Why Freedmen Descendants Without an Indian Ancestor Listed on the Base Rolls Are Not Eligible for Citizenship in the Cherokee Nation
The Cherokee Nation's opponents in current federal litigation and certain Members of Congress continue to misstate and twist the facts about the history and law – in addition to ignoring prior Congressional acts -- concerning Freedmen descendant citizenship. These opponents and Members of Congress are trying to punish the Cherokee Nation because they disagree with legitimate and lawful actions it has taken in determining its citizenship laws.
This briefing clarifies the confusion created by the Cherokee Nation’s opponents. As a matter of right, Cherokee citizens have allowed only those who can trace their Indian ancestry to the base rolls taken by federal government in 1906 to become citizens of the Cherokee Nation. As explained below, the above-mentioned requirement for citizenship in the Cherokee Nation fully complies with the 1866 Treaty and the subsequent Congressional acts that modified the Treaty.
The Cherokee Nation has the power to define its tribal citizenship. Congress exercised its plenary power by superseding the 1866 Treaty in 1902 and 1906. As a result, the claims of citizenship in the Cherokee Nation by Freedmen descendants and others were extinguished. Since 1906, the Cherokee Nation itself has exercised the legitimate and lawful right of determining its citizenship – a basic right exercised by more than 500 other Indian tribes in the United States.
II. Article IX of the Treaty of 1866 Between the United States and the Cherokee Nation and Its Meaning
Article IX of the 1866 Treaty states: "They [the Cherokee Nation] further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants shall have all the rights of native Cherokee."
The U.S. Court of Claims in 1896 interpreted the following language in Article IX of the Treaty: "and are now residents therein, or who may return within six months, and their descendants …"
The Court ruled that the language was:
. . . intended for the protection of the Cherokee Nation as a limitation upon the number of persons who might avail themselves of the provisions of the treaty, and consequently that they referred to both the freedmen and the free colored persons previously named in the article; that is to say, freedmen and the descendants of freedmen who did not return within six months are excluded from the benefits of the treaty and of the decree, and that this period of six months extends from the date of the promulgation of the treaty, August 11, 1866, and consequently did not expire until February 11, 1867. Whitmire v. United States, No. 17209, 46 Ct. Cl. 227, 1910 WL 930, *4 (1910), citing decree of Feb. 18, 1896.
The Court’s interpretation, in addition to Congress superseding and clarifying the 1866 Treaty, is part of the foundation for the Cherokee Nation’s position that descendants of Freedmen are not entitled to Cherokee Nation citizenship just because they have a Freedman ancestor. The Freedmen were defined as a class and described by the 1866 Treaty as including only those former slaves, "free colored persons" and their descendants who resided in the Cherokee Nation as of February 11, 1867.
III. The Cherokee Nation Constitution of 1866
The 1866 Treaty never gave citizenship to the Freedmen; however, the Cherokee Nation amended its Constitution in 1866 to grant citizenship to several classes of people that had a legitimate connection and presence in the Cherokee Nation.
All native born Cherokees, all Indians and whites legally members of the Nation by adoption and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as freed colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be citizens of the Cherokee Nation.
Cherokee Nation Const., art. III, Sec. 5 (1839 as amended 1866) (emphasis added).
Through their Constitution, the Cherokee people decided to confer citizenship upon non-Indian Freedmen descendants and others. Only two entities could change that decision: Congress pursuant to its plenary power and the Cherokee people by amending their Constitution. It is a well-settled legal and historical doctrine that Indian tribes can decide for themselves who can and cannot be members of their own tribes.
By the early 1900s, Congress took the matter into its own hands, forever changing the citizenship status of the Freedmen and their descendants within the Cherokee Nation -- by superseding the wording of Article IX of the Treaty and limiting the class defined as Freedmen. This is an historical fact that has been willfully ignored by the opponents of the Cherokee Nation.
IV. Congressional Act of July 1, 1902
To prepare for the liquidation of the Cherokee Nation assets and allotment of its tribal lands, the Act of 1902, among other things, provided that “entitlement to tribal enrollment no longer existed for any person born after September 1, 1902.” According to Section 26 of the Act, “The names of all persons living on the first day of September, nineteen hundred and two, entitled to be enrolled as provided in section twenty-five hereof, shall be placed upon the roll made by said Commission, and no child born thereafter to a citizen . . . shall be entitled to enrollment or to participate in the distribution of the tribal property of the Cherokee Nation.”1
This meant that, for all intents and purposes, as of that date, the rolls for those who had citizenship or property claims in the Nation were closed for all, including Indians, Freedmen descendants, and Intermarried Whites.
V. Congressional Act of April 26, 1906, also known as The Five Tribes Act, Changed the Meaning of Article IX of the 1866 Treaty
The Five Tribes Act of 1906 further superseded the language of Article IX of the 1866 Treaty and removed any lingering doubt about who was included in the class defined as Freedmen. Certain Members of Congress and non-Indian Freedmen descendants wrongly rely on this Article of the 1866 Treaty for Freedmen descendant citizenship claims in the Cherokee Nation.
