Mixed Race Studies

Cherokee Nation Strikes Down Language That Limits Citizenship Rights ‘By Blood’

National Public Radio
2021-02-25

Mary Louise Kelly, Host
All Things Considered

Rena Logan, a member of a Cherokee Freedmen family, shows her identification card as a member of the Cherokee tribe at her home in Muskogee, Okla., in this photo from October 2011. She is among the some 8,500 people whose ancestors were enslaved by the Cherokee Nation in the 1800s.David Crenshaw/Associated Press

The Cherokee Nation’s Supreme Court ruled this week to remove the words “by blood” from its constitution and other legal doctrines.

The words, added to the constitution in 2007, have been used to exclude Black people whose ancestors were enslaved by the tribe from obtaining full Cherokee Nation citizenship rights.

There are currently some 8,500 enrolled Cherokee Nation members descended from these Freedmen, thousands of whom were removed on the Trail of Tears along with tribal citizens.

“The Freedmen, until this Cherokee Nation Supreme Court ruling, they couldn’t hold office, they couldn’t run for tribal council and they couldn’t run for chief,” says Graham Lee Brewer, an editor for Indigenous affairs at High Country News and KOSU in Oklahoma. “And I would argue that that made them second-class citizens.”…

Read the entire story here. Download the story (00:04:10) here.

Race and American Indian Tribal Nationhood

February 2009
44 pages

Matthew L. M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center
Michigan State University

Forthcoming in a 2011 University of Wyoming Law Review issue.

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation—mired in the politics and law of disenfranchising the Cherokee Freedmen—continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe in Rhode Island on an important land case, perhaps, because the tribe’s citizens did not have significant blood quantum collectively.

But in most other cases, the Court is skeptical of tribal government authority because tribal citizenship is based at least in part on race. This means for the Court, especially Justice Kennedy, that non-Indians by blood or ancestry can never be citizens of an Indian tribes. And the Court worries that a tribal government seeking to assert jurisdiction over these persons somehow violates the social contract.

I argue, perhaps for the first time, that Indian tribes must move beyond race and ancestry as the single most important means of determining tribal citizenship. It will not be easy for Indian tribes to move beyond race and ancestry, but it is necessary if Indian nations wish to move beyond their status as an afterthought in the American constitutional structure and develop into more complete sovereign nations. I suggest several ways for Indian tribes to alter their citizenship criteria and recommend an incremental solution based on immigration law and policy.

Read the entire paper here.

A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendents

bepress Legal Series
Working Paper 1570
2006-08-17
72 pages

S. Alan Ray, President
Elmhurst College, Elmhurst, Illinois

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian “blood quantum” requirement for citizenship. If approved, potentially thousands of African-descended citizens would be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize and reject definitions of Cherokee political identity based on either the federal Dawes Rolls of the allotment era, 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. Professor Ray offers a model for constructing tribal citizenship criteria that attempts to deliver ancestry from biology, and law from legal fetishism of the Dawes Rolls. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen’s descendents and Cherokees by ancestry, not the “quick fix” of the political process.

Table of Contents

• INTRODUCTION
• I. LUCY ALLEN AND THE CHEROKEE FREEDMEN CONTROVERSY
• II. THE FREEDMEN CONTROVERSY AS A CRISIS OF POLITICAL AND SOCIAL IDENTITY
  • A. A Race or a Nation? Identity by Blood or Base Roll
  • B. Cherokee Identity: Legal Definitions and their Limits
    • 1. Collective Definitions: The Cherokee Nation
    • 2. Individual Definitions: Citizenship in the Cherokee Nation
    • 3. The Limits of Legal Definitions of Citizenship
  • C. Cherokee Identity: Biological Definitions and their Limits
    • 1. The Construction of the “Red” Race
    • 2. The Construction of “Black” by “Red”
    • 3. Cherokee Slavery and Cherokee Nation
    • 4. The Limits of Biological Definitions of Citizenship
  • D. From Biology to Ancestry, From Legal Fetishism to Law
• III. RADICAL INDIGENISM AS A RESOURCE FOR RESOLVING THE FREEDMEN CONTROVERSY
  • A. Foundational Commitments
  • B. Assumptions of the Model
    • 1. Role of Practical Knowledge
    • 2. Relationship to Spiritual Heritage
    • 3. Effective History of Colonization
  • C. Critical Hermeneutics of Ancestry and Reciprocity
    • 1. Relationship to Ancestry
    • 2. Responsibility to Reciprocity
• CONCLUSION

Read the entire paper here.