancountrytodaymedianetwork.com/opinion/tsunamiCuahtémoc García Hernández. See About LatCrit, supra-warning note -3from (listing- the -cherokeeprofessors-nation on the-54005. LatCrit Board of Directors and their respective law schools).83 Id. 847 CampoOf the estimatedSano, LAT 268,000CRIT: L ATINAenrolled AND Cherokee LATINO members,CRITICAL LonlyEGAL 35,000 THEORY are, registeredINC, http://www.latcrit.org/content/campo to vote, or 13% of the Cherokee-sano/ Nation. (last visitedIn total, July 2.5% 5, of2014). the total population8 Id. voted to disenroll Cherokee Freedmen. Id. 859 Id. NAYLOR , supra note 14, at 213-14. 1244Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1244 Vol.1243 122947:4 governmentalV. Ending the leaders.”Colonial86 Feedback The Cherokee Loop; Registraror How Ihad Learned no objection, to and theStop FreedmenWhite Supremacy were allowed and Love to thevote. Declaration Shortly onafter the the injunctionRights w asof Indigenousissued, U.S. P eoples. Representative ...... and Congressional 1259 Black A.Caucus Proposals member for DianeRecognizing E. Watson Cherok of ee California Freedm en introduced ...... 1260 B. Reciprocal Recognitions: Realizing the DRIP for H.R. 2824, proposing to sever all relations between the Cherokee Cher ok ee Freedmen...... 1263 VI.Nation Conc of lusion Oklahoma ...... and the United States until the citizenship 1269 of Freedmen is restored. 87 The bill did not make it out of committee, 88 but effectively expressed the support of the I. INTRODUCTION 1 Congressional Black Caucus for the Cherokee Freedmen as Cherokee citizens, though through a federal mechanism and Sovereignty and self-determination are cornerstones of proposing a dangerous precedent. arguments for Indigenous rights in the geographic United States. With the Cherokee District Court injunction in effect, Both concepts assert an existence as Indigenous peoples, and Freedmen were allowed to vote in the 2007 Principal Chief election reinforce status as nations with citizens and governments, rights between Stacy L. Leeds (the Cherokee Justice who decided Allen v. and responsibilities, determined by Indigenous communities. In Cherokee Nation) and incumbent Principal Chief Chad Smith (who 2006, the Judicial Appeals Tribunal of the Cherokee Nation proposed the constitutional amendment to disenfranchise and recognized that Lucy Allen and fellow Cherokee Freedmen, disenroll the Freedmen). 89 With 59% of the 13,710 votes, Chad descendants of African slaves once owned by Cherokee, are Smith was reelected. 90 As historian Celia Naylor notes, citizens of the Cherokee Nation and had been citizens of the “[d]escendants of Cherokee freedpeople, and many other Cherokee Cherokee Nation since the 1866 treaty with the United States. 2 citizens, could only consider Smith’s reelection a blow to the Less than a year later, the Cherokee Nation amended its Cherokee freedpeople’s fight for full citizenship rights.” 91 constitution to limit citizenship to descendants of those listed on By 2008, the D.C. Court of Appeals decided the Vann v. the Dawes Roll as Cherokee, Delaware or Shawnee—effectively Kempthorne appeal (Vann II), finding that the Cherokee Nation’s terminating the citizenship of all 2,800 citizens who are Cherokee sovereign immunity had not been expressly or unequivocally Freedmen descendants. 3 This new amendment effectively abrogated by an act of Congress, though Vann may sue officials excludes Blacks who cannot identify an ancestor who was listed as under the doctrine of Ex parte Young. The Cherokee Nation “Cherokee by Blood” on the Dawes Rolls, even though Cherokee argued that the entire suit should be dismissed since the Freedmen often maintain deep cultural connections to Cherokee requested relief, invalidating Cherokee elections, “implicates values and ways of being. 4 Cherokee Freedmen therefore exist at special sovereignty interests.” 92 Judge Griffith strongly disagreed, writing that “[t]he tribe does not just lack a ‘special sovereignty interest’ in discriminatory elections-it lacks any sovereign interest 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the 93 titlein such of this behavior.” article suggests The thatcourt laws held enacted that theby theCherokee Cherokee Nation Nation was to excludeprotected Che byrokee sovereign Freedmen immunity are rooted inand White was Supremacist required conceptionsto be joined of property,under Federal doctrines Rule of slavery, of Civil and Procedurenationality. 19(a),Fanon describedand remanded the conditions for a ofdetermination Black peoples whoof tookwhether on White the colonial suit attitudescould proceedto cope with without the hostility the they face in anti-Black environments. This article argues that the 2007 Cherokee Amendment solidified the Jeffersonian fantasy of Indian assimilation by adopting one of the key features of White Supremacy in U.S. Laws:86 Id. anti at- Blackness213. and Black exclusion. 872 AllenH.R. 2824,v. Cherokee 110th Cong. Nat’l § 2Triba (2007).l Council, NAYLOR No., supra JAT- 04note-09, 14, 1, at 9 215.Okla. Trib. 255,88 2006 See Govtrack.us,WL 6122535 To (Cherokee Sever United Nation States’ Jud. App. Government Trib., Mar. Relations 7, 2006). with the Cherokee3 Associated Nation Press, . . . Cherokees https://www.govtrack.us/congress/bills/110/hr2824. Vote to Limit Tribal Membership, WASH. H.R. P2824OST , wasMar. reintroduced 4, 2007, http://www.washingtonpost.com/wp in 2009 as H.R. 2761, 111th Cong.- (2009). H.R. 2761 alsodyn/content/article/2 died in committee.007/03/03/AR2007030301705.html 894 S.N AYLORAlan Ray, supra particularly note 14 atnotes 216 the cultural connections between Cherokee values90 Cherokee and norms Nation and GeneralFreedmen Election who haveResults, been Cherokee raised as Nation part ofNews Cherokee culture:Release (June“Many 24,2007), Freedmen's available descendants at ‘possess as much if not more Cherokeehttp://www.cherokee.org/News/Stories/23391.aspx. culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn91 NAYLOR Vann, suprahas said, note Freedmen's 14 at 255. descendants “know a lot more about a stomp92 Vanndance,, 534 hog F.3d fry, atand 755 wild (quoting onion dinnerIdaho v.than Coeur anything d’Alene about Tribe Africa.’, 521 U.S.This suggests261, 281 (1997)).that some descendants may share assumptions with ‘blood’ Cherokees93 Id. at regarding756 (emphasis the incosmos original). and its familial interconnections.” Ray, A 1244Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12441168 Vol. 124547:4

Cherokeedifferent from Nation its aspredecessors, a necessary particularlyparty. 94 since it had the benefit of two years of planning. 3. CherokeeLike the N ationshift Respondsin conference 2009 -2012:Cherokeescheduling, other Nation changes v. Nash have takenand Vannplace within the LatCrit entity, including concerted efforts to continue a process of institutionalization. In recent years, there has beenWith aSmith growing continuing focus on ashow Principal to capitalize Tribal on Chief its critical and ongoing niche, litigationcontinue cultivatingin Cherokee the and next federal generation courts, of95 criticalthe Cherokee scholars, Nation and ensurefiled suit that against the batothe nFreedmen of outsider in 2009jurisprudence in the Northern is passed District along. of Internally,Oklahoma. theIn Cherokee organization Nation has v. Nashshifted,, the includingCherokee Nationa gradual sued changinga group ofof Cherokeethe guard Freedmen, in leadership, the U.S. so toDepartment speak, as ofwell Interior as a downsizingand Secretary in Kenadministration. Salazar seeking For aexample, declaratory from judgment 2008 to thatthe present,the Five the Tribes Board Act, of Dire34 ctorsStat. was137, intentionally § 3 (1906), downsized,had effectively with aabrogated growing Cherokeenumber citizenshipof Board seats for allbeing descendants occupied ofby Freedmen. junior law96 professors.Filed “shortly6 after Chief Smith filed his motion to dismiss” in VannAnother v. Salaza majorr (Vann development III), 97 the courtis LatCrit’stransferred acquisition the proceedings of a physicalto the D.C.space Circuitfor the courtorganization. hearing TheVann property,, because Campo that judgeSano (Spanishpresumably for had“Camp a firmerHealthy,” understanding or more literally, of the “Camp facts Sanity”),and issues is ainvolved ten-acre in parcel the case.of land98 locatedHowever, in Centralsimply Florida.because7 Purchasedthe Cherokee by LatCritNation waivedin 2011, its theimmunity space is from home suit to in The the LivingNash action,Justice does Center not andmean the that LatCrit it has Community been joined Campus. as a party8 The in physical the Vann facility III case serves or as“otherwise a means deprive “to level the the Cherokee playing Nationfield and of giveimmunity LatCrit asserted activists in” a fightingVann III .chance99 to be heard.”9 The space is intended In 2011, the Supreme Court of the Cherokee Nation vacated the injunctionto serve asof thethe hub2007 ofAmendment their educational, in Cherokee research, Nation Registraradvocacy v. Nash and. 100 activism In an opinionto remedy authored the imbalanceby Justice Matlock,and the dissentingdeficiencies Justice of thein Allencurrent v. Cherokee legal system. Nation , Havingthe court an found that independentthe 2007 Amendment physical basewas constitutionalhas become ascritical “[t]he aslatest sovereignuniversities expression and lawof theschools Cherokee increasingly people are conce evenrning less the Freedmen.” 101 However, Justice Matlock is quick to hedge against the pending federal actions, noting that the 2007 Amendment does not violate the Thirteenth Amendment as a “Badge or Incident of Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HSlavery”ARV. LATINO since L. R“theEV. 1 Cherokee(1997). Nation Constitution does not exclude peopleSee fromalso LatCritcitizenship Biennial in the Conferences manner ,the LAT ThirteenthCRIT: LATINA Amendment & LATINO CprotectsRITICAL against.LEGAL T HEORYIt includes, INC., forhttp://latcrit.org/content/conferences/latcrit eligibility those whose verifiable- biennialancestors-conferences/ are listed (last on visitedthe Dawes July 5, Rolls2013) (providingas Cherokees a list ofby the Blood.” previous102 conferences, and providing direct links to view symposia articles for some Withyears (foundtwo concurrences, by following the respectiveunifying messageyear’s link o f tothe its Majoritycorresponding was 103 clear:webpage). “the issue at bar was not about race.” Justice Dowty, who sidedAdditionally, with Justice LatCrit Leeds has developed in the aAllen substantial decision, body dissentedof scholarship but fromdid several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia94 Id. , LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.95, Vannhttp://latcrit.org/content/publications/latcrit v. Salazar, 883 F. Supp. 2d 44, rev’d by-symposium/ Vann v. U.S. (lastDOI , 701visited F.3d July927. 5, 2014). 966 These724 F. Supp.include 2d Profe1159,ssors 1163 Marc(N.D.- TizocOkla. González,2010). Andrea Freeman, and César97 Id.Cuahtémoc at 1163. García Hernández. See About LatCrit, supra note 3 (listing the 98professors Id. at 1173. on the LatCrit Board of Directors and their respective law schools).99 Id. at 1172. 1007 Campo Nash, No.Sano SC, -2011LATC-02,RIT :at L 10.ATINA AND LATINO CRITICAL LEGAL THEORY, INC,101 http://www.latcrit.org/content/campo Id. at 7. -sano/ (last visited July 5, 2014). 1028 Id. Id. at 9. 1039 Id. Id. at 15. 1246Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1246 Vol.1245 122947:4 notV. Ending file a written the Colonial opinion. Feedback Loop; or How I Learned to ThisStop left White Vann Supremacy as the only and active Love litigationthe Declaration on the oncitizenship the of the RightsCherokee of IndigenousFreedmen. P eoples.The case ...... was dismissed by the D.C. 1259 CircuitA. in ProposalsSeptember for of Recognizing2011 (Vann IIICherok), 104 eebut Freedm the D.C. en ...... Court 1260 of B. Reciprocal Recognitions: Realizing the DRIP for Appeals reversed and remanded in December of 2012 (Vann IV). Cher ok ee Freedmen...... 1263 VI.Following Conc lusion the ...... instructions of the Court of Appeals in Vann II, 1269the District Court found that the Cherokee Nation was a necessary party to be joined in the litigation and dismissed under Federal I. INTRODUCTION 1 Rules of Civil Procedure 19(b). 105 Because the Cherokee Nation had not waived sovereign immunity, it could not be joined in the Sovereignty and self-determination are cornerstones of suit. Without the Cherokee Nation as a party to the litigation, the arguments for Indigenous rights in the geographic United States. court found that “the Nation’s interests would be prejudiced,” 106 Both concepts assert an existence as Indigenous peoples, and such prejudice could not be lessened or avoided by the court’s reinforce status as nations with citizens and governments, rights eventual ruling and any ruling would be inadequate because only and responsibilities, determined by Indigenous communities. In the Chief would be bound by the judgment of the court. 107 The 2006, the Judicial Appeals Tribunal of the Cherokee Nation court held that Nash offered not only “an adequate alternative recognized that Lucy Allen and fellow Cherokee Freedmen, forum, but a superior one” because the Cherokee Nation had descendants of African slaves once owned by Cherokee, are waived immunity by filing suit, and could thus be bound by the citizens of the Cherokee Nation and had been citizens of the ruling of the court. 108 All claims were therefore dismissed and Cherokee Nation since the 1866 treaty with the United States. 2 leave to file an amended complaint was denied. Less than a year later, the Cherokee Nation amended its On appeal, the Court of Appeals reversed, applying the Ex constitution to limit citizenship to descendants of those listed on parte Young doctrine as an important legal “fiction” that allows the Dawes Roll as Cherokee, Delaware or Shawnee—effectively suits to contest the legitimacy of government action without terminating the citizenship of all 2,800 citizens who are Cherokee violating sovereign immunity. 109 Any decision would be binding on Freedmen descendants. 3 This new amendment effectively ensuing elected officials and the Principal Chief “can adequately excludes Blacks who cannot identify an ancestor who was listed as represent the Cherokee Nation in this suit, meaning that the “Cherokee by Blood” on the Dawes Rolls, even though Cherokee Cherokee Nation itself is not a required party.”110 The court Freedmen often maintain deep cultural connections to Cherokee concluded that the joinder of the Cherokee Nation was therefore values and ways of being. 4 Cherokee Freedmen therefore exist at not necessary and decided not to reach the question whether the Cherokee Nation implicitly waived sovereign immunity by filing suit in Oklahoma. 111 Reversal may also imply that the Nash 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the titlelitigation of this mayarticle besuggests stayed. that lawsThe enactedCherokee by theNation Cherokee voluntarily Nation to excludedismissed Che rokeethe DepartmentFreedmen are ofrooted Interior in White and Supremacist Secretary conceptionsof State asof property,defendants doctrines in Nash of slavery,, but bothand nationality. remains partiesFanon described to the suitthe conditions because ofthey Black have peoples filed who a counterclaim took on White incolonial that action.attitudes to cope with the hostility they face in anti-Black environments. This article argues that the 2007 Cherokee The VannAmendment litigat ionsolidified has yet the to reachJeffersonian the substantive fantasy ofclaims Indian of assimilationthe case inby adoptingfederal onecourt of theafter key nearly features a ofdecade White Supremacyof litigation in U.S. on Laws:procedure. anti-Blackness Once theand Blackcase exclusion.reaches the D.C. Circuit Court for argument2 Allen v.and Cherokee gathering Nat’l Tribaof levidence, Council, No.the JAT issue-04-09, becomes 1, 9 Okla. what Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. POST, Mar. 4, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2104 Vann v. Salaza007/03/03/AR2007030301705.htmlr, 2011 U.S. Dist. LEXIS 113313 (D.D.C. 2011), 883 F. Supp.4 S. 2d Alan 44. Ray particularly notes the cultural connections between Cherokee values105 Vannand normsv. Salazar and, Freedmen883 F.Supp. who 2d 44have (D.D.C. been 2011).raised as part of Cherokee culture:106 Id. “Manyat 50. Freedmen's descendants ‘possess as much if not more Cherokee107 Id. atcul 50.ture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn108 Id. Vann at 51 -has52. said, Freedmen's descendants “know a lot more about a stomp109 Vanndance, v. hog U.S. fry, DOI and, 701 wild F.3d onion at 929. dinner than anything about Africa.’ This suggests110 Id. atthat 930. some descendants may share assumptions with ‘blood’ Cherokees111 Id. regarding the cosmos and its familial interconnections.” Ray, A 1246Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12461168 Vol. 124747:4 elementsdifferent fromof theits predecessors,Cherokee Nations particularly and sinceCherokee it had Freedmen’sthe benefit historyof two years are sufficientof planning. for a court? Just as Torres and Milun asked in theLike Mashpee the shift case in thatconference began scheduling,this section: other “So changeswhat kind have of takenstory canplace be within told within the LatCrit the confines entity, ofincluding legal discourse?” concerted112 efforts The tolong continue histories a processof slavery of institutionalization.in the United States In recentand the years, Cherokee there hasNation been are a growingnot likely focus to beon heardhow toand capitalize the majority on its ofcritical the current niche, continuecase revolves cultivating around thethe nextFreedmen’s generation rights of criticalunder thescholars, Treaty and of ensure1866. Inthat order the tobato reachn of outsiderthe merits jurisprudence of the case, is thepassed Cherok along.ee Internally,Nation, Freedmen, the organization and the Department has shifted, of the including Interior havea gradual filed a changingjoint motion of thefor summaryguard in leadership,judgment toso reachto speak, the coreas wellquestion: as a downsizing“whether the in Freedmen administration. possess aFor right example, to equal from citizenship 2008 toin the present,Cherokee the Nation Board under of Dire thectors Treaty was of intentionally1866.” 113 downsized, with a growing number of Board seats being occupied by junior law professors.III. STORY6 FRAMES: DOCTRINES OF FEDERAL INDIAN LAW AND Another major developmentCRITICAL R ACEis TLatCrit’sHEORY acquisition of a physical space for the organization. The property, Campo Sano (SpanishAs thefor “Campprevious Heal sectionthy,” orillustrates more literally,, the “Campcurrent Sanity”), Cherokee is aFreedmen ten-acre parcellitigation of landin federal located courts in Central is a denselyFlorida. 7tangled Purchased web byof opinionsLatCrit infrom 2011, three the different space is jurisdictionshome to The on Living one key Justice question: Center Is itand a theproper LatCrit exercise Community of sovereignty Campus. to8 Theexclude physical a racialized facility servesgroup fromas a meansmembership “to level in thean playingIndian nation?field and Thegive D.C.LatCrit Circuit activists Court a wasfighting set chanceto hear to oralbe heard.” argument9 The spaceon the is intendedissue in April of 2014. Cherokee courts have expressed mixed opinions, but most recently held sucto hserve exclusion as theto behub valid. of114 their Because educational, this article research, focuses on pendingadvocacy federal andCases, activism I first towill remedy present the some imbalance guiding andcases in Federaldeficiencies Indian Lawof thethat current should legalimpact system. the VannHaving and an Nash proceedings,independent followed physical by a Critical base Racehas Theorybecome lens critical for analyzing as both casuniversitieses as strange and lawmixtures schools of increasinglysovereignty, areU.S. even paternalism, less and White Supremacy.

