Cherokee Nation has removed a ‘blood clause’ in its Constitution that was an obstacle to the descendants of black people it enslaved before the Civil War attaining full citizenship of the tribe.
The change on Monday came after years of racial friction between members of the Cherokee Nation and thousands of descendants of black people, as well as a series of legal and political battles.
Descendants of black people once enslaved by the Cherokee Nation, known as Freedmen, have long been fighting to win equal status as members of the tribe.
This would include the right to run for tribal office and receive full benefits, such as access to health care and housing, according to the New York Times.
The Oklahoma tribe this week eliminated language in the Cherokee Constitution that based citizenship of the Cherokee Nation on being descended ‘by blood’ from tribal members listed on a 19th-century census.
By doing so, the tribe has taken a big step towards resolving the historic issue, as it effectively codifies a 2017 federal court ruling that stated that Cherokee Freedmen should have all the rights afforded to tribal citizens in the tribe’s Constitution.
The ruling was based on an 1866 treaty that laid out the terms of emancipation.
The decision drew varying reaction, with some members of the tribe’s legislature accusing of the court and the Principle Chief’s office of exceeding their authority by unilaterally changing the Constitution, according to Tulsa World.
Cherokee Nation has removed a ‘blood clause’ in its Constitution that was an obstacle to the descendants of black people it enslaved – known as Freedmen – before the Civil War to attaining full citizenship of the tribe. Pictured: Freedmen protest in Tulsa in 2007, file photo
The Cherokee nation has an estimated 8,500 enrolled citizens of Freedman descent.
Before the 2017 ruling, there have been around 2,900 enrolled Freedmen citizens, and another 5,600 since, Julie Hubbard, a spokeswoman for the Cherokee Nation, told the New York Times.
Cherokee Nation is one of the largest tribes in the country, with around 380,000 enrolled citizens, more than half of which live within the tribe’s northeastern Oklahoma reservation.
‘This is a big win because what this means is that the tribal government, including the tribal courts, are working to uphold the 1866 treaty obligation to the Freedmen,’ Marilyn Vann – a Cherokee citizen and president of the Descendants of Freedmen of the Five Civilized Tribes Association – told The Times.
Originally from the South, Cherokee and other Native American nations purchased enslaved black people as laborers in the 18th and 19th centuries.
They were then taken along with the tribes as they themselves were driven further west by white settlers.
After the Civil War and the 1866 treaty, the practice of owning slaves came to an end, black people were guaranteed freedom, and the freed black people and their descendants would ‘have all the rights and privileges of native Cherokees.’
Pictured: The Seal of the Cherokee Nation at the Cherokee War Memorial on the Nation’s Capital complex. Descendants of black people once enslaved by the Cherokee Nation, known as Freedmen, have long been fighting to win equal status as members of the tribe. File photo
However, this promise wasn’t kept, and Freedmen were excluded and forced to fight for their rights, their efforts escalating in the past several decades.
Tens of thousands of descendent of Freedman have questioned whether they were being afforded the equal rights by the Cherokee Nation, promised in the treaty.
On Monday, the Cherokee Nation Supreme Court unanimously ruled the ‘by blood’ language should be removed from the Constitution and to make related laws illegal.
Pictured: Cherokee Nation Attorney General Sara Hill praised the decision
‘The ‘by blood’ language found within the Cherokee Nation Constitution, and any laws which flow from that language, is illegal, obsolete and repugnant to the ideal of liberty,’ the ruling states.
‘These words insult and degrade the descendants of Freedmen much like the Jim Crow laws found lingering on the books in Southern state some fifty-seven years after the passage of the 1964 Civil Rights Act.’
The Times reported that Sara Hill, the attorney general for the Cherokee Nation, said that she fought for the removal of the ‘by blood’ language after it was used to cast doubt on Ms Vann’s candidacy for an at-large tribal council seat.
‘The federal court and Cherokee Nation Supreme court concluded in 2017 that Cherokee Nation is bound by the Treaty of 1866 to recognize descendants of Cherokee Freedmen as full citizens. Cherokee Nation has abided by those court orders and will continue to do so,’ Attorney General Hill said.
‘Provisions in Cherokee Nation’s constitution and laws that deny descendants of Freedmen all the rights and obligations of Cherokee citizenship violate our 155-year-old Treaty obligations and are void. Cherokee citizens of Freedmen descent are simply this: Cherokee citizens.’
Originally from the South, Cherokee and other Native American nations purchased enslaved black people as laborers in the 18th and 19th centuries. They were then taken along with the tribes as they themselves were driven further west by white settlers. Pictured: The Trail of Tears, painted by Robert Lindneux in 1942, commemorating the suffering of the Cherokee people under forced removal
When Ms Vann declared her candidacy in December, a challenger to her position as well as a Cherokee Nation citizen claimed she did not meet the ‘by blood’ constitutional requirement.
The complains pointed to an amendment in 2007 to the tribe’s constitution ‘to limit citizenship in the Cherokee Nation to only those persons who were descended from individuals who appeared on the Dawes Rolls as Cherokee, Shawnee or Delaware by blood.’ More than 75 percent of Cherokee citizens voted to approve the change.
