In the spring of 2007, the Cherokee Nation of Oklahoma grabbed national, and even international, attention by its March 3 decision to revoke the citizenship rights of about 2,800 Cherokee Freedman who are descended from people owned as slaves by the Cherokee during the nineteenth century.1 The original slaves had been designated as members of the Cherokee Nation under a U.S.-Cherokee treaty signed in 1866. In 1893, however, the federal Dawes Commission was formed to dissolve tribal governments and end communal tribal ownership of land by the “five civilized tribes”—Cherokee, Choctaw, Chickasaw, Creek, and Seminole—by allotting former tribal lands to individual tribal members.2 In determining those allotments in the late nineteenth and early twentieth centuries, the commission classified tribal membership in two ways, “by blood” or as “freedmen” (former slaves), listing those so described on separate census rolls. Only those rolls listing tribal members “by blood” included information about Cherokee blood quantum, a concept that traditional Cherokee practice did not recognize.3 Despite this incongruity, some indigenous groups use these lists or rolls as the basis for determining citizenship today. This policy ignored the fact that some of the individuals placed on the freedmen rolls also had Cherokee ancestry.4
In its 2007 vote, by limiting Cherokee citizenship to only those individuals able to trace ancestry to the “by blood” rolls, the Cherokee Nation, in effect, instituted a blood requirement for citizenship. As a part of the campaign to expel descendants of the freedmen, Cherokee member Darren Buzzard circulated an electronic message that warned in part, “FOR OUR DAUGHTER[S] … FIGHT AGAINST THE INFILTRATION,” a message that invoked the old fear of interracial sex.5 John Ketcher, another Cherokee who supported the expulsion, claimed that he never saw a black person until he was ten. He was skeptical that the freedmen descendants are part of the Cherokee community and commented, “I think they want some of the goodies that are coming our way.”6 His views no doubt reflect those of many others in the Cherokee Nation. Such responses, and the decision to revoke Cherokee citizenship for freedmen descendents, came, in part, in reaction to the successful legal attempt by Lucy Allen, a descendant of a Cherokee freedman, to obtain voting rights for herself and other freedmen descendants, but they are also part of a much longer legal struggle over the place of freedmen descendants in the Cherokee citizenry, a struggle with roots that go back to the aftermath of the Civil War.
In 1866, the Cherokee Nation stood at a crossroads: by freeing their slaves and including them in the nation’s citizenry, Cherokees had to rethink definitions of citizenship and Cherokee identity.7 The year represented a moment pregnant with possibility. The Cherokees could have chosen to accept their former slaves as full and equal members of society, making race meaningless in discussions of Cherokee citizenship. The Cherokee Nation also could have opted to grant white spouses of Cherokees complete and full rights as Cherokee citizens. Instead, however, the Cherokee Nation chose to uphold and strengthen older racial divisions in Cherokee society and create a hierarchy of legal citizenship. The Cherokees fought against admitting their former slaves into Cherokee citizenship and did so only at the insistence of federal authorities. The Cherokees did finally capitulate to American demands to extend citizenship to the freed slaves, but the Cherokee legislature resolved to keep them separate from Cherokees holding citizenship by blood. Cherokee authorities likewise maintained a separate legal category for whites married to native Cherokees, limiting their legal rights in the Cherokee Nation and admitting them only if they followed specific procedures.
A consideration of the hierarchy of legal citizenship that emerged in the Cherokee Nation after the Civil War reveals several key insights. Initially, Cherokees responded to the destruction of the institution of slavery and the sudden problem of the freedmen by carefully circumscribing the rights of the descendants of slaves in the Cherokee Nation. Among other limits, Cherokee authorities continued to prohibit marriage between Cherokees and the descendants of freedmen. During this same postwar period, however, available marriage records indicate that members of the Cherokee Nation were marrying white Americans with growing frequency. The growing Cherokee acceptance of white marriage partners had very real consequences on Cherokee attitudes toward race and racial hierarchy. The language of legislation and treaties authorized by the Cherokee Nation demonstrates that Cherokees were moving toward a three-tiered understanding of race, reinforced by a hierarchy of legal citizenship. In sum, the post-Emancipation era saw the crystallization of ideas about race in the Cherokee Nation.
Emancipation and the Civil War did little to change the racial attitudes of Cherokees toward blacks or the willingness of the Cherokee Nation to accept marriages between its native citizens and former slaves. While the Cherokee Nation had abolished slavery voluntarily in 1863, it was reluctant to grant citizenship to the freedmen, insisting that they were not entitled to the rights and privileges of Cherokee citizenship. The federal government forced the Cherokee government to accept the former slaves as citizens and grant them rights in Article 9 of the “Treaty with the Cherokee,” signed June 19, 1866, which stipulated the inclusion of the exslaves into the citizenry: “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”8
The Cherokee Nation denied citizenship to those freedmen who returned to the nation after the six-month deadline. Many former slaves missed the deadline because they were unaware of the treaty stipulations. Others did so because they lacked the means to return in the allotted time: during the war, their Cherokee masters had transported them outside the Indian Territory to Texas and Mexico in a quest to preserve the masters’ slave property. Still other former slaves claimed to have been detained by Cherokees as they tried to return to the Cherokee Nation. Thus, many freedmen who had lived in the Cherokee Nation as slaves before the war and had legitimate ties to the community failed to obtain Cherokee citizenship.9
While the peace concluded with the federal government brought tangible gains to former slaves in the Cherokee Nation, the status of their most intimate relationships proved more ambiguous. Article 4 of the 1866 treaty called for territory in the Canadian District to be reserved for those freedmen who chose to reside there. Articles 5 and 6, meanwhile, permitted inhabitants of this area to establish a local government and a judicial system, in accordance with the laws of the Cherokee Nation, as well as providing for representation in the National Council.10 Yet, despite the influx of a large number of new black citizens into the nation, the Cherokee legislature made no adjustments to the laws governing interracial marriage or to antiamalgamation statutes.