Specifically, Congress moved the term "and their descendants" from the end of the paragraph closer to the description of those who qualified under the Freedmen Roll, further clarifying whether Article IX referred to only Freedmen descendants then living or to those in perpetuity. The Five Tribes Act provides:
The roll of Cherokee freedmen shall include only such persons of African descent, either free colored or the slaves of Cherokee citizens and their descendants, who were actual personal bona fide residents of the Cherokee Nation August [11, 1866], or who actually returned and established such residence in the Cherokee Nation on or before February [11, 1867]; but this provision shall not prevent the enrollment of any person who has heretofore made application to the Commission to the Five Civilized Tribes or its successor and has been adjudged entitled to enrollment by the Secretary of Interior. The Five Tribes Act, §3.
1Act of July 1, 1902 (32 Stat. 716, chap. 1375). (Emphasis added).
VI. Controlling Federal Case Law Supports the Fact that Congress Unilaterally Superseded Article IX of the 1866 Treaty by Passing the Five Tribes Act
The District of Columbia Circuit Court of Appeals confirmed the changed meaning of Article IX in the wake of the Five Tribes Act. The court said:
[T]he benefits of citizenship were conferred only upon free colored persons, or the slaves of Cherokee citizens and their descendants, who were actual bona fide residents of the Cherokee Nation August 11th, 1866, or who actually returned and established such residence in the Cherokee Nation within six months from that time. United States ex rel. Garfield v. Lowe, 34 App. D.C. 70, No. 1913 1909 WL 21538 at *4 (D.C. Court of Appeals 1909), aff'd. sub nom, United States ex rel. Lowe v. Fisher 223 U.S. 95 (1912).
The appeals court held that the Five Tribes Act revised the meaning of Article IX and that the claimants in that case were not entitled to any treaty benefits (including enrollment as citizens) because neither they nor their ancestors had been bona fide residents of the Nation within the required time frame. The U.S. Supreme Court affirmed this decision.
In 1912, the U.S. Supreme Court further held in another case that, “The right of each individual to participate in the enjoyment of such property depended upon tribal membership, and when that was terminated by death or otherwise the right was at an end. It was not alienable or descendible.” Gritts v. Fisher, 224 U.S. 640 at 642 (1912) (emphasis added).
Freedmen were a defined and limited class. The class was limited to “former slaves or freed Negroes” associated with the Cherokee Nation who resided in the Cherokee Nation prior to 1867. Federal law has clearly stated and courts have unequivocally held that no right of Cherokee citizenship or property inured to the descendants of that class. In essence and, as the 1902 federal statue clearly provided, after 1902, no child born of Freedmen, Intermarried Whites, or foreign Indian tribes was entitled to citizenship in or property of the Cherokee Nation. Therefore, today’s Freedman descendants, by virtue of their Freedmen ancestry, have no right to Cherokee citizenship.
VII. Restoring the Cherokee Nation as an Indian Tribe Consisting of Indians
For more than 30 years, the Cherokee Nation has worked hard to rejuvenate its heritage and to restore its cultural identity. It set out to heal the damage done by more than two centuries of federal policy designed to forcibly assimilate Native Americans, to terminate tribal governments, and to strip the identities of tribes as communal nations. In the midst of this effort, the Cherokee people considered what it meant to be Indian, a Cherokee, and what requirements were necessary for Cherokee Nation citizenship. The Cherokee people determined that the Cherokee Nation should return to what it had been since time immemorial – an Indian tribe made of Indians, a family of families and a community of communities held together by common ancestry.
Pursuant to their inherent authority, the Cherokee people voted in favor of this principle three different times in recent history. Most recently, in March 2007, a Constitutional amendment expressly codified the principle that, to be a Cherokee citizen, one must be able to trace to an Indian ancestor listed on the base rolls. This Constitutional amendment passed with 77% of the vote; non-Indian Freedmen descendants and Intermarried Whites also participated in this vote. The amendment has no effect on Freedmen descendants and Intermarried Whites who have an Indian ancestor on the base rolls. For example, there are more than 1,500 Freedmen descendants who are Cherokee citizens. Regardless of appearance, color or race, if a person has an Indian ancestor on the 1906 base rolls, he or she is granted Cherokee Nation citizenship; regardless of appearance, color, or race, if a person does not have an Indian ancestor on the 1906 base rolls, he or she is denied Cherokee Nation citizenship.
One hundred years ago, Congress -- and not the Cherokee Nation -- extinguished by statute any entitlement to enrollment or property in the Nation by descendants of Freedmen. The federal courts have held the same. Today, the Cherokee Nation's opponents in current federal litigation and certain Members of Congress are attempting to coerce the Cherokee people to grant to non-Indians something to which they are not entitled: citizenship in the Cherokee Nation. Although these issues were resolved in favor of the Cherokee Nation 20 years ago in the case of Nero v. Cherokee Nation, 892 F.2d 1457 (10th Cir. 1989), (recent case holding that race discrimination statutes did not apply to a tribe's designation of tribal membership criteria - as stated in the 9th Circuit Court case of Snyder et al vs Navajo Nation (2004)) non-Indian descendants of Freedmen are re-litigating the same issues in federal and tribal court. Let the courts decide. The Cherokee Nation has always adhered to the rulings of the courts. Will Congress do the same?
(apparently not - why wait for justice - when you can violate Indian Civil Rights en masse)
Read more articles in the News on this subject:
The D.C. District Court Judge in this case:
Judge Kennedy's memorandum of opinion in the Freedmen case:
Judge in the Cobell case: