Judge Rules That Cherokee Freedmen Can Sue for Treaty Rights

"Applying the precedents that permit suits against government officials in their capacities, we conclude that this suit may proceed against the principal chief in his official capacity, without the Cherokee Nation itself as a party," the court wrote."

These words give a green light signal to the descendants of the slaves held in bondage by Cherokees, that they may continue to pursue their treaty rights in court. This particular case going back several years had been placed by the Cherokee Nation against several Freedmen descendants to halt their efforts to maintain their status as citizens of the Cherokee Nation.

Their parents, grandparents and gr. grandparents were citizens, and for many, their great grandparents were at one time enslaved by Cherokees. For decades the former slaves and their descendants, lived, voted, worked and abided by the laws of the Cherokee Nation. Some of them also served on the tribal council. And until the late 1970s they were Cherokees by right of their birth. At that time, it was decided that a majority of these former slaves were not "Indian", although it was never said that they were not Cherokee. 

"Indian" became the operative word, without using the word race. The concern, it was said was about blood ties to the tribe, but examining the roll that the tribe uses---the Dawes Roll, the Freedmen never had their blood recorded, only their names---regardless of whether or not their mother or father was Indian---they were told that they were Black and that their blood did not count. And many had been enslaved by the leaders of the tribe.

Enrollment card of Benjamin Vann, former slave of Clem Vann

And in the 1970s a mere decade after America passed the landmark Civil Right Act and the country was finally on the road to making many improvements for all people,  the tribe sought to purge itself of a portion of the population that was distinguished by race. Though the official argument is that "this is not about race" the distinguishing factor of Freedmen being categorized as Freedmen is race. Their being "Indian" is always addressed, although their being Cherokee is not for they are Cherokee. 

So, this ruling now allows the Freedmen descendants to continue to pursue their rights in court. This is what is now being challenged. If the final judgement from the US Court of Appeals rules in their favor then Freedmen can continue to enroll in the nation of their birth.

To understand the current case pending, information can be gleaned in an article shared by the Huffington Post. in 2012 (See article HERE)

Descendants from the other former slave holding tribes (Choctaw, Chickasaw, Creek and Seminole) are also paying close attention to the case and will also be following the anticipated ruling still to come, and determining how it may apply to their own situation where they too have been barred from enrollment.

Reflections on a Historic Cherokee Freedman Hearing in Washington DC

I had the experience today to attend the oral arguments of the case that may finally decide the issues of Cherokee Freedmen and their status in their nation, the Cherokee Nation. The issue pertained to the Treaty of 1866 where the Cherokee Freedmen, as was stated in Article 9 of the Treaty of 1866, were given all rights as Cherokee citizens, were to retain those rights of citizenship given to Freedmen and their descendants.

Cherokee Freedmen enjoyed rights as citizens and were allowed to vote during most of the 20th century until the 1980s when elder Freedmen came to cast a vote in an election and learned that they were no longer citizens and their rights had been removed by the tribe.  This began a series of cases over the years from the Nero Case, to the Riggs Case, to the Vann Case. In turn the tribe has counter-sued the Freedmen claiming a conflict between the tribe having to adhere to Article 9 of the Treaty, and their right to sovereignty and to decide who belongs in the tribe.

The arguments were presented by Diane Hammons for the Cherokee Nation, pointing out that the Treaty was already upheld when Freedmen were given citizenship. They had citizenship, and voted, and therefore the treaty was honored. The concern was that forcing the tribe to continue to admit Freedmen "and their descendants" meant that the tribe had no rights to determine who their members should be. She stated that he conflict between the continued status of Freedmen and the tribe having to uphold this part of the treaty was in conflict with tribal sovereignty.

The arguments on behalf of the Freedmen was presented by Jon Velie were clear and he pointed out that the Treaty itself was made by a party that was at one time an enemy of the United States, having fought with the South in the Civil War. He pointed out that this was not the story of a "few slaves held by a few people." The leaders of this very sophisticated tribe, were principal slave holders, including the last Confederate general to surrender, who was Cherokee slave holder, Stan Watie.