The Dawes Rolls was a list of members of the tribe created in the last 19th and early 20th century, The Times says.
‘I saw those words being thrown around as if people wanted to give them new meaning again, and I thought it was time to get those words removed from our law and our constitution,’ The Times reported Ms Hill as saying, ‘because I could see they were being used to belittle and demean the rights of Cherokee Freedmen.’
Principal Chief Chuck Hoskin Jr. of the Cherokee Nation said the Cherokee Nation tribe needed to confront its history of enslaving people, and the repercussions of failing to recognize Freedman as citizens still being felt to this day.
Principal Chief Chuck Hoskin Jr. (pictured in 2019, file photo) of the Cherokee Nation said the Cherokee Nation tribe needed to confront its history of enslaving people, and the repercussions of failing to recognize Freedman as citizens still being felt to this day
He also said that the tribe had shifted towards regonizing the Freedmen as citizens since the 2017 ruling, and agreed that any anti-Freedmen should be removed from the Constitution, fulfilling a promise made by Cherokee ancestors.
‘The United States government has broken all of its treaty obligations,’ he said. ‘The Cherokee Nation is better than that.’
‘We ought to be a nation that keeps its word,’ he said. ‘I think this just reaffirms that what we are doing is the right thing, which is achieving the equality our ancestors believed in 155 years ago.’
However, Tribal Council member Wes Nofire criticised the decision, saying ‘we now have a broken government.
‘They do not lawfully have the authority to do what they have done. When you have a court or a principal chief that don’t recognize the limits of their own power, it becomes tyranny.’
Pictured: The Cherokee Nation supreme court in Tahlequah, Cherokee County, Oklahoma
Nofire, along with Council members Harley Buzzard and Julia Coates, released a statement calling for a vote on the change.
‘The foundation of our democracy is at stake when any one branch of Government believes they have the supreme authority to amend, alter or strike any part of the Constitution without a vote by the People,’ The statement said.
‘We hope that the Justices of the Supreme Court will allow our intervention and follow the proper process of the Constitution by either an amendment or a Constitutional Convention.’
‘Ultimately, it has to be up to the people what to do,’ Nofire said.
Other tribes are seeing similar legal challenges unfolding.
The Freedmen of the Muscogee (Creek) Nation – also in Oklahoma – were given the same rights under the 1866 treaty, but were disenfranchised from the tribe in 1979.
Their fight for re-entry continues to this day.
Freedmen of the Cherokee Tribe
The controversy around the Freedmen of the Cherokee Tribe revolves around a dispute between the Cherokee Nation of Oklahoma and the descendants of black people who were enslaved by the tribe before the US Civil War.
Several legal proceedings between the two groups have occurred from the late 20th century to August 2017, when the US District Court ruled in favour of the Freedman descendants and the U.S. Department of the Interior in Cherokee Nation v. Raymond Nash et al. and Marilyn Vann et al.
An 1809 census found that 583 black slaves were held by Cherokee slave owners. By 1835, that number had risen to 1,592, with over seven percent of Cherokee families owning slaves.
Between 1830 to 1850, the Cherokee people and other tribes were forcibly removed by white settlers, an event that become known as the ‘Trail of Tears’, or the ‘Indian Removal’. The tribes took their black slaves with them.
By 1861, the Cherokee held around 4,000 black slaves, but following the US Emancipation Proclamation, abolishing slavery. The Cherokee Nation followed suit with two acts in 1863.
The acts stated that any Cherokee citizen found to be owning slaves after June 25, 1863 should be fined at least $1,000.
Three years later in 1866, a Reconstruction treaty was signed by a delegation of six Cherokee Nation citizens in Washington DC, that granted Cherokee citizenship to the Freedmen and their descendants.
However, in the early 1980s, the Cherokee Nation administration amended citizenship rules to require direct descent from an ancestor listed on the ‘Cherokee By Blood’ section of the Dawes Rolls.
The change stripped descendants of the Cherokee Freedmen of citizenship and voting rights unless they satisfied this new criterion.
This was ruled unconstitutional in 2006, and that Freedman were entitled to be enrolled as Cherokee Nation citizens, but a special election in 2007 resulted in the passage of a constitutional amendment.
This again excluded Cherokee Freedmen descendants from membership unless they satisfied the ‘Cherokee by blood’ requirement.
The Cherokee Nation District Court voided the 2007 amendment on January 14, 2011, but this decision was then overturned in the Cherokee Nation Supreme Court on August 22, 2011.
This sparked a series of legal battles with the US federal government which put pressure on the tribe to accept Freedman citizenship.
Finally, on August 30, 2017, the US District Court ruled in favour of the Freedmen descendants and the US Department of the Interior, granding Freedman full citizenship rights in the Cherokee Nation.
The nation has accepted this decision, effectively ending the dispute, with the ruling in February 2021 removing the 2007 ‘Blood Clause’, clearing the way for Freedmen to be afforded equal rights to run for tribal office and receive full benefits, such as access to health care and housing.