The Cherokee Nation abolished slavery in 1863, and three years later it signed a treaty with the U.S. granting tribal rights to the Cherokee's freed slaves, or "Freedmen," many of whom had migrated with the tribe decades earlier to present-day Oklahoma. But the Oklahoma-based Cherokee tribe, which has more than 310,000 members, later narrowed its citizenship criteria, excluding many descendants of the Freedmen and rendering them ineligible for a broad range of tribal benefits, such as business loans, medical services, housing assistance and college scholarships.
About 25,000 Freedmen descendants have been wrongly excluded from Cherokee citizenship, said Marilyn Vann, president of an Oklahoma-based Freedmen's advocacy group. While a sovereign nation, the Cherokee don't extend citizenship to all those within a certain territory but rather limit membership to those who share a common ancestry.
After almost 10 years of legal battles, including in Cherokee tribal courts and federal court in Washington, D.C., the Freedmen's citizenship status appears headed toward a resolution before Judge Terence Kern in Tulsa, Okla.
The Cherokee Nation filed a complaint this year, asking Judge Kern to rule that a 1866 treaty didn't grant citizenship to Freedmen descendants. On July 2, the Interior Department filed a counterclaim against the tribe, saying Freedmen descendants should enjoy all rights of native Cherokee. A group of Freedmen descendants also filed a July 2 claim contending the Cherokee Nation had violated the U.S. Constitution by perpetuating the "badges and incidents" of slavery.
The litigation will hinge partly on the legality of a 2007 vote in which Cherokee amended their constitution to grant citizenship only to those descended from at least one person listed as Indian on a government census of Cherokee taken more than 100 years ago. That definition excludes most Freedmen descendants, although more than 1,500 people who had an Indian ancestor qualify as citizens.
Some experts in Indian rights say the Cherokee Nation has a sovereign right and duty to limit its membership, particularly as the tribe has become increasingly assimilated into American society and more people claim some affiliation with the tribe.
The Cherokee people are sensitive because of efforts by non-Indians to claim to be Indians with nothing behind the claim. This is highlighted by the recent questions over whether Elizabeth Warren, a Massachusetts candidate for the U.S. Senate, exaggerated her possible Indian ancestry, an allegation Ms. Warren has denied. She has said that she has Native American ancestry, but she hasn't been able to document that heritage.
Opponents believe the Cherokee don't have a right to discriminate because of race. However, the tribe is arguing, 'We can do whatever we want,' in the same way Southern states in the 1950s.
A ruling in favor of the Freedmen would be a blow to the Cherokee's tribal sovereignty. But if the tribe wins the right to define its citizenship as it sees fit, it would face the lingering perception that it had excluded people based on race. (WSJ, 7/16/2012, Wiki--on Cherokee Confederates)