Sen. Barack Obama and the Cherokee Freedmen: Politics as usual

On the same day that African American voters went to the polls to cast their ballots in North Carolina and Indiana, descendants of the former slaves of the Cherokee Nation (known as Freedmen) fought in the Federal Circuit Court of Appeals in Washington, D.C., to enforce their treaty rights guaranteeing them equality and voting rights in the tribe. Attorneys representing the Cherokee Nation of Oklahoma have filed to have the case dismissed on the grounds that only Congress can enforce the treaty because the Cherokees have sovereign immunity. Yet the Cherokee Nation on that same day held a conference in the U.S. Capitol on why the Freedmen matter should be left to the courts.

Without a clear understanding of the issue, Sen. Barack Obama (D-Ill.) has weighed in on the side of the Cherokees by publicly opposing my legislation, H.R. 2824, which suspends U.S. relations with the Cherokees until the rights of Freedmen are restored.  Sen. Obama also takes exception to a recent Congressional Black Caucus (CBC) letter sent to Senate Majority Leader Harry Reid (D-Nev.) in which the caucus declares its opposition to Native American housing legislation if it does not include a provision that would prevent the Cherokee Nation from receiving any benefits or funding under the bill if the Freedmen are expelled from the tribe.

Thirty-five CBC members signed the letter, including its chairwoman, Rep. Carolyn Kilpatrick (D-Mich.).

Sen. Obama’s argument mirrors the Cherokees’ justification for Freedmen termination. He declares that the Freedmen issue is a matter of tribal sovereignty and should be arbitrated in the courts and not Congress. But what Sen. Obama fails to understand is that the Freedmen issue is about treaty rights, not tribal sovereignty. What Sen. Obama probably has not been told is that the Cherokee Freedmen issue tracks the Seminole Nation of Oklahoma’s attempt in 2002 to terminate its Freedmen that was squashed by the Bureau of Indian Affairs when it halted all federal funding to the tribe and suspended the Seminoles’ federal gaming authority.

The Cherokee Nation, as many of the other slaveholding Indian tribes, fought on the side of Confederacy during the Civil War. In 1866, the U.S. and the Cherokee Nation signed a treaty to reestablish relations between the Cherokee Nation and the United States. The 1866 treaty forms the new foundation for Cherokee sovereignty that continues to this day.

Article IX of the Treaty of 1866 states that Cherokee Freedmen shall have “all the rights” of Cherokees.  The language in the treaty has been interpreted on more than one occasion by the courts as that “all rights” include the right of Freedmen citizenship.  That same year, in 1866, the Cherokee Nation amended its constitution to give Freedmen full rights of citizenship, including land allotments. Federal courts have consistently determined that the treaty abrogated the Cherokees’ sovereign right to legalize slavery or determine the citizenship of its former slaves.

Despite a long history of legal precedent favoring the Freedmen, Chad Smith, the principal chief of the Cherokee Nation, continues to hammer at the notion that Congress should defer to the courts on the Freedmen issue. It has become the rallying cry of his supporters and numerous well-paid lobbyists. He reminds us that the Cherokee Nation is a nation of laws and will abide by the decisions of the courts. Given Smith’s mantra that the Freedmen issue should be left to the courts, it is curious that Smith’s lawyers recently argued in U.S. District Court that Congress has rightful jurisdiction over the fate of the Freedmen.

Whatever branch of government has ultimate authority, it is clear that the past actions of Smith belie his commitment to the rule of law. After the Cherokee Nation’s tribal courts ruled in favor of Lucy Allen, a Freedmen descendant who sued for citizenship, Smith chose to dissolve the Cherokee tribal court and pack the newly constituted court with his cronies, who proceeded to approve a referendum to overturn Allen’s petition. The decision of Smith’s court laid the groundwork for the March 2007 vote to expel the Freedmen.

The Cherokee Nation lost its sovereign right to engage in slavery upon enactment of the 13th Amendment and to determine the citizenship of the descendants of its former slaves upon ratification of the Treaty of 1866. Over the past several decades, our nation has stood up for the rights of indigenous minorities, as has the U.S. Congress through its Helsinki Commission as well as other congressional forums. Defending any government’s right to commit gross acts of discrimination under the guise of sovereign immunity is a non-starter. It is as unsupportable in South Africa, China, Zimbabwe and Bosnia as it is in the Cherokee Nation, arguably even more so in the Cherokee Nation since it is located within the continental U.S. and its sovereignty on the issue at hand has already been abrogated by Congress.

African American voters should think about how they would feel if their citizenship rights were suddenly removed because they descended from slaves. This is precisely what the Cherokee Nation wants to do in violation of its own treaty obligations.  It is morally repugnant and legally wrong.

Watson is a member of the House Oversight and Government Reform, and Foreign Affairs, committees.