In the face of Cherokee reluctance to accept the newest citizens of their nation, the U.S. government pushed for equality between freedmen and Cherokees by ordering the U.S. military to treat freedmen as members of the Cherokee Nation, granting them the same annuities, land, and educational advantages given the native Cherokees. Federal authorities even assigned Brevet Major General John B. Sanborn to regulate relations between the freedmen and the Cherokees. The 1866 treaty fundamentally redefined Cherokee citizenship by admitting to the citizenry a population without clan or ancestral ties to the Cherokee Nation. Cherokee society was organized into clans figured by matrilineal descent from a common ancestor; in unions between Cherokees of different clans, any children produced belonged to the mother’s clan.11 The children of Cherokee women and non-Cherokee men likewise belonged to the mother’s clan and therefore had an undeniable claim to membership in the nation.12 Within the nation, people lacking membership in a clan were not entitled to any individual rights that others were bound to respect. Thus the 1866 treaty challenged the very essence of Cherokee political autonomy: with the United States now making decisions about Cherokee citizenship and mediating the relationship between some of the Cherokee Nation’s citizens and its government, the Cherokee Nation’s power to determine the legitimacy of members of society diminished.
Although the terms of the 1866 treaty may have admitted some former slaves to Cherokee citizenship, they did not force a change in or reinterpretation of the intermarriage law: the antiamalgamation statute remained on the books.13 In 1824, the National Council had passed legislation that prohibited intermarriage between African-descended slaves and Indian or white free citizens.14 In 1839, the council replaced this earlier statute with an act that prohibited intermarriage “between a free male or female citizen with any slave or person of color not entitled to the rights of citizenship under the laws of the Cherokee Nation.”15 However, at the same time that the Cherokee Nation confirmed its prohibition on marriages between Cherokees or whites and people of color, it did repeal laws that proscribed literacy for blacks and barred trading with blacks.16 The National Council’s legal actions suggest that it recognized and was willing to address some of the racial inequities in the law; however, Cherokee lawmakers, like Southern whites, still regarded intermarriage with blacks as taboo.17 Because of the Civil War, slavery was abolished, and black freedmen, as well as other free people of color, were granted citizenship in the Cherokee Nation, and the argument that the status of blacks made them undesirable marriage partners became moot. Thus, racial or cultural differences alone also could not account for the aversion to intermarriage with blacks; after all, the Cherokees were more than willing to accept intermarriage with whites and had even established detailed procedures to govern the practice. The basis for Cherokee reluctance to allow intermarriage with blacks becomes clearer upon examination of the history of the interactions between blacks and Cherokees, however.
During early contact, Cherokee Indians saw Africans first as the slaves of Europeans and then as fellow bondsmen. As Cherokees came to associate slavery with Africans during this early period, they probably wanted to put as much social distance as possible between themselves and blacks. Cherokee Indians then made a strategic decision to align themselves politically, socially, and economically with whites, even adopting the practice of owning slaves of African descent. In 1835, slaves of African descent constituted 9 percent of the Cherokee population.18 By 1860, this population had grown to 18 percent.19 To be sure, the U.S. government pressured the Cherokee Nation to acculturate, but Cherokee elites and lawmakers also embraced some white practices in an effort to ensure the survival and continuance of their nation. After the Cherokee Nation abolished slavery and could have dealt with blacks more equitably, the Cherokees resisted the further step demanded by the United States, that of admitting blacks to citizenship, granting citizenship to as few blacks as possible and finally taking further action to limit the rights of those freedmen who did obtain citizenship. Despite federal pressure, Cherokee lawmakers attempted to deny full and equal citizenship to blacks, a stance demonstrating that Cherokees did not always blindly accept white attitudes and examples, but tried to act autonomously.
