Harvard law professor, Cherokee chief Chad Smith differ on freedmen issue
BY TIM TALLEY - Associated Press Writer
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Published: September 10, 2009
A Harvard law professor said Thursday that tribal citizenship rights for descendants of former slaves once owned by Cherokees is a moral issue, while the Cherokee Nation's chief insisted it is a question for the courts.
"Does everyone lose when we start to narrowly define citizenship?" professor Charles Ogletree Jr. said during a panel discussion at the Federal Bar Association's annual meeting and convention. "There's a moral issue here. Is there room for us to be a community?"
Cherokee Nation Chief Chad Smith, however, said whether non-American Indians can be tribe members is a legal issue. Smith said he does not see a moral dilemma in a tribe of Indians deciding the tribe should be comprised of Indians. He said the Cherokee Nation has 250,000 citizens and that another 500,000 people claim ancestry in the Oklahoma-based tribe but cannot prove it.
Smith noted that three lawsuits are pending in federal courts, including one filed by the tribe in February that asks a judge to decide whether descendants of the tribe's former black slaves, known as freedmen, have a federal right to tribal citizenship.
More than 8,700 Cherokee voters overwhelmingly approved a constitutional amendment in March 2007 that would remove about 2,800 freedmen from the tribe's rolls and eliminate their eligibility for medical and other tribal services.
The amendment would limit tribal citizenship to descendants of "by blood" tribe members who were listed on the federal Dawes Commission's rolls more than 100 years ago.
The commission was set up by Congress to break up Indians' collective lands and assimilate tribal members by parceling out 160 acres of land to each signee, thus ending the reservation system for tribes in Oklahoma.
Congress drew up two rolls, one listing Cherokees by blood and the other listing freedmen. The second included blacks regardless of whether they had Indian blood. About 1,500 descendants of freedmen are tribal citizens, Smith said.
The petition drive for the ballot measure followed a March 2006 ruling by the Cherokee Nation Supreme Court that said an 1866 treaty assured tribal citizenship to freedmen.
"This is probably the perfect emotional storm," said Smith, who has denounced accusations that attempts to remove freedmen from tribal tolls were motivated by racism.
Ogletree suggested blood ancestry may not be the right way to define tribal citizenship.
"Can we imagine that the government made a mistake and excluded some people? I think we can," said Ogletree, who is black. "We have more in common than we have in difference."
Ogletree said one of the most despicable episodes in the nation's history is the litany of treaties between the government and Indian tribes that have been systematically broken by the government over the years, disenfranchising tribal members.
"There's a difference in having the power to do something and doing the right thing," he said.
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