Saying that Congress has the duty to protect the sovereignty of all tribal nations, leaders and representatives from the Five Tribes in Oklahoma testified before the Senate Committee on Indian Affairs on Wednesday. They told senators they are in compliance with their respective 1866 reconstruction treaties with the United States.
Freedmen descendants say otherwise.
The Freedmen were the slaves held by some members of the Five Tribes and were emancipated following the Civil War.
"Just as the United States fought a civil war over slavery, the Creek Nation fought its own civil war," said Jonodev Chaudhuri, Muscogee Nation Ambassador. Previously known as the Creek Nation, the Tribe was removed to what is now Oklahoma by the U.S. government. The slaves owned by some members of the Tribe traveled with them on the Trail of Tears.
"On one side were the traditionalist upper Creeks who opposed the imposition of colonial American life into our nation, including the legalization of slavery," said Chaudhuri. He continued and said the lower Creeks were determined to assimilate into every aspect of white culture, including "slavery, cotton and Christianity."
At issue now is citizenship for the descendants of those formerly enslaved. The Freedmen have long sought tribal citizenship and say the right is appropriated in the reconstruction era agreements between tribal nations and the United States.
Marilyn Vann is President of the Descendants of Freedmen of the Five Tribes Association. She says the blame for the current disagreement also belongs to the U.S. government.
"The United States isn't living up to the treaties," Vann told the committee. "The United States is the other party in the treaty,"
Vann told Senators not having citizenship manifests in different ways. She said some Freedmen descendants were denied COVID-19 vaccines at Indian Health Service clinics. She went on to say other descendants who live in some of the poorest parts of Oklahoma were denied federal housing assistance because they aren’t tribal citizens.
She said they need clarification and direction from Congress to resolve the issue.
"Can the tribes change without congressional and federal intervention?" Vann asked the committee rhetorically. "History says no."
Vann won her citizenship in the Cherokee Nation after a long legal battle. In 2017, a federal judge ruled in favor of Vann and other Freedmen descendants in Cherokee Nation v. Nash.
Following that decision, Cherokee Nation became the only tribe to fully admit Freedmen for citizenship. In 2021, the tribal nation went further and removed the words, "Cherokee by blood'' from their constitution. In making the change, officials said the phrase was antiquated and was out of compliance with their court order in Cherokee Nation v. Nash.
Today, the Cherokee Nation has a little under 12,000 Freedmen descendants who are citizens, but the treaties between the United States and each tribe are unique.
The Seminole Nation has two Freedmen representatives on their tribal council. They have the ability to vote, but they say Seminole Freedmen don't receive the same benefits other tribal citizens do. This includes services such as housing and health care.
Other leaders who testified Wednesday said the issue is nuanced and isn’t about race. They say forcing a tribe to admit citizens challenges tribal sovereignty.
Congresswoman Maxine Waters, a Democrat from California, has proposed that the U.S. should withhold money for a critical housing program from the Choctaw Nation because the tribal nation has not allowed their Freedman descendants to become citizens. Waters says Choctaw Nation is in violation of their 1866 treaty with the United States.
But during Wednesday’s Senate hearing, Michael Burrage, Choctaw Nation General Counsel, hit back at Waters' proposal.
"Legislative threats are made if the tribe does not make the decision wanted by some politician?" Burrage wondered, before going on to say that withholding critical housing funds for some of the most vulnerable tribal citizens is wrong.
"How can this be squared with the United States government's trust, duties and obligations to the tribes? How is this anything other than undermining the tribal self-determination and tribal autonomy?" Burrage continued to ask Senators.
In an open letter posted to his blog last year, Choctaw Chief Gary Batton said he was open to dialogue around tribal citizenship for Freemen Descendants.
Later, in an interview with KOSU, Batton went on to say, "Citizenship for the Choctaw Nation of Oklahoma is set by our constitution, which was ratified by a vote of the people in 1983 and approved by the Department of Interior."
Assistant Secretary of the Interior Bryan Newland also testified on the nuance of the issue and unique agreements with each tribe.
"It is important to understand that there is no single or uniform law or treaty that applies to all Freedmen," Newland said. "The Freedmen provisions in each of the 1866 treaties differed in important respects."
You can read the treaty provisions below.
Newland went on to say the Department of Interior recognizes there are issues regarding the Freedmen in the Choctaw, Chickasaw, Muscogee and Seminole Nations that need to be resolved, and the Department relies on the tribes to determine their own citizenship requirements.
But when Secretary of the Interior Deb Haaland approved Cherokee Nation’s amended constitution in 2021, she said she hoped other tribal nations would take similar steps.
"With respect to the status of the Freedmen in the Choctaw, Chickasaw, Muscogee (Creek), and Seminole Nations, the Department recognizes there remain issues to be resolved, and we look forward to working on those important issues with the Tribes," said Newland.
Newland also told the committee that his department relies on the tribes to determine their citizenship requirements.
"Our current Constitution was reviewed and approved by the Department of the Interior," said Chaudhuri who explained that Muscogee Nation is conducting research on the Freedmen issue to help tribal citizens understand and have a dialogue about citizenship. He also made it clear that this issue is not as clear-cut as people make it out to be.
"However, the interpretation of this treaty is currently the subject of ongoing litigation. Any true solution must go beyond the shallow political rhetoric and the yes-no binaries that such rhetoric supports," said Chaudhuri.
There are currently several Change.org petitions by Freedmen descendants circulating in order to put pressure on the tribes to resolve the issue.
