A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendants
77 Pages Posted: 11 Nov 2006
Critics of tribal sovereignty increasingly point to perceived contradictions between the egalitarian ideals of modern democracies and the citizenship criteria of Indian nations to argue for diminished tribal sovereign immunity and increased federal intervention in Indian affairs. When tribal nations employ citizenship criteria based on Indian ancestry, they may be asked to explain why they are not engaging in immoral, if not unlawful, race-based discrimination. Assertions of tribal sovereignty alone, even when well-founded in the law, do not address how tribes should determine citizenship criteria from within their own norms and values.
The Cherokee Nation recently faced the challenge of determining its citizenship criteria as they pertain to the descendants of the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted by the Nation after the Civil War and given full rights of Cherokee citizenship consistent with the terms of a Reconstruction treaty. The incorporation of the Freedmen into the tribe was resisted from the start. When the Cherokee Nation's highest court affirmed the Freedmen's descendants' citizenship rights in 2006, the Nation called a special election, and on March 3, 2007, voted to approve a constitutional amendment imposing an "Indian blood" requirement for citizenship based on the federal Dawes Rolls of the allotment era. If the amendment stands, thousands of African-descended citizens will be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize definitions of Cherokee political identity based on either the Dawes Rolls or notions of "Indian blood." Both, he argues, are heteronymous authorities for determining tribal citizenship criteria and should be replaced by the critical hermeneutic of indigenous cultural resources. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen's descendants and Cherokees by "blood," not the quick-fix of the political process.
Keywords: American Indian, Native American, Indian law, tribal sovereignty, indigenous peoples, citizenship, race
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