Some scholars blame whites for Cherokee racial attitudes toward blacks. Historian James H. Johnston, for example, contends that “Indians living more nearly in the tribal state and less influenced by the opinions and civilization of the white man welcomed the Negro into the tribes and united freely with them.”20 Similarly, William Loren Katz claims that Europeans promoted racial differences and rivalries between native populations and Africans to push the two groups further apart: “Whites turned Indians into slavehunters and slaveowners and Africans into ‘Indian fighters.’”21 What Johnston and Katz ignore, however, is Cherokee choice and agency—that is, Cherokee complicity with whites in reducing blacks to a position of social inferiority. Cherokees were clearly influenced by white ideas of race and by their observations of how whites treated blacks, both free and slave, but Cherokees also created their own legislation permitting slavery, regulating slave behavior and the activities of free blacks, and prohibiting amalgamation.22
The Cherokee Nation, admittedly at the insistence of the United States, accepted black people as citizens, but continued to prohibit marriage with them.23 This implies that rights to marriage were somehow more sacred or inviolate than rights to citizenship. What made the institution of marriage so exceptional, so deserving of protection? Perhaps it is the nature of the commitment as both religious and secular. Or maybe the simultaneously public and private character of the institution explains its extraordinary status. A more satisfying explanation for the special protections Cherokees gave the institution of marriage is its function as the source of the legitimate members of a society through the production of children.24 Cherokees had a racial vision of their society that left no room for blacks and attempted to protect Cherokee racial identity by constraining sexual behavior: as Matthew Frye Jacobson comments, “The policing of sexual boundaries—the defense against hybridity—is precisely what keeps a racial group a racial group.”25 Blacks and black skin did not fit in with Cherokees’ self-perception. Cherokees identified more closely with whites, not just because of physical appearance but also in their perception of the linkage between race and power and success. Whites in the South had held economic, political, and social power over blacks. The South had just lost a war, seemingly about the large population of black slaves residing in the South, while the Northern victors of the war had a very small black population. Blacks appeared to be the least powerful group in the United States, and the Cherokees, by all measures, did not want to imagine themselves as equally impotent or draw any associations or parallels between themselves and blacks.
At precisely the same moment that legislative action maintained the prohibition on marriages between Cherokees and people of African descent, district clerks busily recorded numerous marriages between Cherokees and whites. The National Council passed various laws to govern such unions, but the fullest iteration of the intermarriage law, passed in 1855, required petitions signed by members of the tribe, oaths, testimonials of the worthiness of the potential spouse, and a large fee from white men seeking to marry Cherokee women.26 An analysis of Cherokee Nation marriage records discloses that legal marriages between Cherokee women and white men increased during the nineteenth century, and also were more frequent than marriages between Cherokee men and white women; both these trends entailed dramatic repercussions for the nation. The inclusion of a growing population of white men fundamentally altered basic principles in Cherokee society. For instance, white husbands wanted to leave property to their offspring, and the federal government pushed Cherokee lawmakers to adjust traditional practices of matrilineal inheritance to permit patrilineal inheritance.27 Moreover, in response to Cherokee fathers seeking to confer citizenship on their children by white women, Cherokee courts began to accept patrilineal descent in legal claims of Cherokee citizenship.28 Final evidence of the declining importance of matrilineal descent and the hardening of racial ideology in the Cherokee Nation is the place held in Cherokee society by mixed-race children with Cherokee mothers and black fathers. While traditionally Cherokees would have considered these African-Cherokee children full members of the nation, Cherokee legislators were abridging the rights of such children as early as 1827.29 Cherokee marriages to whites were giving rise to a growing population of “mixed-race” individuals, a population that was forcing a reconsideration of what it meant to be Cherokee.
The statutory language produced by the Cherokee legislature reflected Cherokee understanding of three distinct racial groups in the nation. In 1866, for instance, the legislature authorized a census stipulating that census officials “take down the name and age of the head of each family, and of each member thereof, of all the citizens of the Cherokee Nation, classing according to age males over eighteen and under eighteen, giving the number of natives, whites, and Africans.”30 Here, lawmakers clearly distinguished native Cherokees from adopted whites and the Cherokee freed people. The actual census results manifest this thinking. The census data merely lists the name of the district, followed by the names of the heads of households. Census takers labeled only the white and colored citizens of the Cherokee Nation, as well as the noncitizen population, such as intruders or those with citizenship claims pending.31 It is clear, nonetheless, that the first group of citizens listed for each district were “native” Cherokees; the names in this group include many traditional Cherokee names, such as Cher-nee-lucky or Chicken Rooster.32 Further, census takers listed these individuals first. The native Cherokee population, it would seem, needed no introduction, no special heading, in the minds of census takers.
The official guidelines for conducting the 1880 census include an interesting omission that intimates that Cherokees may have been thinking of themselves more frequently as Indians than as Cherokees: there is no mention of “Cherokees” as a group. The National Council required the enumeration of
all heads of families, giving a complete registration of births, deaths, and marriages, also, the age and sex, and names of all males above the age of eighteen years; the names of all females above the age of eighteen years; the names of all males under the age of eighteen years; the names of all females under the age of eighteen years; the names, sex, and ages of all orphans under sixteen years; the names of all whites entitled by law to citizenship, within the ages above specified; the names of whites not so entitled; the names of all colored persons entitled by law to citizenship, within said ages, the names of all such persons not so entitled; and the names of all Indians not so entitled.33
The three groups included for enumeration in the census were whites, colored persons, and Indians. In the case of whites and colored persons, the Council specified that census takers count both those individuals entitled to Cherokee citizenship and those residing in the nation illegally. The provisions regarding the third category for enumeration, Indians, exemplify the change in Cherokee racial self-perception. The early portion of the instructions, specifying the counting of heads of household and the classification of the population by age and gender, did not explicitly mention Cherokees or Indians but most likely referred to Cherokees or Cherokees by birth. If the three stated available racial categories were black, white, and Indian, the term Indian used later in the instructions must have included the Cherokees. By requiring a separate enumeration from blacks and whites, Cherokees obliquely affirmed their separateness from both groups and their “Indian-ness.”
