Jim Crow and the Indians

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."

Next page: Should Congress use its plenary power to force tribes to admit freedmen?