The Cherokee Freedmen Issue: A History YOU Should Know

Our Friend Marilyn Van put together a history of the Cherokee Freedmen, whose ancestors were dragged as property on the infamous "Trail of Tears".  You've heard the story of the Cherokee forced to leave their homes...but have you heard the story of their slaves?     Here it is

Cherokee people with African blood have been members of the Cherokee nation on some basis since the first people with African blood came into the Cherokee areas of the SE United States. The majority of the people with African blood living in the Cherokee nation prior to the Civil war lived there as slaves of Cherokee citizens or as free black non citizens, usually the descendants of Cherokee men and women with African blood. (Children of Cherokee women tribal members were tribal citizens regardless of race of the father – This is clear in the Cherokee constitution of 1827 and 1839).

In 1863, the Cherokee government outlawed slavery through acts of the tribal council. In 1866 , a treaty was signed with the US government in which the Cherokee government agreed to give citizenship to those people with African blood living in the Cherokee nations who were not already citizens. (see 14 Stat. L. 799). The 1839 constitution was amended by the national council on November 28, 1866 so that its provisions would be in line with the 1866 treaty. Between 1866 until the end of the end of tribal government, about 1907, African Cherokee people participated as full citizens of that nation, holding office, voting, running businesses, etc. This time of tribal peace and harmony began to come to an end, however when the Dawes Commission, under Acts of Congress came to the Cherokee nation and registered almost all of the people with African blood as “Freedmen tribal members”; not recording “blood quantum’s” for African Cherokee people .
The tribal citizens could not decide how they were to be classified – such classification was the prerogative of the Dawes commission. (It must be emphasized that even the blood quantums of non freedmen citizens were mere guesses and were only meant to be used for land restrictions; ie whether or not a tribal member could sell his allotment without government approval. Rolls of citizens prepared by the tribes prior to the 1890s had no “blood quantums”). In 1907, “Jim Crow Laws” were passed by the white majority in the state of Oklahoma, which created legal distance between the Freedmen tribal members and the rest of the tribe. Between 1907 and 1975, the Cherokee Freedmen tribal members received the same per capita payments as other tribal members and intermittently accessed benefits as tribal members. Under Title 25 section 991, members of the Cherokee nation listed on the “final rolls” of the Dawes Commission. were entitled to receive a Judgement fund payment during the early 1960s. CHEROKEE FREEDMEN AS TRIBAL MEMBERS RECEIVED THIS PAYMENT. In 1907, Freedmen represented about 10 to 12% of the tribe, according to US government records.

In 1971, the Federal government authorized the Cherokee nation (CNO) to once again establish its own government. Cherokee Freedmen voted in elections in 1971, 1975, and 1979. A constitution was voted on by the Cherokee people, including some freedmen in 1975 which indicated that Dawes enrollees and their descendants were entitled to membership in the Cherokee nation. The constitution made the tribe subject to all of the laws of the United States and required that the tribe receive the permission of the President or his designee before adopting new constitutions or constitutional amendments. However, the Cherokee Freedmen were blocked at the polls, beginning in 1983 under the orders of Chief Swimmer (now special trustee appointed by President George W. Bush who also served as BIA head during the 1980s under President Reagan) because they supported a rival candidate for Chief , Perry Wheeler who was Deputy Chief at that point.

Subsequently, the tribal council, under the direction of chief Wilma Mankiller, later passed an Act requiring that all tribal members be able to provide a Certificate of Indian blood Card (CDIB), based strictly on the Degree of blood listed on the Dawes Rolls for themselves or their ancestor. Since that roll did not list a degree of blood for Freedmen tribal members, this effectively removed all Freedmen and their descendants from tribal membership, even though a large number if not the majority could provide a degree of Indian blood from their Dawes testimony, Guion Miller payment roll testimony, Henderson payment Roll, death and heir ship documents of the US government , etc. This action of blocking the freedmen from tribal membership was not done under the direction of the Bureau of Indian Affairs (BIA), for BIA Muskogee officials Dennis Springwater and Joe Parker had met with tribal officials in 1983, and emphasized that the Cherokee constitution as well as the treaty of 1866 granted citizenship to the Cherokee Freedmen and their Descendants. The tribe was told the Freedmen should be allowed to vote. Affidavits of the longstanding BIA position are a part of the Nero case file. See also: BIA’s Solicitor’s Opinion, October 1, 1941, 1 Op. Sol. On Indian Affairs 1076 (U.S.D.I. 1979), where the BIA reaffirmed that the Cherokee Freedmen voting and membership rights were fixed by treaty and formal tribal actions .

