Recommended Citation
Jeremiah Chin, Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, and the Colonial Feedback Loop, 47 J. MARSHALL L. REV. 1227 (2014), https://digitalcommons.law.uw.edu/faculty-articles/1089
Publication Title
John Marshall Law Review
Keywords
tribal sovereignty, Declaration of Rights of Indigenous Peoples, Cherokee Nation, citizenship
Document Type
Article
Abstract
Sovereignty and self-determination are cornerstones of arguments for Indigenous rights in the geographic United States. Both concepts assert an existence as Indigenous peoples, and reinforce status as nations with citizens and governments, rights and responsibilities, determined by Indigenous communities. In 2006, the Judicial Appeals Tribunal of the Cherokee Nation recognized that Lucy Allen and fellow Cherokee Freedmen, descendants of African slaves once owned by Cherokee, are citizens of the Cherokee Nation and had been citizens of the Cherokee Nation since the 1866 treaty with the United States. Less than a year later, the Cherokee Nation amended its constitution to limit citizenship to descendants of those listed on the Dawes Roll as Cherokee, Delaware or Shawnee-effectively terminating the citizenship of all 2,800 citizens who are Cherokee Freedmen descendants. This new amendment effectively excludes Blacks who cannot identify an ancestor who was listed as "Cherokee by Blood" on the Dawes Rolls, even though Cherokee Freedmen often maintain deep cultural connections to Cherokee values and ways of being. Cherokee Freedmen therefore exist at a troubling intersection of race and sovereignty, connecting conversations on slavery and reparations to self-determination and nation building. Are there limits to the power to define membership and exclude? Who has authority to determine those boundaries? What are the rights and remedies of those who are defined out of a nation; Blacks who had their citizenship terminated by peoples who once called their ancestors property? Are U.S. federal courts the proper forum to address or remedy discriminatory legislation in Indian Country?
This paper attempts to unpack these questions at the intersections of race and sovereignty by analyzing two federal court cases involving Cherokee Freedmen and citizenship: Vann v. United States DOI and Cherokee Nation v. Nash. As a sovereign nation, the Cherokee have the inherent power and authority to determine membership by defining citizenship. In 2011, the Supreme Court of the Cherokee Nation, formerly the Judicial Appeals Tribunal of the Cherokee Nation, found the 2007 Amendment constitutional, dismissing the Cherokee Freedmen's claims for lack of standing and subject matter jurisdiction.9 The federal case, Vann, thus became the only pending lawsuit to restore the Freedmen's citizenship. I argue that the Cherokee Nation's reliance upon the Dawes Rolls-rather than treaties-in redefining citizenship to exclude Blacks whose ancestors were not considered "Cherokee by blood," by U.S. surveyors, the Cherokee Nation has entered what I call the "colonial feedback loop:" reaffirming the history of colonization and White Supremacy in implementing U.S. White Supremacist concepts of citizenship that are anti-Black. This paper therefore aims to expand international conceptions of indigeneity under the Declaration of the Rights of Indigenous Peoples (DRIP), offering potential solutions outside U.S. courts by using DRIP's protections in Cherokee courts.
Section I lays out the historical background and discusses legal cases and legislation surrounding the 2007 Amendment and current federal litigation, then outlines the current litigation in federal courts, including important political and judicial decisions in the Cherokee Nation along the way. Section II describes the underlying doctrines of Federal Indian Law and establishes a Critical Race Theory (CRT) framework for analyzing these decisions. Section III therefore places the current litigation in context of Federal Indian Law and CRT. Finally, in section IV, I present an argument for Cherokee Freedmen citizenship through U.N. Declaration on the Rights of Indigenous Peoples, rather than federal courts.