NamingA. Doctrines and Launching of Federal a New Indian Discourse Law ofarising Critical in LegalVann Scholarship and Nash, 2 HARV. LATINO L. REV. 1 (1997). SeeThree also interrelatedLatCrit Biennial areas Conferences of Federal, IndianLATCRIT :Law LATINA should & playLATINO a CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences,112 Torres and& Milun, providing supra directnote 10, links at 647.to view symposia articles for some years113 Joint(found Motion by following for Entry theof Order respective Setting year’s Briefing link Schedule to its correspondingfor Summary Judgmentwebpage). on Core Issue and Staying Case on All Other Matters, Case No. 1:13Additionally,-cv-01313 (TFH) LatCrit (available has developed at a substantial body of scholarship from http://turtletalk.files.wordpress.com/2013/09/2013several other stand-alone symposia: inter alia the-09 South-13-jo-inNorth t-motion Exchange,-for- the orderStudy- settingSpace- briefingSeries, -schedulethe International-for-summary and-judgment Comparative-on-core Colloquia.-issue-and LatCrit- Symposiastaying-case, L-onATC-allRIT-other: LAT-matters.pdf).CRIT: LATINA Oral& L argumentATINO CRITICAL was set LforEGAL April T HEORY 29, , I2014.NC., Freedmen,http://latcrit.org/content/publications/latcrit the Cherokee Nation, and the United-symposium/ States Department(last visited of Julythe Interior 5, 2014). have filed briefs (all available at http://turtletalk.wordpress.com/2014/02/03/summary6 These include Professors Marc-Tizoc González,-judgment Andrea-br Freeman, iefs-in- and Césarcherokee Cuahtémoc-freedmen García-matter/). Hernández. Both the SeeFreedmen About andLatCrit Department, supra note of Interior’s 3 (listing thebriefs professors contained ondetailed the LatCrit history Boardof the statusof Directors of Freedmen, and their leading respective up to and law schools).through the Civil War, the Treaty of 1866 and into the modern claims. Unfortunately7 Campo Sano the history, LATC RITdescribed: LATINA in theAND Cherokee LATINO CNation’sRITICAL briefLEGAL is lessTHEORY than, I3NC pages, http://www.latcrit.org/content/campo long and only discusses the treaty-sano/ itself. (last visited July 5, 2014). 1148 Id. See Nash, No. SC-2011-02, at 10 (finding the 2007 amendment changing requirements9 Id. for Cherokee citizenship constitutional). 1248Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1248 Vol.1247 122947:4 keyV. Ending role in the reaching Colonial the Feedback merits ofLoop; the Cherokeeor How I FreedmenLearned tocases: FederalStop power, White treatySupremacy construction and Love andthe DeclarationTribal sovereignty on the — specificallyRights the of Indigenouspower to determineP eoples...... membership and immunity 1259 from suit.A. Proposals Federal forIndian Recognizing Law’s foundationalCherok ee Freedm Marshall en ...... Trilogy 1260 B. Reciprocal Recognitions: Realizing the DRIP for establishes two particularly relevant doctrines: first, Indian Cher ok ee Freedmen...... 1263 VI.natio Concns lusionare “domestic ...... dependent nations,” subservient to federal 1269 law in a “state of pupilage,” 115 and second, Indian nations have always been “distinct, independent political communities, I. INTRODUCTION 1 retaining their original natural rights,” including the power to make treaties. 116 As Robert Williams Jr. notes, these foundational Sovereignty and self-determination are cornerstones of doctrines of Indian law “embrace[] and perpetuate[] a racist arguments for Indigenous rights in the geographic United States. language of Indian savagery to rationalize the recognition of these Both concepts assert an existence as Indigenous peoples, and retained rights of a limited form of tribal sovereignty.” 117 Yet from reinforce status as nations with citizens and governments, rights these racist, paternalistic, though still valid foundations of Federal and responsibilities, determined by Indigenous communities. In Indian Law, the United States Supreme Court has decided that 2006, the Judicial Appeals Tribunal of the Cherokee Nation Congress has absolute plenary power to make law concerning recognized that Lucy Allen and fellow Cherokee Freedmen, Indian Nations and to unilaterally abrogate treaties with Indian descendants of African slaves once owned by Cherokee, are Nations at the will of Congress. 118 Recognizing that treaties are citizens of the Cherokee Nation and had been citizens of the important agreements between nations, Worcester v. Georgia Cherokee Nation since the 1866 treaty with the United States. 2 established the current standard for treaty construction in federal Less than a year later, the Cherokee Nation amended its courts: treaties are construed sympathetic to Indian interests (or constitution to limit citizenship to descendants of those listed on what the Court deems Indian interests) and “[t]he language used the Dawes Roll as Cherokee, Delaware or Shawnee—effectively in treaties with the Indians should never be construed to their terminating the citizenship of all 2,800 citizens who are Cherokee prejudice.” 119 Yet, Congress may still unilaterally abrogate treaties Freedmen descendants. 3 This new amendment effectively expressly or impliedly by “clear evidence that Congress actually excludes Blacks who cannot identify an ancestor who was listed as considered the conflict between its intended action on the one “Cherokee by Blood” on the Dawes Rolls, even though Cherokee hand and Indian treaty rights on the other, and chose to resolve Freedmen often maintain deep cultural connections to Cherokee that conflict by abrogating the treaty.”120 Supreme Court doctrines values and ways of being. 4 Cherokee Freedmen therefore exist at of Indian Law have thus granted the U.S. federal government broad power to define and interpret treaties and the boundaries of Tribal Sovereignty, often at the expense of Indian nations. 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the title ofThe this Supremearticle suggests Court that has laws also enacted previously by the Cherokeedetermined Nation that to Cherokeeexclude Che rokeeCitizenship, Freedmen areat rootedleast in Whitefor purposesSupremacist ofconceptions criminal of jurisdiction,property, doctrines does of slavery,not extend and nationality. to those Fanonconsidered described “intermarried the conditions whites.”of Black peoples In United who took States on White v. Rogers colonial, the attitudes Supreme to cope Court with theruled hostility that they face in anti-Black environments. This article argues that the 2007 CherokeeRogers, a AmendmentWhite man solidifiedwho married the Jeffersoniana Cherokee fantasywoman ofand Indian was assimilationsubsequently by adoptingadopted one into of thethe keyCherokee features ofNation, White Supremacywas subject in U.S. to Laws:federal anti criminal-Blackness juris anddiction Black exclusion. for killing another White man who 2 Allen v. Cherokee Nat’l Tribal Council, No. JAT-04-09, 1, 9 Okla. Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. POST115, Mar.Cherokee 4, 2007, Nation http://www.washingtonpost.com/wp v. Georgia, 30 U.S. 1, 17 (1831). - dyn/content/article/2116 Worcester v. Georgia007/03/03/AR2007030301705.html, 31 U.S. 515, 559 (1832). 1174 S. RAlanOBERT Ray A. particularly WILLIAMS, notesJR., LtheIKE cultural A LOADED connections WEAPON between: THE R CherokeeEHNQUIST valuesCOURT , andINDIAN norms RIGHTS and FreedmenAND THE LwhoEGAL have HISTORY been raisedOF RACISM as part IN ofA MERICACherokee 69 culture:(2005). “Many Freedmen's descendants ‘possess as much if not more Cherokee118 See culgenerallyture’ than United ‘many States [W]hite v. Kagama-Cherokees, 118 U.S.enrolled 375 (1886)in the (discussing tribe.’ As MarilynCongressional Vann powerhas said, over Freedmen's Indian tribes); descendants Lone Wolf “know v. Hitchcock a lot more, 187 U.S.about 553 a stomp(1903) dance,(upholding hog thefry, plenary and wild power onion doctrine). dinner than anything about Africa.’ This suggests119 31 U.S.that at some582. descendants may share assumptions with ‘blood’ Cherokees120United regarding States v. theDion cosmos, 476 U.S. and 734, its 738familial-40 (1986). interconnections.” Ray, A 1248Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12481168 Vol. 124947:4 wasdifferent adopted from intoits predecessors,the Cherokee particularly Nation. 121 sinceAlthough it had Rogers the benefit was “entitledof two years to ofcertain planning. privileges in the tribe, and ma[d]e himself amenableLike theto theirshift inlaws conference and usages” scheduling, through other his changesadoption, have the takenCourt held:place “hewithin is notthe anLatCrit Indian; entity and, theincluding exception concerted is confined efforts to tothose continue who bya processthe usages of institutionalization. and customs of the In Indians recent areyears, regarded there hasas beenbelonging a growing to focustheir on race.”how to122 capitalizeFurthermore, on its critical“[w]hatever niche, continueobligations cultivating the prisoner the may next have generation taken upon of critical himself scholars, by becoming and ensurea Cherokee that theby adoption,baton of outsiderhis respon jurisprudencesibility to theis passedlaws ofalong. the Internally,United States the remainedorganization unchanged has shifted,and undiminished. including a Hegradual was changingstill a white of theman, guard of the in white leadership, race, and so thereforeto speak, notas withinwell as the a downsizingexception [inin theadministration. Treaty of NewFor Echotaexample, of from1835, 2008 recognizing to the present,Cherokee the jurisdiction Board of Direoverctors Cherokee was intentionallyterritory, subject downsized, to federal with alaw].” growing123 Thus, number the ofCourt Board recognized seats being that occupiedeven though by juniorcitizenship law professors.in the Cherokee6 Nations extended to varied groups of peoples, the CourtAnother held firm major that developmentrace, Whiteness, is LatCrit’s and U.S. acquisition Citizenship of are a physicaldeterminative space forfor criminal the organization. jurisdiction. The property, Campo Sano (SpanishThough for “Campthese Healearlythy,” opinions or more are literally, heavily “Camp rooted Sanity”), in “[a]n is aovertly ten-acre racist, parcel hostile, of land and located violent in language Central Florida.of Indian7 Purchasedsavagery,” 124by LatCritsome Supreme in 2011, Courtthe space decisions is home have to Therecognized Living Justicethe inherent Center andsovereignty the LatCrit of Indian Community nations, Campus. including8 The the physical power facilityto determine serves membersas a meanship “toand level immunity the playing from field suit and ingive federal LatCrit courts. activists For a example,fighting chance in Santa to beClara heard.” Pueblo9 The v. space Martinez is intended, the Court recognized that while “Congress has plenary authority to limit, modify or eliminateto servethe powersas the ofhub local of selftheir-government educational, which research, the tribes otherwiseadvocacy posse andss,” 125activism “[t]ribal to remedycourts thehave imbalance repeatedly and been recognizeddeficiencies as appropriate of the forumscurrent forlegal the system.exclusive Having adjudication an of disputesindependent affecting importantphysical basepersonal has andbecome property critical interests as of both universitiesIndians and and non law-Indians.” schools126 increasinglyMartinez involved are even a lessdispute very similar to the issues raised by Vann, as petitioner Julie Martinez sought federal declaratory and injunctive relief against the decision of the Santa Clara Pueblo to define membership as Naming and Launching a New Discourse of Critical Legal Scholarship, 2 127 HdescendingARV. LATINO from L. REV male. 1 (1997). enrolled members. Under the Indian Civil RightsSee alsoAct (ICRA),LatCrit Biennialcertain Conferencesfederal rights, LAT CareRIT : appliedLATINA to& IndianLATINO Cnations,RITICAL LincludingEGAL THEORY due, processINC., http://latcrit.org/content/conferences/latcrit and equal protection. 128 Martinez- arguedbiennial -conferences/that the Pueblo (last visited violated July 5,the 2013) equal (providing protection a list ofguarantee the previous of conferences, and providing direct links to view symposia articles for some ICRAyears (foundby redefining by following membership the respective to year’sexclude link women, to its correspondingcreating a 129 “presumptivelywebpage). invidious” classification. Additionally,Justice Marshall, LatCrit has writing developed for a substantialthe majority, body disagreed.of scholarship Using from underlyingseveral other doctrinesstand-alone of symposia: Federal inter Indian alia theLaw, South Marshall-North Exchange, found that the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July121 5, United 2014). States v. Rogers, 45 U.S. 567, 571-72 (1846). 1226 These Id. at 573.include Professors Marc-Tizoc González, Andrea Freeman, and César123 Id.Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the 124professors WILLIAMS on, supra the noteLatCrit 117, Board at 39. of Directors and their respective law schools).125 436 U.S. 49, 56-57 (1978). 1267 Campo Id. at 65. Sano , LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,127 http://www.latcrit.org/content/campo Id. at 51 -sano/ (last visited July 5, 2014). 1288 Id. 25 U.S.C. § 1302(8). 1299 Id. Martinez , 436 U.S. at 55. 1250Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1250 Vol.1249 122947:4 theV. Ending Pueblo the had Colonial not Feedback“unequivocally Loop; orexpressed” How I Learneda waiver to of sovereignStop immunity, White Supremacy130 and under and LoveEx partethe Declaration Young, officers on the of the Pueblo Rightsare still of Indigenous liable for Psuit, eoples. but ...... “a federal forum for issues 1259 arisingA. under Proposals [25 U.S.C.] for Recognizing § 1302 constitutes Cherok ee anFreedm interference en ...... with 1260 B. Reciprocal Recognitions: Realizing the DRIP for tribal autonomy and self-government.” 131 Thus, claims under the Cher ok ee Freedmen...... 1263 VI.Indian Conc Civil lusion Rights ...... Act are limited to a petition of habeas corpus 1269 in criminal matters, while Tribal Courts are the most appropriate forum for civil matters. Crucial to the Vann litigation, Justice I. INTRODUCTION 1 Marshall notes that “[a] tribe’s right to define its own membership for tribal purposes has long been recognized as central to its Sovereignty and self-determination are cornerstones of existence as an independent political community.” 132 arguments for Indigenous rights in the geographic United States. Though Vann is not an ICRA claim, the principles in Santa Both concepts assert an existence as Indigenous peoples, and Clara Pueblo may still apply due to the factual similarity of the reinforce status as nations with citizens and governments, rights cases, upholding the Cherokee Nation’s inherent sovereign power and responsibilities, determined by Indigenous communities. In to define its own membership. Martinez touches on the crucial 2006, the Judicial Appeals Tribunal of the Cherokee Nation issue of sovereign immunity and the Ex parte Young doctrine that recognized that Lucy Allen and fellow Cherokee Freedmen, permits suits against government officials. However, the most descendants of African slaves once owned by Cherokee, are recent decision in Vann IV means that sovereign immunity is no citizens of the Cherokee Nation and had been citizens of the longer an issue. Although neither the 1866 treaty nor the Cherokee Nation since the 1866 treaty with the United States. 2 Thirteenth Amendment expressly or unequivocally waive the Less than a year later, the Cherokee Nation amended its Cherokee Nation’s sovereign immunity, 133 the Cherokee Nation is constitution to limit citizenship to descendants of those listed on no longer necessary to be joined, and thus, its immunity remains the Dawes Roll as Cherokee, Delaware or Shawnee—effectively intact. As a “typical Ex parte Young scenario,” the officers of the terminating the citizenship of all 2,800 citizens who are Cherokee Cherokee Nation are sufficient parties to reach the merits and Freedmen descendants. 3 This new amendment effectively remedy in that case. 134 Even though expressly or implicitly excludes Blacks who cannot identify an ancestor who was listed as waived, in Nash the Cherokee Nation acknowledges an explicit “Cherokee by Blood” on the Dawes Rolls, even though Cherokee waiver of sovereign immunity as the plaintiff in the action. Thus, Freedmen often maintain deep cultural connections to Cherokee following Martinez and Vann IV, the merits of the case are left to values and ways of being. 4 Cherokee Freedmen therefore exist at be determined surrounding: (1) the Cherokee Nation’s inherent sovereign power to define membership, and (2) whether the appropriate venue for remedy is in federal or Cherokee courts. 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the title of this article suggests that laws enacted by the Cherokee Nation to excludeB. CheTherokee Mancari Freedmen Paradox: are rooted Critical in White Race SupremacistTheory and conceptions Federal of property, doctrines of slavery, and Indiannationality. Law Fanon described the conditions of Black peoples who took on White colonial attitudes to cope with the hostility they face in anti-Black environments. This article argues that the 2007 CherokeeEmbedded Amendment in the solidifiedCherokee the Freedmen’s Jeffersonian legal fantasy claims of isIndian the intersectionassimilation by of adopting Blackness, one of Indianness the key features and Federalof White IndianSupremacy Law. in U.S. In VannLaws: , antithe-Blackness Freedmen and Blackplai ntiffsexclusion. hope to apply the Thirteenth Amendment2 Allen v. Cherokeeto the CherokeeNat’l Triba l NationCouncil, No.through JAT-04 the-09, 1,1866 9 Okla. treaty, Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). while the Cherokee Nation defendants are almost arguing an 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. inversePOST, Mar. Lone 4, 2007, Wolf http://www.washingtonpost.com/wp, that Indian nations may unilaterally- abrogate treaties.dyn/content/article/2 The Supreme007/03/03/AR2007030301705.html Court addressed intersections of race and Indianness4 S. Alan Rayin particularlyMorton v. notes Mancari, the cultural unanimously connections findingbetween Cherokeethat an values and norms and Freedmen who have been raised as part of Cherokee culture: “Many Freedmen's descendants ‘possess as much if not more Cherokee130 Id. atcul 58ture’ (quoting than United‘many States[W]hite v.- TestanCherokees, 424 enrolledU.S. 392, in399 the (1976)). tribe.’ As Marilyn131 Id. Vann at 59. has said, Freedmen's descendants “know a lot more about a stomp132 Id.dance, at 72 hog n.32 fry, (citing and wildRoff onionv. Burney dinner, 168 than U.S. anything 218 (1897)). about Africa.’ This suggests133 Vann that v. Kempthornesome descendants, 534 F.3d atmay 748 (citingshare Martinezassumptions, 436 U.S.with at ‘blood’59). Cherokees134 Vann regarding v. U.S. DOI the, 701 cosmos F.3d atand 930. its familial interconnections.” Ray, A 1250Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12501168 Vol. 125147:4

