The U.S. Supreme Court’s decision in Santa Clara Pueblo v. Martinez cut off the only federal court remedy for Indians deprived of citizenship in their tribal nations, the Indian Civil Rights Act. Without recourse to ICRA, individual Indians are at the mercy of whatever faction controls tribal government. The power to disappear Indians holds the potential to do great harm. The Cherokee Nation, of which this writer is a citizen, is demonstrating that potential in its treatment of tribal citizens who trace descent from Cherokee slaves.
After Santa Clara, disenrollment became a robust and unreviewable tool to settle political scores or to give expression to racism or to simply acquire a greater share of limited tribal resources. Expelling people from tribal relations based on race is exactly like getting involved in slavery as practiced by the European colonists, excepting that the harm is likely to be spread beyond the Cherokee Nation. The decision to get rid of black citizens, like the peculiar institution of slavery itself, is rife with unintended consequences and stinking with hypocrisy
There is hypocrisy in an Indian tribe disregarding a treaty obligation, something we’ve always criticized when the colonists did it. There is more hypocrisy in a people disadvantaged by racism heaping that disadvantage on others. These hypocrisies will turn around and bite tribal nations that indulge in them but, as we shall see, they hold the potential to harm all Indian nations. The evil that was slavery and the racism that rationalized it were woven into the U.S. Constitution from the beginning, but Indians had every opportunity to avoid both. Those tribal nations that did not continue to pay the price.
Cherokees first encountered the institution of chattel slavery when they were taken as slaves by English colonists but, like most American Indians, they quickly proved more trouble than they were worth. Indian slaves, if they escaped, usually had somewhere to go, and because of trading contacts that ranged all the way from southern Virginia to northern Florida, it was not hard to find somebody who spoke Cherokee.
The first written record of an Indian enslaved by the English dated from 1636 in Massachusetts, and all the original colonies allowed Indian slavery, just as they allowed African slavery. Thousands of Indians were transported to labor in the sugar cane fields of the Indies, never to be heard from again, just like the Africans transported to the Americas to labor on plantations were forcibly severed from tribes and other family.
In the Cherokee homelands, the most lucrative use of the land was cotton plantations. Cherokees were farming it when the colonists showed up, but labor-intensive and industrial-scale production for the cash market was a European innovation.
Indians practiced slavery before the European invasion, but Indians were not slavers. Few tribes were innocent of the concept understood by them as mere involuntary servitude. American Indian slavery, however, commonly resulted from defeat in warfare and was a temporary limbo pending either adoption or ransom. War captives might be swapped among warriors like any other prize of war and killed if they were more trouble than they were worth.
The European innovation was chattel slavery, ownership of other humans for life and therefore ownership of their offspring. Many constitutional scholars in our time call the compromise the Founders made with slavery in the Constitution—that slaves would be counted as three-fifths of a person for the purpose of calculating the number of congressmen a state could send to the House of Representatives—“a bargain with the Devil.” Not freeing the slaves was the United States’ “Original Sin,” on the same level as stealing the real estate on which the new nation was founded.
The adoption of chattel slavery was also the Cherokee Nation’s Original Sin and, like the United States, we are still paying for that colossal misjudgment. According to the “slave schedule” tacked on to the 1860 Census, the Cherokees owned almost as many slaves as all the rest of the Five Tribes, 4,600. Next in order of numbers of slaves among the Five Tribes were the Choctaw Nation (2,344) and the Creek Nation (1,532), with a history of slaveholding very similar to that of the Cherokee. In the Chickasaw Nation, the number of humans owned was only 975 according to the 1860 Census. While the Chickasaws owned fewer slaves than the other Indian nations, they were renowned as slave-catchers and many of them subsisted on that evil trade of returning people from freedom back to bondage.
Of the Five Tribes, only the Seminole never adopted chattel slavery. Whether this was a result of moral scruples or the unsuitability of most Seminole land for a plantation economy, escaped Africans who made it to the Seminole Nation were subject peoples, but nobody owned them.
The Seminole Nation was the only one of the Five Tribes to never enact Slave Codes, punitive regulations of human property directed to maintaining the peculiar institution in law and custom and enforceable at the whim of any free person. Africans on Seminole land lived in their own communities, carried weapons, were taxed a portion of their crops by Seminole landlords and were expected to provide warriors for the periodic wars with the colonists, English from the north and Spanish from the south. The United States inherited those wars from the original colonial powers and never fully won them.
