Cherokee Chief Bill John Baker
Unlike his predecessor, Chief Bill John Baker has not opposed descendants of the tribe’s former slaves, known as the Cherokee Freedmen, having rights as tribal citizens. That legal issue has been in dispute for more than a century and has yet to be permanently resolved. At stake are the Freedmen’s voting rights and access to health, housing and other services.
Baker, a former longtime member of the Cherokee National Council, has promised to abide by whatever the court of last jurisdiction decides. One federal case on Cherokee Freedmen citizenship is pending in Oklahoma, and there may be an attempt to revive another in Washington, D.C.
Most Americans are unaware that the Cherokee Nation, now one of the nation’s largest Native American tribes, permitted slavery before the Civil War. So did four other tribes that the Army forcibly relocated from the southeast to Oklahoma, then called Indian Territory, on the deadly Trail of Tears beginning in 1838.
The others are the Chickasaw, Choctaw, Creek and Seminole. The Cherokee took 1,500 Black slaves with them.
During the Civil War, large portions of those five tribes fought on the side of the Confederacy, in part because of a shared economic interest in preserving slavery. Afterward, the federal government negotiated a new treaty with each of the tribes that, among other provisions, required them to do what the Confederacy states had to do: free the slaves, recognize them as citizens and give them equal rights.
To one degree or another, the citizenship rights of the five tribes’ Freedmen and their descendants have been in contention ever since. For the past five years, the legal status of the Cherokee Freedmen, specifically, has bounced back and forth between tribal courts, federal courts and agencies, members of Congress and Cherokee voters.
“It comes up every couple generations. Every few decades, someone within the Cherokee Nation or the Seminole Nation will try to disenfranchise their Freedmen,” says Jon Velie, an Oklahoma lawyer who represents the Cherokee Freedmen. “Usually, it has been over money, not citizenship rights.”
The Cherokee Nation, which has an annual budget of nearly $600 million, no longer distributes per capita payments to its citizens, who number 300,000. The tribe receives federal funds and revenues from casinos and other businesses it owns.
How the latest phase of the legal battle gets resolved depends in part on Baker, who defeated former Chief Chad Smith in the October replay of a June election that saw ballot recounts seesaw between the two candidates. The Cherokee Supreme Court ordered that a new election be held.
It is unclear whether the new chief will alter the Cherokee Nation’s opposition to the Freedmen in the federal court case or process an administrative backlog of 4,000 citizenship applications from them. Of an estimated 28,000 Freedmen, only 2,800 are tribal citizens. Many enrolled during a one-year window that ended in 2007.
“The Baker administration has not taken a position yet,” Velie says. “We’re hopeful that maybe we can find a way to deal with that administration on this issue.”
As it stands, the Cherokee Nation’s legal position is outlined in the federal lawsuit that the previous administration filed in 2009.
The tribe’s legal complaint against five “non-Indian Freedmen descendants” argues that the 1866 treaty granting them “all the rights of native Cherokee” was nullified by a 1906 federal law.
Called the Five Tribes Act, that law terminated the federal census of citizens of the former slave-holding tribes and dissolved their governments to make way for Oklahoma’s statehood.
“The Cherokee Nation contends that, by the Five Tribes Act and other statutes, the United States abrogated a portion of the Treaty of 1866, resulting in non-Indian Freedmen descendants, including the individual defendants, no longer having, as a matter of federal law, the right to citizenship of the Cherokee Nation,” the complaint concludes.
Diane Hammons, Smith’s appointee as the Cherokee attorney general, filed the lawsuit in U.S. District Court in Tulsa. She did not respond to requests for an interview.
Velie contends “the Five Tribe Act did not say that it abrogates the treaty.” He also challenges whether a single provision of a treaty can be nullified instead of the entire pact, which is the basis for the Cherokee Nation’s sovereign relations with the federal government.
Cherokee politics is one consideration that is expected to shape Baker’s stance on the Freedmen.