Although the act did not state this explicitly, the separate enumeration of those individuals who would have accessed Cherokee citizenship by adoption or under the treaty of 1866 implies that lawmakers recognized at least two categories of legal citizenship: Cherokee citizens by birth and Cherokee citizens by law. The final segment dealing with counting the human population ordered census officials to name all Indians not entitled to Cherokee citizenship. Where is the directive to count the Indians who were entitled to Cherokee citizenship? After all, as early as 1843, an agreement between the Cherokee, Creek, and Osage Nations permitted the citizens of any of the party nations to become citizens of other party nations.34 Thus, it is probable that some Creeks or Osages lived in the Cherokee Nation as Cherokee citizens. The language of the act implies that the categories of people entitled to citizenship mentioned earlier included all Indians, so that “Indian” encompassed Cherokees as well as Indians originally from other tribes.
Despite the provisions of the act authorizing the 1880 census, the Cherokee Nation’s actual report summarizing the census results includes the language of “blood” and “nativity.” Included in the demographic data about the gender and age of Cherokee citizens was an accounting of the number of “Native” and “Adopted” citizens in the nation by district.35 Cherokees were distinguishing more frequently between Cherokee citizens by birth and by law, a distinction that would not have been made before the nineteenth century. Census takers also collected data on the “Races” of the citizen population. The racial categories named were “Cherokees by blood,” “Whites,” “Colored,” “Delawares,” “Shawnees,” “Creeks,” and “Miscellaneous.”36 The census takers were instructed to note racial categorization but were not asked to divide the Cherokee citizenry by “blood” or “nativity”; nevertheless, the census takers chose to collect and report data in precisely this manner. “Blood” and “nativity” were increasingly important parts of Cherokee identity.
As the Cherokee Nation developed a hierarchy of legal citizenship, those Cherokees who were citizens by birth reaped real economic benefits. Cherokees by birth had civil and political rights, were eligible for all offices in the national government, and received remuneration from annuity funds paid by the federal government for Cherokee land. In addition, because Cherokees owned land communally, Cherokees by birth could improve as much land as they wished, as long as they did not settle and improve land within one-fourth of a mile of another person’s field, home, or other improvement. Many noncitizens interpreted this right as access to virtually limitless free land, something landless individuals without funds would have found quite desirable.37 Cherokees by birth enjoyed the most political rights and freedoms of all citizens in the nation.
Meanwhile, American citizens who married into the Cherokee Nation during the nineteenth century formed another implicit class of Cherokee citizenship, in part because they lacked Cherokee ancestry. Intermarried whites received most civil and political rights but did not receive annuity rights. In other words, through marriages to Cherokee partners, American citizens acquired voting rights in Cherokee elections and gained the right to improve as much of the communally owned public domain as they desired, along with other Cherokee citizens. However, they were not granted the right to receive annuity funds individually, although they could benefit from the annuity funds of their Cherokee spouses. Intermarried white men could not hold high office in the Cherokee Nation or bring suits against other Cherokee citizens in court. Moreover, a white person married to a Cherokee spouse lost Cherokee citizenship if the Cherokee spouse died and the white partner remarried outside the tribes.38
Persons of African descent living within the Cherokee Nation fared even less well. Cherokee legislators circumscribed the rights of Cherokee citizens of African descent fairly early, even those who also had Cherokee ancestry. The 1827 constitution of the Cherokee Nation, for example, prohibited any person of “negro or mulatto parentage, either by the father or mother side” from holding any political office in the nation and denied the vote to the children of “Indian men by negro women who may have been set free.”39 On the other hand, the constitution did not bar legal citizens of the nation who were of Cherokee and African descent from improving as much of the communally owned public domain as they desired, but it is unclear if they were eligible for receipt of annuity funds. Before 1866, slaves of African descent, even those also of Cherokee descent, were not citizens at all and possessed no rights. As Cherokee “blood” grew in significance in defining Cherokee citizenship and identity, it became increasingly clear that African “blood” could negate Cherokee “blood.”
In 1886, the Cherokee legislature clarified the de facto categories of Cherokee citizenship by grounding them more firmly in legal statutes. On April 27, the National Council passed an act in direct response to the crisis created by admitting freedmen and friendly Indians to Cherokee citizenship. Claiming that the United States had failed to define what rights and privileges were attached to Cherokee citizenship for free colored persons, freedmen, and adopted Indians, the council asserted that it had the sole authority to determine the meaning of the stipulations of the U.S.-Cherokee treaty of 1866. As a consequence, Cherokee lawmakers declared that when “free colored persons, freedmen, and friendly Indians” were granted the rights of native Cherokees, “the phrase ‘all the rights of Native Cherokees,’ as used in the 9th and 15th Articles of the Treaty of July 19, 1866, between the United States and this Nation, is hereby construed to mean the individual rights, privileges, and benefits enjoyed by white adopted citizens of this Nation.”40 What this meant was that free colored persons, Cherokee freedmen, and friendly Indians all living in the Nation as citizens were entitled to “civil, political, and personal rights,” but not to rights to communal Cherokee land ownership or any per capita money, that is, revenue obtained by the Nation through the sale of land.41 Further, the act acknowledged that adopted whites had not been granted the same rights and privileges as other Cherokee citizens.