The press took note of these matters, especially when a Reverend Nero and several other Freedmen filed a lawsuit against the Cherokee nation and the BIA in 1984. Then Chief Swimmer stated in the Oklahoma Eagle newspaper that it was “easier for the registration department to process tribal memberships of people with CDIB cards (at that time, the tribe did not have a contract with the BIA to process CDIB cards), which must raise the question of why Cherokee citizens must be deprived of their rights in order to make the job of registration easier for tribal employees on salary. The Baltimore son reported on July 29, 1984 that then Deputy Chief Wilma Mankiller told the Baltimore Sun that Cherokee Freedmen should not have tribal membership since such membership should be for “people with Cherokee blood”- words which must clearly be seen as an effort to prejudice the Cherokee people as well as the general American people that people with African blood cannot document Cherokee blood and are not Cherokee Indian people, and perpetrating those old “one drop of blood” standards that people with African blood have no other blood and must be kept as a people completely apart unlike any other people. Cherokee nation attorney Wilcoxen during the Nero case appears to have clearly attempted to prejudice the judge against the Cherokee freedmen plaintiffs by wrongly proclaiming that the “Freedmen did not have Cherokee blood”, and that the 1975 constitution only allowed “Cherokees, Delaware, and Shawnee” to be tribal members”; although the Constitution does not say that. (Bands of Delaware and Shawnee Indians were adopted into the Cherokee nation after 1866, whose individuals are not required to also have “Cherokee blood” to be Cherokee citizens). The Nero lawsuit was dismissed by the judge in 1989 over jurisdictional issues; that for example the case should have been tried in the court of claims due to the amount of dollars the plaintiffs were requesting.

In 1998, the Cherokee nation justices heard a citizenship case by a descendant of Cherokee Freedmen, Bernice Riggs . (Bernice Riggs Versus Lela Ummerteskee, Acting Registrar of the Cheorkee Nation (JAT 97-03-K) In 2001, The tribal justices ruled that the testimony and records provided that Mrs Riggs indeed had Cherokee blood. However, they held that this Cherokee ancestor, a man named Rogers was deceased at the time of the Dawes enrollment; - had he been alive at the time of the Dawes enrollment, she would have been able to become a Cherokee citizen based on his degree of Cherokee blood but that since his descendents were listed as Freedmen by the Dawes Commission, she did not have an ancestor with a Dawes Final Roll number from whom she could obtain a CDIB card. The tribal justices determined that the Cherokee nation is a sovereign nation and could grant membership to whomever they wished. (It must be noted that individuals with Caucasian mothers and dead Cherokee fathers were not excluded from being enrolled as “citizens by blood by the Dawes Commission” and that the descendants of such individuals are not barred from Cherokee membership today.).

In 1999, the Cherokee nation prepared a new constitution to submit for BIA approval. The BIA, under Kevin Gover, rejected the new constitution, partially under the grounds that the Cherokee nation would not allow Cherokee Freedmen to vote on it, and that the new constitution would not allow Cherokee freedmen to hold office. According to the official Cherokee Phoenix tribal newspaper (Spring 2001), the CNO attempted to take the new constitution directly to president Clinton, but he would not sign it either. According to the tribal newspaper, they determined to request instead that the BIA agree to remove requirements of federal government approval of constitutional amendments and new constitutions. A decision was made to wait for a “friendlier administration”, in the words of the Cherokee Phoenix tribal newspaper. The same tribal newspaper article also carried a statement from Attorney And Cherokee citizen Ralph Keen, that it is not the tribal constitution which bars freedmen and their descendants from voting on the constitution but a tribal statute.

