The Freedmen of the Five Civilized Tribes BY CLIFTON ADCOCK World Staff Writer The History When the Five Civilized Tribes were removed from their lands in the southeast United States to Indian Territory by the federal government, most tribes brought with them a grim piece of pre-20th century Souther culture — black slaves. During the Civil War, many tribes or factions of tnbes fought on the side of the Confederacy, though some tribes or factions fought for the Union or remained neutral. When the South surrendered, and the tribes and tribal factions that fought along with them followed suit, the Union required that as a condition of surrender, all staves be freed. Both the Creek Nation and the Cherokee Nation signed treaties with the Union in 1866. The Creeks’ treaty required them to, among other things, forfeit certain lands for the placement of other Indian tribes, to remain at peace with the United States and other tribes and to abolish slavery within the tribe. ‘According to the trealy, former slaves and people of African descent living among the Creeks, as well as their descendants, were permitted to “settle within the limits ofthe Jurisdiction of the Creek Nation as citizens." They also were also to "have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds, and the laws of the said nation shall be equally binding upon and give equal protection to all such persons and all ‘others, of whatsoever race or color, who may be adopted as citizens or members of the tribe.” ‘The Cherokee Nation also signed a treaty in 1866 with similar provisions regarding their former slaves, whom they had {reed in 1863, three years prior to the passage of the Thirteenth Amendment. ‘According to the treaty, “all freedmen who have been liberated by voluntary act of their former owners or by law, as well {a all free colored persons who were in the country at the commencement of the rebellion, and are now residents therei ‘or who may return within six months, and their descendants, shall have all the rights of native Cherokees: provided, that ‘owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated.” In 1893, the Commission to the Five Civilized Tribes (the Cherokee, Choctaw, Creek, Chickasaw and Seminole tribes), was appointed by President Grover Cleveland to negotiate land in Indian Territory with the tribes. The commission, known as the Dawes Commission after its chairman Henry L. Dawes, gave tribal members an allotment of land in exchange for abolishing thelr tribal governments and recognizing federal aw. ‘The frst application for enrollment began in 1896, but was deciared invalid, and the commission re-enrolled people from 1898 to 1907, with additional people added in 1914. During the application process, enrollees were given a blood quantum, or ratio of indian blood, which was put on their enrollment form. However, freedmen and their descendents, and many with mixed Aftican and Indian ancestry, were put on the Freedman Roll, which had no blood quantum. ‘There were fewer restrictions placed on land allotted to people who had lower quantums of Indian blood and those on the freedmen rolls, while the allotment land those with high quantums of Indian blood were under restriction and placed ino trust with the Bureau of Indian Affairs. Documents of citizenship hearings in the Cherokee Nation also show that some enrolled freedmen were the sons or daughters of Cherokee Indians who died before enrollment, yet the person was put on the freedmen roll because he or she also had black heritage or identified himself or herself as a freedman. ‘The final rolls were officially known as “Final Rolls of the Citizens and Freedmen of the Five Civilized Tribes in Indian Territory,” and in most cases, those on the “by blood” and freedmen rolis were both given plots of land. ‘Today, many tribal governments in Oklahoma determine tribal citizenship through the “by blood!” rolls ofthe Fit Rolls that provide a blood quantum. Some historians argue that freedmen played a role and were members of the tribes untll the late "70s and early ‘80s, and federal documents show that some in the Bureau of Indian Affairs considered the treedmen and their descendants voting members of tribes. Dawes The current situation In 2008, the Cherokee Nation's supreme court ruled that the Constitution did not exclude freedmen descendants as tribal members, and several were granted tribal membership. In 2007, tribal voters passed a constitutional amendment that would limit citizenship to the “by blood" rol, thus removing freedmen descendants from the tribe. ‘Some who had been granted tribal membership fled suit in tribal court, temporarily halting their ouster. That suit is sti pending in tbal court. The amendment’s passage led to a confrontation with Congressional Black Caucus members, who threatened in legislation to cut off government relations with the tribe and withhold housing funds until the tribe accepted the freedmen descendants as citizens. ‘Members of Congress later agreed to allow the matter to go through court. “We've had to correct some misinterpretations and misconceptions. Our message to Congress has consistently been: Let's let the courts decide this,” said Mike Miller, Cherokee Nation spokesman. "Members of Congress said, ‘You want the ‘courts to decide, show us you mean it”‘As a result, Cherokee Nation filed suit Feb. 2 in the Northeastem District federal court against five freedmen members who are involved in the tribal court lawsuit “We're optimistic that the judicial system wil look at the facts and settle a matter that has been before the courts before but needs to be addressed in 2009,” Miller said. “We think this wil help determine on the federal side: Does the treaty ‘guarantee the right of non-Indian freedmen in perpetuity to be citizens of an Indian Nation?” ‘The latest lawsuit is the first brought to federal court by the tribe on the freedmen issue. In most cases one cannot bring suit directly against an Indian tribe because of sovereign immunity The suit is narrow in scope: What rights do freedmen descendants with no ancestor on the “by blood” roll have under the treaty of 1866, Miller said. In the fling, the tribe argues that Congress altered the treaty by passing the Five Civilized Tribes Act. Miller said the tribe is going by what its constitution says about citizenship. “As fer as tribal nations go, we're as inclusive as they come,” Mller said. Because the ‘by blood” Dawes Roll is used to determine citizenship, some who may have been Cherokee were probably left off, but the rol is stl the most recent and accurate record, Miller said, “We don't say they're not Cherokee, that those (earlier) rolls aren't accurate or anything, i's all about citizenship,” Miller said, “If you were a full-blood Cherokee and lived in Kansas in the 1890s and moved back in 1910, guess what, you're not fn the roll. I's possible (some freedmen descendants have Cherokee blood). We don't ever question anyone's heritage or family history. All we do is say whether you're eligible to be a citizen or not. That's the huge difference. People understand that about other governments and nations, and we want them to understand that about the Cherokee Nation.” ‘Stilwell attomey Ralph Keen, who is representing the defendants in the new federal suit and 386 people in the tribal ‘court suit, sald the 1866 treaty is proof that freedmen and their descendants are members of the tribe. “Their right to be tribal members was bargained and paid for in the Treaty of 1866. It was one of the major concessions the Cherokee Nation had to make in order to re-join the Union and re-establish government-to-government relations with the United States,” Keen said. “Those treaties are stil in full force and effect, they have not been abrogated or repealed by ‘Congress. If the Cherokee Nation is going to be a sovereign government and treat with other governments, they need to ‘uphold their word and solemn promise. The freedmen descendants are fighting for citizenship because they are proud of their heritage, Keen said. “Many of the freedmen are mixed blood Cherokee, but when they were enrolled, the Dawes Commission did not take the time or the effort to document that Cherokee blood. They were simply required to sign up on a freedmen roll as a product of racial segregation,” Keen said. “Most are proud of having Cherokee heritage, and those who don't are proud to be linked to Cherokee Nation. This is not a situation where you have a bunch of folks looking for a handout, that's not the case at all, All they simply want to do is claim the right of being a tribal member and the right to vote.” Both sides of the issue have valid points, but freedmen descendants ultimately are members ofthe tribe, and should be accepted as such, Keen seid. “There are some pretty deep running issues involved here on both sides,” he said. “We are standing on federal law and the covenants made in 1866. The Cherokee Nation should not be allowed to walk away from those promises. It's as simple as that. A deal is @ deal.” CCifton Adcock 881-8462 on adcockidsawardcom