At first glance, the act of April 27, 1886, might appear to lump adopted whites, adopted free colored persons, adopted freedmen, and friendly Indians into a single group of equal status; all four groups were granted an inferior class of Cherokee citizenship. Closer examination, however, exposes the real inequities of the law, which placed adopted citizens of African descent in the least tenable position of all adopted citizens. Since white adopted citizens became members of the nation through marriage, they achieved greater access to land than freedmen because of their Cherokee spouses. Cherokee spouses kept their share of revenue from the sale of lands by the nation and could control as much land as their families could improve. Therefore, white adopted citizens generally had indirect access to both per capita money and greater land ownership than that available to free blacks or freedmen. Friendly Indians usually came to agreements with the Cherokee Nation about payments and the occupation of specified territories. Once on designated land, the friendly Indians could distribute land as they saw fit.
Cherokee legislation granted friendly Indians the most favorable class of citizenship available to adopted citizens. Friendly Indians that made treaties with the Cherokee Nation and paid for the right to remain on Cherokee territory could make arrangements with the nation to include rights to the domain and/or per capita money. The Cherokee government’s willingness to accord members of other native groups rights that most closely approximated the rights of Cherokees by birth implies recognition of a kind of commonality among indigenous populations. In this case, indigenous groups shared a similar relationship to the land. Further, Cherokee authorities identified groups of friendly Indians as sovereign units capable of maintaining treaty relationships with other sovereign nations. Adopted whites, on the other hand, entered the Cherokee Nation as individuals, with no ability to make treaty agreements. As for the freedmen, the Cherokee Nation likewise did not recognize them as a sovereign unit, even as they joined the Cherokee citizenry in a manner more like that used by the friendly Indians—as a group and through treaty agreement with the federal government—than like that used by adopted whites. Among the differences between freedmen and friendly Indians were that the freedmen did not negotiate any rights themselves and that they lacked the Indians’ claim to land as indigenous peoples. More importantly, the Cherokees had opposed the inclusion of their former slaves in the citizenry, acceding to it only at the insistence of the federal government.
The free colored population and freedmen did not have the option of negotiating treaty terms; thus, the act operatively barred them from obtaining per capita money. According to the new 1886 legislation, free colored persons and freedmen could only use land in common with other Cherokee citizens “without acquiring any right or title to the Cherokee domain.”42 They did not become communal owners of the land with native Cherokees which meant that they were not entitled to any proceeds from sales of Cherokee land to the federal government or payments from land usage agreements between Cherokees and other native groups. Article 4 of the 1866 treaty had granted 160 acres to each freed person who chose to live in the designated section of the Cherokee Nation.43 Native Cherokee citizens and intermarried white citizens, however, could improve as much land as they wanted without acreage restrictions. The freedmen had access to land in the Nation, but not the full access guaranteed to native members of the tribe. Thus, the 1886 law placed greater limits on the citizenship of Cherokee free colored persons and freedmen than any other groups of adopted citizens in the Nation. Cherokees of African descent possessed the bare minimum of rights allowing them to be classified as citizens in the Cherokee Nation. Coupled with the continued refusal of the National Council to recognize marriages between people of color and Indians or whites, the provisions of the April 1886 law further demonstrate the existence of racial prejudice playing out in legislative action and legal statutes.