Indiandifferent hiring from preferenceits predecessors, law was particularly not a “‘racial since preference,’” it had the benefit but a politicalof two years determination of planning. “reasonably designed to further the cause of IndianLike selfthe- government”shift in conference by ensuring scheduling, more Indians other changesare employed have takenin the placeBIA. 135within By distinguishingthe LatCrit entity “racial”, including and “political” concerted the efforts court toeffectively continue promoteda process theof institutionalization.important work ofIn ensuringrecent years, American there hasIndians been woulda growing be focusselected on howfor tocontrol capitalize of federalon its criticaldepartments niche, continuedealing withcultivating American the Indiannext generationaffairs. But of incritical the contextscholars, of andthe ensure2007 Cherokee that the Amendment, baton of outsider I would jurisprudence argue Mancari is passed also createsalong. Internally,an apparent theparadox organization—because hasFreedmen shifted, were including disenrolled a gradualfor not changingbeing “Cherokee of the guardby Blood” in leadership, on the officialso to speak,Dawes as rolls, well theiras a downsizingpolitical status in wasadministration. likely terminated For example, because offrom their 2008 race to in thean exercisepresent, ofthe Cherokee Board of self Dire-government.ctors was intentionally downsized, with a growingIn order number to unpack of Board the intersectionsseats being ofoccupied race and by sovereigntyjunior law professors.represented6 by the Freedmen litigation, I adopt a CRT framework for analyzingAnother majorthe Vann development and Nash islitigation. LatCrit’s Professor acquisition Kimberlé of a physicalCrensha wspace explains for thethat, organization. while there The is property,no “canonical Campo set Sano of (Spanishdoctrines,” for CRT “Camp is rooted Heal thy,” in two or common more literally, interests “Camp. Sanity”), is a tenThe-acre first parcel is to of understand land located how in aCentral regime Florida.of white7 supremacyPurchased by LatCritand inits 2011, subordination the space of is people home ofto color The have Living been Justice created Center and and themaintained LatCrit inCommunity America, and,Campus. in particular,8 The physical to examine facility the serves as a relationshipmeans “to level between the playing that social field structure and give and LatCrit professed activists a fightingideals chance such toas be. . heard.”. ‘equal9 protection.’The space is The intended second is a desire not merely to understand the vexed bond between law and racial powerto serve but toas change the hubit. 136 of their educational, research, Thus,advocacy CRT and“rejects activism the prevailingto remedy orthodoxy the imbalance that scholarship and shoulddeficiencies be or could of be the‘neutral’ current and legal‘objective’” system. to pursueHaving “engaged, an even adversarial,independent scholarship.”physical base137 has become critical as Racismuniversities is a sociallyand law and schools legally increasingly constructed are manifestation even less of power used to create ideologies to “reproduce the structures and practices of racial domination. 138 Michael Omi and Howard Winanat argue that race “has no fixed meaning, but is constructed Naming and Launching a New Discourse of Critical Legal Scholarship, 2 andHARV . LtransformedATINO L. REV . 1sociohistorically (1997). through competing political projects,See also through LatCrit theBiennial necessary Conferences and, ineluctableLATCRIT: LATINA link &between LATINO structuralCRITICAL L EGALand culturalTHEORY, dimensionsINC., http://latcrit.org/content/conferences/latcrit of race in the United States.” 139- Racismbiennial-,conferences/ on the (lastother visited hand July, 5,connects 2013) (providing notions a list of of therace previous with conferences, and providing direct links to view symposia articles for some yearshierarchal (found bystructures following theof respective“domination year’s basedlink to onits correspondingessentialist 140 webpage).categories of race.” Professor Charles Lawrence explains that racismAdditionally, is not LatCritan abnormal has developed or even a substantial rare occurrence body of scholarshipin the United from States;several otherracism stand “is-alone a part symposia: of our inter common alia the historical South-North experience Exchange, and, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 1356 These Morton include v. Mancari Profe, 417ssors U.S. Marc 535,-Tizoc 553- 54González, (1974). Andrea Freeman, and César136 CuahtémocKimberlé Crenshaw, García Hernández. Introduction See inAbout CRITICAL LatCrit RACE, supra THEORY note: T3HE (listing KEY theWRITINGS professors THAT onFORMED the LatCrit THE M OVEMENTBoard of xiii Directors (1995) (emphasisand their inrespective original). law schools).137 Id. 1387 Campo Id. at xxv. Sano , LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,139 http://www.latcrit.org/content/campo MICHAEL OMI & HOWARD WINANT-sano/, RACIAL (last F ORMATIONvisited July IN 5, THE 2014). UNITED STATES8 Id. FROM THE 1960S TO THE 1990S, 71 (1994). 1409 Id. Id. 1252Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1252 Vol.1251 122947:4 therefore,V. Ending athe part Colonial of our culture.”Feedback141 Loop; Racism or Howis therefore I Learned hegemonic, to constructingStop White a d eviantSupremacy “other” and to Love “legitimate the Declaration the oppression on the of blacks”Rights while ofdefining Indigenous and Pprivileging eoples...... “membership in the white 1259 community,A. Proposals creating for a Recognizingbasis for identificationCherok ee Freedm with en ...... dominant 1260 B. Reciprocal Recognitions: Realizing the DRIP for interests.” 142 Even when courts are used to contest racial Cher ok ee Freedmen...... 1263 VI.discrimination, Conc lusion ...... Derrick Bell’s principle of “interest convergence” 1269 observes that decisions benefitting people of color, and Blacks in particular, only occur when such a decision maintains the privilege I. INTRODUCTION 1 and self-interests of Whites. 143 Because CRT deals primarily with issues of race, Professor Sovereignty and self-determination are cornerstones of Bryan Brayboy suggests an American Indian variation on CRT in arguments for Indigenous rights in the geographic United States. Tribal Critical Race Theory (TribalCrit). 144 Drawing from the CRT Both concepts assert an existence as Indigenous peoples, and assertion that racism is endemic to U.S. society, TribalCrit reinforce status as nations with citizens and governments, rights recognizes that “colonization is endemic to society,” and argues and responsibilities, determined by Indigenous communities. In U.S. policies toward Indigenous peoples are rooted in imperialism, 2006, the Judicial Appeals Tribunal of the Cherokee Nation white supremacy, and capitalism. 145 As Professor Bethany Berger recognized that Lucy Allen and fellow Cherokee Freedmen, notes, the racialization of American Indians was part of a descendants of African slaves once owned by Cherokee, are civilizing ideology geared towards “denigrating the tribe, citizens of the Cherokee Nation and had been citizens of the assimilating the individual” while maintaining “the moral Cherokee Nation since the 1866 treaty with the United States. 2 superiority of Anglo-American identity and democracy.”146 Less than a year later, the Cherokee Nation amended its Race and racism are defined and experienced differently by constitution to limit citizenship to descendants of those listed on different racialized groups. Vine Deloria Jr. notes that the United the Dawes Roll as Cherokee, Delaware or Shawnee—effectively States’ treatments of Blacks and Indians, through laws and terminating the citizenship of all 2,800 citizens who are Cherokee policies, had distinct strategies: Freedmen descendants. 3 This new amendment effectively The white man adopted two basic approaches in handling excludes Blacks who cannot identify an ancestor who was listed as blacks and Indians. He systematically excluded blacks from “Cherokee by Blood” on the Dawes Rolls, even though Cherokee all programs, policies, social events and economic schemes. . . Freedmen often maintain deep cultural connections to Cherokee . With the Indian the process was simply reversed. . . . values and ways of being. 4 Cherokee Freedmen therefore exist at Indians were therefore subjected to the most intense pressure to become white. Laws passed by Congress had but one goal—The Anglo-Saxonization of the Indian. 147 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the title ofCedric this articleJ. Robinson suggests adds that thatlaws “racialenacted capitalism,”by the Cherokee or the Nation use toof slaveryexclude Cheinrokee founding Freedmen the are rootedmaterial, in White commercial Supremacist andconceptions capital of developmentproperty, doctrines of theof slavery, United and States, nationality. relies Fanon on the described construct the conditions of “the of Black peoples who took on White colonial attitudes to cope with the hostility they face in anti-Black environments. This article argues that the 2007 Cherokee Amendment solidified the Jeffersonian fantasy of Indian assimilation by adopting one of the key features of White Supremacy in U.S. Laws:141 Charlesanti-Blackness Lawrence and III, Black The exclusion. Id, the Ego and Equal Protection: Reckoning with2 UnconsciousAllen v. Cherokee Racism Nat’l39 S TANTriba. lL. Council, REV. 317, No. 330 JAT (1987).-04-09, 1, 9 Okla. Trib. 255,142 2006 Kimberlé WL 6122535 Crenshaw, (Cherokee Race, NationReform Jud. and App. Retrenchment: Trib., Mar. Transformation7, 2006). and3 LegitimationAssociated Press, in Antidiscrimination Cherokees Vote to LimitLaw, 101 Tribal HARV Membership. L. REV,. 1331,WASH .1369 - 70.POST , Mar. 4, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2143 Derrick Bell,007/03/03/AR2007030301705.html “Brown v. Board of Education and the Interest- Convergence4 S. Alan RayDilemma,” particularly 93 H ARVnotes. L. the REV cultural. 518 (1980). connections between Cherokee values144 Bryanand norms Brayboy, and FreedmenToward a whoTribal have Critical been raisedRace Theory as part in of Education Cherokee, 37.5culture: THE “ManyURB. R EVFreedmen's. 425, 429 (2006).descendants ‘possess as much if not more Cherokee145 Id. culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn146 Bethany Vann hasR. Berger,said, Freedmen's Red: Racism descendants and the American“know a lotIndian more, 56 about UCLA a L.Rev.stomp dance,591, 654 hog (2009). fry, and wild onion dinner than anything about Africa.’ This suggests147 V INEthat DELORIAsome , descendantsJR., CUSTER may DIED share FOR assuYOURmptions SINS : withAN INDI‘blood’AN CherokeesMANIFESTO ,regarding 172 (1969). the cosmos and its familial interconnections.” Ray, A 1252Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12521168 Vol. 125347:4

Negro”different tofrom render its predecessors,Blacks as aparticularly slaveable, domesticsince it had enemy. the benefit148 As constructedof two years byof planning.White Europeans colonizing through slavery, “the NegroLike had the no shiftcivilization, in conference no cultures, scheduling, no religions, other nochanges history, have no takenplace, placeand withinfinally the noLatCrit humanity entity, includingthat might concerted command efforts toconsideration.” continue a process149 American of institutionalization. Indians on the In recentother years,hand therewere hasassimilationist been a growing projects, focus forcedon how toto capitalizeadopt White on its conce criticalptions niche, of continueproperty, cultivatingidentity, and the nation next 150generation while Whites of critical were scholars,free to “play and ensureIndian” thatand theappropriate baton of Indian outsider identities. jurisprudence151 Cheryl is passedHarris along.notes Internally,the centrality the of organization“establishing hasa formshifted, of propertyincluding contingent a gradual on changingrace,” under of thea propertied guard in Whitenessleadership, that so towas speak, able toas take,well own,as a downsizingsell or possess in Blackadministration. life and Indian For land.example,152 from 2008 to the present, Combining the Board ofCRT Dire ctorsand wasTribalCrit intentionally therefore downsized, recognizes with aintersection growing numberof race, ofcolonization, Board seats property being occupiedand White by Supremacyjunior law professors.as constitutive6 ideologies in the current Cherokee Freedmen litigation.Another Similarlymajor development Kimberlé is LatCrit’sCrenshaw’s acquisition notion of ofa physical“intersectionality” space for153 theprovides organization. a central The framework property, inCampo discussing Sano the(Spanish history for “Campand present Healthy,” day oridentities more literally, of Cherokee “Camp Sanity”),Freedmen. is Crenshawa ten-acre parcelargues ofthat land oppressionlocated in Centraldoes not Florida. occur 7along Purchased a single by axisLatCrit that in excludes2011, the others, space butis home people to cThean inhabit Living multipleJustice Centergroup identitiesand the LatCrit simultaneously. Community154 Thus,Campus. Blackness8 The physical and Indianness facility serves need notas a bemeans mutually “to level exclusive the playing or totalizingfield and giveidentities LatCrit for activists peoples. a Recognizingfighting chance intersectional to be heard.” 9identities The space may is intended require a complete rejection of political sovereignty and acceptance of Wallace Coffey and Rebeccato serve Tsosie’s as the notion hub ofof “culturaltheir educational, sovereignty: research, that is, the effort advocacyof Indian andnations activism and Indianto remedy people the to imbalanceexercise their and own normsdeficiencies and values of inthe structuringcurrent legal their system. collective Having futures.” an 155 Culturalindependent Sovereignty physical repositions base argumentshas become of selfcritical-determination as withinuniversities the context and of Indigenouslaw schools culturalincreasingly traditions, are even history less and stories to reaffirm Indigenous communities to redefine “the nature of our sovereignty as Indian nations.” 156 Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997). See148 R OBINSONalso LatCrit, supra Biennialnote 17, atConferences 81. , LATCRIT: LATINA & LATINO CRITICAL149 Id. LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial150 Cheryl-conferences/ I. Harris, (last Whiteness visited July as 5,Property 2013) ,(providing 106 Harv. a L.list Rev. of the 1707, previous 1717 (1993).conferences, and providing direct links to view symposia articles for some years151 (foundAndrea by Smith, following Heteropatriarchy the respective and year’s the linkThree to itsPillars corresponding of White Supremacy:webpage). Rethinking Women of Color Organizing, in INCITE! WOMEN OF COLORAdditionally, AGAINST VLatCritIOLENCE has 67 developed (2006), seea substantial also Berger, body supra of scholarshipnote 146, at from 594 (discussingseveral other the stand interplay-alone symposia:between whiteinter aliasupremacy, the South capitalism,-North Exchange, colonialism, the andStudy orientalism Space Series, in its the effects International on Native, and Black, Comparative and peoples Colloquia. constructed LatCrit as “exotic”Symposia );, PhillipLATC RITDeloria,: LAT CPlayingRIT: L ATINAIndian & 12 -L39ATINO (1998) C RITICAL(analyzing LEGAL the historyTHEORY of, appropriationINC., http://latcrit.org/content/publications/latcrit of Native cultures by whites in the United-symposium/ States). (last visited July152 5, Harris, 2014). supra note 150, at 1716. 1536 These Kimberlé include Crenshaw, Professors Demarginalizing Marc-Tizoc González, the Intersection Andrea of Freeman,Race and Sexand: CésarA Black Cuahtémoc Feminist GarcíaCritique Hernández. of Antidiscrimination See About LatCrit Doctrine,, supra Feminist note 3 Theory, (listing theand professorsAntiracist Politicson the, 1989LatCrit U. CBoardHI. LEGAL of DirectorsF. 139, 140 and (1989). their respective law schools).154 Id. 1557 Campo Wallace Sano Coffey, L AT&C RITRebecca: LATINA Tsosie, AND RethinkingLATINO C RITICALthe Tribal LEGAL Sovereignty THEORY, IDoctrine:NC, http://www.latcrit.org/content/campo Cultural Sovereignty and the C-sano/ollective (last Future visited of JulyIndian 5, Nations2014). , 12 STAN8 .Id. L. & POL’Y Rev. 191, 196. 1569 Id. Id. at 210. 1254Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1254 Vol.1253 122947:4

