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 Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Indigenous, Indian, and Aboriginal Law Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Jeremiah Chin, Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, and the Colonial Feedback Loop, 47 J. Marshall L. Rev. 1227 (2014) https://repository.law.uic.edu/lawreview/vol47/iss4/5 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. 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 took(last 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, LAT CPress,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 valuesCésar Cuahtémocand norms Garcíaand Freedmen Hernández. who See have About been LatCrit raised, assupra part note of Cherokee 3 (listing culture:the professors “Many onFreedmen's the LatCrit descendants Board of Directors‘possess andas muchtheir respectiveif not more law Cherokeeschools). 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