Title

A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendents

Abstract

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian “blood quantum” requirement for citizenship. If approved, potentially thousands of African-descended citizens would be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize and reject definitions of Cherokee political identity based on either the federal Dawes Rolls of the allotment era, 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. Professor Ray offers a model for constructing tribal citizenship criteria that attempts to deliver ancestry from biology, and law from legal fetishism of the Dawes Rolls. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen’s descendents and Cherokees by ancestry, not the “quick fix” of the political process.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Indian and Aboriginal Law | Law and Society | Legal History | Public Law and Legal Theory | Religion Law

Date of this Version

August 2006