Recently the newspapers across the nation ran headlines and stories about the Cherokee Nation’s Supreme Court upholding the rule of law by ruling that the 1866 Treaty signed after the Civil War with the United States of America was still the good law.
”The Cherokee Constitutional Amendment of March 3, 2007, by virtue of the provisions of the Treaty of 1866, and subsequent actions taken in furtherance thereof, are hereby determined to be voided as a matter of law,” the judge’s decision states.
This sparked a series of phone calls to my office because of similar litigation against the Muscogee (Creek) Nation from 2004 to 2007 that I served as lead counsel which we won after a nine (9) day trial, at the District Court Level only to be overruled in a two sentence memo without a hearing by the Creek Nation’s Supreme Court.
Just like the Cherokee case, the litigation was about the citizenship rights of Natives of African descent who were enrolled on the 1906 Dawes rolls as “Freedmen.” I don’t pretend to be an authority of Cherokee history, but as it pertains to the so-called Freedmen the following brief discussion of Creek history will allow anyone to understand what’s really going on:
Historically, the Creek “Nation” comprised a confederacy of separate towns, tribes, and peoples. Each town was a complete governmental unit in and of itself. One such tribe was the Yamassee who, according to a nineteenth century United States census report, was “one of a small number of isolated tribes, of dark
complexion” reported to have been “immigrants from Africa prior to the European discovery of America.” To put this early observation by the United States Department of the Interior into context: different peoples with different cultural and racial backgrounds were “full−blood” Creeks, just as today we have different peoples with different cultural and racial backgrounds who call themselves “full−blood” Americans. In 1832, the United States forcibly removed the Creeks from their traditional homelands (Alabama, Georgia, South Carolina, and Florida) and sent them to live in what is now Oklahoma. The Creeks lived in Oklahoma in relative peace until the Civil War.
At the conclusion of the Civil War, the United States government negotiated and signed a new treaty with the Creeks. The Treaty of 1866 − signed by my paternal great−great−great−grandfather, Cow Tom – among other things outlawed slavery in the Creek Nation and granted citizenship to those formerly enslaved by the Creek Nation. From that point, all Creek citizens lived in relative harmony as one nation until the allotment era of 1898−1906. In fact, Creeks of African descents were an essential part of the Nation, and served in important and high positions throughout the Nation. Again consulting the 1894 U.S. Department of Interior census bulletin, we find that the Creek Nation was “alert and active…largely due to the negro element which fairly controls it.”
Unfortunately the relative harmony within lived during the nineteenth century came to sudden halt with the passage of the Curtis Act in 1898. The Curtis Act allowed the United States government to destroy the Creek tribal government by taking away ownership of the land which had been held in common by the tribe and replacing it with individual ownership of 160 acres per Creek citizen. To accomplish the task of allotting the 160−acre parcels, Congress established the Dawes Commission to find, identify, and enroll all members of the Creek Nation eligible for an allotment.
The Dawes Commission created two lists of members of the Creek Nation eligible for allotment: 1) the “Creek Roll” which was purportedly composed of Creek citizens with Creek blood; and 2) the “Freedmen Roll” which was purportedly a roll of those citizens of the Creek Nation who were formerly enslaved Africans and devoid of any Creek blood. However, using the hypo−descent rule − which was the public policy and practice at the turn of the century (if not today) that mandates “one−drop” of African blood makes a person African or Black − the Dawes Commission enrolled most Creeks of African descent (especially those with darker complexions) on the Freedmen Roll, regardless whether they or their ancestors were ever enslaved by the Creek Nation or how much “Creek” blood they actually possessed.
However, it is the Creek (and Cherokee) Nation that has decided voluntarily to rely on a known racist and flawed enrollment process to deny so−called Freedmen citizenship today. The Creek Nation, like the Cherokee’s, even had the audacity to claim that Freedmen do not possess any “Creek” blood, in stark contradiction to their own documents, U.S. History, and volumes of other scholarly and legal documents.
In closing, I greatly applaud the Cherokee Nation’s Supreme Court Justice John Cripps finding that the tribe’s 1866 treaty with the United States that said freedmen had all the rights of native Cherokees was still good law. I applaud the Cherokee Nation’s Supreme court for doing something that the Creek Nation’s Supreme Court refused to do—reject racist and illegal policy that disenfranchises and cuts off thousands of their own citizens from their birthright and heritage. Thank you Justice John Cripps! !