The uninitiated may wonder why this was a necessary legal battle. After all, the United States extended citizenship to the former slaves of their white citizens following emancipation. Why would indigenous nations who owned slaves — and who freed their slaves the year after the Civil War as a result of new treaties with the United States — not do the same?
The answer lies in the tangled definitions of identity and race in Indian country. Disagreement over whether degree of ancestry or strength of community affiliation should determine one’s citizenship has led to years of lawsuits and tribal strife. As American politicians debate who warrants access to the benefits of American citizenship — for instance, will protections for “dreamers,” brought to the United States as children, actually be terminated in six months? — and white supremacists deride people of color as un-American, the Cherokees serve as a cautionary tale that demonstrates the danger of a nation disenfranchising those deemed noncitizens by a sufficient portion of their constituency.
The Cherokees were one of five Southeastern tribes who owned slaves of African descent from the late 18th century to 1866. Before European contact, indigenous peoples throughout North America established involuntary labor and captive-taking practices, but unlike the system of enslavement that would emerge under British settlement, this bondage was neither passed from parent to child nor permanent.
As Euro-Americans became more involved in the African transatlantic slave trade, the Cherokee, Creek, Chickasaw, Choctaw and Seminole Nations adopted their heritable, race-based slavery, as well as the racial hierarchy that sustained it. A fraction of tribal citizens possessed large numbers of enslaved people whose agricultural labor made them wealthy. Most other tribal citizens owned a few slaves or none — just as in the neighboring United States.
During the Civil War, these tribes were divided over whether to support the Confederacy or the Union, so members fought on both sides. After the war’s end, the U.S. government leveraged the tribes’ involvement with the Confederacy to force them to sign new treaties — despite the fact that it was the slaveholding minorities within the tribes that were the primary supporters of the Confederacy. The Treaties of 1866 served both as the Five Tribes’ terms of surrender as well as the outline for how their nations would be overhauled postwar.
The treaties’ terms included the cession of land to the United States and mandated emancipation and enfranchisement of the black slaves of each Indian nation. The Chickasaws did not comply in adopting their former slaves as citizens, and the Choctaws only did grudgingly. But in the Cherokee, Creek and Seminole nations, these black former slaves, or freedpeople, received and exercised the right to vote, and while they faced some prejudice, were largely accepted as tribal members with the rights inherent to this status.
Twenty-two years later, the freedpeople of the Five Tribes also received 40-acre land allotments through the enactment of the Dawes Act. This law was designed to break down the traditional communal land ownership practices of Indian tribes throughout the United States. It divided commonly-held land into allotments assigned to individual, nuclear families and dismembered tribal governments, allowing Native Americans to then be absorbed into the United States as American citizens — a measure many politicians, religious zealots and intellectuals believed would convert indigenous peoples into “docile believers in American progress.”
The Dawes Act also created a problematic definition of identity. The enrollment process that documented the Indian citizens and freedpeople eligible for land parcels involved the creation of two distinct rolls — the Freedmen Roll for former slaves and the “Blood Roll” for Indians.
These two rolls conferred distinctly different rights. Freedpeople were given less land (40 acres compared with 60), and each nation eventually made presence on the Blood Roll necessary for tribal citizenship. Ideas about race determined which roll a person wound up on. Whereas those listed on the Blood Roll could have varying “degrees” of Indian and white ancestry, most people who had black and indigenous ancestry were automatically put onto or transferred to the Freedmen Roll.
In the late 19th and early 20th century, the Creek, Seminole, Choctaw and Cherokee nations extended citizenship to both those on the Freedmen and Blood rolls. But in the late 20th and early 21st century, all four tribes stripped the descendants of freedpeople of the ability to exercise their rights as citizens.
When questioned about these developments, tribal leaders pointed to the fact that these people were listed as Freedmen, not Indians, by blood. But there were several problems with this response. First, it ignored that the Freedmen Rolls, when they were created in the 19th century, relied on the “one-drop rule.” Enshrined in the 1896 ruling in Plessy v. Ferguson, the one-drop rule meant that people of mixed-race descent could legally still be considered solely black. This effectively erased the Native ancestry of most people on the Freedmen Roll: even if they and their ancestors had possessed Native ancestry, there was no official record of it.
Second, this response disavowed indigenous peoples’ long histories of basing citizenship on kinship: acting as a community member, facing hardships together and adopting family members informally. Kin-based citizenship has a far longer history than citizenship based on nebulous ideas of “blood quantum,” wherein ancestry is determined by phenotype and ancestral math. (For example, if your father is one-half Cherokee and your mother is not Cherokee, you are one-fourth Cherokee.)
As the descendants of these freedpeople had been citizens, friends and neighbors for decades, the kinship definition surely applied to them. So why the change? As historians Tiya Miles, Barbara Krauthamer and Celia Naylor have persuasively argued, this strategic disenfranchisement was less about ancestry than about veiled prejudice — no citizens of white and Native ancestry were disenfranchised — and the consolidation of recent economic gains from tribal casinos, natural resources and other ventures.
With this recent ruling, Cherokee freedpeople have won a battle waged for some 30 odd years, reclaiming not only the right to access the practical benefits of citizenship in the Cherokee Nation, but also their right to claim ownership of the nation their ancestors’ labor helped to build.