A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendents
bepress Legal Series
Working Paper 1570
2006-08-17
72 pages
S. Alan Ray, President
Elmhurst College, Elmhurst, Illinois
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.
Table of Contents
- INTRODUCTION
- I. LUCY ALLEN AND THE CHEROKEE FREEDMEN CONTROVERSY
- II. THE FREEDMEN CONTROVERSY AS A CRISIS OF POLITICAL AND SOCIAL IDENTITY
- A. A Race or a Nation? Identity by Blood or Base Roll
- B. Cherokee Identity: Legal Definitions and their Limits
- 1. Collective Definitions: The Cherokee Nation
- 2. Individual Definitions: Citizenship in the Cherokee Nation
- 3. The Limits of Legal Definitions of Citizenship
- C. Cherokee Identity: Biological Definitions and their Limits
- 1. The Construction of the “Red” Race
- 2. The Construction of “Black” by “Red”
- 3. Cherokee Slavery and Cherokee Nation
- 4. The Limits of Biological Definitions of Citizenship
- D. From Biology to Ancestry, From Legal Fetishism to Law
- III. RADICAL INDIGENISM AS A RESOURCE FOR RESOLVING THE FREEDMEN CONTROVERSY
- A. Foundational Commitments
- B. Assumptions of the Model
- 1. Role of Practical Knowledge
- 2. Relationship to Spiritual Heritage
- 3. Effective History of Colonization
- C. Critical Hermeneutics of Ancestry and Reciprocity
- 1. Relationship to Ancestry
- 2. Responsibility to Reciprocity
- CONCLUSION
Read the entire paper here.