An old dispute about whether the descendants of slaves freed by the Cherokee Nation more than a century ago qualify as members of the tribe is heating up again in a federal court.
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.
“Hopefully, we can move forward on this issue,” Bill John Baker, principal chief of the Cherokee, said in a statement. “This matter has been held up in the court system for several years, and now that we have everyone at the table, we can get a definitive ruling.”
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.
The Cherokee declined to be interviewed about the litigation. But in a summary of the Freedmen dispute posted on the Cherokee website, the tribe said its 2007 vote on citizenship wasn’t meant to discriminate against Freedmen descendants.
“The Cherokee people determined that the Cherokee Nation should return to what it had been since time immemorial—an Indian tribe made of Indians,” according to the website.
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,” said G. William Rice, a professor at the University of Tulsa College of Law and member of the United Keetoowah Band of Cherokee Indians. Mr. Rice noted 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.
Jon Velie, an Oklahoma lawyer who represents Freedmen descendants in the Tulsa case, said the Cherokee don’t have a right to discriminate against his clients because of their race. “The tribe is arguing, ‘We can do whatever we want,’ in the same way Southern states in the 1950s said, ‘Segregation is a states’ rights issue, and we can do whatever we want,’ ” he said.
Clint Carroll, a Cherokee citizen and professor in the University of Minnesota’s Department of Indian Studies, said 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.
“I can see both sides of the debate,” he said. “We are at a fork in the road, and both paths lead to bad things.”
Write to Nathan Koppel at firstname.lastname@example.org
A version of this article appeared July 17, 2012, on page A3 in the U.S. edition of The Wall Street Journal, with the headline: Tribe Fights With Slaves’ Kin.