Cherokee Nation Supreme Court Rules Citizenship Not Determined 'By Blood'

Feb 23, 2021

In an historic ruling on Monday, the Cherokee Nation Supreme Court struck the term "by blood" from its constitution and laws. The decision effectively ends a decades-long debate over citizenship status in the largest tribe in the country.

Citizenship in the Cherokee Nation is not based on blood, but still, language in the tribe's laws, constitution, and policies was central to an ongoing cultural and legal debate over whether the descendants of Cherokee Freedmen, those formerly enslaved by the tribe, were considered tribal members. Monday's unanimous ruling upholds the 1866 treaty the tribal nation signed with the federal government affirming their right to citizenship.

"One hundred and fifty-five years after the 1866 treaty, Native Cherokees must fully step into the promise they made on the ‘far end of the Trail of Tears,’" Cherokee Nation Supreme Court Justice Shawna Baker wrote, referencing the U.S. Supreme Court’s McGirt v. Oklahoma ruling last summer. "By doing so, the Cherokee Nation, as a whole, lifts itself into the 21st century and sheds the heavy weight of antebellum and pervasiveness of racism and racial injustice for all.”

Cherokee Nation Attorney General Sara Hill welcomed Monday’s unanimous opinion. Noting its thoughtfulness, she said the court’s opinion upholds a fundamental responsibility to honor the rights of Cherokee Nation citizens that were established in treaties with the U.S. government.

"The (Cherokee) Nation itself made promises, as well. And the promises were made to the Cherokee Freedmen and their descendents, and the nation has an obligation to honor that," said Hill.

Monday’s decision came in response to the 2017 Cherokee Nation v. Nash, a federal case that determined Freedmen citizens enjoy full rights like any other Cherokee citizen. After that ruling, Hill requested the Supreme Court set a hearing and issue a ruling to strike the "by blood" language in the Cherokee Nation's constitution.

“The federal court and Cherokee Nation Supreme Court concluded in 2017 that the Cherokee Nation is bound by the Treaty of 1866 to recognize descendants of Cherokee Freedmen as full citizens,” Hill said. “Cherokee Nation has abided by those court orders and will continue to do so.”

The issue of by blood citizenship arose when Marilyn Vann, a Cherokee Freedmen, decided to run for a seat on the Cherokee Nation tribal council. Her candidacy was challenged by other Cherokee citizens who cited the language in the tribe’s constitution. Vann gained her Cherokee citizenship in 2006 and was one of the plaintiffs in the federal lawsuit.

"We've come to the 21st century, and the Cherokee Nation is a tribe that has long been adopting other peoples into the nation to help the nation grow and stay strong," Vann said.

The Cherokee Nation has accepted Freedmen as citizens into the tribe, as well as Shawnee and Delaware individuals.

Vann said she was pleasantly surprised by the speed of Monday’s ruling, but she still worries that while the ruling legally ends citizenship questions for Freedmen, it may do little to change the legacy of anti-Black racism that remains from the tribe’s history of enslavement.

"There are still persons within the tribe that are opposed to the Freedmen," Vann said. She also pointed out that another constitutional amendment could be introduced to overturn this ruling, although that is unlikely to happen.

Still, the ruling is a major civil rights win for the tribal nation, said University of Oklahoma law professor Taiawagi Helton. The question that remains is whether or not leaders of the other four tribes who have treaty obligations to descendants of Freedmen — Seminole Nation, Choctaw Nation, Muskogee (Creek) Nation, and Chickasaw Nation — will look at this decision and grant citizenship to their Freedmen.

"The court makes an incredibly powerful statement rejecting a relic of a painful and ugly racial past that the court compares to Jim Crow laws in southern states," said Helton. He said the Cherokee Nation is doing away with what many believe is an antiquated notion of tribal citizenship as defined "by blood" rather than nationality, considering tribes are recognized as sovereign nations.

Tribal nations, not the federal government, have the right to determine who qualifies as a tribal citizen, said Helton. It is entirely within the tribe’s right to require a blood quantum, he said, but the Cherokee Nation has made clear that it wants to move on from that painful and divisive part of its history.

"If it is your right to reject these people on the basis of race, is that how you want to exercise that right?," said Helton.

For now, Vann said she plans on continuing with her campaign for a place on the tribal council in the June 6th election. "We'll just continue to try to outreach to the people," Vann said. "In hopes that sufficient people will believe that I've earned the right to represent them.”

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