The language of several treaty agreements between the Cherokee Nation and other indigenous tribes reflects a move toward the official recognition of a common Indian identity among indigenous populations.44 As early as 1843, the Cherokees, Creeks, and Osages recognized that “the removal of the Indian tribes from the homes of their fathers, east of the Mississippi, has there extinguished our ancient council fires, and changed our position in regard to each other.”45 The compact reflected the tribes’ cognizance of their shifting positions on the North American continent and the precarious existence of all indigenous tribes in relation to the U.S. government. The provisions of the agreements ensured amity between the several tribes, granted citizenship to the members of compact nations, and regulated the punishment of criminal activity involving members of the compact nations. Groups that traditionally had considered themselves distinct and separate, and may have even opposed each other in war in the past, were now invoking a shared identity as “Indian tribes.”46
Later treaties made between the Cherokee Nation and the Delaware and Shawnee tribes in 1867 and 1869 made specific reference to the “Cherokee Nation of Indians,” the “Delaware tribe of Indians,” and the “Shawnee tribe of Indians.”47 These treaties provided for settling “friendly Indians” on Cherokee lands and sketched out the terms under which “friendly Indians” could receive annuity funds from the federal government. In these examples, tribal names became modifiers of the noun Indian. Thus, labels such as Cherokee, Delaware, and Shawnee described different types of Indians. Members of these different tribes, then, were now perceived as part of a larger group. The Indian authors of the treaty also appeared to differentiate between nations and tribes. The terms nation and tribe most likely described varying levels of political organization. Nations had more formal governing structures, outlined in a written constitution and specific territorial boundaries. Tribes, on the other hand, were more loosely organized politically, perhaps along more traditional lines, without a written constitution or the institutions of a legislature and courts. The treaties referred to the Cherokees as a nation while referring to the Delaware and Shawnee as tribes, and, indeed, the Cherokees may have had the most formalized and institutionalized government of all of the indigenous groups in North America during the nineteenth century.48
The Cherokee Nation simultaneously moved toward creating a common Indian identity and stressing the importance of Cherokee ancestry specifically, contradictory impulses explained by the reality of the relationship between the federal government and indigenous populations. The U.S. government did not negotiate treaties with Indians generically, but with specific tribal groups. After the Civil War, for instance, federal authorities settled surrender agreements with the Cherokee Nation, the Choctaw and Chickasaw Nations, the Creek Nation, and the Seminole Nation separately, rather than as a unit.49 These separate agreements and other treaties determined land boundaries, annuity fund payments, and the sale of more territory to the United States. In other words, the treaties were very specific and could include different terms for different populations. Treaties between the United States and the various Indian tribes and nations reified the separate identity of each group. Treaty agreements also recognized the rights of native populations to govern themselves and regulate the behavior of citizens, which served to further reinforce the separation of the Indian nations.
Within the Cherokee Nation, citizens benefited from specific and valuable citizenship rights. The nation possessed finite natural resources in land, timber, and minerals, as well as a fixed supply of money obtained from selling land to the federal government. The Cherokee national government, as well as individual Cherokees, had a vested interest in limiting citizenship because the total population determined the availability of land and the amount of annuity payments to be made to each citizen. The addition of new members through intermarriage or the adoption of freedmen would test the nation’s resources. This explains the nineteenth-century Cherokee interest in “blood” or ancestry and its relation to citizenship. In the aftermath of the Civil War, Cherokees considered what it meant to be Cherokee and just who had the right to claim this identity, legally as well as culturally, a debate that continues today.
NOTES
This essay draws from chapter 4 of my book, Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (Philadelphia: Univ. of Pennsylvania Press, 2008).
1.“Cherokees Vote to Limit Tribal Membership,” Washington Post, Mar. 4, 2007, <http://www.washingtonpost.com/wp-dyn/content/article/2007/03/03/AR2007030301705.html>.
2.For more on the allotment process, see Angie Debo, The Rise and Fall of the Choctaw Republic (Norman: Univ. of Oklahoma Press, 1934), chs. 11 and 12; Angie Debo, A History of the Indians of the United States (Norman: Univ. of Oklahoma Press, 1970), ch. 16; Celia E. Naylor, African Cherokees in Indian Territory: From Chattel to Citizens (Chapel Hill: Univ. of North Carolina Press, 2008), chs. 5 and 6; and Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: Univ. of California Press, 2002), 78–81.
3.For more discussion of blood and blood quantum in the Cherokee Nation, see Fay A. Yarbrough, Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (Philadelphia: Univ. of Pennsylvania Press, 2008), 42–43.
4.Naylor, African Cherokees in Indian Territory, 179–87.
5. Ellen Knickmeyer, “Cherokee Nation to Vote on Expelling Slaves’ Descendants,” Washington Post, Mar. 3, 2007, <http://www.washingtonpost.com/wp-dyn/content/article/2007/03/02/AR2007030201647.htm>. Capital text from the original. Buzzard is a Cherokee citizen and appears as a petitioner to the Supreme Court of the Cherokee Nation. See “Dissenting Opinion of Justice Leeds, SC-06–12,” Cherokee Observer, Nov./Dec. 2006, <http://www.cherokeeobserver.org/PDF/NovDec06/co111206pg7.pdf>, or, for the full opinion at the Cherokee Nation Judicial Branch website, <http://www.cherokeecourts.org/Portals/73/Documents/SC-06-12%2014-Dissenting%20Opnion%2012-19-06.pdf>.
6.Adam Geller, “Past and Future Collide in Fight over Cherokee Identity,” USA Today, Feb. 10, 2007, <http://usatoday30.usatoday.com/news/nation/2007-02-10-cherokeefight_x.htm>.
7.The federal government faced similar questions about citizenship regarding the ex-slave population; for Americans, however, the question of citizenship extended to the native population. Members of Congress grappled with the issue of whether or not native groups should also be granted American citizenship under the Reconstruction amendments. See Joshua Paddison, “Race, Religion, and Naturalization: How the West Shaped Citizenship Debates in the Reconstruction Congress,” in Civil War Wests: Testing the Limits of the United States, ed. Adam Arenson and Andrew R. Graybill (Berkeley: Univ. of California Press, 2015), 181–201.
8.“Treaty with the Cherokee,” June 19, 1866, Treaties and Agreements of the Five Civilized Tribes, American Indian Treaties Series (Washington, D.C.: Institute for the Development of Indian Law, 1970–), 60–67: 62 (hereafter, “Treaty with the Cherokee, 1866”).
