Claudio Saunt

If Allen wins her case, the impact would be enormous. There are today about 250,000 Cherokee citizens, and by one conservative estimate, Allen v. Ummerteskee would overnight make 130,000 freedmen and their descendants eligible for citizenship. Although most of them long ago cut their ties to the Cherokee Nation, perhaps 38,000 interested persons could be expected to submit a citizenship application to the Cherokee registrar. A comparable situation in the United States would add 45 million citizens.

The potential impact on the tribal budget is less clear. Freedmen citizens would have access to healthcare through the Indian Health Service, tuition support for higher education, mortgage assistance, and other benefits. Most of these services are financed through the Cherokee Nation by the federal government on a need-based formula, so funding could be expected to rise accordingly. But fully 25 percent of the Cherokee national budget comes from other sources (gaming and other tribal enterprises), and this inelastic revenue would have to be shared by a larger population.

The neighboring Creek Nation also excludes its freedmen, and although a decision by Cherokee courts would have no legal consequences for the Creeks, it is difficult to imagine that they would not soon follow suit. So too might the Seminole Nation, which currently grants freedmen partial citizenship. And perhaps even the Choctaw and Chickasaw nations, whose rejection of the freedmen is longer standing and more deeply rooted, would eventually yield to the trend. All told, well over 300,000 freedmen could be affected. What this amounts to is that the Five Tribes — or Five Civilized Tribes, as the Cherokees, Creeks, Seminoles, Choctaws and Chickasaws were called in the 19th century — face a social revolution as powerful as America’s in the civil rights era.

Not surprisingly, freedmen are driving the movement. In the last few years, they have founded the Descendants of Freedmen of the Five Civilized Tribes as well as a rival organization, the Freedmen Descendants of the Five Civilized Tribes. They hold monthly and annual meetings, and they daily discuss affairs on AfriGeneas.com in the African-Native American forum. One man, Napoleon Davis, even built a shrine to his freedmen ancestors, a cavernous concrete and wood museum inspired by the shape of a tepee. It sits in a field, just off South 74th Street in Muskogee, Okla.

They have also filed lawsuits. In addition to Allen, Marilyn Vann, a Cherokee freedwoman, is suing the Department of the Interior in federal court for allowing the Cherokee Nation to disenfranchise her. And freedmen Ron Graham and Fred Johnson are suing the Creek Nation in tribal court.

Graham recalls the moment he decided to dedicate himself to the freedmen cause. Several years ago, when he tried to file for citizenship, the registrar for the Creek Nation told him, “Your father wasn’t Indian. He wasn’t nothing but a slave.” “That hurt me until today,” Graham remembers. “When she told me that, oh boy, I was hurt,” he recalls. Sylvia Davis and others have undertaken similar initiatives against the Seminole Nation.

Slavery and its legacy lie at the heart of the current unrest, as the discussants on AfriGeneas.com reveal. One writer charges a historian and citizen of the Seminole Nation, Susan A. Miller, with “Afri-phobism.” Another invokes the “sordid, racist history” of the Five Tribes. A third accuses the Cherokee Nation of sponsoring “Apartheid in America.”

Their frustration and anger has its roots in the early 19th century, when the Five Tribes adopted race slavery as their own. Although some slaves toiled on sprawling plantations while their masters relaxed on distant verandas, many others labored alongside their owners. Living and working in close quarters, they inevitably became family, marrying Indians and fathering or bearing their children. Intermarriage blurred racial boundaries and sometimes made it difficult to separate family slaves from family members. By the outbreak of the Civil War, the proportion of slaves in these nations ranged from a low of 10 percent in the Creek Nation to a high of 18 percent in the Chickasaw Nation. Numbering as many as 10,000, these slaves were freed by treaty with the United States in 1866. The same treaties stipulated that the Cherokees, Creeks and Seminoles adopt their ex-slaves as citizens. (The Choctaw and Chickasaw treaties had escape clauses that Indians invoked to avoid naturalizing their freedmen.)

Following the war, racism was widespread in the Five Tribes but never inspired the level of violence found in the Southern states. In fact, in the Cherokee, Creek and Seminole nations, ex-slaves served as legislators, judges and emissaries until the turn of the century, when the United States violated its treaty obligations and unilaterally dissolved the governments of the Five Tribes. Not until the 1970s were these nations formally reconstituted.

At that point, they ignored the 1866 treaties and expelled freedmen from their nations. The particulars differ from tribe to tribe. The Creeks did so by passing a new constitution in 1979. Buddy Cox, a close relative of the principal chief at the time, Claude Cox, frankly recalls that the motives for the disenfranchisement were racist. “Claude Cox did not have as much Creek blood as I have,” Chester Adams, an elderly freedman, complained to me in 2000.

