Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (review)

The theme of sovereignty dominates much contemporary discourse within tribal nations. Whether wielded as a sword, to demand rights to self-determination consistent with their status as “domestic dependent nations” (John Marshall),¹ or as a shield, against federal or state abrogation of tribal immunity from suit, sovereignty arguments can sometimes move non-Native courts and Congress from viewing tribes as race-based culture clubs (bad) to tribes as race-neutral political actors (good), that is, as sovereign nations indifferent to the racial makeup of their citizens. As the modern history of the Cherokee Nation (headquartered in Tahlequah, Oklahoma) shows us, however, this would be a misreading of tribal culture and self-identity, yet another colonialist fantasy of Indian assimilation into the ideals of the Enlightenment. How far will the federal government permit a tribe to assert its status as sovereign and determine its criteria for citizenship without expecting it to incorporate liberal notions of equal protection under the law?

Yarbrough’s book is a work of history not law, yet her subject—the consolidation of Cherokee political identity and Cherokee ancestry or “blood” in the pre- and post-Removal policies of the Cherokee Nation—implicates a crisis of law and identity gripping Cherokees today. The crisis centers on whether the Nation can lawfully exclude African Americans who have no tribally recognized “Indian blood,” but who hold citizenship in the Nation as descendants of the Cherokees’ former slaves, the Freedmen. Like the Choctaw, Chickasaw, Creek and Seminole, a small but economically and politically powerful subset of the Cherokee engaged in slavery. After the Removal to Indian Territory in 1838–1839, the Cherokee Nation resumed the practice, and when the Civil War broke out, the Nation sided with the Confederacy.

After the war, as terms of making peace with the victorious United States, the Cherokees’ former slaves and their descendants in perpetuity were incorporated into the tribe pursuant to a Reconstruction treaty and subsequent amendments to the Cherokee Constitution. The status of the Freedmen and their descendants as citizens and the scope of their rights have been controversial ever since, and more than once the Freedmen have turned to the federal courts to uphold their alleged treaty rights against what they view as attempts by the Nation to unlawfully deny them participation in profits from land sales, rights of voting in tribal elections, and most recently, rights of citizenship. As historian Andrew Denson has written, the post-war Nation “balked at the notion that freed people should receive the same rights and benefits as Indian citizens. They accepted the treaty’s freedmen articles as a condition of resuming relations with the United States but never fully accepted black people as equal members of the tribe.”²

As a citizen of the Cherokee Nation, though not a Freedmen’s descendant, I have followed the Freedmen controversy with interest. In 2007, Cherokee citizenry voted to amend the tribe’s constitution to require proof of an ancestor on the federally-created nineteenth-century Dawes Rolls as a condition of citizenship, but ancestors listed on the Dawes “Freedmen Roll”—a registration of Freedmen and their descendants at the time—would not “count.” The result, in the words of advocates of the change, was “an Indian tribe for Indian people.” For opponents, the result wrongly disenfranchised or “expelled” some 2800 Freedmen’s descendants from the tribal registry.

Yarbrough writes cognizant of this background, which appears as the focus of her final chapter (”The Fight for Recognition Continues”). The voters’ action in 2007 effectively overturned the decision of the Cherokee Nation’s highest court the year before, in the case of Lucy Allen v. Cherokee Nation, in which a majority of the justices held that the tribal constitution did not exclude the Freedmen’s descendants from citizenship. I found Yarbrough’s analysis of Lucy Allen to be balanced. Her treatment of the case recognizes the dilemma of an Indigenous people facing significant out-marriage to non-Indians and the...