Last week, Cherokee Nation District Court Judge John Cripps issued a decision (here) in the case of Nash v. Cherokee Nation Registrar. Here's how Reuters describes the issue:
A Cherokee Nation tribal court ruled on Friday that the nation cannot exclude the so-called "Freedmen" from tribal membership even though some of them are not blood descendants of the Indians.
The issue arises because when the U.S. government forced Indian tribes to walk from the Southeast U.S. to Oklahoma in 1831, in what the Indians described as the "Trail of Tears", some of them brought their African-American slaves with them.
They brought them because the Cherokee owned plantations in the U.S. South. When the tribe was ejected from the land they were allowed to take their possessions with them, including the slaves.
After the Civil War, those slaves were freed and an 1866 treaty with the U.S. required the Cherokee to admit to the tribe the slaves and their descendants, some with Cherokee blood because plantation owners had fathered children with slave women, and some with no Indian blood.
In 2007, the Cherokee tribe voted for a tribal constitutional amendment that revoked the membership of the slave descendants who could not prove Cherokee blood. This stripped more than 2,800 Freedmen descendants of tribal membership, most of them African-Americans. Friday's ruling invalidates the Amendment.
The full Reuters article is here. To my eye, one of the most striking passages in Judge Cripps's decision is this:
Upon the entry of the Europeans to the North American continent the Cherokee Nation abided by such agreements [treaties] made with the different entities be they French, Spanish, English, or, eventually, the United States. In a number of instances, those nations failed to honor their agreements or treaties resulting in loss and harm to the Cherokee people. One of the most egregious, of course, being the seizing of Cherokee property and the removal of the Cherokee people from their ancestral homes to Indian Territory. This does not mean that the Cherokee Nation should descend in such manner of action and disregard their pledges and agreements.
The Cherokee Nation issued a news release (here) stating that it may appeal the decision. There is a separate case pending in the United States Federal court.
Readers interested in learning more about the Freedmen and issues of membership in Native American tribes (including the irony of applying the one drop rule) may wish to read some of the work of Professor Carla Pratt, a noted scholar on the subject:
Loving, Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation, 2007 Wisc. L. Rev. 409 (2007)
Tribes and Tribulations: Beyond Sovereign Immunity and Toward Reparation and Reconciliation for the Estelusti, 11 Wash. & Lee R.E.A.L. J. 61 (2005)
Tribal Kulturkampf: The Role of Race Ideology in Constructing Native American Identity, 35 Seton Hall L. Rev. 1241 (2005)
Posted by: Stephanie Farrior | January 20, 2011 at 09:15 AM