V. Ending Using the CRT,Colonial TribalCrit Feedback Loop;and Culturalor How I SovereigntyLearned to as theoreticalStop guides,White Supremacythe remaining and portionsLove the of Declaration this paper onengage the the shared Rightshistories of Indigenous of Africans P eoples.and Cherokees ...... to contextualize 1259the ongoingA. VannProposals and forNash Recognizing litigation, Cherok before ee Freedmapplying en CRT ...... 1260and B. Reciprocal Recognitions: Realizing the DRIP for Cultural Sovereignty to these lawsuits to problematize the Cher ok ee Freedmen...... 1263 VI.approach Conc lusiones of the ...... courts and searching for solutions. 1269

IV. THE COLONIAL FEEDBACK LOOP: VANN AND NASH THROUGH A I. INTRODUCTION 1 CRT LENS Sovereignty and self-determination are cornerstones of Returning to the litigation that began this paper, the present arguments for Indigenous rights in the geographic United States. status of the Cherokee Freedmen represents what I call a Both concepts assert an existence as Indigenous peoples, and “Colonial Feedback Loop,” where the Cherokee Nation is reinforce status as nations with citizens and governments, rights regurgitating assimilationist philosophies of White Supremacy as and responsibilities, determined by Indigenous communities. In Tribal Sovereignty, opting to exclude Black Cherokee Citizens 2006, the Judicial Appeals Tribunal of the Cherokee Nation under the same ideology of nationhood the United States recognized that Lucy Allen and fellow Cherokee Freedmen, historically used to exclude, segregate, and marginalize Black U.S. descendants of African slaves once owned by Cherokee, are Citizens. Importantly, I am not making generalized, essentialist citizens of the Cherokee Nation and had been citizens of the assertions of inherent anti-black racism on the part of the Cherokee Nation since the 1866 treaty with the United States. 2 Cherokee Nation, but presenting my take on what the current Less than a year later, the Cherokee Nation amended its status of the Cherokee Freedmen represent from my own constitution to limit citizenship to descendants of those listed on theoretical perspective informed by the history of the suit and the Dawes Roll as Cherokee, Delaware or Shawnee—effectively Cherokee Freedmen. What the Colonial Feedback Loop does terminating the citizenship of all 2,800 citizens who are Cherokee suggest is that the Cherokee Nation’s decision to disenroll Freedmen descendants. 3 This new amendment effectively Freedmen represents an ongoing coloniality in of Cherokee policy excludes Blacks who cannot identify an ancestor who was listed as by relying on the Dawes Rolls to enact self-determination. “Cherokee by Blood” on the Dawes Rolls, even though Cherokee

Freedmen often maintain deep cultural connections to Cherokee valuesA. and“Judicial ways of Notice being. of4 Racial Cherokee Diversity:” Freedmen Cherokee therefore Nati existon at Registrar v. Nash

1 PlayingIn a briefon Frantz opinion, Fanon’s Chief classic Justice BLACK SKINMatlock, WHITE of M ASKSthe (1952),Cherokee the titleSupreme of this Court article dismissessuggests that all lawsclaims enacted and byinjunctions the Cherokee filed Nation by the to excludeFreedmen Che rokeein Cherokee Freedmen courts, are rooted —validating in White Supremacist the 2007 conceptionsAmendment of property,and subsequent doctrines disenrollmentof slavery, and nationality. of the Cherokee Fanon described Freedmen the. conditions Justice of Black peoples who took on White colonial attitudes to cope with the hostility theyMatlock’s face in opinionanti-Black boils environm downents. to Thisfour article principle argues holdings:that the 2007(1) Cherokee FreedmenAmendment were solidified never thecitizens Jeffersonian under the fantasy 1866 Treaty,of Indian (2) assimilationthe 2007 Amendment by adopting one is aof validthe key exercise features of ofsovereign White Supremacy power, (3)in U.S.the Laws:Dawes anti Rolls-Blackness are a andvalid Black means exclusion. of determining citizenship, and (4) 2 “the AllenCourt v. takesCherokee judicial Nat’l noticeTribal Council,of the extensiveNo. JAT-04 racial-09, 1, 9diversity Okla. Trib. of 255, 2006 WL 6122535 (Cherokee Nation Jud.157 App. Trib., Mar. 7, 2006). the3 citizenryAssociated ofPress, the CherokeesCherokee Vote Nation.” to Limit Tribal Membership, WASH. POST,First, Mar. 4, Justice 2007, http://www.washingtonpost.com/wp Matlock asserts that the 2007- Constitution, as amended,dyn/content/article/2 is the007/03/03/AR2007030301705.html “latest sovereign expression of the Cherokee people.4 S. ”Alan158 TheRay particularlyreferendum notes was the part cultural of connectionsa valid Cherokee between Cherokeeelection, andvalues it andcannot norms be and revisited Freedmen because who have the been court raised lacks as part“jurisdiction of Cherokee or culture: “Many Freedmen's descendants ‘possess as much if not more powerCherokee to culorderture’ what than the‘many constituents [W]hite-Cherokees of a sovereign enrolled can in theset tribe.’forth Asin Marilyn Vann has said, Freedmen's descendants “know a lot more about a stomp dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests157 Nash that, No. someSC-2011 descendants-02, at 8-9. may share assumptions with ‘blood’ Cherokees158 Id., at regarding 7. the cosmos and its familial interconnections.” Ray, A 1254Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12541168 Vol. 125547:4 theirdifferent organic from documents.”its predecessors,159 Thoughparticularly the courtsince isit nothad requiredthe benefit to acknowledgeof two years ofskepticism planning. over voter irregularities (described in sectionLike I.b. the of shiftthis inpaper), conference Justice scheduling, Matlock is otherstill stretchingchanges have the takenterm “Cherokeeplace within People” the LatCrit since entityso few, includingCherokee concerted voted in efforts that toelection. continue Additionally, a process ofthe institutionalization. court makes no Ineffort recent to years,address there the hasracist been propaganda a growing thatfocus onlead how up to tocapitalize the passage on its criticalof the niche,2007 continueAmendment. cultivating When ethe-mails next specifically generation referenceof critical daughters scholars, and ensureavoiding that interracial the bato nrelationships, of outsider jurisprudencecertain controlling is passed images along. of Internally,Blacks are theinvoked, organization drawing hason hegemonicshifted, includingconceptualizations a gradual of changingblack deviant of the otherness guard in andleadership, criminality so to raisingspeak, suspicionsas well as ofa downsizingracist, White in Supremacist administration. motivations For example, behind thefrom Amendment. 2008 to 160the present,Second, the JusticeBoard ofMatlock Directors almost was overrulesintentionally Allen downsized, sub silentio with 161 aby growingholding number that “Cherokeeof Board seatsFreedmen being occupiedwere neverby junior afforded law professors.citizenship6 in the Cherokee Nation by the Treaty of 1866,” emphasizingAnother itmajor was thedevelopment 1866 Cherokee is LatCrit’s Amendment acquisition that granted of a physicalFreedmen space citizenship. for the162 organization. While the 1866The property,Cherokee CampoAmendment Sano (Spanishaffirmed thefor “Campcitizenship Heal thy,”of the or Cherokee, more literally, the Court “Camp in AllenSanity”), noted is athe ten -importanceacre parcel ofof land honoring located intreaties Central asFlorida. promises7 Purchased between by LatCritsovereigns, in 2011,but stressedthe space that is homethe 1866to The Treaty Living is Justicethe basis Center for andFreedmen, the LatCrit Delaware Community and Shawnee Campus. 8citizenship The physical in thefacility Cherokee serves asNation. a means163 “toThe l evel1866 the Amendmentplaying field extendedand give LatCritcitizenship activists “as a matterfighting ofchance tribal to law.”be heard.”164 Justice9 The spaceMatlock’s is intended “fair reading of the Treaty” excludes only one group: Freedmen. 165 Third,to serve despite as thelanguage hub ofregarding their educational, the exclusive research, sovereign power advocacyof the Cherokee and activism Nation, to Justice remedy Matlock the imbalance affirms the and Dawes Commissiondeficiencies Rolls ofas the definingcurrent documentslegal system. of citizenship. Having an While the Allenindependent litigatio n physicalnoted that base many has Cherokee become createdcritical rolls as and censusesuniversities of membership and law exist,schools Justice increasingly Matlock are holdseven lessout the Dawes Rolls as unequivocally valid and does not question their authority or role in Cherokee processes. The presence of colonial tools have gained hegemonic, ideological acceptance that is neither Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HquestionedARV. LATINO norL. R doubted.EV. 1 (1997). SeeFinally, also LatCritthe Court Biennial attempts Conferences to preempt, LATC RITfuture: LATINA accusations & LATINO of CracismRITICAL orL EGALdiscrimination THEORY, INC under., http://latcrit.org/content/conferences/latcrit the Thirteenth Amendment by- claimingbiennial-conferences/ the 2007 Amendment(last visited July is 5,not: 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years A(found [b]adge by followingor [i]ncident the respective of [s ]laveryyear’s linkwhich to its violatescorresponding the Thirteenthwebpage). Amendment to the United States Constitution in light of theAdditionally, facts that LatCrit there has are developed Cherokee a substantial Freedmen body who of scholarshiphave and fromcan proveseveral theyother arestand also-alone descendants symposia: inter of aliaCherokees the South listed-North on Exchange, the Dawes the RollsStudy asSpace Cherokees Series, theby BloodInternational and who and areComparative either citizens Colloquia. or eligibleLatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 1596 These Id. include Professors Marc-Tizoc González, Andrea Freeman, and César160 SeeCuahtémoc YARBROUGH García, supra Hernández. note 25. See About LatCrit, supra note 3 (listing the 161professors Latin phrase on the meaning LatCrit “inBoard silence,” of Directors used toand refer their to respectivecourts which law schools).overturn existing precedent without addressing the issue. 1627 Campo Nash, CaseSano No., L ATSCC-RIT2011: -L02,ATINA at 8 -AND9. LATINO CRITICAL LEGAL THEORY, INC,163 http://www.latcrit.org/content/campo Allen, No. JAT-04-09, 18. -sano/ (last visited July 5, 2014). 1648 Id. Id . 1659 Id. Nash , No. SC—2011-02 at 8. 1256Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1256 Vol.1255 122947:4 forV. Endingcitizenship the ifColonial they so Feedbackdesire. 166 Loop; or How I Learned to Thus,Stop inWhite Justice Supremacy Matlock’s and view, Love the the 2007 Declaration Amendment on the is not an exclusionaryRights of Indigenous law but P“includes eoples...... for eligibility those whose 1259 verifiableA. ancestorsProposals are for listedRecognizing on the CherokDawes eeRolls Freedm as Cherokees en ...... 1260 by B. Reciprocal Recognitions: Realizing the DRIP for blood.” 167 Yet as Justice Leeds pointed out in Allen, the effect of Cher ok ee Freedmen...... 1263 VI.such Conc a law lusion ignores ...... that Shawnee and Delaware are also included 1269 in the Cherokee model of citizenship, despite not having any