In 2002, BIA head Neal McCaleb was approached with a request to allow a referendum by Cherokee voters on a constitutional amendment removing federal approval. Neal McCaleb wrote a letter in March 2002, stating that the Freedmen must be allowed to vote on the amendment and that no amendment of the Constitution could eliminate the Freedmen from tribal membership. In April 2002, another letter, with Neal McCalebs signature said he did not write the first letter; the second letter did not say anything about the Freedmen being required to vote on the constitutional amendment. Note that this second letter was completely opposite of all BIA policy since the 1940s. The Cherokee nation government, under Chief Smith, held various meetings around the Cherokee nation, encouraging people to approve the referendum and also the proposed constitution, which has no provision for federal approval of constitutional amendments and did not make the Cherokee nation government subject to US law.

In May 2003, a referendum was held regarding the constitutional amendment, and a vote was held in July 2003 on the proposed new constitution. Both were passed by those individuals who were allowed to vote. Descendants of Cherokee freedmen who tried to participate as voters were not given voting cards, or absentee ballots, and were given “challenged ballots” at the polls if they tried to vote in person.

In June, 2003; several descendants of Cherokee Freedmen, through the law firm Velie and Velie; contacted the Department of the Interior, challenging the 2003 elections, based on the rights of the freedmen in the 1866 treaty, the 1975 constitution, and the Seminole nation versus Norton cases of 2001 and 2002 where Judge Kolar Kotelly had upheld the treaties of 1866 for the Seminole freedmen and their voting and membership rights in the Seminole nation. Several prominent Cherokee nation individuals such as then Deputy Chief Hastings Shade also sent a letter to the BIA questioning the validity of an election when the Cherokee freedmen were not allowed to vote. Various letters went from Chief Smith to the BIA accusing the BIA officials of “having a bias against the self government rights of the Cherokee nation”.



In late July 2003, the Muskogee BIA director wrote a letter, temporarily recognizing chief Smith, but still withholding approval of the constitutional amendment, citing the Seminole nation cases. About 1 week later, another letter, written by the same Muskogee bia official recognized Chief Smith as principal chief , but still did not approve the constitutional amendment.

On August 11, 2003, descendants of Cherokee Freedmen, thru the Velie and Velie law firm filed the lawsuit Vann et al Versus Norton ((1:03 CV01711) in the District of Columbia district court. After the initial complaint was filed, various stays have been granted by Judge Kennedy for the parties to attempt a resolution. During this time period, Cherokee nation officials made statements to the press such as the following to the Fort Smith Times on August 8, 2003, “Freedmen had never voted for officials of the Cherokee nation (made by tribal spokesman Mike Miller). This is an untrue statement as such men as Freedmen Councilman Stick Ross even now have several streets, companies, etc named after him and there is even a plaque with his name on the grounds of the council house in Tahlequah.). The Muskogee Phoenix newspaper on September 13, 2003 interviewed Principal Chief Smith, an attorney, who reportedly stated that “the Cherokee constitution requires CDIB cards”.

However, an examination of Article III of the tribal Constitution shows there are no requirements for CDIB cards or mention of “blood” for tribal members. The same newspaper article quoted the Principal Chief as saying the driving force behind the Federal lawsuit were losers of tribal elections who are “sore losers” . When the Daily Oklahoman on August 17, 2003 raised the issue of many descendants of Dawes enrolled Cherokee Freedmen being barred from tribal membership despite documentable Cherokee blood, tribal spokesman Mike Miller stated that “perhaps some cases needed to be looked at again”. (However, no actions have been taken by the Cherokee nation government to change the tribal code to give tribal membership to such individuals or recommend issuing CDIB cards to them as of August 2005). Neither have individuals such as Bernice Riggs whom the tribal courts and or the BIA determined to have Cherokee blood sources from other than a blood quantum listed on the “Cherokee by blood rolls” been issued CDIB cards and or tribal memberships as of August 2005.