The Cherokees did so by law in the 1980s, largely to ensure the election of Ross O. Swimmer, later a high-level Reagan and Bush I appointee and now a special trustee for American Indians in Bush II’s Department of the Interior. “They’re entitled to some benefits, but not to register to vote,” Swimmer said in 1983. “They’re not members of the tribe by blood.” But Marilyn Vann, one of the plaintiffs in the federal lawsuit against the Cherokees, argues that freedmen “paid their dues” by clearing fields and building houses for their masters. “Is this now the deal, now that they’re no longer useful?” she asks. “It is repugnant to me.”

The Seminoles took action in 2000, when it came time to distribute a $56 million payout from the federal government. They first tried to expel freedmen, and then, in 2003, after a failed fight with the Department of the Interior, denied them educational and social services. The 1866 treaties, says the Seminole scholar Susan A. Miller, were imposed by the United States and are “hardly ethical legal standards for us to be following.”

Why are freedmen so interested in reclaiming their tribal citizenship? If you ask, they will say they want to recover what is theirs, to rectify an injustice. Few will speak about gaming money, healthcare or college scholarships, although these resources (scanty as they are in most tribes) surely drive some people, black and white, to pursue Indian citizenship.

Yet financial motivations are only a part of the story behind the freedmen lawsuits. Many freedmen have intensely personal motivations, rooted in memories of their parents and grandparents. They recall hearing their older relatives speak Cherokee, Creek or Seminole. Rudy Hutton, a Creek freedmen, remembered one such occasion when I met him a few years ago. During his father Pilot’s final illness, Rudy drove him to the site of his childhood home in Huttonville, Okla., an all-black town that vanished long ago. Pilot began speaking Creek, although he always maintained he had forgotten the language. “Those SOBs at Okmulgee,” Rudy says of the officers at the Creek capital, “they won’t give you nothing unless you’re a white guy.”

Some older freedmen even remember attending stomp dances and Indian churches as small children. Even if now alienated from this part of their past, they know well that their families’ roots are in the Cherokee, Creek or Seminole nations.

You do not have to dig too deeply to uncover these roots. I realized this in 1999, when I visited Henry Durant in Wetumka, Okla., a dusty crossroads of little more than 1,000 people about 70 miles due south of Tulsa. Durant, a former farm laborer and Negro League baseball player, then age 89, was raised by his grandfather, John Grayson. Grayson, who spoke Creek, was born a slave in the Creek Nation in 1852.

Depending on whom you ask, freedmen such as Hutton and Durant are either interlopers, with no real claim to tribal citizenship, or disowned kin, rejected because of the color of their skin. To liberal-minded Americans, the answer may appear obvious, but Indian officials say that the expulsion of freedmen isn’t driven by racial bigotry. “It’s not a matter of skin color, it’s a matter of citizenship,” said Mike Miller, a spokesman for the Cherokee Nation, during a disputed election in 2003. “If you don’t have Indian blood, then you are not eligible for membership, regardless of what other ethnicity you may be.”

But as it turns out, it is not so easy to determine who is an Indian. The Five Tribes rely on the Dawes rolls, a census produced by U.S. officials at the end of the 19th century. The census, named after Massachusetts Sen. Henry Dawes, is divided by tribe and further divided into Indians by blood and freedmen.

In theory, the by-blood rolls list Indians and others who had been adopted by the tribe, while the freedmen rolls list ex-slaves. With the exception of the Seminole Nation (which grants limited citizenship to freedmen), the Five Tribes restrict citizenship to individuals who have an ancestor on the Dawes by-blood rolls.

In many ways, these requirements for citizenship are generous, allowing thousands of people in California’s sprawling suburbs and cul-de-sacs to file for citizenship even though some have only a single great-grandparent on the Dawes by-blood rolls. Other nations, by contrast, have a blood quantum requirement. You must be one-quarter Prairie Band Potawatomi to become a citizen of the Prairie Band Potawatomi Nation, for example. A lone great-grandparent would not be enough to qualify.

Nevertheless, Lucy Allen, Marilyn Vann and thousands of others who can trace their ancestors to the Dawes freedmen rolls are out of luck, even if they are lifelong Oklahoma residents with closer ties to the Cherokee Nation than tribal citizens who live in other states. Today, one-third of the Cherokee Nation’s 250,000 citizens live outside of Oklahoma. It is impossible to say how many freedmen live elsewhere, but when you travel Oklahoma’s dirt and gravel roads, which partition the state into square-mile sections, you still encounter poor freedmen communities whose roots stretch back to the 19th century.

And at some traditional stomp dances, it is possible to find participants of various mixtures of Indian and African ancestry sharing the floor. Many people believe that freedmen have more connections to Africa than to the Five Tribes, Marilyn Vann observes, but they “know a lot more about a stomp dance, hog fry, and wild onion dinner than anything about Africa.”