Velie continued to address the southern history and the southern biases toward the former slaves, and he spoke fact after fact about the participation of Freedmen leaders who served on the tribal council in the 19th century, and pointed out that this was not a case of a simply unknown alien people trying to join a tribe. This was an act where the history, heritage and cultural ties of a people who were part of the tribe, were having their role, their history and their identity stripped from them.

The judge asked poignant questions and both parties answered them. Of particular interest was the issue of the future of Freedmen as citizens of the tribe. On side from the tribe, there was the concern expressed that by granting continued citizenship rights to the Freedmen, there was the act of making the "rights" to extend into perpetuity. Velie responded by pointing out the key word "descendants". Nothing is ambiguous about the wording of the Treaty. He also pointed out that the efforts to exclude people, seem to be focused on this one class of people in the tribe.

The significant point of his argument came as he addressed the history and the treatment of Freedmen during the hearings on the Dawes Rolls. In response to the issue of Freedmen and the "inability" to determine blood quantum today was also addressed. He then explained the history of the "politics" of blood. He pointed out that in the cases where a Freedman who was half Cherokee and half black, the policy was simple---"your blood does not matter" and they were thus put on the Freedman roll. And now after over 100 years the effort is made to cast out people based on blood when their blood was never worth being addressed no matter how high it was at the time.

Clearly, history was the most important factor emphasized. There was also the discussion of what was meant when the treaty of 1866 was actually signed.

The presentation by the tribe was that extending rights to the Freedmen under Article 9 did not mean into perpetuity.

And the response was simple, the fact is that there is nothing unclear and nothing ambiguous about the Treaty and about Article 9.

Article 9 of the Treaty of 1866

The hearing lasted for approximately 1 hour, 10 minutes and adjourned at approximately 10:52 am. It is expected that the judge will make a ruling within a short period of time.

Being a witness to this case was significant for me.

In 1998, I was an expert witness as the genealogist and historian for the Bernice Riggs Case. This was held in Cherokee Supreme Court, and took place in Tahlequah Oklahoma. To be a witness to the oral arguments today was part of a major event, for should the Freedmen win this case, this may be the end of a 100+ year saga of determining the status of the former slaves of this former slave holding tribe.

It was interesting to see the persons who were there in attendance, from California, to Oklahoma, to the greater Washington DC region. This issue has gone through several stages, and within the Cherokee Nation, it is hoped that finally a era of Jim Crow sentiments left over from a southern former slave holding community, may finally come to an end. When some bad practices, based on old biases end, the entire community moves ahead to a better future. And when all of the components of the society being allowed to participate everyone makes that same community a better entity.

As the Cherokee attorney Diane Hammond pointed out, the Cherokee Nation is no longer "a geo-political entity with one contiguous geographic community" and it was also pointed out that the Cherokee Nation is the largest Indian tribe in the US. Well, I can only hope that the largest tribe, will emerge stronger and better, when all of the people that make up the tribe are allowed to not simply exist, but to contribute to the nation. When all of the people work together the outcome can only be for the better.

This was a historic day in Cherokee history, but also for the Freedmen of all of the tribes. I, as a Choctaw Freedman descendant find that there is hope for the other nations where the Freedmen are disenfranchised, to also be addressed someday.

But today, was a day in which I was there as an eyewitness to history, and I am proud of what I saw.

I hope that Bernice Riggs, was there in spirit, today, and Rev. Nero, and the Whitmires and the spirits of so many others who had the courage to address the wrongs they saw, and I hope that their spirits were all there today.

And so were the spirits of  the Freedmen leaders who once served on the Cherokee tribal council and their names deserved to be mentioned: Joseph Brown, Frank Vann, Ned Irons, Stick Ross, Samuel Stidham, Jerry Alberty.  They should never be gotten and their history is a rich one, though seldom mentioned by the tribe, it should be mentioned by all who cherish history and truth, for these were men of Cherokee soil, and life and culture.