In January 2005, the Cherokee nation, through its Washington law firm, Sonowsky et all filed motions to intervene in the lawsuit for the sole purpose of filing a motion to dismiss the lawsuit. The CNO lawsuits insisted that this was not a waiver of the tribe’s sovereign immunity. One of the CNO chief complaints was that they had not been allowed to participate in any negotiations between the Cherokee Freedmen descendants attorneys and the Department of the Interior. However, this was untrue, as during the summer of 2004, the Velie law firm had made contacts with Cherokee nation chief and the general council through a Cherokee nation community leader; and indeed a phone conversation regarding the issues had taken place between Jon Velie and CNO general council Fite and a tentative agreement was made for face to face meetings. After the single phone conversation, the general council Julian Fite refused to take phone calls from the plaintiffs attorneys and did not contact plaintiffs attorney ). The law firm of Velie and Velie filed a response to the CNO motion to intervene on February 1, 2005, and pointed out the attempts of the Sonowsky firm to mislead the Judge regarding the plaintiffs attempting to “keep the Cherokee nation from the negotiating table”. Furthermore, in an attempt to engage the tribal officials, the very night of the lawsuit filing, attorney Jon Velie had addressed the tribal council, regarding the rights of the Freedmen. And, on March 18, 2004, plaintiff Marilyn Vann had addressed the rules committee, which consists of the entire tribal council, regarding the desire of the Cherokee Freedmen to work with the council. Plaintiff Marilyn Vann has also provided several documents to the council from time to time regarding the rights and history of the Cherokee Freedmen. Cherokee council members have been invited to almost all of the general meetings of the Descendants of Freedmen in Eastern Oklahoma since 1/2004.



On February 7, 2005, the agenda for the upcoming February 17, 2005 CNO rules committee was posted on the council house door, and contained an agenda item titled “A Resolution Ratifying Intervention in Litigation in the US District Court for the District of Columbia”. This item was associated with a resolution to obtain council approval retroactively of the filing of the motions by the Sonowsky law firm to dismiss the freedmen lawsuit. Contacts made by various Cherokee citizens with tribal councilmen indicated that they had no idea that such a resolution was on the agenda, or that any motions had been already filed, or how much money was involved. The resolution indicated that the lawsuit was an attack on the sovereignty of the Cherokee nation, stated that the Cherokee nation had not been allowed to participate in negotiations between the Cherokee freedmen attorneys and the bia. Plaintiff Marilyn Vann contacted the head of the Rules Committee, Attorney Meridith Swimmer Frailey, and asked to be allowed to speak at the meeting. The committee chair said that legally, it was too late for her (Vann) to be added to the agenda, as agenda additions must be made 10 days before the meeting. Vann stated that of course she must abide by the rules of the tribal council and the committees but had no way of knowing more than 10 days ahead of time that the resolution would be on the agenda.

On February 17, 2005, the resolution was presented by Melody Knight of the Cherokee nation Justice Department. She stressed that the filing of the complaint was a direct attack on the Cherokee nation; and again, wrongly reiterated to the listeners that the Cherokee nation had been kept out of the negotiations, (This allegation, however, had been refuted on February 1, 2005 by the Velie law firm brief filed with the Federal court). A few questions were asked by a councilman, to clarify that the motions had already been filed, the validity of the expenditures, and the council’s right to review the expenditures. A councilwoman Cowan said she wanted for a judge to make a decision and not the BIA regarding the Freedmen rights. 8 Councilmen – Frailey, Yargee, Smoke Conner, Garvin, Anglen, Johnson, Martin, and Cowan voted for the resolution. Hoskin and Thornton voted against the resolution. Other council members were not present for the vote.

Plaintiff Marilyn Vann, at the request of a councilman, was allowed to speak for 5 minutes after the vote. She called for the council to do the right, legal and moral thing for the good of all the Cherokee people and that the Cherokee nation did not need to file motions to dismiss the Cherokee freedmen litigation in order to be able to negotiate with the Freedmen attorneys and the department of the interior. The resolution was set to be voted on by the full council on March 14, 2005 at 6PM.

After discussion with Councilman Joe Crittenden , Marilyn Vann contacted tribal employee Gina Blackfox who advised her of how to structure a letter to be placed on the agenda for the March 14, 2005 council meeting. This letter was faxed to the council house on February 18, 2005 to Ms Blackfox.  Marilyn Vann was later contacted by Councilman Crittenden, who indicated that the letter had been distributed to the council, as well as the tribal council attorney, Todd Hembree. Councilman Crittenden stated that Attorney Hembree had researched this issue and had stated that Marilyn Vann could address the council legally. Head of the tribal council, Deputy chief Joe Grayson had been advised of this clearance and that Marilyn Vann would be addressing the council during the reports section. However, the night of the council meeting, Marilyn Vann was told by Councilman Crittenden that Meridith Frailey preferred her to address the council during the resolution discussion and not at the reports section. He further stated that Joe Grayson asked for the report to be limited to 5 minutes. When the resolution agenda item came up,

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