Cherokee blood, excluding only those who lack Cherokee Blood I. INTRODUCTION 1 and have African Blood: Cherokee Freedmen. 168 Justice Matlock makes one final attempt to hedge against concerns of racism in the Sovereignty and self-determination are cornerstones of 2007 Amendment by taking “judicial notice of the extensive racial arguments for Indigenous rights in the geographic United States. diversity of the citizenry of the Cherokee Nation.” 169 The Both concepts assert an existence as Indigenous peoples, and statement comes off as a little absurd, considering that the court reinforce status as nations with citizens and governments, rights has interestingly shifted language from Cherokee by Blood to the and responsibilities, determined by Indigenous communities. In citizenry of the Cherokee Nation, which could acknowledge the 2006, the Judicial Appeals Tribunal of the Cherokee Nation presence of non-Cherokee Shawnee and Delaware who are still recognized that Lucy Allen and fellow Cherokee Freedmen, fully recognized by the Cherokee Nation. To my eyes, the court’s descendants of African slaves once owned by Cherokee, are sudden “judicial notice” feels like someone claiming they have “a citizens of the Cherokee Nation and had been citizens of the black friend” in order to deflect allegations of racism or White Cherokee Nation since the 1866 treaty with the United States. 2 Supremacy. The fact that Justice Matlock finds the need to note Less than a year later, the Cherokee Nation amended its the “racial diversity” of the Cherokee Nation recognizes the constitution to limit citizenship to descendants of those listed on implications of disenrolling only (Black) Cherokee Freedmen. the Dawes Roll as Cherokee, Delaware or Shawnee—effectively But now the Colonial Feedback Loop is complete. The highest terminating the citizenship of all 2,800 citizens who are Cherokee court in the Cherokee Nation has accepted two features of White Freedmen descendants. 3 This new amendment effectively Supremacy and colonization as “sovereign” exercises: the Dawes excludes Blacks who cannot identify an ancestor who was listed as Rolls and the exclusion of Blacks (who are also Cherokee). By “Cherokee by Blood” on the Dawes Rolls, even though Cherokee historical and cultural ties. 170 Nowhere in the Cherokee Supreme Freedmen often maintain deep cultural connections to Cherokee Court’s opinion is an assertion of cultural sovereignty that reflects values and ways of being. 4 Cherokee Freedmen therefore exist at on the traditions, histories or stories of the Cherokee People. The court does use the Cherokee Constitution and one instance Cherokee case law, but the bulk of the argument is grounded in a 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the 2007title of Amendment this article suggeststinged withthat lawsracist, enacted White by supremacist the Cherokee overtones, Nation to andexclude United Cherokee States Freedmen federal are rootedlaws inand White policies. Supremacist The conceptions court has of acceptedproperty, doctrinesthe ideologicalof slavery, andexclusivity nationality. Fanonof U.S. described law, the includingconditions of Black peoples who took on White colonial attitudes to cope with the hostility they face in anti-Black environments. This article argues that the 2007 Cherokee Amendment solidified the Jeffersonian fantasy of Indian assimilation166 Id. at by9. adopting one of the key features of White Supremacy in U.S. Laws:167 Idanti. -Blackness and Black exclusion. 1682 Allen Allen v., No.Cherokee JAT 04 Nat’l-09, 8Triba-9. lDescendants Council, No. of JAT Intermarried-04-09, 1, 9 WhitesOkla. Trib. are logically,255, 2006 andWL ironically,6122535 (Cherokeeincluded within Nation this Jud. constitutional App. Trib., Mar. scheme 7, 2006). since their descendants,3 Associated i.e. Press, the Cherokeesproducts Voteof totheir Limit intermarriage, Tribal Membership would, WincludeASH. a CherokeePOST, Mar. Ancestor4, 2007, http://www.washingtonpost.com/wpin some way. I am not aware - of any enrollment, or contesteddyn/content/article/2 enrollment,007/03/03/AR2007030301705.html of the descendant of an intermarried white, without Cherokee4 S. Alan ties, Ray seeking particularly citizenship. notes theIn culturalsome ways connections Justice betweenMatlock’s Cherokee decision alsovalues mirrors and norms the racial and Freedmendefinitions whounder have the beenoriginal raised Oklahoma as part Constitution,of Cherokee whichculture: defined “Many Black Freedmen's as the “other” descendants to be excluded, ‘possess while as everyonemuch if elsenot withinmore theCherokee political cul communityture’ than (there‘many Whites [W]hite and-Cherokees Natives, hereenrolled Cherokee, in the Shawneetribe.’ As andMarilyn Delaware) Vann hasare leftsaid, to Freedmen's be included. descendants See NAYLOR “know, supra a notelot more 15, at about 308 fn. a stomp64. dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests169 Nash that, No. someSC-2011 descendants-02, at 9. may share assumptions with ‘blood’ Cherokees170 See Ray, regarding supra notethe cosmos4, at 461. and its familial interconnections.” Ray, A 1256Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12561168 Vol. 125747:4 concomitantdifferent from commitmentsits predecessors, to particularly White Supremacy since it had and the benefitBlack exclusion.of two years171 ofColonization planning. is thus not only endemic to U.S. society,Like172 thebut shiftmanifests in conference in this scheduling,determinati onother by changesthe Cherokee have takenSupreme place Court. within the LatCrit entity, including concerted efforts to continue a process of institutionalization. In recent years, there has beenB. a Thegrowing Right focus to Exclude: on how Martinez,to capitalize Vann on andits critical CRT niche, continue cultivating the next generation of critical scholars, and ensureReturning that the to bato then Federalof outsider Cases, jurisprudence a threshold ispoint passed of interest along. Internally,is that the the court organization consistently has applies shifted, Federal including Indian a Lawgradual to changingCherokee Freedmen,of the guard continuing in leadership, at least so a bareto speak, recogni astion well of theiras a downsizingadoption by inthe administration.1866 Treaty and For setting example, the stagefrom for2008 Indigenous to the present,solutions thedescribed Board inof theDire nextctors section.was intentionally But under U.S.downsized, doctrines with of aFederal growing Indian number Law, of theBoard Vann seats litigation being occupied(and subsequently by junior lawthe professors.Nash litigation6 in Oklahoma) raises important questions of U.S. paternalismAnother andmajor supremacy development over Indianis LatCrit’s legal codes acquisition within Indianof a physicalNations. space for the organization. The property, Campo Sano (SpanishAt first for “Campglance, HealVannthy,” appears or more factually literally, similar “Camp to Santa Sanity”), Clara is aPueblo ten-acre v. parcelMartinez of land, 173 locatedas both in MartinezCentral Florida.and Vann7 Purchased represent by peoLatCritples inwho 2011, were the legallyspace is definedhome toout The of Living existence Justice by Centertheir respectiveand the LatCrit communities. Community Vann Campus. was defined8 The physicalout by herfacility Freedmen serves descent,as a means while “to Martinez’slevel the playingchildren field were and defined give LatCrit out by activists virtue ofa havingfighting achance Pueblo to bemother heard.” and9 The no space Pueblo is intended father, leaving them without Pueblo affiliation. Yet the two cases are otherwise very distinct.to Martinezserve as involvedthe hub a ofquestion their educational,of equal protection research, under the Indianadvocacy Civil and Rights activism Act, andto remedyforeclosed the all imbalance non-habeas and claims stemmingdeficiencies from that of actthe incurrent federal legalcourts. system. Perhaps Having knowing an that ICRA independentclaims would physical be sent baseback hasto Tribalbecome Courts, critical the as Vann litigationuniversities invokes andthe law Thirteenth schools increasingly Amendment, are attemptingeven less to merge U.S. post-slavery jurisprudence with Federal Indian law. Similarly, the ruling in Vann IV gives the litigation special significanceNaming and Launchingby strengthen a Newing Discourse the Martinez of Critical application Legal Scholarship of Ex parte, 2 YoungHARV. L ATINOto Tribal L. R EVOfficials,. 1 (1997). allowing the substantive issue to be fully litigatedSee also in federalLatCrit courts.Biennial174 Conferences , LATCRIT: LATINA & LATINO CRITICALWhile L EGALthe CherokeeTHEORY, INationNC., http://latcrit.org/content/conferences/latcrit v. Nash claims and counterclaims- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences,are still pending and providing in Oklahoma, direct links the to factview that sympos theia Vannarticles IV for Court some decidedyears (found there by was following no need the torespective reach theyear’s question link to ofits the corresponding waiver of sovereignwebpage). immunity, 175 suggests that, based on the similarity of claims,Additionally, parties LatCrit and substantivehas developed underlyinga substantial issues,body of scholarshipthe cases fromare likelyseveral toother be standmerged.-alone Insymposia: one sense, inter aliathis the is South beneficial-North Exchange,by ensuring the Study Space Series, the International and Comparative Colloquia. LatCrit that all parties are part of a litigation that will have finality on Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, thisINC., issue.http://latcrit.org/content/publications/latcrit The problem is the forum is federal-symposium/ courts, which,(last undervisited July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and César171 CuahtémocCrenshaw, supraGarcía note Hernández. 142, at 1370. See AboutSee also LatCrit ROBINSON, supra, notesupra 3 note(listing 17 the(discussing professors generally on the the LatCrit interplay Board of ofwhite Directors supremacy, and their antiblackness respective andlaw schools).capitalism). 1727 Campo Brayboy, Sano supra, L noteATCRIT 14.: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,173 http://www.latcrit.org/content/campo 436 U.S. 49. -sano/ (last visited July 5, 2014). 1748 Id. Vann , 701 F.3d at 929. 1759 Id. Id. at 930. 1258Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1258 Vol.1257 122947:4

MartinezV. Ending, arethe inappropriateColonial Feedback forums Loop; for decisionsor How Iof Learnedmembership to or the constitutionalityStop White Supremacy (Cherokee and or Love U.S.) the ofDeclaration the 2007 on Cherokee the Amendment.Rights ofYet Indigenous under the P eoples. plain ...... language of the Thirteenth 1259 Amendment,A. Proposals a United for RecognizingStates Court Cherok may ee followFreedm the en ...... domestic 1260 B. Reciprocal Recognitions: Realizing the DRIP for dependent nation model of Federal Indian law and find that not Cher ok ee Freedmen...... 1263 VI.only Conc is lusionthe Cherokee ...... Nation “within the United States” but 1269 is “subject to its jurisdiction.”176 Thus, the Cherokee Nation would be submitted to a Thirteenth Amendment jurisprudence that I. INTRODUCTION 1 questions whether an action is a “badge or incident” of slavery. 177 If the court finds for the Freedmen, it could use injunctive Sovereignty and self-determination are cornerstones of and declaratory relief to nullify the 2007 Amendment. This would arguments for Indigenous rights in the geographic United States. return the Cherokee definition of membership to treaty terms by Both concepts assert an existence as Indigenous peoples, and recognizing the Freedmen, but under an incredibly paternalistic reinforce status as nations with citizens and governments, rights enforcement that undermines any sense of sovereignty or self- and responsibilities, determined by Indigenous communities. In determination within the Cherokee Nation. In essence, it would 2006, the Judicial Appeals Tribunal of the Cherokee Nation set the precedent that the United States Courts can assert U.S. recognized that Lucy Allen and fellow Cherokee Freedmen, Constitutional authority over substantive constitutional provisions descendants of African slaves once owned by Cherokee, are of Indian nations, absent any express agreement. Perhaps citizens of the Cherokee Nation and had been citizens of the recognizing the destructive force of this precedent, Martinez is Cherokee Nation since the 1866 treaty with the United States. 2 crafted to respect the inherent sovereignty of Indian Nations and Less than a year later, the Cherokee Nation amended its leave determinations of membership to Tribal Courts. 178 The Vann constitution to limit citizenship to descendants of those listed on litigation could easily be dismissed under this principle, sending the Dawes Roll as Cherokee, Delaware or Shawnee—effectively the remedy back to Cherokee courts for adjudication, although the terminating the citizenship of all 2,800 citizens who are Cherokee Cherokee Supreme Court may have already adjudicated the issue Freedmen descendants. 3 This new amendment effectively through Cherokee Nation Registrar v. Nash. This outcome excludes Blacks who cannot identify an ancestor who was listed as reaffirms the Colonial Feedback Loop in Cherokee courts, but “Cherokee by Blood” on the Dawes Rolls, even though Cherokee allows the U.S. Courts to avoid a lengthy interrogation of the Freedmen often maintain deep cultural connections to Cherokee lasting effects of slavery and questions of reparations that could values and ways of being. 4 Cherokee Freedmen therefore exist at extend beyond Cherokee Freedmen. From an interest convergence, 179 perspective this seems the most likely outcome. Thus, the Colonial Feedback Loop extends interest convergence to 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the titlenotions of thisof articleTribal suggests Sovereignty, that laws inenacted that byTribal the Cherokee Sovereignty Nation tois preservedexclude Che onlyrokee ifFreedmen it reflects are colonial,rooted in WhiteWhite Supremacistsupremacist conceptions structures of ofproperty, power: doctrines in Nashof slavery, by and concluding nationality. Fanonthat describedWhite thesupremacist conditions ofdocumentation Black peoples wholike took onthe White Dawes colonial Rattitudesolls become to cope withfeatures the hostility of they face in anti-Black environments. This article argues that the 2007 Cherokeesovereignty, Amendment while in Vannsolidified it potentiallythe Jeffersonian means thatfantasy the sovereignof Indian assimilationright to byexclude adopting necessarily one of the keyencompasses features of White the Supremacydiscriminatory in U.S. Laws:exclusion anti -Blacknessof Freedmen. and Black While exclusion. a number of Indian Law scholars have2 Allenapplied v. Cherokeeinterest Nat’lconvergence Tribal Council, to Indian No. JATLaw,-04180-09, I1, only 9 Okla. slightly Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. POST176, Mar.U.S. C4,ONST 2007,. amend. http://www.washingtonpost.com/wp XIII, § 1. - dyn/content/article/2177 See generally007/03/03/AR2007030301705.html Jones v. Alfred H. Mayer Co. , 392 U.S. 409 (1968) (discussing4 S. Alan how Ray the particularly Thirteenth notes Amendment the cultural also connections granted Congress between theCherokee power tovalues enact and legislation norms andto eradicate Freedmen existing who havebadges been or incidentsraised as ofpart slavery). of Cherokee culture:178 436 “Many U.S. at Freedmen's72 n.32 (citing descendants Roff v. Burney ‘possess, 168 U.S.as 218much (1897)). if not more Cherokee179 Bell, culsuprature’ note than 143. ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilyn180 See Vann Matthew has said, M. Fletcher,Freedmen's On descendantsBlack Freedmen “know in aJ USTICElot more UNVEILED about a: stompAFRICAN dance, AMERICAN hog fry, C ULTUREand wild AND onion LEGAL dinner DISCOURSE than anything 3-4 (2007), about availableAfrica.’ This at http://ssrn.com/abstract=1015282suggests that some descendants (taking may a Criticalshare assuRacemptions Theory withapproach ‘blood’ to FederalCherokees Indian regarding Policy inthe the cosmos Freedmen and itscases) familial; Sara interconnections.” Krakoff, Undoing Ray,Indian A 1258Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12581168 Vol. 125947:4

alterdifferent the fromsubjects its predecessors,in Professor Bell’sparticularly thesis tosince adapt it hadto Indian the benefit Law: federalof two yearscourts of planning.affirm tribal sovereignty only when it maintains colonial,Like Whitethe shift Supremacist in conference structures scheduling, of power other and changes privilege, have for takenexample place Congressional within the LatCritplenary entitypower, includingor Domestic concerted Dependent efforts tostatus. continue a process of institutionalization. In recent years, there has been a growing focus on how to capitalize on its critical niche, V.continueENDING cultivating THE COLONIAL the next FEEDBACK generation LOOP of OR critical: HOW Ischolars, LEARNED and TO ensureSTOP that WHITE the SbatoUPREMACYn of outsider AND L OVEjurisprudence THE DECLARATION is passed ON along. THE Internally, the organizationRIGHTS OF INDIGENOUShas shifted, P EOPLESincluding a gradual changing of the guard in leadership, so to speak, as well as a downsizingRecalling in CRT’sadministration. commitment For to change,example, I wantfrom to2008 conclude to the by present,exploring the potential Board ofavenues Directors of changewas intentionally that would downsized, recognize withthe aCherokee growing Freedmennumber of Boardas Cherokee seats being citizens occupied and by thejunior White law professors.Supremacist6 effects of the 2007 Amendment, without relying on a federalAnother court decisionmajor developmentto override theis sovereigntyLatCrit’s acquisitionof the Cherokee of a Nationphysical and,space which for thewould organization. set a dang Theerous property, precedent Campo in Federal Sano Indian(Spanish Law. for “Camp“Solutions” Heal thy,”to theor moredisenfranchisement literally, “Camp of Sanity”), Cherokee is Freedmena ten-acre parcelrarely ofrepresent land located a commitment in Central toFlorida. change7 Purchased and mutual by benefitLatCrit toin both2011, Indian the space Nations is home and Freedmen,to The Living involving Justice punitive Center measuresand the LatCrit like H.R.Community 2824 which Campus. deny8 The federal physical funds, facility extending serves federalas a means constitutional “to level thelaw playing to Indian field Nationsand give beyondLatCrit theactivists Indian a Civilfighting Rights chance Act, to “andbe heard.” other9 carrotThe space-and -stick is intended style proposals.” 181 Therefore, in this section I look at two persuasive proposals for remedyingto serve the disenfranchisementas the hub of their of theeducational, Cherokee Freedmen,research, one rootedadvocacy in Federal and recognition activism toand remedy the other the inimbalance Cherokee andways of knowing,deficiencies and in turn,of the I offercurrent one oflegal my ownsystem. rooted Having in the anUni ted Nationsindependent Declaration physicalon the Rights base of hasIndigenous become Peoples. critical as universities and law schools increasingly are even less A. Proposals for Recognizing Cherokee Freedmen

NamingOne and suggestion Launching for a Newaffirming Discourse the intersectionalityof Critical Legal Scholarship of Cherokee, 2 FreedmenHARV. LATINO (as L. RIndianEV. 1 (1997). citizens and as Black people) has been to recognizeSee also the LatCrit Freedmen Biennial as Conferencesan Indian, tribe.LATCRIT Professor: LATINA &Matthew LATINO FletcherCRITICAL arguesLEGAL TthatHEORY because, INC., thehttp://latcrit.org/content/conferences/latcrit U.S. federal government “forced- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous theconferences, Cherokee and providingNation directto sign links anto view1866 sympos treatyia —articlesa treaty for some of punishmentyears (found bybecause following the the Nation respective signed year’s on link to tothe its correspondingConfederacy duringwebpage). the Civil War—that placed the Freedmen on the Cherokee rolls,”Additionally, the Freedmen LatCrit has “problem” developed a requiressubstantial abody federal of scholarship solution. from182 “Professorseveral other Fletcher stand-alone argues symposia: this intersolution alia theis “aSouth simple-North one. Exchange, . . . The the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited LawJuly One5, 2014). Case at a Time: Judicial Minimalism and Tribal Sovereignty, 50 AM. UNIV6 .These L. Rev. include 1177 (2001)Professors (analyzing Marc- Tizocthe culmination González, Andreaof Federal Freeman, Indian Lawand andCésar policy); Cuahtémoc Steve García Russell Hernández. & Terri Miles,See About One -LatCritSided Interest, supra noteConvergence: 3 (listing Indianthe professors Sovereignty on thein OrganizingLatCrit Board and ofLitigation Directors, 23.1 and W theirICAZO respective SA REV. 7law-24 schools).(2008) (discussing interest convergence and Nation Building within Native Nations);7 Campo WILLIAMS Sano, , LsupraATCRIT note: LATINA 117, ANDat xxxv LATINO (advocating CRITICAL independence LEGAL THEORY for, TribalINC, http://www.latcrit.org/content/campo Governments rather than dependence-sano/ on (lastFederal visited Indian July Law). 5, 2014). 1818 Id. Fletcher, supra note 1, at 21. 1829 Id. Id. 1260Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1260 Vol.1259 122947:4