9.Daniel F. Littlefield Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 29.
10.“Treaty with the Cherokee, 1866,” 60–67: 60–61.
11.For discussions of matrilineal descent in Cherokee society, see Theda Perdue, Cherokee Women: Gender and Culture Change, 1700–1835 (Lincoln: Univ. of Nebraska Press, 1998), esp. pp. 81–83 and chs. 1–3; Theda Perdue, Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: Univ. of Tennessee Press, 1979), 9; John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York: New York Univ. Press, 1970), 113–22; J. Leitch Wright Jr., The Only Land They Knew: The Tragic Story of the American Indians in the Old South (New York: Free Press, 1981), 235; Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: Univ. of Georgia Press, 1956), 17; Sturm, Blood Politics, 28; and Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: Univ. of Oklahoma Press, 1975), 49–50.
12.Sturm, Blood Politics, 31.
13.Littlefield, Cherokee Freedmen, 17.
14.Laws of the Cherokee Nation, 1852: Adopted by the Council at Various Periods (Tahlequah, Cherokee Nation: Cherokee Advocate Office, 1852), 38 (hereafter, LCN 1852).
15.The Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–51 (Tahlequah, Cherokee Nation: 1852), 19 (hereafter, CLCN, 1839–51).
16.Littlefield, Cherokee Freedmen, 16–17.
17.For more on Southern states and the regulation of interracial sex and marriage, see Martha Hodes, ed., Sex, Love, Race: Crossing Boundaries in North American History (New York: New York Univ. Press, 1999), esp. the essays by Peter Bardaglio, “‘Shamefull Matches’: The Regulation of Interracial Sex and Marriage in the South before 1900”; Leslie Dunlap, “The Reform of Rape Law and the Problem of White Men: Age-of-Consent Campaigns in the South, 1885–1910”; and Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America.” See also Mary Frances Berry, “Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,” Journal of American History 78 (Dec. 1991): 835–56; and Andrew D. Weinberger, “A Reappraisal of the Constitutionality of Miscegenation Statutes,” Journal of Negro Education 26 (Autumn 1957): 435–46.
18.William G. McLoughlin and Walter H. Conser Jr., “The Cherokees in Transition: A Statistical Analysis of the Federal Cherokee Census of 1835,” Journal of American History 64 (Dec. 1977): 678–703, esp. 686.
19.William Loren Katz, Black Indians: A Hidden Heritage (New York: Atheneum, 1986), 135.
20.James Hugo Johnston, Race Relations in Virginia and Miscegenation in the South, 1776–1860 (Amherst: Univ. of Massachusetts Press, 1970), 284–85.
21.Katz, Black Indians, 13.
22.For a broader discussion of the sources and development of white racial ideology, see the following works: Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998) (Hale argues that white Americans created a racial identity for themselves because of the racial ambiguities revealed by the Civil War); Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge, Mass.: Harvard Univ. Press, 1998) (Jacobson argues that this consciousness of whiteness occurs much sooner); Winthrop Jordan, White Over Black: American Attitudes Toward the Negro, 1550–1812 (Chapel Hill: Univ. of North Carolina Press, 1968) (Jordan posits that ideas about whiteness and racial difference emerged with the first encounters between Europeans and Africans). See also Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: Univ. of North Carolina Press, 1996), chs. 2, 4, and 6; Alden T. Vaughan, Roots of American Racism: Essays on the Colonial Experience (New York: Oxford Univ. Press, 1995) esp. chs. 1, 6, and 7; and Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975). For further discussion of the debate over which arrived on the American scene first, slavery or racism, see in particular Vaughan’s chapter 7; Oscar Handlin and Mary F. Handlin, “Origins of the Southern Labor System,” William and Mary Quarterly 7 (1950): 199–222; Carl N. Degler, “Slavery and the Genesis of American Race Prejudice,” Comparative Studies in Society and History 2 (1959): 49–66; and Barbara J. Fields, “Slavery, Race and Ideology in the United States of America,” New Left Review 181 (May–June 1990): 95–118.
23.It is interesting to note that the United States did not force the Cherokee Nation to modify intermarriage laws and continued to permit laws preventing intermarriage between blacks and whites to remain in state statutes. The federal government was also unwilling to push this issue.
24.Pun intended. It is no accident that the term legitimacy also refers to children who are born to parents who are legally married and that rightful heirs to the throne must be legitimate children. In order to hold office in the National Council, one had to have free parents, one of whom must be Cherokee and neither of whom could be of the African race, who “may have been living together as man and wife, according to the customs and laws of this Nation,” Constitution and Laws of the Cherokee Nation, Published by an Act of the National Council 1892, vol. 10 of The Constitutions and Laws of the American Indian Tribes (Parsons, Kans.: Foley R’y Printing Company, 1893), art. 3, secs. 5, 14 (hereafter, CLCN 1892. There is a dual meaning to this term (as opposed to bastardy or terms denoting lawfulness) that fits well with discussions of the reproduction of a society.
25.Jacobson, Whiteness of a Different Color, 3.