The hearing adjourned at approximately 10:52 am.  Afterwards a few who were in attendance gathered to have lunch in a nearby cafe, before departing in many directions
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Group of Cherokee Freedmen and Attorneys after hearing

Front Row: Cynthia Cook Robertson, Attorney, Jon Velie, Attorney, Marilynn Vann Cherokee Freedman, Dexter Ruffin Cherokee Freedman, (2nd from left back row) Sam Ford, Cherokee Freedman, David Cornsilk Cherokee By Blood, Mark Harrison, Cherokee Freedman.)

(Photo courtesy of Sam Ford)

Ron Graham (Creek Freedman) and Marilyn Vann (Cherokee Freedmen) outside courthouse

Cherokee Freedmen from California at lunch

Journalist Sam Ford, (Cherokee Freedman), Mrs. Ford, and Marilyn Vann (Cherokee Freedman)

Mark Harrison (Cherokee Freedman) & Mark West of No. Carolina

California based Cherokee Freedmen who were also in attendance.

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Washington Hearings to Unfold For Cherokee Freedmen Monday

Oral arguments pertaining to the status of Cherokee Freedmen originally scheduled for April 28th were moved to Monday May 5th at 9:30 am. This is the case filed by the Cherokee Nation against descendants of their former slaves, known as Cherokee Freedmen.

At issue will be issues pertaining to the Treaty of 1866 where the former slaves of the Cherokee Nation were adopted and were given full status as citizens of the tribe. These issues emerged again in the mid 20th century as the Cherokee Nation (and the other tribes that signed their respective treaties) enacted new laws excluding descendants of Cherokee Freedmen.

From decade to decade in the 20th century, issues arose with freedmen and their rights being honored, most frequently, in the Cherokee Nation. In the 1980s there was the Nero Case. In 1983, when Rev. Nero went to vote in a Cherokee election as ge had in the past, he and his family and other companions learned that the laws of the Cherokee Nation had been changed to exclude them. However, they had voted in previous elections including 1979. But the tribe had quietly changed the restrictions and the elderly Nero learned that he was no longer wanted in the nation, that he always assumed was his nation by birth.

In the 1990s there was the Bernice Riggs case. She challenged the laws banning the Freedmen and filed in Cherokee court, and it though it took years for a decision to be made, it was initially decided against her, but then it was reversed when the Supreme Court of the Cherokee Nation reviewed the case, and decided that the Treaty of 1866 was still valid and Mrs. Riggs and other were indeed citizens of the Tribe.

Many enrolled, and the action of the then sitting chief was swift, when it was decided to put the admission of Freedmen to the tribe to a vote by the population. And as the votes were cast, it should be pointed out that this was an election in which 3% of of eligible Cherokee voters participated, The result was to remove the Freedmen from the tribe. This was followed by lawsuits and counter lawsuits. The Vann case emerged, initiated by Cherokee Freedman leader Marilyn Vann, and it was followed by a counter suit from the tribe and the case left Oklahoma to emerge in Federal Court.

And the latest chapter of this ongoing saga will unfold tomorrow in Washington DC at the Federal Courthouse on Constitution Avenue NW.

But this saga has a long history, stemming from the Treaty of 1866, and the various acts to exclude persons of African ancestry from participating in the tribe, which was part of the only nation that they knew as home, and the tribe which their parents and grandparents had lived, toiled and died as slaves.

Interestingly 100 years ago, the same issues were there and can be followed in the press from multiple states.

The Day Book, Chicago, January 30, 1912 p. 25

And looking at the press from Oklahoma, one sees other headlines also similar to the issues of today. Note this one from 1906.

So the issues are not new, and it is truly amazing to see that an issue that began in the 19th century is still being heard in the 21st century.

Many arrived in Washington on Sunday, including Marilyn Vann named in the suit, and in attendance at the hearing will be Cherokee Freedman advocate David Cornsilk, and several Cherokee citizens, and representatives from Cherokee Freedmen,Creek Freedmen, Choctaw Freedmen,and others.

And so it continues. The oral arguments will be heard at the Federal Courthouse at 9:30 am at 3rd and Constitution Avenue NW, in Washington DC.

"Sometimes what is news is not always new."