CherokeeV. Ending Nationthe Colonial has exercised Feedback its Loop; sovereign or How right I Learned to exclude to the Freedmen.Stop WhiteThese SupremacyFreedmen areand Indians,Love the Declarationa discreet groupingon the of people Rightsthat haveof Indigenous significant P eoples. blood ...... quantum and a continuing 1259 manifestationA. Proposals of tribal for culture. Recognizing Why Cherok not?” 183 ee FreedmProfessor en Fletcher’s...... 1260 B. Reciprocal Recognitions: Realizing the DRIP for argument is incredibly reasonable. I would also add that the U.S. Cher ok ee Freedmen...... 1263 VI.government Conc lusion created ...... the underlying systems of property 1269that brought the Freedmen population to the Cherokee, both in privatized plantation system of land ownership and ownership of I. INTRODUCTION 1 Black people through the Atlantic Slave Trade. Thus, by providing federal recognition, the Cherokee Nation is not terminated, the Sovereignty and self-determination are cornerstones of United States does not infringe on the Cherokee Nation’s arguments for Indigenous rights in the geographic United States. sovereignty by extending Federal Law, and the Freedmen are once Both concepts assert an existence as Indigenous peoples, and again members of an Indian Nation. Why not? reinforce status as nations with citizens and governments, rights However, this solution misses what I consider to be some of and responsibilities, determined by Indigenous communities. In the central problems of the Cherokee Freedmen. First, their 2006, the Judicial Appeals Tribunal of the Cherokee Nation expulsion from the Cherokee Nation is connected to coloniality and recognized that Lucy Allen and fellow Cherokee Freedmen, White Supremacy that dates back long before the 1866 treaty. descendants of African slaves once owned by Cherokee, are Recognizing the Freedmen would validate and legitimize the citizens of the Cherokee Nation and had been citizens of the decision by the Cherokee Nation to expel Freedmen, allowing the Cherokee Nation since the 1866 treaty with the United States. 2 Cherokee and U.S. legacy of slavery, Black labor and death, to be Less than a year later, the Cherokee Nation amended its swept back under the carpet as an “ugly” period in our nation’s constitution to limit citizenship to descendants of those listed on past that we have overcome with written, formal legal documents. the Dawes Roll as Cherokee, Delaware or Shawnee—effectively Second, this also overlooks the terms of a treaty between the terminating the citizenship of all 2,800 citizens who are Cherokee Cherokee Nation and the United States. Many Indigenous nations Freedmen descendants. 3 This new amendment effectively and the United States depend on treaties and treaty rights in U.S. excludes Blacks who cannot identify an ancestor who was listed as courts. Blatantly avoiding, or directly voiding, the terms of the “Cherokee by Blood” on the Dawes Rolls, even though Cherokee 1866 treaty could set dangerous precedent in modern policies of Freedmen often maintain deep cultural connections to Cherokee Federal Indian Law. values and ways of being. 4 Cherokee Freedmen therefore exist at Third, the Freedmen self-identify as “the Freedmen Band of the Cherokee Nation” in legal documents and publications. To me, this indicates that they are more interested in being recognized as 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the titleCherokee of this thanarticle assuggests a separate that laws Indianenacted byNation. the Cherokee To create Nation the to excludeFreedmen Che rokeeNation Freedmen from the are Cherokee rooted in Whitealone Supremacistwould skirt conceptions the unique of property,status of doctrines Freedmen of slavery, in different and nationality. Indian nationsFanon described that owned the conditions slaves, ofneglect Black peoplesthe significance who took on Whiteof Cherokee colonial attitudes culture to copeto withthe theCherokee hostility they face in anti-Black environments. This article argues that the 2007 CherokeeFreedmen, Amendment and reaffirm solidified federal theconstructions Jeffersonian of Indianfantasy Nationsof Indian as assimilationthe most validby adopting or just one option, of the keywhich features I disagree of White with. Supremacy Additionally in U.S. Laws:Professor anti -BlacknessFletcher’s and argument Black exclusion. still relies on a blood quantum standard,2 Allen v. whichCherokee was Nat’l not Triba includedl Council, No.on JATthe-04 -Freedmen09, 1, 9 Okla. rolls, Trib. 255,perpetuating 2006 WL 6122535 the legitimacy (Cherokee Nationof a Jud.method App. Trib., that Mar. was 7, 2006).seemingly 3 Associated Press, Cherokees Vote to Limit Tribal Membership, WASH. designed to allot land and limit inheritance among Indian peoples. POST, Mar. 4, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2If the Freedmen007/03/03/AR2007030301705.html were granted separate federal recognition, they would4 S. Alanneed Raya land particularly base in notes order the tocultural exercise connections their newly between recognized Cherokee valuessovereign and normsstatus and as Freedmen a Nation. who This have beenwould raised likely as partrequire of Cherokee taking culture:lands from“Many the Freedmen's Cherokee descendantsNation (which ‘possess would as leadmuch to ifeven not moremore Cherokee culture’ than ‘many [W]hite-Cherokees enrolled in the tribe.’ As Marilynhostility) Vann or ahas forced said, Freedmen'srelocation descendantsto territory “know that awould lot more have about to be a stomp dance, hog fry, and wild onion dinner than anything about Africa.’ This suggests that some descendants may share assumptions with ‘blood’ Cherokees183 Id., at regarding 22. the cosmos and its familial interconnections.” Ray, A 1260Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12601168 Vol. 126147:4 takendifferent from from someone its predecessors, else. particularly since it had the benefit of twoS. yearsAlan ofRay, planning. on the other hand, suggests an anti-colonial or post-colonialLike the solution shift in rooted conference in Cherokee scheduling, ways ofother knowing. changes Rather have takenthan relyingplace withinupon the LatCritDawes Rolls,entity , “anincluding attachment concerted . . efforts. that toborders continue on fetishisma process of. .institutionalization. . which alienates InCherokees recent years, from theretheir hassovereign been apower growing of selffocus-determination,” on how to capitalize184 Ray on suggests its critical a “radical niche, continueindigenism” cultivating to forge thepolitical next generationidentities “fromof critical within scholars, their ownand ensureassumptions that theand batomethodsn of outsiderand not jurisprudence in response tois heteronymouspassed along. Internally,criteria.”185 the This organization means subordinating has shifted, the includingDawes Rolls a gradualas one changingstandard ofof theidentifying guard in leadership,citizenship, so toalong speak, with as wellpractical as a downsizingknowledge, inCherokee administration. spirituality, For andexample, dialogue from to2008 create to thean present,effective thehistory Board of ofcolonialism. Directors 186was Thus intentionally, Ray’s solution downsized, requires with adivorcing growing citizenshipnumber of fromBoard theseats strict being legalisms occupied ofby nationhood,junior law professors.established6 through colonial mechanisms like Dawes Rolls, into a moreAnother holistic majorunderstanding development of citizenship is LatCrit’s, which acquisition recognizes of the a uniquephysical histories space for of thethe organization.Cherokee and TheFreedmen property, through Campo culture Sano and(Spanish kinship. for “Camp187 Ray’s Heal approach,thy,” or moreas a literally,Cherokee “Campcitizen Sanity”),, is deeply is arooted ten- acrein parcelCherokee of land values located that in Centralextend Florida.beyond7 Purchasedthe colonial by mechanisms,LatCrit in 2011, and theoffer space a potentis home solution to The for Living ending Justice the colonialCenter feedbackand the LatCritloop. A Community large part Campus. of the 8 processThe physical in recognizing facility serves the citizenshipas a means status“to level of theFreedmen playing isfield recognizing and give LatCritthe connection activists toa Cherokeefighting chance history, to bevalues, heard.” culture9 The space and is waysintended of knowing. Ray concludes that “[t]he wise use of Cherokee sovereignty, however, counselsto patience,serve as notthe a hubrush ofto theirthe polls; educational, honest, sustained,research, and no doubtadvocacy difficult and activismdialogue, to remedynot politicking, the imbalance and andcritical reinterpretationdeficiencies of ofcultural the current resources legal in thesystem. service Having of kinship, an not the blindindependent reproduction.” physical188 base has become critical as Ray’suniversities analysis and is lawpowerful schools and increasingly considers arethe even multifaceted less nature of citizenship, but unfortunately is rooted in 2006, after the Allen decision, but prior to the 2007 disenrollment amendment. Although it may be “fetishistic” in Ray’s views to use legal Naming and Launching a New Discourse of Critical Legal Scholarship, 2 mechanismsHARV. LATINO L.to R EVresolve. 1 (1997). the disenrollment of the Freedmen, the 2007See amendment also LatCrit creates Biennial a textual,Conferences legal, L ATbasisCRIT: forLATINA disenrollment & LATINO thatCRITICAL makes LEGAL the TdialogueHEORY, I NCon., citizenshihttp://latcrit.org/content/conferences/latcritp and belonging difficult, if- notbiennial improbable,-conferences/ within (last visitedthe Cherokee July 5, 2013) Nation. (providing189 Thea list disenrollmentof the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). 184Additionally, Ray, supra LatCrit note , athas 52 -developed54. a substantial body of scholarship from several185 Id. other at 55. stand -alone symposia: inter alia the South-North Exchange, the Study186 IdSpace. at 58. Series, the International and Comparative Colloquia. LatCrit Symposia187 Id. ,at L 63.ATC RIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.188, Idhttp://latcrit.org/content/publications/latcrit. at 70 (emphasis supplied). -symposium/ (last visited July189 5, The 2014). Keetowah Society opposed any sort of racial mixing and sought to remove6 These all those include of mixed Profe racialssors descent.Marc-Tizoc Miles, González, note 19 Andreaat 186; Sturm,Freeman, note and 29 Césarat 72; Halliburton,Cuahtémoc García note 15 Hernández. at 126; Naylor, See noteAbout 14 LatCrit at 148., supra However, note the 3 (listing theCherokee professors nation on is notthe likelyLatCrit to adoptBoard such of Directorsa perspective and today, their particularlyrespective law in schools).light of the recent struggles under the Indian Child Welfare Act, which seek to preserve7 Campo the CherokeeSano, LAT NationsCRIT: LabilityATINA toAND protect LATINO citizens CRITICAL and descendants LEGAL THEORY , IwhileNC, http://www.latcrit.org/content/campo determining membership, despite federal-sano/ skepticism (last visited over July blood 5, 2014). connections8 Id. which discount cultural affiliation. Comp are Adoptive Couple v. Baby9 Id.Girl , 133 S.Ct. 2552 (2013) with Bethany R. Berger, In the Name of the 1262Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1262 Vol.1261 122947:4 ofV. Endingthe Freedmen the Colonial has been Feedback given Loop;the force or How of Cherokee I Learned law, to and thus wouldStop White require Supremacy some measure and Love of thelegal Declaration solution onwithin the the CherokeeRights constitution. of Indigenous Instead P eoples. both ...... the Freedmen and 1259the CherokeeA. NationProposals have for sought Recognizing resolution Cherok in Federal ee Freedm courts, en ...... leaving 1260 B. Reciprocal Recognitions: Realizing the DRIP for a determination of Cherokee treaties, constitutionalism, and Cher ok ee Freedmen...... 1263 VI.treaties Conc inlusion federal ...... hands. 1269

B. Reciprocal Recognitions:I. INTRODUCTION Realizing the1 DRIP for Cherokee Freedmen Sovereignty and self-determination are cornerstones of argumentsI ask thatfor Indigenous I be taken rights into considerationin the geographic on the United basis States.of my desire.Both concepts I am notassert only anhere existence-now, locked as Indigenousin thinghood. peoples, I desire and somewherereinforce status else andas nationssomething with else. citizens I demand and governments, that an account rights be takenand responsibilities, of my contradictory determin activityed by insofarIndigenous as I communities.pursue something In other2006, thanthe life,Judicial insofar Appeals as I amTribunal fighting offor thethe birthCherokee of a humanNation 190 world,recognized in other that words, Lucy a worldAllen of andreciprocal fellow recognitions Cherokee . Freedmen, descendantsReturning of toAfrican Fanon’s slaves Black once Skin, owned White by Masks Cherokee, that thisare articlecitizens isof named the Cherokeeafter, Fanon Nation recognizes and had that been the citotherizationizens of the of BlacknessCherokee Nationunder sinceWhite the supre1866 macisttreaty withcolonialism the United cannot States. be2 remediedLess than through a year a later,simple the recognition Cherokee ofNation humanity. amended Rather, its 191 recognitionconstitution tomust limit be citizenship obtained tothrough descendants struggle. of those Cherokeelisted on theFreedmen Dawes haveRoll beenas Cherokee,struggling Delawarefor legal recognitionor Shawnee in— effectiCherokeevely terminatingand United theStates citizenship courts for of allnearly 2,800 two citizens decades, who from are Cherokeethe first Freedmencouncil resolution descendants. that3 formally This disenrollednew amendment freedmen effectively to the excludescurrent constitutionalBlacks who cannot amendment. identify an ancestor who was listed as “CherokeeRather by than Blood” Federal on the Intervention, Dawes Rolls, I want even tothough offer aCherokee solution Frthateedmen recognizes often maintainthe legal deepstruggles cultural of connectionsFreedmen andto Cherokee applies valuesInternational and ways standar of being.ds: recognizing4 Cherokee thatFreedmen Cherokee therefore Freedmen exist are at “indigenous” and utilizing the United Nations Declaration on the Rights of Indigenous Peoples (DRIP) through Cherokee Courts. 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the title of this article suggests that laws enacted by the Cherokee Nation to excludeChild: Race, Che rokeeGender, Freedmen and Economics are rooted in Adoptive in White Couple Supremacist v. Baby conceptionsGirl 28-38 of property,(2014)(unpublished doctrines ofmanuscript), slavery, and available nationality. at Fanon described the conditions ofhttp://works.bepress.com/cgi/viewcontent.cgi?params=/context/bethany_berger/ Black peoples who took on White colonial attitudes to cope with the hostility theyarticle/1000/type/native/&path_info= face in anti-Black environments. (descr ibingThis article the colonial argues rhetoric that thein media 2007 Cherokeeand the Supreme Amendment Court’s skepticismsolidified overthe babyJeffersonian Veronica’s Cherokeefantasy tiesof dueIndian to assimilationa low blood quantumby adopting—despite one of deep the cultural,key features geographic of White and Supremacy practical ties in U.S.to Laws:Cherokee anti citizenship).-Blackness and Black exclusion. 1902 Allen Fanon, v. supraCherokee note 1,Nat’l at 193.Triba l Council, No. JAT-04-09, 1, 9 Okla. Trib. 255,191 2006 Though WL 6122535 for Fanon (Cherokee this requires Nation Jud.militant App. agitation Trib., Mar. or 7,revolution 2006). that upsets3 Associated dominant Press, paradigms. Cherokees The Vote Cherokee’s to Limit constitutional Tribal Membership crisis, wasWASH created. byPOST a ,militant Mar. 4, reaction2007, http://www.washingtonpost.com/wp to established legal norms; however- this was in order to entrenchdyn/content/article/2 the authority007/03/03/AR2007030301705.html of a principal chief while upsetting the authority of the Cherokee4 S. Alan courts. Ray particularlySee Mouser, notes supra the note cultural 65. Because connections of my between own ideals Cherokee of the valuespotential and for norms radical and changes Freedmen in legal who structure have been through raised dialogue,as part ofrather Cherokee than culture:pure militant “Many revolution, Freedmen's that I descendantsdo not suggest ‘possess a militan ast uprisingmuch ifof notFreedmen more Cherokeeagainst the cul Cherokee,ture’ than since, ‘many in my[W]hite mind,-Cherokees this could enrolledbe counterproductive in the tribe.’ forAs Marilynthe Freedmen’s Vann has efforts said, to Freedmen's be recognized descendants and participate “know in a existinglot more Cherokee about a stomplaws and dance, ways. hog Again, fry, and my wild understanding onion dinner ofthan the anything Freedmen’s about current Africa.’ legalThis suggestsstruggle isthat recognition some descendantsas Cherokee Freedmenmay share, an assuintersectionalmptions with status ‘blood’—not Cherokeessimply Freedmen, regarding Black, the or cosmos Cherokee and alone. its familial interconnections.” Ray, A 1262Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12621168 Vol. 126347:4

