The Long, Thorny History of the Cherokee Who Owned African Slaves

But in a news cycle dominated through the late summer by debates over Confederate monuments and the legacy of the Civil War, the Freedmen decision garnered just a few quiet notes in the national press. You get the sense that even the black Cherokee’s opponents are exhausted by more than a decade of costly litigation. By some estimates, the re-enrollment of Cherokee Freedmen into the tribe could conceivably open membership to more than 30,000 people.

Six months after the start of the Civil War, the Cherokee Nation made a declaration of causes for joining up with the Confederacy: “The war now raging is a war of Northern cupidity and fanaticism against the institution of African servitude,” they wrote, “against the commercial freedom of the South, and against the political freedom of the States.”

At the time, the Cherokees held more black slaves than any other tribe—and after the war, they were required by treaty with the U.S. government to grant them citizenship, though slavery had been abolished by tribal decree some years earlier.

When the Dawes Roll census-takers came to the area to count (and thus control) the five “civilized” tribes, they typically eyeballed native peoples’ race. Cherokee and others were classified as full-blood Cherokee, “freedman.” or “intermarried white” based on a second-long appraisal of the tone of their skin. When it was closed in 1906, the roll is estimated to have listed as many as 20,000 men, women, and children who appeared black as tribal freedmen. (The roll also includes as many as 50 white people categorized as “Cherokee by blood.”)

When I call Will Chavez, a Cherokee journalist who has been following the freedmen cases since the early 2000s, he expresses something like frustrated resignation. There’s “no telling” how much money the Cherokee tribe spent over the years fighting lawsuits over freedman enrollment—and he’s tried, repeatedly, to find out. The battle “cost us a lot of money,” he says, “and it aged a lot of people. And all along they were on the rolls.”

---

Marilyn Vann thought, when she applied for her tribal card, that her ancestors’ listing as Cherokee Freedmen on the Dawes Roll would grant her citizenship. But in 2001, when she applied, she found it did not. “Seemed like a scam to me,” she says.

Vann grew up in Ponca City, a town in the northern part of Oklahoma named for the Ponca tribe. The daughter of a janitor and Baptist preacher, she says she always knew she was native. But when a boy in school asked her “what kind of Indian” she was, she had to ask her dad. “And he said, ‘We’re Cherokee Indians. Oh, and we have colored blood.’”

Vann is a measured woman in middle age, methodical and serious when she speaks, certainly the type to believe you change a system from the inside. When we meet for dinner she carries a large rolling suitcase and is careful to limit her intake of sodium. A former government employee—Treasury Department, engineer—Vann says she has some legal training that allowed her to throw herself into research on the Freedman issue. “I got this rejection letter, and it said something about not being, like, a degree of blood. And I thought: What are they talking about? What do they mean?”

Vann went down to the local university law library. She bought some archives from the Daily Oklahoman and Tulsa World. She tried to find others who were being rejected from the tribe based on their African descent, writing op-eds for local black weeklies. She contacted attorneys who had represented other Freedmen, and founded a nonprofit to garner support for the issue.

By 2003 Vann was flying to Washington, D.C., to testify as the lead plaintiff in a federal lawsuit against the department of interior. That summer, the chief of the tribe exchanged a flurry of letters with the department, writing that he found the state’s interest in the issue a form of “bureaucratic imperialism,” a “patronizing and very paternalistic” move.

Vann wasn’t the first descendent of the Cherokee Freedmen to take legal action against the tribe, but her fluency with the mechanisms of the state and relentless energy for lobbying made her a useful player in a dispute that would involve some of the most high-profile actors in Washington. The friction between the state, the tribe, and the Freedmen reaches back to the ‘70s, when the Five Tribes had the right to vote for their leaders restored by Congress, and the government started funding services like health care for tribal citizens—as long as the Freedmen in the Cherokee, Creek, Choctaw, and Seminole tribes were included.

As early as 1979, the Freedmen issue was framed by onlookers as an encroachment of federal power onto sovereign territories. A history from that time describes the mandated inclusion as a move that “exhausted resources,” “bred division,” and “persuaded white Americans that the Cherokee had no special claims on Indian land.”

From 1975 to 1985, Ross O. Swimmer served as the principal chief of the Cherokee nation. Swimmer, who would go on to serve Bush administration, now co-chairs Trump’s native advisory board. (In December, he and others proposed the privatization of oil and gas reserves on Native lands.)

