The scene inside the D.C. federal courtroom on Monday was as striking as the case being heard. Those seated on one side of the gallery appeared to be white; on the other side sat people who were black. All were members of the Cherokee Nation.
Except some members of the Cherokee Nation want to revoke the citizenship of the black members and prohibit their participation in the political and economic life of the tribe — all based on race and bloodline.
A nation divided against itself, indeed.
The case, Cherokee Nation v. Raymond Nash, is an unvarnished attempt to disenfranchise blacks and says much about the nation that encompasses it. It’s a lot like what’s happening with the move to suppress the black vote through voter ID laws or question the citizenship of the president in a way that would never have been done if he was white.
The outcome hinges on how U.S. District Judge Thomas F. Hogan interprets an 1866 treaty between the Cherokee Nation and the United States. The agreement, in essence, is an Indian version of the U.S. Civil Rights Act of 1866, guaranteeing the rights and protection of freed slaves.
The Cherokee Nation, which was actively involved in the slave trade, later signed a treaty stating: “All freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons . . . and their descendants, shall have all the rights of native Cherokees.”
Those colored men became the Cherokee Freedmen.
What’s to dispute?
“For more than 140 years, descendants of the freedmen have voted, held positions in national councils, led courses in traditional art, participated in national holidays,” said Jon Velie, lead attorney for the Cherokee Freedmen. “The law is unequivocal. There is nothing ambiguous about it.”
Nevertheless, in recent years, Cherokees began claiming that having “the rights of a citizen” is not the same as being a citizen. They assert a sovereign nation such as the Cherokee has the authority to determine who does and who does not belong based on whatever criteria it chooses.
“I have Scottish blood, but that doesn’t mean I can go over there and vote,” said Diane Hammons, an attorney for the Cherokee Nation. As for the freedmen having a Cherokee identity and culture that had been passed along through generations, Hammons said, “No one is denying the pride and culture, but that does not mean citizenship.”
Argued Velie: “The Cherokee and U.S. treaty, expressly granting fundamental rights to the freedmen, trumps any law that the Cherokee passes to redefine citizenship.”
The Cherokee Nation has a population of about 300,000, most scattered outside the Cherokee “service area,” which is centered in Oklahoma. That number includes about 30,000 descendants of Cherokee freedmen.
The move to expel citizens who derive their status from former slaves coincides with an increased flow of money into the Cherokee Nation — including billions of dollars from U.S.-sanctioned casinos and hundreds of millions more in federal appropriations for housing, health and employment services.
“This is mostly about white people trying to be Indian because of the money at stake,” said Sam Ford, a descendant of a Cherokee freedman and also a reporter for WJLA (Channel 7). “Like Oklahoma Senator Tom Coburn has said: The average person calling themselves Cherokee have a Cherokee blood quantum of 1/512. Add up all the Cherokee blood and you get about a cup’s worth.”
The Cherokee Nation was aligned with the Confederacy during the Civil War and adopted the ways and attitudes of the antebellum South. “Those attitudes still exist,” said Marilyn Vann, president of the Descendants of Freedmen of the Five Civilized Tribes Association.
(The U.S. government deemed as civilized those tribes that adopted a planter’s lifestyle instead of a hunter’s, even if it meant using slave labor to run their plantations.)
At the end of the hearing, Hogan said that he would deliver a published opinion in the near future instead of ruling from the bench. “Interpreting a treaty that’s 150 years old . . . ” he said, his voice trailing off.
Such is the enduring nastiness of slavery, an original American sin that still rends the moral fabric of the nation. The effects have been so corrosive that two peoples who should be brothers and sisters in the fight for justice have instead become a modern-day Cain and Abel. It shouldn’t be that difficult, however.
“Thirty years before they were freed, the Cherokee slaves walked and died with the Cherokee on the Trail of Tears,” Velie said, referring to the forced removal of the Cherokee from the Deep South farther west into Oklahoma. “Now the Cherokee are attempting to expel those who suffered along with them, trying to send the descendants of the freedmen on a trail of tears again.”
To read previous columns, go to washingtonpost.com/milloy.