The Cherokee Nation’s Supreme Court ruled on Monday that the tribal nation remove the phrase “by blood” from its constitution and other tribal laws. This change formally recognizes that descendants of blacks formerly enslaved by the tribe – known as Cherokee Freedmen – are entitled to tribal citizenship, which means that they can run for tribal positions and have access to resources like tribal medical care.
The recent Supreme Court decision of the Cherokee Nation is a response to a 2017 ruling by a United States district court that ruled that descendants of the Cherokee Freedmen have full tribal citizenship rights under a treaty the Cherokee Nation made with the United States in 1866.
“Freedoms’ rights are inherent,” wrote the Cherokee Nation’s Supreme Court judge, Shawna S. Baker, in the opinion. “They extend to the descendants of freedmen as a birthright that arises from the oppression and displacement of their ancestors as people of color registered and honored in Article 9 of the 1866 Treaty.”
The history of the Cherokee Freedmen is an example of how complex, layered issues of race, inequality and marginalization in the United States are.
Many Native Americans were enslaved alongside African Americans during the colonial period – Brown University historian Linford D. Fisher estimates that 2 to 5.5 million natives were enslaved from the time of Christopher Columbus until about 1880.
But some wealthier tribal citizens, especially in tribes in the southeast who adopted certain norms of white settlers, also practiced slavery. This includes the Cherokee people, some of whom in the early 1800s began to enslave African Americans.
Then, in the late 1830s, the US government forcibly expelled the Cherokee from their homeland and ordered them to move to present-day Oklahoma – an exodus known as the Trail of Tears. What is not so well known, however, is that African American slaves made the journey together with the Cherokee citizens who enslaved them.
About 4,000 enslaved blacks lived among the Cherokee in 1861, according to the National Museum of the American Indian.
The tribe abolished slavery in 1863. And shortly after the end of the Civil War, the Cherokee nation signed a treaty with the United States government that granted full citizenship rights to those previously enslaved by Cherokee citizens.
But in practice, freedmen were often denied and excluded from the tribe, wrote Lolita Buckner Inniss in a 2015 article published in the Columbia Journal of Race and Law. In recent decades, the Cherokee Freedmen have struggled to protect those rights through various legal procedures.
Freedmen have long struggled to protect their rights
In 2007, the Cherokee nation amended its constitution to restrict tribal citizenship to those with “indigenous blood”. This expelled some 2,800 descendants of Cherokee Freedmen from the tribe, the website of the National Museum of American Indian States.
Chad Smith, the chief head of the Cherokee Nation at the time, argued that the tribe was a sovereign nation and therefore should have the right to determine who qualifies for tribal citizenship. But the freedmen retreated, resulting in a series of legal battles over the next decade.
In 2017, a federal district court ruled in favor of the Libertos – a decision that the Supreme Court of the Cherokee Nation has now reaffirmed.
“The language ‘by blood’ found in the Constitution of the Cherokee Nation, and any laws flowing from that language, is illegal, obsolete and repugnant to the ideal of freedom,” Baker wrote in the recent opinion. “These words insult and degrade Freedman’s descendants in much the same way as the Jim Crow laws found in southern state books, some fifty-seven years after the passage of the Civil Rights Act of 1964.”
Chuck Hoskin Jr., chief chief of the Cherokee nation, praised the decision.
“The Cherokee nation is stronger when we move forward as citizens together and on equal terms under the law,” he said in a statement on Monday. “… The court recognized, in the strongest terms, our ancestors’ commitment to equality 155 years ago in the Treaty of 1866. My hope is that we all share that same commitment going forward.”
About 8,500 descendants of freedmen are currently registered as citizens of the Cherokee nation, according to a tribe press release.
