Michigan Journal of Race and Law Volume 12 2007 A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendants S. Alan Ray University of New Hampshire Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Indian and Aboriginal Law Commons, Law and Race Commons, and the Legal History Commons Recommended Citation S. A. Ray, A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendants, 12 MICH. J. RACE & L. 387 (2007). Available at: https://repository.law.umich.edu/mjrl/vol12/iss2/4 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A RACE OR A NATION? CHEROKEE NATIONAL IDENTITY AND THE STATUS OF FREEDMEN'S DESCENDANTS S. Alan Ray* Critics of tribal sovereignty increasinglypoint to perceived contradictions between the egalitarian ideals of modem democracies and the citizenship criteria of Indian nations to argue for diminished tribal sovereign immunity and increased federal intervention in Indian affairs. When tribal nations employ citizenship criteria based on Indian ancestry, they may be asked to explain why they are not engaging in immoral, if not unlawful, race-based discrimination. Assertions of tribal sovereignty alone, even when well-founded in the law, do not address how tribes should determine citizenship criteriafrom within their own norms and values. The Cherokee Nation recently faced the challenge of determining its citizenship criteria as they pertain to the descendants of the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted by the Nation after the Civil War and given full rights of Cherokee citizenship consistent with the terms of a Reconstruction treaty. The incorporation of the Freedmen into the tribe was resisted from the start. When the Cherokee Nation's highest court affirmed the Freedmen's descendants' citizenship rights in 2006, the Nation called a special election, and on March 3, 2007, voted to approve a constitutional amendment imposing an "Indian blood" requirementfor citizenship based on the federal Dawes Rolls of the allotment era. If the amendment stands, thousands of African- descended citizens will be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize definitions of Cherokee political identity based on either the Dawes Rolls or notions of "Indian blood." Both, he argues, are heteronymous authorities for determining tribal citizenship criteria and should be replaced by the critical hermeneutic of indigenous cultural resources. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen's descendants and Cherokees by "blood," not the quick-fix of the politicalprocess. IN TR O D U C T IO N ........................................................................ 388 I. LUcYALLEN AND THE CHEROKEE FREEDMEN CONTROVERSY... 390 II. THE FREEDMEN CONTROVERSY AS A CRISIS OF POLITICAL AND SOCIAL IDENTITY .................................................................. 394 A. A Race or a Nation? Identity by Blood or Base Roll .......... 394 B. Cherokee Identity: Legal Definitions and their Limits ......... 399 * Senior Vice Provost and Affiliate Associate Professor of Political Science, Phi- losophy, and Justice Studies, University of New Hampshire. J.D., University of California, Hastings College of the Law; Ph.D., Harvard University Graduate School of Arts and Sci- ences (The Study of Religion). I dedicate this Article to Angela Katsos Ray, with love and gratitude for her constant support. MichiganJournal of Race & Law [VOL. 12:387 1. Collective Definitions: The Cherokee Nation .....399 2. Individual Definitions: Citizenship in the Cherokee N ation ......................................403 3. The Limits of Legal Definitions of Citizenship ....412 C. Cherokee Identity: Biological Definitions and their Limits ....415 1. The Construction of the "Red" Race .................416 2. The Construction of "Black" by "Red" ............. 421 3. Cherokee Slavery and Cherokee Nation .............423 4. The Limits of Biological Definitions of C itizenship .....................................................436 D. From Biology to Ancestry, From Legal Fetishism to Law ......443 III. RADICAL INDIGENISM AS A RESOURCE FOR RESOLVING THE FREEDMEN CONTROVERSY ..............................................446 A. Foundational Commitments ........................................ 446 B. A ssumptions of the M odel .......................................... 448 1. Role of Practical Knowledge ..............................448 2. Relationship to Spiritual Heritage .......................450 3. Effective History of Colonialism .........................452 C. Critical Hermeneutics ofAncestry and Reciprocity .............. 453 1. R elationship to Ancestry ....................................453 2. Responsibility to Reciprocity ........................... 457 C O N C LU SIO N .............................................................................461 INTRODUCTION The Cherokee Nation' stands at a crossroads. On March 7, 2006, the Nation's highest court in Lucy Allen v. Cherokee Nation reversed itself and ruled that the descendants of former slaves owned by Cherokee citizens- the Cherokee Freedmen-were citizens of the Nation under its Constitu- tion of 1975.2 The Court's decision provoked immediate and strong 1. Hereinafter "the Cherokee Nation" or "the Nation." The entity is also known popularly as "the Cherokee Nation of Oklahoma." 2. Lucy Allen v. Cherokee Nation Tribal Council, JAT-04-09, 19 (Okla. Trib. Mar. 7 2006), available at http://www.cherokee.org/docs/news/Freedman-Decision.pdf [here- inaftier "Lucy Allen"], rev'g Riggs v. Ummerteskee, JAT-97-03-K (Okla. Trib. Aug. 15 2001), available at http://www.freedmen5tribes.com/pdf/RiggsVs_UmmerteskeeJAT97 _03_-K.pdf. "Constitution" when capitalized refers to the Constitution of the Cherokee Nation. "Court" when capitalized refers to the Judicial Appeals Tribunal (JAT), the supreme court of the Nation.The Lucy Allen Court addressed itself to the document variously referred to as the "the 1975 Constitution" or "the 1976 Constitution." The same document was ap- proved by the Commissioner of Indian Affairs on September 5, 1975, and was ratified by the Cherokee people on June 26, 1976. Cherokee Nation Tribal Government, http:// www.cherokee.org/home.aspx?section=government. This Article will refer to "the 1975 Constitution" in deference to the Court's preferred term. At the time the Court decided Lucy Allen, the Cherokee Nation had popularly approved a new organic document, drafted SPRING 2007] A Race or a Nation? reaction from tribal leadership, Freedmen's descendants, and many of the Nation's citizens. On June 12, 2006, the Tribal Council passed a resolution to amend the Constitution to grant citizenship only to Cherokees (or their descendants) with a degree of Cherokee "blood" or adopted Dela- wares or Shawnees (or their descendants) with a degree of Delaware or Shawnee "blood" as determined by the Dawes Rolls.3 The amendment required approval by a majority of Cherokee voters, and following a suc- cessful initiative petition, a special election on the amendment was held on March 3, 2007. 4 By a clear majority, the amendment was approved! African Americans who trace their ancestry to the Cherokee Freedmen felt keenly the exclusionary effects of the Nation's action and anticipated their expulsion from the tribe's political life. The Nation per- formed its sovereign right to establish its citizenship criteria, therefore, in a social context marked by racial division. At issue was whether the Cherokee Nation should legally exclude members, present and future, who have no demonstrable "Indian blood," and more fundamentally, whether the political identity of the Cherokee Nation should center on biology or law. This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. I will ar- gue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of deter- mining who should enjoy national citizenship. The wise use of sovereignty, I will suggest, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizen- ship on the question of Cherokee identity. This dialogue should ideally after constitutional convention in 1999 (hence "the 1999 Constitution") and approved by referendum in 2003. However, because the Bureau of Indian Affairs (BIA) had not ap- proved the 1999 Constitution, the Lucy Allen Court was operating under the 1975 Constitution.The 1999 Constitution does not address itself to the status of the Freedmen's descendants and makes no substantive change to the 1975 Constitution regarding criteria for citizenship. See The 1999 Constitution of the Cherokee Nation: A Review and Com- parison between the 1976 and 1999 Constitutions of the Cherokee Nation in Preparation for the Ratification Vote On July 26, 2003, http://www.cherokee.org/ TribalGovernment/Executive/CCC/cccl999Changes.pdf [hereinafter