In the early ‘80s Swimmer issued an executive order in the lead-up to a tribal election mandating that all Cherokee voters must hold a “Certificate of Indian Blood” card, rather than the voter card that had been used since the early ‘70s, effectively barring Freedmen from the vote. It was a move that some, Vann included, consider to have been an attempt to sway the election results. Swimmer won by a small margin, later combating charges of racism by comparing the native Cherokee blood rules to U.S. naturalization and voting practices.

In the mid-’80s a number of elderly Cherokee Freedmen—most of them original Dawes enrollees—attempted to bring a class-action suit for several million in damages, having been turned away at the polls. Their motion was dismissed for being an “intertribal,” rather than a federal, affair.

Thirty years later, the federal government would change course and decide this was not, in fact, solely a tribal issue. In the early 2000s, as Vann incorporated her non-profit and another black Cherokee, Lucy Allen, brought a case to the Cherokee Supreme Court, the Freedmen were briefly granted tribal inclusion—only to have the decision reversed through a smattering of appeals.

And in 2007, a special election amended the Cherokee constitution to limit tribal citizenship to descendants of Cherokee enrollees on the Dawes roll. The tribe hired lobbyists like Tony Podesta; Chief Chad Smith flew intermittently between Oklahoma and Washington as the members of the Congressional Black Caucus took up the issue and repeatedly introduced budgetary amendments that would withhold federal funding to the Cherokee tribe.

Supporters of the tribal amendments barring Freedmen from voting and tribal benefits frame the issue as one of tribal sovereignty and preservation. “This is not a club; you can’t just claim to be Cherokee and show up and be included,” Cara Cowan Watts, a member of the Cherokee tribal council, told NPR in 2011. And for some, the case set a dangerous precedent when it came to the U.S. government involving itself in tribal affairs.

And it’s true that the Cherokee have a lot of reason to worry their cultural and lineage will be erased in just the manner the white colonizers intended; more than one-third of the Cherokee Nation lives outside of Oklahoma, and even within the state you’ll rarely hear the language spoken. Being proudly Cherokee is so systematically cheapened in America that Bill Clinton tried to connect with Sherman Alexie during a televised “dialogue on race” by claiming his grandmother had the native tribe’s blood. Elizabeth Warren, Taylor Swift, and Johnny Cash all have boasted Cherokee heritage. As a spokesperson for the Cherokee Nation once said, “If you meet someone who wouldn’t necessarily think is native, and they tell you they’re native, chances are they’ll tell you they’re Cherokee.”

Which isn’t even to mention that the introduction of black slavery to the Cherokee was itself an assimilationist project, a legacy colonizers imparted and then abandoned, and the disenfranchisement of black Freedmen an issue the U.S. government ignored entirely from the ‘70s until it became too politically inconvenient to ignore.

Somewhat counter-intuitively, had the government not been such a nebulous actor in the issue, Vann’s case may have stalled; as she points out, it’s extremely difficult to sue a native tribe in federal court without its permission, and one of her most consequential early filings originally named the Department of the Interior as a defendant. (The Cherokee tribe later joined the suit.) But in 2011, as the political heat over the Freedman issue intensified—even Barney Frank called for a federal probe into the Freedmen of the Five Tribes—the Cherokee Nation attempted to withdraw housing funds from the Department and Housing and found they were frozen, a fairly unprecedented move.

Chavez, the journalist, cites this as a turning point: Once the federal government stepped in and Freedmen had allies, the quality of the defense ballooned. “The documents they submitted were some of the best-researched pieces on the Freedmen I’d ever seen,” he says.

He believes the case proves the limited nature of tribal sovereignty, but he also can’t say it isn’t about race: In August, in the days following the final ruling in favor of the Freedmen, Chavez, who is an editor at the Cherokee Phoenix, sent out reporters to gather reactions. Most, he said, were unprintable: the off-the-record thoughts of the hateful and the scared. “For sure there is racism,” he says. “People won’t admit it.” In a lengthy reporting project following another freedman-friendly activist in 2013, the writer Marcos Barberry met older Cherokee men who denied their ancestors ever held slaves in the first place.

When I ask Chavez what he thinks the takeaway should be, after decades of following the Cherokee Freedmen issue, after trying to track all that money spent on battling the black Cherokees in court, he tells me he thinks there should be more focus on balanced education. The last chief who was against the Freedmen weighted Cherokee history classes to be “skewed” against their claims, he says.

“To me it would have been better if we would have taught both sides of that history. People wouldn’t have been so ignorant about what happened, that we and took part in that system.”