Thedifferent immediate from its drawback predecessors, is of courseparticularly that, sincebased iton had my thereading benefit of Cherokeeof two years Nation of planning. Registrar v. Nash, this would not be an easy case to makeLike beforethe shift the incurrent conference Cherokee scheduling, Supreme otherCourt changes who appears have takenunfriendly, place ifwithin not hostile, the LatCrit to the claimsentity, ofincluding the Cherokee concerted Freedmen. efforts toAdditionally, continue a thisprocess solution of institutionalization. would not solve Inthe recent problem years, of thereanti- hasblack been racism a growing with infocus Indian on how country to capitalize demonstrated on its critical by Darren niche, continueBuzzard’s cultivatingletters petitioning the next generationfor the 2007 of criticalAmendment scholars,192 thatand ensureinvoked thatold the narrativesbaton of outsiderof dangerous jurisprudence Black is passedsexuality. along.193 Internally,Recognizing thethese organization drawbacks, hasI would shifted, argue including that the asolution gradual is changingmore attainable of the guardthan itin seemsleadership, as theso toCherokee speak, asNation well ashas a downsizingconsistently inexpressed administration. support forFor DRIP example, and urged from its2008 application to the present,to the United the Board States. of 194Dire Ifctors the wasCherokee intentionally Nation isdownsized, serious aboutwith amaking growing DRIP number a real of Boardmanifestation seats being of the occupied power byof Indigenousjunior law professors.peoples, why6 not set the example and begin by recognizing it withinAnother the Cherokee major Nationdevelopment and apply is theLatCrit’s principles acquisition to Freedmen? of a physicalIn somespace ways,for the this organization. builds on the The ideal property, Fanon Campodescribes Sano as reciprocal(Spanish forrecognition. “Camp Heal Utilizingthy,” or morethe drip literally, would “Camp not only Sanity”), serve tois recognizea ten-acre theparcel citizenship of land locatedof the inFreedmen, Central Florida.the hist7 oryPurchased of slavery by withinLatCrit thein 2011,Cherokee the space Nation, is home and toimportantly, The Living Justicethe Cherokee Center Nationand the asLatCrit a Nation Community above theCampus. conventional8 The physical domestic facility dependent serves statusas a means assigned “to lbyevel federal the playing law. Instituting field and giveinternational LatCrit activistsprinciples a infighting Cherokee chance legal to be structuresheard.”9 The can space transcend is intended federal norms in Cherokee Laws, while keeping connection with Cherokee ways of knowing,to servelike theas thenotion hub of of“ gatheir-di-gui, educational, all working research, together,” describedadvocacy by Ray. and195 Thusactivism recognizing to remedy the theCherokee imbalance Freedmen and also providesdeficiencies international of the recognition current forlegal the system. Cherokee Having Nation an as a politicalindependent nation internationally. physical base has become critical as Theuniversities first and and underlyinglaw schools stepincreasingly is recognizing are even thatless the Freedmen are Indigenous peoples—in the international, political sense —regardless of federally recognized Indian blood quantum. 196 Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997). See192 Y ARBROUGHalso LatCrit, supra Biennial note 25, Conferencesat 130. , LATCRIT: LATINA & LATINO CRITICAL193 Patricia LEGAL Hill TCollinsHEORY ,describes INC., http://latcrit.org/content/conferences/latcrit these as “controlling images” of sexuality,- particularlybiennial-conferences/ for Black (last women, visited aJulys Blackness 5, 2013) (providingis linked ato list sexual of the behaviorprevious deemedconferences, aberrant, and providingunnatural, direct and linkstherefore to view necessarily sympos iaexcluded. articles forPATRICIA some HyearsILL C(foundOLLINS ,by B LACKfollowing FEMINIST the TrespectiveHOUGHT: Kyear’sNOWLEDGE link toCONSCIOUSNESS its corresponding AND THEwebpage). POLITICS OF EMPOWERMENT 72 (2nd. Ed., 2000). See also PATRICIA HILL COLLINSAdditionally,, BLACK LatCritSEXUAL has POLITICS developed: AFRICAN a substantial AMERICANS body, ofG ENDERscholarship, AND fromTHE NseveralEW R ACISMother (2005)stand- alone(describing symposia: and intercritically alia analyzingthe South how-North Black Exchange, sexualities the haveStudy Spacehistorically Series, andthe Internationalpresently been and Comparativemarginalized Colloquia.through LatCritsocial Symposiarepresentations, LATC toRIT facilitate: LATCRIT oppression).: LATINA & LATINO CRITICAL LEGAL THEORY, INC.194, Shttp://latcrit.org/content/publications/latcritee generally Melanie Knight, Testimony before-symposium/ the Senate (last Committee visited onJuly Indian 5, 2014). Affairs, (June 9, 2011), available at http://www.cnwo.org/Portals/74/Cherokee%20UNDRIP%20Testimony.pdf);6 These include Professors Marc-Tizoc González, Andrea Freeman, and CésarCherokee Cuahtémoc Nation, UNGarcía Declaration Hernández. on the See Rights About of LatCrit Indigenous, supra Peoples note ,3 The (listing Othefficial professors Site of theon Cherokeethe LatCrit Nation Board Washington of Directors Office, and available their respective at law http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.schools). 1957 Campo Ray, supra Sano note, LAT 4,C atRIT 70.: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,196 http://www.latcrit.org/content/campo Cherokee Freedmen’s blood quantum-sano/ status (last visited is also July contested, 5, 2014). noted earlier8 Id. in section I.A and B. The Dawes Rolls not only discounted any relationship9 Id. between Blackness and a Cherokee identity, but also discounted 1264Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1264 Vol.1263 122947:4

AsV. Endingthe direct, the Colonialtraceable Feedback descendants Loop; ofor freedHow Islaves, Learned Cherokee to FreedmenStop areWhite descendants Supremacy peoples and Love who the did Declaration not immigrate on the to the UnitedRights States, of butIndigenous were forcibly P eoples. taken ...... from their ancestral lands, 1259 where A.they Proposals had lived for since Recognizing time immemorial, Cherok ee Freedm forced ento ...... relocate 1260 B. Reciprocal Recognitions: Realizing the DRIP for and enslaved by the United States, the Cherokee Nation and other Cher197 ok ee Freedmen...... 1263 VI.sovereigns. Conc lusion ...... While Freedmen may not be considered “Indian” 1269 under United States standards for federal recognition, they are

Indigenous in under the terms of the DRIP as peoples who “have I. INTRODUCTION 1 suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and Sovereignty and self-determination are cornerstones of resources, thus preventing them from exercising, in particular, arguments for Indigenous rights in the geographic United States. their right to development in accordance with their own needs and Both concepts assert an existence as Indigenous peoples, and interests.” 198 Although the term “indigenous” is contested among reinforce status as nations with citizens and governments, rights different peoples and scholars, “[i]t has become an umbrella and responsibilities, determined by Indigenous communities. In enabling communities and peoples to come together transcending 2006, the Judicial Appeals Tribunal of the Cherokee Nation their own colonized contexts and experiences, in order to learn, recognized that Lucy Allen and fellow Cherokee Freedmen, share, plan, organize and struggle collectively for self- descendants of African slaves once owned by Cherokee, are determination on the global and local stages.” 199 Linda Tuhiwai citizens of the Cherokee Nation and had been citizens of the Smith, a Maori scholar, notes that the use of the term “indigenous Cherokee Nation since the 1866 treaty with the United States. 2 peoples” has become a term of identification and resistance in Less than a year later, the Cherokee Nation amended its encapsulating shared struggles with colonization and the resulting constitution to limit citizenship to descendants of those listed on status of indigenous peoples: the Dawes Roll as Cherokee, Delaware or Shawnee—effectively Thus the world’s indigenous populations belong to a network terminating the citizenship of all 2,800 citizens who are Cherokee of peoples. They share experiences as peoples who have been Freedmen descendants. 3 This new amendment effectively subjected to the colonization of their lands and cultures, and excludes Blacks who cannot identify an ancestor who was listed as the denial of their sovereignty, by a colonizing society that “Cherokee by Blood” on the Dawes Rolls, even though Cherokee has come to dominate and determine the shape and quality of Freedmen often maintain deep cultural connections to Cherokee their lives, even after it has formally pulled out. 200 values and ways of being. 4 Cherokee Freedmen therefore exist at

those who could claim Cherokee and Black heritage, limiting intersectional identities1 Playing to ona Frantzone-drop Fanon’s rule. classic See BLACKSTURM SKIN, supra, WHITE note MASKS 29, (1952),at 80 -the81; titleLITTLEFIELD of this , articlesupra suggestsnote 39, atthat 239; laws MILES enacted, supra by note the 19, Cherokee at 194-95; Nation NAYLOR to, supraexclude note Che 14,rokee at 308 Freedmen fn. 64. are rooted in White Supremacist conceptions of property,197 Cherokee doctrines Freedmen of slavery, are and not nationality.alone in their Fanon status described at the intersections the conditions of of“Indian” Black peoplesand “African” who took identities, on White not colonial only inattitudes the United to cope States, with theconsidering hostility theythe presenceface in antiof Freedmen-Black environm in Seminole,ents. ThisChoctaw, article Chickasaw,argues that and the Creek 2007 CherokeeNations, butAmendment also throughout solidified the Amerthe icasJeffersonian in the formationfantasy ofof MaroonIndian assimilationsocieties that by melded adopting African one ofand the American key features indigenous of White traditions Supremacy and resistedin U.S. Laws:White antiSupremacist-Blackness colonization. and Black exclusion. See BLASSINGAME , supra note 16, at 209 (describing2 Allen v.Marroon Cherokee societies Nat’l Tribaformedl Council, by escaped No. JAT and-04 freed-09, 1, slaves9 Okla. in Trib.the Sou255,thern 2006 WLUnited 6122535 States); (Cherokee RICHARD Nation PRICE Jud., MAROON App. Trib., SOCIETIES Mar. 7,: R2006).EBEL SLAVE COMMUNITIES3 Associated IN Press, THE CherokeesAMERICAS Vote15 (1996) to Limit (providing Tribal Membership a collections, W ofASH articles. describingPOST, Mar. the4, 2007, different http://www.washingtonpost.com/wp Maroon Societies of the Americas,- ranging from Freedmendyn/content/article/2 of the United007/03/03/AR2007030301705.html States to the Miskito of Honduras and Nicaragua “who4 S.kept Alan a Raylarge particularly group of notesmaroons the ascultural domestic connections slaves in between the seventeenth Cherokee century,values and intermarrying norms and Freedmenwith them who and have gradually been raisedabsorbing as part them of Cherokeeinto their generalculture: population.”).“Many Freedmen's descendants ‘possess as much if not more Cherokee198 United cul ture’Nations than Declaration ‘many [W]hite on the-Cherokees Rights of enrolledIndigenous in thePeoples, tribe.’ G.A. As MarilynRes. 61/295, Vann U.N. has Doc. said, A/RES/61/295 Freedmen's (Sept.descendants 13, 2007), “know 46 I.L.M. a lot 1013more (2007). about a stomp199 dance, LINDA hogTUHIWAI fry, and SMITH wild, onionDECOLONIZING dinner than M ETHODOLOGIESanything about: Africa.’ RESEARCH This ANDsuggests INDIGENOUS that somePEOPLES descendants 7 (2nd Ed. 2012).may share assumptions with ‘blood’ Cherokees200 Id. regarding the cosmos and its familial interconnections.” Ray, A 1264Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12641168 Vol. 126547:4 differentApplying from itsthe predecessors,notion of cultural particularly sovereignty since itcan had help the expandbenefit conceptionsof two years ofof Freedmenplanning. as Indigenous peoples adopted by treaty, by force,Like orthe by shiftdefault in asconference participants scheduling, in racial othercapitalism changes through have takenthe ownership place within of Blackthe LatCrit slaves. entityCherokee, including Freedmen, concerted and effortsother toFreedmen continue groupsa process among of institutionalization. Native Nations inIn therecent United years, States, there hasexist been at thea growing intersections focus onof culturalhow to capitalizeidentity withon its ties critical to cultural niche, continuetraditions cultivatingof Cherokee the and next other generation peoples ofas criticaltheir ancestors scholars, wereand ensureraised in,that and the deeplybaton ofconnected outsider to,jurisprudence these ways is of passed knowing. along.201 Internally,Importantly, the Freedmen organization do not has appear shifted, to threatenincluding the a culturalgradual changingintegrity ofof the guardCherokee in leadership,Nation. The so Freedmen’sto speak, asassertion well as ofa downsizingcitizenship asin Cherokeeadministration. Freedmen For example,connects themfrom 2008to Cherokee to the present,ways and the traditions, Board of not Dire asctors a colonizing was intentionally force. 202 Thus downsized, it becomes with a apolitical, growing and number even moral,of Board imperative seats being that occupied the Cherokee by junior Nation law professors.recognize the6 citizenship of the Freedmen not only to consistently honorAnother terms ofmajor treaties development which preserve is LatCrit’s crucial rights,acquisition but also of ina physicalterms of spacerecognizing for the that organization. the Cherokee The Nation property, still profitedCampo Sanofrom (Spanishand capitalized for “Camp on HealBlackthy,” slaveor more labor literally, in building,“Camp Sanity”), or even is apreser ten-acreving, parcelits economic of land locatedinterests in Centralprior to Florida. 1866 7and Purchased allotment. by LatCritThus in in the2011, interests the space of is culturalhome to Intersectionality,The Living Justice and Center the andequitable the LatCrit interest Community in preserving Campus. treaty8 obligationsThe physical and facility recognizing serves citizenshipas a means of“to thoselevel theformerly playing exploited,field and givethe LatCritCherokee activists Nation a shouldfighting recognizechance to beFreedmen heard.”9 Theas spacefellow is indigenousintended peoples and citizens. Thisto serverecognition as the is hubalso ofreciprocal. their educational, Recognizing research, Freedmen citizenshipadvocacy can andalso activismserve to toaffirm remedy the the“Nation” imbalance status and of the Cherokeedeficiencies Nation, ofabove the currentpejorative legal connotations system. Havingunder anUnited Statesindependent federal law. physicalThe DRIP base contains has threebecome provisions critical central as to citizenshipuniversities of indigenous and law peoples. schools Articleincreasingly six of arethe evenDRIP less asserts simply that “every indigenous individual has the right to a nationality.”203 Article nine states that “Indigenous peoples and individuals have the right to belong to an indigenous community Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HorARV nation,. LATINO in L. accordanceREV. 1 (1997). with the traditions and customs of the communitySee also orLatCrit nation Biennial concerned. Conferences No , discriminationLATCRIT: LATINA of &any L ATINOkind CmayRITICAL arise L EGALfrom TtheHEORY exercise, INC. , ofhttp://latcrit.org/content/conferences/latcrit such a right.” 204 Finally Article 33- providesbiennial-conferences/ that: (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). Additionally, LatCrit has developed a substantial body of scholarship from several201 Seeother Ray, stand supra-alone note symposia: 4, at 461; inter Miles, alia thesupra South note-North 19. Exchange,See also T theIYA MStudyILES ANDSpace S HARONSeries, P. theHOLLAND International, CROSSING and W ComparativeATERS, CROSSING Colloquia. WORLDS LatCrit: THE ASymposiaFRICAN ,D IASPORALATCRIT : INL ATINDIANCRIT: CLATINAOUNTRY & (2006)LATINO (collecting CRITICAL essays LEGAL describing THEORY, theINC ., cultural,http://latcrit.org/content/publications/latcrit political, and social connections -formedsymposium/ between (last Black visited and NativeJuly 5, 2014).peoples in the United States, including Freedmen, children of American6 These Indians include and Profe Africanssors MarcAmericans,-Tizoc González,or even reggaeAndrea andFreeman, hip-hop and in Hawai’i).César Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the 202professors I also recognize on the that LatCrit there Board is colonization of Directors when and the theirCherokee respective Freedmen law schools).are utilizing Federal Law to impose rights on the Cherokee Nation. Thus, I offer7 thisCampo as an Sano alternative, LATC RIT to :the LATINA Vann ANDlitigation LATINO in federalCRITICAL courts. LEGAL THEORY, INC,203 http://www.latcrit.org/content/campo United Nations Declaration on the-sano/ Rights (last of visitedIndigenous July 5,Peoples, 2014). G.A. Res.8 61/295,Id. U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007). 2049 Id. Id. 1266Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1266 Vol.1265 122947:4

V. EndingIndigenous the Colonial peoples Feedback have the rightLoop; to or determine How I Learned their own to identityStop White or membership Supremacy in and accordance Love the with Declaration their customs on the and traditions.Rights of ThisIndigenous does not P eoples.impair ...... the right of indigenous 1259 individualsA. Proposals to obtain for Recognizing citizenship Cherok of the States ee Freedm in which en ...... they 1260 B. Reciprocal Recognitions: Realizing the DRIP for live. Indigenous peoples have the right to determine the Cher ok ee Freedmen...... 1263 VI. Concstructures lusion ...... and to select the membership of their institutions 1269 in accordance with their own procedures.

