Jim Crow and the Indians

"Freedmen," blacks whose ancestors were enslaved by Cherokee and other tribes, are suing to become tribal citizens. But the tribes say they are ineligible because they don't have Indian blood.

By Claudio Saunt

Read more: Politics, African-Americans, News, Blood

Feb. 21, 2006 | Last August in Tahlequah, Okla., Lucy Allen appeared before the Judicial Appeals Tribunal, a three-person court that hears constitutional questions in the Cherokee Nation. Allen is suing to become a Cherokee citizen. Born in Vinita, Okla., within the boundaries of the Cherokee Nation, she is far from your typical Indian wannabe. She has nothing in common with the Virginia town-and-country crowd who claim descent from Pocahontas, nor does she subscribe to the Shaman's Drum or share sweat lodges with New Agers who seek enlightenment and Kokopelli souvenirs in the Southwest.

Allen, 73 years old, is descended from African slaves who for generations lived in the Cherokee Nation and labored for Cherokee masters. She is attempting to overturn a 1987 Cherokee law that makes the descendants of these slaves ineligible for Cherokee citizenship. Depending on the Tribunal's forthcoming decision, her case could reverse years of legalized discrimination against freedmen, as men and women descended from Indian-owned slaves are collectively known today. Allen v. Ummerteskee could become the Cherokee Nation's own Brown v. Board of Education.

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.

Next page: Some older freedmen still remember attending stomp dances and Indian churches