Critics of the current citizenship policy point out that it is foolish to tie citizenship to the Dawes by-blood rolls. Not only was there a good deal of marriage between Indians and their slaves, but confused U.S. officials sometimes distinguished between the two merely by skin color. The line of inquiry pursued by Dawes commissioners could be both comical and disturbing. When Liza Parker applied to the Creek Nation in 1902, they questioned a freedman about Parker’s appearance:

Q. What is the color of Liza?

A. She — there she is.

Q. What blood?

A. Well, she shows some mixed.

Q. Mixed with colored?

A. Yes sir.

Q. Right much so, isn’t it?

A. Well —

Q. More colored than Indian, ain’t it?

A. No sir; more Indian than it is colored, if I have the say so.

Her application was denied.

Genealogists have even uncovered instances of siblings appearing on different Dawes rolls. Today, their descendants are distinguished as Indians or freedmen merely because of the capricious decision of a government agent in 1900. Despite these inconsistencies, in Allen v. Ummerteskee, the Cherokee Nation stands by its policy of discrimination, arguing that it has sovereign immunity, that stare decisis should prevent the Judicial Appeals Tribunal from overturning established precedent, that as a sovereign nation it can define citizenship as it sees fit.

Advocates for freedmen counter that this legal position obscures a serious injustice: the Cherokee Nation appears to be perpetuating the badge of slavery and denying the right to vote “on account of race, color, or previous condition of servitude,” thereby violating both the 13th and 15th amendments. Surely, they argue, such egregious violations of dearly held principles cannot exist in the heart of the United States.

Cherokees reject this argument. The discrimination against Allen exists not in the United States but in the Cherokee Nation, they rightly observe, where the U.S. Constitution has no bearing, except when Congress says otherwise.

Congress, in fact, could remedy the situation using its plenary power, or absolute and exclusive authority, over Indian nations. Established in the 1880s when the United States openly aspired to be a colonial empire, plenary power is rooted in the belief that white Americans have a moral obligation to civilize the world’s darker races. Despite its objectionable origins, some scholars suggest that since Congress used plenary power to establish the Dawes Commission in the first place, it ought to use the same power to fix the mess it created a century ago.

Indian nations defend their sovereignty fiercely, however, and are understandably wary of even the slightest intrusion. When a regional officer with the Bureau of Indian Affairs asked the Cherokee Nation to explain why it barred freedmen from participating in a 2003 election, Principal Chief Chad Smith fired off an angry letter. “In this age of self-determination and self governance,” he wrote, “I am shocked to find the contents and tone of your letter to be both patronizing and very paternalistic.” If Congress wields its plenary power to extend tribal citizenship to freedmen, it would represent a frontal assault on Indian sovereignty.

To mount such an assault in the name of civil rights, using powers inherited from the golden age of colonialism, would be inconsistent, if not downright dishonest. History suggests that it would be safer to bet on the latter. When Congress broke up the Cherokees’ communally owned land in the 1890s and distributed tracts to individual Cherokee citizens — the better to teach them the value of private property — freedmen received a share of the national domain along with everyone else. Because the land belonged to Indians, Congress was happy to offer freedmen the proverbial “forty acres and a mule”; it proved less generous when the land in question was owned by whites. Given this history, what right does Congress have to demand more of Indians today?

Moreover, by pitting African-Americans against Indians, Congress might even be accused of the bureaucratic equivalent of arming blacks to march against Indian towns, as colonists and federal officials did in the 18th and 19th centuries. (Completing the circle, colonists then paid Indians to hunt down fugitive slaves.)

The solution to this dilemma perhaps rests within the Cherokee Nation itself. Cherokee activist David Cornsilk, who drafted Allen’s legal briefs, recognizes that Cherokees have a history of enslaving and segregating people of African descent. Yet he looks not to the United States for redress but to the Cherokee Nation. In a series of carefully crafted arguments in favor of enfranchising freedmen, Cornsilk invokes Cherokee history, Cherokee common law and the Cherokee Constitution.

The Cherokee tribal attorney, in his defense of the status quo, compares the Cherokee Nation to the United States in the Jim Crow era. “Social, economic, and moral changes” might allow for an eventual rethinking of legal precedent, he admits. “One has only to look at the evil of slavery and segregation and eventual Court reversals of some of the earlier oppressive decisions concerning the treatments of African Americans in the United States Courts. However, those changes have been made over time as the United States as a government, courts, and as the people changed.”

But further inaction, Cornsilk argues, will only perpetuate injustice. “The racists in the United States and the Cherokee Nation have relied upon the passage of time, not to soften their views or accept as equals their Freedmen brothers and sisters,” he observes, “but have instead calcified their resistance, passed oppressive laws and girded their forces against the citizenship rights of the black Cherokees.”

“The sins of our dark past continue to haunt us,” Cornsilk concludes, “and it is time for the Cherokee people to take the path we were intended and do what is right.”

In the meantime, freedmen and Indians anxiously await a decision on Allen v. Ummerteskee. The Tribunal has considered and rejected other freedmen petitions in the past. What the future holds is anyone’s guess.