Freedmen Decision Hinges on Interpretation of 1866 Treaty

Aug 2, 2016

It’s arguably one of the more controversial issues in Indian Country-the case of the Freedmen-descendants of former slaves looking to gain citizenship into one of the major tribes in Oklahoma. Cherokee Freedmen have waited more than two years on a decision from a federal judge telling them whether they can be citizens of the tribe. Invisible Nations Allison Herrera brings us this first story in a three-part series about the issue.

The heat of an Oklahoma summer hangs heavy outside the Martin Luther King Junior Center near downtown Muskogee.  As temperatures climb into the 100’s on a sultry Saturday afternoon, air-conditioning hums along inside while nearly 20 African American community members eat a pot luck lunch of spaghetti, chicken and salad. But this isn’t a social gathering. They’re here to learn more about how they can gain citizenship into one of the tribes in Oklahoma.

“I think there’s more people who are aware of the Cherokee Freedmen and our fight as well as the other Freedmen of the five tribes than, certainly more than 12-15 years ago,” explained Marilyn Vann.

Vann is the President of the Descendants of the Freedmen of the Five Civilized Tribes Association. Freedman is another name for the descendants of former slaves who’d been held by the Cherokee, Chickasaw, Choctaw, Creek and Seminole before the Civil War and throughout their journey on the Trail of Tears from the southeast to Oklahoma.

Marilyn Vann, president of the Descendants of the Freedmen of the Five Civilized Tribes Association.
Credit Allison Herrera

Nearly 30,000 Freedman are now seeking citizenship in two cases against the Cherokee Nation. Vann’s father was an original Dawes enrollee, so when she applied for citizenship to the Cherokee Nation in 2001, she was a little shocked by what happened.

“I was surprised when I got a rejection letter from the tribe. I didn’t understand it.  I’m not a person that can be easily fooled. And then I said, ‘ well, something will have to be done. I will have to start an organization and get people together to try to fight this. Maybe go to court or do whatever needs to be done.”

Marilyn Vann has been to court times nearly 5 times.  The first was in in 2003, when she sued the Cherokee Nation after they revised their constitution to exclude the Freedmen. She won that case and in 2006. Since then, 2800 Freedmen, including Vann became citizens. They can vote and access services available to any Cherokee citizen. But…in 2007, Cherokee Nation again amended their constitution to state that “Indian Blood”  was needed for Cherokee citizenship-thus closing the door to any new descendants of Freedmen seeking tribal citizenship. That case—Cherokee Nation vs. Nash—is currently awaiting a decision.

At the heart debate is the interpretation of the 1866 treaty that re-established relations between the federal government and the Cherokee Nation. It stemmed from the aftermath of the Civil War when the Cherokees were fighting on the side of the confederates.  As punishment, the federal government required that the Cherokee give citizenship to their now freed slaves. The Cherokee have been fighting this decision on and off ever since.

“Their argument has been that the treaty did not provide those rights to the Freedmen. The argument is, if I can best summarize it, is it doesn’t say citizenship. It says all the rights of Cherokee and they can extinguish the rights of Cherokees,” explained attorney Jon Velie.

Velie has argued Marilyn Vann’s case against the Cherokee Nation since the beginning. He’s no stranger to the Freedmen issue-over the last 16 years, he’s represented not only the Cherokee Freedmen wanting citizenship into the tribe, but Seminole Freedmen also.

Jon Velie, Marilyn Vann's lawyer. He's been working on behalf of Freedmen seeking citizenship for more than 16 years.

“The whole purpose of the civil war was over the institution of slavery. And whether slaves were people and whether they had the same rights as other human beings. It wouldn’t make any sense to leave these five tribes to allow slavery to exist within the jurisdiction of the United States. That was the whole purpose of the treaty.”

Members of the tribe, including former Principal Chief Chad Smith say the issue has been unfairly characterized as being about race. Smith was Principal Chief when Vann sued the Cherokee Nation in 2003 and during a controversial constitutional amendment in 2011 that many say was designed to keep Freedmen from voting. Smith says that it’s a matter of sovereignty-Cherokee people should decide who and who is not part of the tribe. And that means Cherokees who are Cherokee by blood.

Marilyn Vann disagrees. She says it does have to do with how people look rather than your degree of Indian blood.

“There are people who they, their father, their grandfather are completely Caucasian looking. They have never been discriminated against based on their color or race. Then,  too you also have tribal leaders who wanted to use the Freedmen as a wedge issue.”

The current administration for the Cherokee Nation declined an interview for this story because of the pending case. Members I spoke with in and around the tribal complex in Tahlequah, Oklahoma also wouldn’t go on record. Some said yes, Freedmen should be part of the tribe. Others felt that Freedmen just wanted benefits and nothing else. But...all agreed the issue is complex and they would accept whatever decision the court handed down.

Whatever decision the court does makes in the Cherokee Nation Vs Nash case—either for or against letting the Freedmen into the Cherokee Nation—will reverberate across Indian country. Not just in Oklahoma, but in other tribes across the country where the question of being Indian by blood or by familial and tribal ties remains at issue.


Tune in next week to hear part two in our series about the Freedmen. Allison Herrera talks with two people about the process of trying to enroll and what challenges they face once accepted into the tribe.


Read coverage of the Cherokee Freedmen in The Cherokee Phoenix here:

Listen to an interview with Marilyn Vann here: