WASHINGTON (CN) – The Cherokee Nation cannot deny membership to the descendants of black slaves owned by the tribe and others like it, a federal judge ruled Wednesday.
Capping off 14 years of litigation, U.S. District Judge Thomas Hogan found that the Treaty of 1866 overrides the tribe’s constitution, which had sought to exclude slave descendants, or freedmen.
“The 1866 Treaty guarantees that extant descendants of Cherokee freedmen shall have all the rights of native Cherokees,’ including the right to citizenship in the Cherokee Nation,” the 78-page ruling states.
Discussing the ruling in an interview, an attorney for the freedmen defendants said his clients are “thrilled.”
“It’s been a long road, but they are very happy and they hope we can see it to a successful ultimate conclusion,” said Alvin Dunn, with the firm Pillsbury Winthrop Shaw Pittman, which has been working on the case pro bono for the last 14 years. “Just because we got that order doesn’t mean that today they’ve got full citizenship rights.”
In a statement however, Cherokee Nation attorney general Todd Hembree said the nation respects the rule of law and had begun processing applications from freedmen descendants.
“While the U.S. District Court ruled against the Cherokee Nation, I do not see it as a defeat. As the Attorney General, I see this as an opportunity to resolve the Freedmen citizenship issue and allow the Cherokee Nation to move beyond this dispute. My office will work tirelessly to thoroughly review this decision and its legal ramifications, and will move forward in a way that best serves the interests of the Cherokee Nation and its citizens, including Freedmen descendants.”
The nation had argued that the 1866 treaty gave the freedman merely a right to live on tribal territory under equal protection of the law as a distinct group, separate from native citizens.
Hogan disagreed, saying “qualifying freedmen are vested with the right to citizenship in the Cherokee Nation to the same extent native Cherokees justly claim such a right.”
The 78-page opinion outlines the major points of the history of how the freedmen’s struggle for rights with the Cherokee Nation and several other tribes has evolved since the end of the civil war.
“Sadly, contemporaneous records suggest that the Cherokee Nation’s experience of subjugation by the United States did not cultivate the compassion to moderate the treatment of slaves in its own nation,” Hogan wrote.
As summarized in the opinion, the Cherokee Nation attributes its practice of slavery to “a misguided attempt to mirror the ‘systems and ideologies of governance from the United States to avoid being colonized by the United States.'”
The explanation failed to sway Hogan, however, who called the Cherokee Nation “complicit in legitimizing slavery within the Nation and securing the intended durability of the practice, as well as the disenfranchisement of people of African descent, as expressly evidenced by a constitution the Nation adopted and subsequent laws it enacted before the Civil War.”
In 1839 the Cherokee Nation deprived slaves of voting rights and excluded them from the Cherokee government. They also prevented slaves from owning property or becoming literate, and outlawed interracial marriage.
The start of the Civil War saw the Cherokee Nation align itself with the Confederacy, espousing a legal right to treat black slaves as property.
Though the nation later splintered in its support for the Confederate states, it took a presidential commission designated by President Andrew Johnson for the Confederacy-aligned tribes to emancipate its slaves.
A treaty that Johnson ratified in 1866 plainly states that the descendants of freedmen “shall have all the rights of native Cherokees.”
The U.S. government began ceding tribal land in 1886, but the Cherokee tried to exclude freedmen from the right to any Cherokee land or proceeds from land sales. From there the issue has ping-ponged between the tribes, Congress and federal courts.
In 1976, the Cherokee Nation adopted a new constitution that said tribal membership could be derived only through proof of Cherokee blood as determined by the Dawes Commission, a quasi-judicial tribunal that identified citizens of five tribes.
The Cherokee nation voted to amend the 1976 constitution during a 2003 special election, eliminating a provision requiring the president to approve new amendments or a new constitution. Then in 2007, the nation amended its constitution to limit citizenship “to only those persons who were Cherokee, Shawnee, or Delaware by blood.”
Attorney Dunn, when asked if he has any concerns about tension between the groups as this process moved forward, expressed optimism. He said there are “definitely” issues moving forward, but that it’s also possible “that there won’t be the type of tension that you might think there would be.”
He added, “But we don’t know yet.”
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