The “maroons” (so-called from the Spanish cimarrón, feral animals) posed a constant threat to colonial slaveholders bordering Seminole land by their mere existence outside of chattel slavery and by offering refuge to any blacks who escaped. Removing to Indian Territory with the Seminoles, the maroons presented a similar threat to the Cherokee Nation.
Cherokee slaves saw the maroons as free “black Seminoles,” riding their own horses and carrying their own firearms. Many Cherokees believed the arrival of the maroons set off the Cherokee Slave Revolt of 1842.
Cherokee slaves did not kill their masters, but rather locked them up and decamped for Mexico, where slavery was illegal. While an armed posse retrieved the Cherokee “property” near the Red River, there was no bloody retribution on the level of slave rebellions against whites, such as the conspiracies led by Gabriel Prosser in 1800 (36 blacks dead; no whites), Denmark Vesey in 1822 (37 blacks dead; no whites), and Nat Turner in 1831 (about 120 blacks dead; 57 whites).
A battle with pursuing Cherokees and Creeks resulted in 14 blacks either killed or recaptured, but the only retribution off the battlefield was five slaves executed for the murder of two slave catchers from the Choctaw Nation, one white and one Lenape. There was no mass execution of escaped slaves, but the immediate result was a Cherokee law requiring all free blacks to leave the Cherokee Nation, except those freed by Cherokees.
Andrew Jackson had been elected President of the United States in 1829 on the pledge to “remove” Indians to lands west of the Mississippi. By the time the old Indian fighter left office in 1837, all the removal treaties imposed upon the Five Tribes had been signed and the ethnic cleansing was largely accomplished. Removal was a political disaster for the Five Tribes externally and internally, and that disaster was followed within a generation by another, the U.S. Civil War. Because of slavery, and because the primary markets for Indian Territory produce were in the Confederate port of New Orleans, the Indians wound up on the wrong side of history.
In the case of the Cherokee, this was in spite of the best efforts of Chief John Ross, who privately favored the Union and publicly advocated Cherokee neutrality, issuing a neutrality proclamation on May 17, 1861, after both Union and Confederate supporters among the Cherokees had armed themselves and organized for a fight.
Ross’s neutral position became untenable when the Union forces were routed in August of 1861. The Cherokees signed a treaty with the Confederacy and declared war on the Union in October, setting Cherokee against Cherokee in Indian Territory for the duration of the war. Gen. Robert E. Lee surrendered his troops in April of 1865, but the Cherokee General Stand Watie held out until June.
A treaty signed between the United States and the Cherokee Nation in 1866 ended Civil War hostilities. That treaty contained the declaration that both blacks freed by that war and all “free colored persons” living in the Cherokee Nation or who returned there within six months “shall have all the rights of native Cherokees.”
By this provision, slaves who had escaped during the war could either return and “have all the rights of native Cherokees” or take their chances elsewhere with the Freedmen’s Bureau, which was thought at the time to offer “40 acres and a mule” to help former slaves get situated. Neither the 40 acres nor the mules ever materialized, but the freed Cherokee slaves had to make a decision before they knew that.
The claim for disenrolling the Cherokee freedmen in modern times is that “all the rights of native Cherokees” did not include citizenship. That is, the disenrollment advocates claim that the real choice for the freedmen was to be U.S. citizens or not be citizens of any nation on the earth, an absurd result. At that time, Indians were not U.S. citizens for most purposes. They could at will move from the status of “Indians not taxed” to “Indians taxed” by quitting their tribe, but that would not gain them the right to vote in U.S. elections.
Some non-lawyers have complained that the treaty ending the Civil War was invalid because it was “dictated” by the victorious nation. There are two problems with that. One is that the records of the negotiation show no objection by the Cherokee to absorbing the freedmen. The other is that if dictation of terms by the victor made a treaty void, no war would ever end by treaty.
By Cherokee tribal court decision, the citizenship of the freedmen was reaffirmed in 2006. The opinion was carefully reasoned and covered the modern history of Cherokee citizenship.
In response, a group of Cherokees undertook by referendum to amend the Cherokee Nation Constitution to limit which part of the Dawes Rolls one’s ancestor had to be on to support modern citizenship. The effect of this amendment would be to expel approximately 2,662 black Cherokees and eight white Cherokees. Delaware and Shawnee Cherokees were retained.
In 2007, “The Cherokee people” voted in a special election called by the chief rather than in a general election. In the last federal Census prior to that election, 729,533 individuals claimed to be Cherokee-American. About 268,000 of them were tribal citizens at the time, and three-quarters of those were of less than one-fourth Cherokee blood. The turnout in the special election was 8,743 of about 35,000 registered voters, of which 6,702 voted to disenroll their follow citizens. By comparison, the last Cherokee general election turnout had been 13,914.
This engineered election is used to argue that the Cherokee Nation has voted to abrogate a treaty with the U.S., something an Indian nation can do just like any other nation if it does not mind abandoning the moral high ground of being the aggrieved party in every other abrogation of an Indian treaty.
One of the whitest Indian nations by blood is now litigating to expel its black citizens, many of whom have more Cherokee blood than the white citizens so eager to see them expelled. This assertion of sovereignty has managed to alienate one of the Indians’ natural allies, the Congressional Black Caucus.
The attempt to disenroll the Cherokee freedmen is now pending in U.S. courts, where any assertion of power to decide the case comes in derogation of Cherokee sovereignty. But what were the Cherokee freedmen to do after the Cherokee courts failed to protect them?
In this litigation, the interests of the Cherokee Nation converge with the political Indian fighters who wish to characterize “Indian” as a racial classification rather than a political one. Making tribal enrollment an issue of race enables the argument that all federal programs serving Indians violate the equal protection clause of the Fourteenth Amendment:
No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.
The Reconstruction Amendments – 13th, 14th, and 15th – were directed to ending slavery. The 13th outlawed slavery and 15th guaranteed former slaves the right to vote, a right not extended to Indians at the time.
The 14th Amendment guaranteed everybody due process of law and equal protection of the law as against the states. The original Bill of Rights applied only to the federal government, so the states were free, for example, to suppress speech or to search without a warrant unless state law protected people against state government. After the Civil War, the victors thought, correctly, that this would be a problem for freedmen.
Because the 14th Amendment applies to “any person,” it has been used by many people in addition to African-Americans, but racial discrimination was always at the heart of it. When the Civil Rights Movement used the 14th Amendment in Brown v. Board of Education to end segregation in public schools, it met with massive resistance.
Starting in the 1970s, the opponents of the Civil Rights Movement figured out that every legal tool has at least two edges, and they began to cut in the other direction with “reverse discrimination” cases brought against any policy perceived to help minorities at the expense of white people. Reverse discrimination cases have destroyed affirmative action in employment and affirmative action in college admissions is under constant attack.
This reverse discrimination argument has been deployed against Native Hawaiians with a great deal of success, and with the support of the usual Indian fighters on the mainland. The white people descended from missionaries claim that they are also Native Hawaiians and therefore entitled to vote for the board that manages lands set aside for the Natives and to be admitted to a prep school started to advance Native chances to succeed in college.
Indians have been relatively unscathed by the reverse discrimination argument because the Supreme Court has held repeatedly that “American Indian” is not a racial classification under law. It is a political classification, referring to citizenship in the “domestic, dependent nations” that made so many treaties with the United States.
Anti-Indian groups participate in the reverse discrimination cases against programs to help Native Hawaiians because the persons indigenous to Hawaii have a great deal in common with the persons indigenous to the states on the mainland. “Native Hawaiian” as a racial classification paves the way to argue that “American Indian” is also a racial classification and every law that helps Indians damages white people, in violation of the 14th Amendment.
When the mostly white Cherokee Nation set out to disappear black Cherokees, it rushed headlong into the litigation and public relations strategy of the modern Indian fighters to show that all programs that advantage Indians amount to racial discrimination against non-Indians and should be prohibited by the 14th Amendment for denying equal protection of the law.
The Cherokee Nation, in disenrolling the freedmen, has ceded the moral high ground built up in years of Indian treaty abrogations by the United States and provided an argument for those who would label the very existence of Indian tribes racial discrimination in U.S. law. Reservations, modern Indian fighters hold, are bastions of racial privilege operating to disadvantage white people. This is a historical absurdity, but it is also a viable political movement in which the interests of white people claiming reverse discrimination converge with the interest of the Cherokee Nation in making Cherokee citizenship an issue of race, with white Cherokees in and black Cherokees out.