26.Laws of the Cherokee Nation, Passed During the Years 1839–1867, Compiled by the Authority of the National Council, vol. 6 of The Constitutions and Laws of the American Indian Tribes (St. Louis, Mo.: Missouri Democrat Print, 1868), 104–5 (hereafter, LCN 1839–1867).
27.Sarah H. Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: Univ. of North Carolina Press, 1997), 95–96; and Sturm, Blood Politics, 55.
28.LCN 1852, 57. See also Cherokee National Records Microfilm Series (hereafter, CNRMS), roll CHN 73, vol. 1878: 15; see 12–28 for the whole court case.
29.LCN 1852, 120.
30.LCN 1839–1867, 135–36.
31.1868–1869 Cherokee Nation Census. Obtained from Jack Baker of the Cherokee Nation in Oklahoma City, Okla. The census did not have a separate category for those of mixed African and Cherokee descent. Throughout the nineteenth century, this population was increasingly classed with the “colored” population. Cherokees most often considered as Cherokee those individuals of mixed Cherokee and European descent. See Theda Perdue, Mixed Blood Indians: Racial Construction in the Early South (Athens: Univ. of Georgia Press, 2003).
32.1868–1869 Cherokee Nation Census, 1 and 6. Other examples may be found on pages 17, 18, 19, 30, 36, 42, 51, 67 and passim.
33.Compiled Laws of the Cherokee Nation, Published by Authority of the National Council, vol. 9 of The Constitutions and Laws of the American Indian Tribes (Tahlequah, Indian Territory: National Advocate Print, 1881), 316–18; see section 3 for the stipulations on who to count. This collection of laws will hereafter be referred to as CLCN 1881.
34.CLCN 1892, 391–94.
35.Summary of the census of the Cherokee Nation taken by the authority of the National Council, and in conformity to the constitution, in the year of 1880 (Washington, D.C.: Gibson Brothers, 1881), 6, table A. Hereafter this summary will be referred to as 1880 Cherokee Nation Census.
36.1880 Cherokee Nation Census, 7, table B.
37.LCN 1852, 40–41.
38.LCN 1852, 118–30; see art. 4, sec. 2 for the limits on office holding. Eligibility for the office of principal chief was restricted to “a natural born citizen”—a provision similar to that applied in the U.S. Constitution to the presidency of the United States. For the restriction placed on intermarried whites seeking to prosecute Cherokees, see LCN 1839–1867, 104–5, part 3 on page 105. Part 4 discusses the citizenship status of widowed intermarried whites.
39.For the entire constitution, see LCN 1852, 118–301; for the provisions regarding office holding and voting by individuals of African descent, see art. 3, secs. 4 and 7.
40.CLCN 1892, 370–71; pages 371–73 contain the entire act. Nancy Hope Sober also mentions this new law in her work The Intruders: The Illegal Residents of the Cherokee Nation, 1866–1907 (Ponca City, Okla.: Cherokee Books, 1991), 36.
41.CLCN 1892, 371–72. Cherokee citizens by birth received annuity funds from the sale of lands owned communally by the tribe. In other words, a citizen by birth had a legal claim to ownership of a portion of communally owned land. Adopted white citizens could improve as much land as they desired, but they were never granted a part in the communal ownership of land and therefore were not entitled to annuity funds. This provision again demonstrates the efforts of the Cherokee Nation to preserve vital resources, such as land and money, by limiting access.
42.CLCN 1892, 372.
43.“Treaty with the Cherokee, 1866,” 60–67: 60–61.
44.Reginald Horsman suggests the seeds for a pan-Indian identity may have existed late in the eighteenth century. Though Cherokee mythology described the Cherokees as “the real people,” distinct even from other indigenous tribes, Cherokees recognized that “red people regardless of tribal differences were more favored by the Great Spirit.” See Horsman, “‘The First Man was Red’: Cherokee Responses to the Debate over Indian Origins, 1760–1860,” American Quarterly 41 (June 1989), 243–64: 245.
45.CLCN 1892, 391–406 contains several different treaties between the Cherokee Nation and other tribes. For the compact among the several tribes of Indians quoted here, see CLCN 1892, 391–97.
46.For instance, the Creeks and Cherokees were not always allies. Gary Nash points out that Indian nations sometimes allied with European powers in opposition to other tribes. See Nash, Red, White, and Black: The Peoples of Early America, 4th ed., (Upper Saddle River: Prentice Hall, 2000), 237–38 and ch. 10. James Adair also mentions some of the conflicts between various tribes in The History of the American Indians (London: Edward and Charles Dilly, 1775). See especially his accounts of the various nations: “Katahba, Cheerake, Muskohge, Choktah, and Chikkasah,” 223–352.
47.CLCN 1892, 397–406.
48.The Cherokees did refer to other indigenous groups, such as the Creeks, Osages, and Muskogees, as nations. See CLCN 1892, 391–97.
49.See Treaties and Agreements of the Five Civilized Tribes, American Indian Treaties Series (Washington, D.C.: Institute for the Development of Indian Law, 1970–), 60–67,131–42, 239–44, and 269–74.