His victory margin of 1,600 votes was larger than the number of Freedmen eligible to participate in the second election, but some supporters of Chad Smith are casting him as beholden to that minority voting bloc.
“Chad’s people are trying to paint this as the Freedmen’s administration. He’s the ‘Freedmen chief,’ ” says David Cornsilk, a blood Cherokee who supports Baker and the Freedmen. “So he’s trying not to perpetuate that. He wants to be everybody’s chief.”
Cornsilk adds: “He is in a tough spot because the majority of the people who put him into office feel the Freedmen shouldn’t be members of the tribe. But the legal situation is that there’s no getting around the treaty.”
The federal courts, Velie says, “have routinely ruled for the Freedmen since 1895,” most recently, the D.C. Circuit Court of Appeals in 2008.
Cornsilk says he has pressed Baker to process the backlog of citizenship applications, which the chief or the tribe’s registrar has the power to do.
Many of the current Freedmen citizens filed applications after the Cherokee Supreme Court ruled them eligible in 2006 but before a 2007 referendum, orchestrated by Smith, that revoked eligibility for most Freedmen. That referendum limited tribal citizenship to people listed on the federal census, known as the Dawes Rolls and taken at the turn of the 20th century, as having Cherokee blood. The amendment to the tribal constitution was backed by 77 percent of those who voted.
Nearly all freed slaves and their descendants were enrolled as Freedmen, without any Cherokee blood quantum cited, in keeping with the custom that one drop of African blood made a person Black.
Cornsilk, a former researcher in the Cherokee registrar’s office, says he has read the applications of every Freedman who sought to be included on the Dawes Rolls, named for former U.S. senator and census director Henry Dawes. About a third of the applications, he says, contain evidence of a Cherokee bloodline.
Despite the 2007 referendum excluding nearly all Freedmen from the tribe, the 2,800 have been allowed to remain citizens while the federal court case is pending. But the processing of any new applications from Freedmen was halted. Members of the Congressional Black Caucus had threatened to cut off federal funding to the Cherokee Nation.
Velie says he, too, has pressed lawyers representing the Cherokee Nation and Department of Interior, which includes the Bureau of Indian Affairs, for a resumption of tribal reviews of Freedmen’s applications.
“There’s no legal rationale that some Freedmen can be in the tribe but not all Freedmen,” Velie says.
The federal government is likely to have a role in resolving that issue and the larger one regarding citizenship for Cherokee Freedmen.
Freedmen citizens were allowed to vote in the October election because the Bureau of Indian Affairs threatened not to recognize any election conducted without them and the Department of Housing and Urban Development withheld $37 million in housing funds.
The interim Cherokee government negotiated an agreement, approved by a federal judge, which allowed Freedmen to vote and continue receiving tribal services.
That order overturned a Cherokee Supreme Court ruling in July that the Freedmen were not Cherokee citizens.
After the October election, HUD released the $37 million but said it would monitor the tribe’s compliance with the federal court order.
Before HUD and the Bureau of Indian Affairs acted in September, President Obama and his administration had maintained a public silence on the Cherokee Freedmen issue.
“I’m very pleased with that, and I do hope that this new outlook will continue,” says Marilyn Vann, president of the Freedmen Descendants Association. “It’s obvious that for some of the tribal leaders, if there’s not a shutoff of funds or a threat in order to comply with the law, nothing changes.”
Vann, a petroleum engineer who lives in Oklahoma, has energetically promoted the Freedmen’s cause in media interviews and through online social networks.
“This is not only a legal issue. This is a human rights issue,” Vann says. “Black people of African descent in Mexico have Mexican citizenship. People of African descent in South Africa eventually received South African citizenship.”
For people skeptical of Black people claiming citizenship in a Native American tribe, she adds: “All people in this country of African descent do not have the same history. Black people whose ancestors were enslaved based on tribal government policies don’t.” D
Editor’s Note: Kenneth J. Cooper is a descendant of Cherokee Freedmen though not an enrolled member of the Cherokee Nation of Oklahoma.