I. INTRODUCTION 1 Although the Cherokee Nation is not internationally recognized as a Nation-State, the Cherokee Nation self-identifies a Sovereignty and self-determination are cornerstones of Nation, thus “nationality,” “citizenship,” and “membership” can arguments for Indigenous rights in the geographic United States. apply to those who are legally recognized by the Cherokee legal Both concepts assert an existence as Indigenous peoples, and and political structures. The plain language of Article 6, read reinforce status as nations with citizens and governments, rights together with Article nine, support a broad assertion of and responsibilities, determined by Indigenous communities. In nationality, not only in Nation-States but also in indigenous 2006, the Judicial Appeals Tribunal of the Cherokee Nation nations. 205 Compare the broad “nationality” and “identity” recognized that Lucy Allen and fellow Cherokee Freedmen, participation in Indigenous cultural and political structures of descendants of African slaves once owned by Cherokee, are Articles six and nine with the more targeted conception of citizens of the Cherokee Nation and had been citizens of the “citizenship of the States in which they live” in Article 33. Article Cherokee Nation since the 1866 treaty with the United States. 2 33 appears more as an admonition against the Nation-State in Less than a year later, the Cherokee Nation amended its denying citizenship to Indigenous peoples, than a constraint on constitution to limit citizenship to descendants of those listed on Indigenous ways of determining membership. the Dawes Roll as Cherokee, Delaware or Shawnee—effectively By legally redefining membership to exclude only Cherokee terminating the citizenship of all 2,800 citizens who are Cherokee Freedmen, the Cherokee Nation has violated Article Six by Freedmen descendants. 3 This new amendment effectively removing the Freedmen’s right to a Cherokee Nationality. Their excludes Blacks who cannot identify an ancestor who was listed as removal through the 2007 amendment was not based on Cherokee “Cherokee by Blood” on the Dawes Rolls, even though Cherokee customs or traditions described by Articles 9 and 33, as the Freedmen often maintain deep cultural connections to Cherokee Cherokee Clan and adoption systems which predate the Dawes values and ways of being. 4 Cherokee Freedmen therefore exist at Rolls were not implemented. 206 Rather, the Cherokee Nation’s

2051 Playing Article on 6 was Frantz one ofFanon’s the earliest classic measures BLACK S KINadopted, WHITE by theMASKS Sub -(1952), the Commissiontitle of this forarticle the Protectionsuggests thatand Promotionlaws enacted of Human by the Rights Cherokee in 1994, Nation and to oneexclude of the Che fewrokee adopted Freedmen prior to are the rootedfull drafting in White of the Supremacist declaration conceptions in the 21st of century.property, See doctrines Adelfo ofRegino slavery, Montes and &nationality. Gustavo Torres Fanon Cisne describedros, The the United conditions Nationsof Black Declarationpeoples who on took the onRights White of Indigenouscolonial attitudes Peoples: to Thecope Foundation with the hostility of a Newthey Relationshipface in anti between-Black environmIndigenousents. Peoples, This States article and argues Societies that, in the MAKING 2007 CherokeeTHE DECLARATION Amendment WORK : TsolidifiedHE UNITED the N ATIONJeffersonian DECLARATION fantasy ON THEof RIGHTSIndian OFassimilation INDIGENOUS by adoptingPEOPLES one138, of141 the (Claire key featuresCharters of and White Rodolfo Supremacy Stavenhagen in U.S. Laws:eds., 2009), anti- Blacknessavailable atand Black exclusion. http://www.internationalfunders.org/documents/Mak2 Allen v. Cherokee Nat’l Tribal Council, No. JAT ingthe-04- DeclarationWork.p09, 1, 9 Okla. Trib. 255,df). 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 2063 Associated For more Press,description Cherokees of the Vote Cherokee to Limit Clan Tribal system Membership and prior, WsystemsASH. of PadoptionOST, Mar. see 4, Ray,2007, suprahttp://www.washingtonpost.com/wp note 4, at 425-28; NAYLOR,- supra note 15, at 8; Ydyn/content/article/2ARBROUGH, supra note007/03/03/AR2007030301705.html 25, at 29; MILES, supra note 18, at 56-57 (describing the 4 adoptionS. Alan Rayof Blackparticularly women notes into the the cultural Cherokee connections Clan system).between WereCherokee the valuesCherokee and to norms return and to Freedmena strict Clan who system have withbeen itsraised matrilineal as part c onnectionsof Cherokee it culture:would end “Many up disenrolling Freedmen's all descendantsCherokee who ‘possess rely solely as onmuch patrilineal if not tiesmore to Cherokeethe Cherokee cul ture’Nation. than This ‘many would [W]hite likely -disenrollCherokees a muchenrolled larger in thepercentage tribe.’ Asof Marilynthe population Vann thanhas said,the Freedmen Freedmen's represent, descendants but also“know contradict a lot morethe Cherokee about a stompNation’s dance, assertions hog fry, of andmembership wild onion and dinner relationality than anything in the aboutAdoptive Africa.’ Couple This suggestscase where that the child’ssome tiesdescendants were patrilineal, may sharesee Berger, assu mptionssupra note with 189 at‘blood’ 8-9, Cherokeesdisrupting aregarding large body the ofcosmos advocacy and onits behalffamilial of interconnections.” maintaining relationships Ray, A 1266Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12661168 Vol. 126747:4 reliancedifferent onfrom identification its predecessors, “by blood” particularly in the Dawessince it rolls had picksthe benefit up a colonialof two years tool ofto planning.build Cherokee Nationhood by wielding it against FreedmenLike —thedisenrolling shift in conferencea political scheduling, group of other peoples changes who haveare takenculturally place and within politically the LatCrit tied to entitythe Cherokee, including nation. concerted The effortsDRIP toon continuethe other a process hand ofprovides institutionalization. a source ofIn recentrights years,defined there by hasinternational been a growing groups focus and onIndigenous how to capitalize peoples, onand its removedcritical niche, from continuethe colonial cultivating baggage the nextDawes generation Rolls carry of incritical defining scholars, citizenship and ensure“by blood.” that theRodolfo bato Stavenhagen,n of outsider formerjurisprudence UN Special is passed Rapporteur along. Internally,on the situation the organizationof human rightshas shifted,and fundamental including freedomsa gradual of changingindigenous of people, the guard asserts in thatleadership, “the full so importto speak, of theas wellcollective as a downsizingrights of indigenousin administration. peoples canFor empowerexample, indigenousfrom 2008 peoples,to the present,build multicultural the Board of Direcitizenshipctors was andintentionally ensure downsized,their effective with aparticipation growing number in national of Board society seats and thebeing polity.” occupied207 by junior law professors.However6 Stavenhagen notes the institutional implementation issues,Another considering major “it developmentwill require institutional,is LatCrit’s economic,acquisition political of a andphysical judicial space reform.” for the The organization. United States The has property, not implemented Campo Sano the drip(Spanish other for than“Camp declarations Healthy,” orof more policy literally, in the “Camp nation Sanity”),-to-nation is arelationship ten-acre parcel between of land the locatedUnited inStates Central and Florida.Indigenous7 Purchased nations. 208by LatCritThis would in 2011,be a uniquethe space implementation, is home to The creating Living a politicalJustice Centerstatus andof citizenship the LatCrit that Community is more divorced Campus. from8 The notions physical of blood facility quantum serves oras ablood means ties, “to levelsince the the playing instrument field and usedgive LatCritto define activists those a connections,fighting chance here to bethe heard.” Dawes9 The Rolls, space is intendedso bound to colonial mechanisms that it cannot be an accurate guide for self- determinationto serve andas thesovereignty. hub of theirRather, educational, ending research,the colonial feedbackadvocacy loop requiresand activism a shift toaway remedy from the tools imbalance like Dawes and Rolls, replacingdeficiencies the colonialof the toolscurrent of legalFederal system. Indian Having Law an with internationalindependent princi plesphysical established base byhas the become DRIP. critical as Recognizinguniversities theand Freedmen’slaw schools claimincreasingly under arethe evenDRIP less in the Cherokee Supreme Court has some unique advantages. First, put simply, it avoids federal laws, federal courts and Federal Indian Law. Second, recognizing the Freedmen’s right to nationality Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HassertsARV. LATINO Cherokee L. REV .Nationhood, 1 (1997). as a distinct nationality from the UnitedSee alsoStates, LatCrit transcending Biennial Conferences the Domestic, LATCRIT :Dependent LATINA & LstatusATINO CinscribedRITICAL LbyEGAL Federal THEORY Indian, INC. , Law.http://latcrit.org/content/conferences/latcrit Third, it recognizes the shared- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding withwebpage). children through the Indian Child Welfare Act. 207Additionally, Rudolfo Stavenhagen, LatCrit has Makingdeveloped the a Declaration substantial Workbody , ofin scholarshipMAKING THE from DseveralECLARATION other standWORK-:alone THE symposia:UNITED N ATIONinter alia DECLARATION the South -NorthON THE Exchange, RIGHTS OF the IStudyNDIGENOUS Space P EOPLESSeries, 352,the 367International (Claire Charters and Comparative and Rodolfo Colloquia.Stavenhagen LatCrit Symposiaeds., 2009),, LavailableATCRIT: atLAT CRIT: LATINA & LATINO CRITICAL LEGAL THEORY, Ihttp://www.internationalfunders.org/documents/MakNC., http://latcrit.org/content/publications/latcrit-symposium/ ingthe DeclarationWork.p (last visited Julydf). 5, 2014). 2086 These Even wheninclude the Profe Unitedssors States Marc signed-Tizoc theGonzález, DRIP in Andrea 2010, four Freeman, years afteandr Césarthe initial Cuahtémoc passage García of the Hernández. declaration, See some About scholars LatCrit noted, supra the note patriarchal 3 (listing theovertones professors in yearson the prior LatCrit in Boardpresenting of Directors the “aspirational” and their respectivegoals of lawthe schools).declaration, rather than recognizing it as an international document with concrete7 Campo obligations. Sano, LSeeATC RITAileen: LATINA Moreton AND- Robinson,LATINO C RITICALVirtuous L EGALRacial T HEORYStates:, ITheNC, Possessivehttp://www.latcrit.org/content/campo Logic of Patriarchal White-sano/ Sovereignty (last visited and theJuly United 5, 2014). Nations Declaration8 Id. on the Rights of Indigenous Peoples, 20 GRIFFITH L.REV. 641 (2011).9 Id. 1268Vol. 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 1268 Vol.1267 122947:4 andV. Ending intertwined the Colonial histories Feedback of Black Loop; Cherokee or How Freedmen I Learned and to those who identifyStop White as “CherokeeSupremacy by and Blood,” Love thein buildingDeclaration the on Cherokee the Nation.Rights Fourth, of Indigenous recognizing P eoples.the Cherokee’s ...... history of slavery 1259 is not anA. acceptance Proposals of forthe Recognizing colonial feedback Cherok loop, ee Freedm but recognizes en ...... 1260one B. Reciprocal Recognitions: Realizing the DRIP for of the crucial themes of CRT, TribalCrit, and Cultural Cher ok ee Freedmen...... 1263 VI.Sovereignty: Conc lusion stories ...... have the power to effect change. Recognizing 1269 the shared history of colonization, White Supremacy and oppression, and looking for remedy through the DRIP can begin I. INTRODUCTION 1 the process of healing; validating historical experiences with oppressions, without discounting one’s historical condition as Sovereignty and self-determination are cornerstones of apriori or most oppressed, sharing strengths and sadness in arguments for Indigenous rights in the geographic United States. building a “collective future.”209 Fifth, though precedent has been Both concepts assert an existence as Indigenous peoples, and deadly to American Indians and Blacks in the United States reinforce status as nations with citizens and governments, rights federal courts, 210 setting the precedent of an Indigenous Nation and responsibilities, determined by Indigenous communities. In fully recognizing and implementing the DRIP as a remedy for 2006, the Judicial Appeals Tribunal of the Cherokee Nation legacies of oppression can enable future avenues of collective recognized that Lucy Allen and fellow Cherokee Freedmen, success without imposing sovereignty. Recognizing the Freedmen descendants of African slaves once owned by Cherokee, are under DRIP transforms the Declaration from a global, verbal citizens of the Cherokee Nation and had been citizens of the commitment to a legal, material force that can be applied for the Cherokee Nation since the 1866 treaty with the United States. 2 benefit of indigenous peoples from all continents. Thus, there is Less than a year later, the Cherokee Nation amended its reciprocal recognition: in recognizing Freedmen as Cherokee constitution to limit citizenship to descendants of those listed on citizens under the DRIP, the Cherokee Nation pushes for the Dawes Roll as Cherokee, Delaware or Shawnee—effectively recognition as a Nation which adopts, participates in, and abides terminating the citizenship of all 2,800 citizens who are Cherokee by international laws. Freedmen descendants. 3 This new amendment effectively excludes Blacks who cannot identify an ancestor who was listed as VI. CONCLUSION “Cherokee by Blood” on the Dawes Rolls, even though Cherokee Freedmen often maintain deep cultural connections to Cherokee For the master’s tools will never dismantle the master’s house. values and ways of being. 4 Cherokee Freedmen therefore exist at They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change. And this fact is only threatening to those women who still 1 Playing on Frantz Fanon’s classic BLACK SKIN, WHITE MASKS (1952), the 211 title ofdefine this articlethe master’s suggests house that lawsas their enacted only by source the Cherokee of support. Nation to exclude Cherokee Freedmen are rooted in White Supremacist conceptions of property,The doctrines Cherokee of slavery,Nation and has nationality. the undeniable, Fanon described sovereign the conditionspower to determineof Black peoples membership who took on and White set colonial parameters attitudes for to copecitizenship with the hostilitywithin they face in anti-Black environments. This article argues that the 2007 itsCherokee nation. Amendment However insolidified relying theupon Jeffersonian the Dawes fantasyRolls toof excludeIndian onlyassimilation those bywhose adopting ancestors one of theare keylisted features as “Freedmen,” of White Supremacy the Cherokee in U.S. NationLaws: anti has-Blackness becom eand caught Black exclusion.in the colonial feedback loop: reifying 2 Allen v. Cherokee Nat’l Tribal Council, No. JAT-04-09, 1, 9 Okla. Trib. 255, 2006 WL 6122535 (Cherokee Nation Jud. App. Trib., Mar. 7, 2006). 2093 Associated Coffey and Press, Tsosie, Cherokees supra note Vote 155, to Limitat 208. Tribal Membership, WASH. POST210, Mar.See gene4, 2007,rally http://www.washingtonpost.com/wp Williams, supra note 117, at 23- (discussing trends in Supremedyn/content/article/2 Court Jurisprudence007/03/03/AR2007030301705.html that have harmed racialized minorities). 2114 S. AAlanUDRE Ray LORDE particularly, SISTER notes OUTSIDER the cultural 112 connections(2007) (emphasis between in Cherokeeoriginal). valuesAlthough and Lorde norms is andspeaking Freedmen to feminists who have who beenwould raised distance as partotherized of Cherokee women culture:(Black women,“Many Freedmen'sLesbians, Blackdescendants Lesbians, ‘possess or asany much non -ifWhite not morenon- Cherokeeheteronormative culture’ woman) than ‘manyfrom a [W]hiteliberation-Cherokees movement enrolled in the latein the20th tribe.’ century, As Marilynthe principles Vann arehas thesaid, same: Freedmen's instruments descendants of oppression “know awere lot more designed about for a stompoppression, dance, they hog should fry, and not wild be rescued onion dinner to be usedthan inanything an agenda about of Africa.’change Thisand suggestsliberation. thatRather, some acknowledgement descendants ofmay difference share isassu a sourcemptions of strengthwith ‘blood’ that Cherokeesis necessary regarding for social change.the cosmos and its familial interconnections.” Ray, A 1268Vol.1168 47:4 47 RedJO HN Law, MARS White HALL Supremacy L. REV. 12681168 Vol. 126947:4 historiesdifferent fromof anti its-Blackness predecessors, and particularlyWhite Supremacy since itby had using the colonialbenefit ofmechanisms two years ofof planning.power under the guise of self-determination. The historiesLike ofthe Freedmen shift in andconference the Cherokee scheduling, Nation other are changes intertwined. have takenWith Vannplace withinv. Jewell the pendingLatCrit entitybefore, theincluding D.C. circuitconcerted court, efforts it toappears continue their a processfutures of institutionalization.are intertwined as In well. recent Although years, there the hasCherokee been aNation growing has focus the on sovereign how to capitalizepower to onexclude, its critical exercising niche, continuethat power cultivating to exclude the Freedmen next generation could potentially of critical lead scholars, to Federal and ensurebacklash that that the would bato limitn of theoutsider powers jurisprudence of Indigenous is Nationspassed along.in the Internally,United States. the Insteadorganization of seeking has federalshifted, remedy, including there a should gradual be changinga reciprocal of therecognition guard inusing leadership, international so to speak,standards as well in aslocal a downsizingcourts: when in theadministration. Cherokee Nation For recognizesexample, thefrom DRIP 2008 as toa partthe present,of its principlthe Boarde laws, of Dire it ctorsplaces was theintentionally Cherokee downsized,Nation as with an ainternational growing number actor andof Boardelevates seats its statusbeing occupiedas Nation. by juniorUnder lawthe professors.DRIP, Freedmen6 have a right to Cherokee citizenship based on theirAnother status asmajor indigenous development peoples, iswhether LatCrit’s by bloodacquisition which ofwas a physicalignored inspace the fordrafting the organization. of the Dawes The Rolls property, or as Campo a political, Sano (Spanishhistorical foridentity “Camp asHeal descendantsthy,” or more of literally,Africans “Camp who Sanity”),were once is aenslaved ten-acre and parcel exploited of land by located the Cherokee in Central Nation. Florida. In either7 Purchased case, theby LatCritrecognition in 2011,of Freedmen the space andis homethe torecognition The Living of Justicethe Cherokee Center andNation the becomeLatCrit intertwined,Community Campus.laying the8 Thefoundation physical for facility a future serves of ascollaboration. a means “to level the playing field and give LatCrit activists a fighting chance to be heard.”9 The space is intended

to serve as the hub of their educational, research, advocacy and activism to remedy the imbalance and deficiencies of the current legal system. Having an independent physical base has become critical as universities and law schools increasingly are even less

Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. L ATINO L. REV. 1 (1997). See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial -conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding webpage). Additionally, LatCrit has developed a substantial body of scholarship from several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and César Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the professors on the LatCrit Board of Directors and their respective law schools). 7 Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC, http://www.latcrit.org/content/campo -sano/ (last visited July 5, 2014). 8 Id. 9 Id.