Untangling Race, Sovereignty, and Citizenship Rights, in the Cherokee Freedman Decision: Situating “the new order of things”
Darnella Davis, Ed.D.
NAISA 2018 Annual Meeting
Los Angeles, California
On August 30, 2017, U.S. District Judge Hogan ruled on the decades-long litigation over the rights of Freedmen to citizenship within the Cherokee Nation. The tribe’s Attorney General declared Hogan’s decision, affirming the rights to citizenship for Freedmen (as descendants of Cherokee slaves) as well as the tribe’s sovereignty over its constitution, a win/win situation. The proposed paper will discuss the significance of the decision for scholars who have studied the evolution of race thinking among the Five Tribes and pondered the letter of the law, searching for fresh interpretations of treaties that alternately constrained and empowered tribal jurisdictions (Chang, Inniss, Krauthamer, Miles, Perdue, Pratt, Sturm, Yarbough). It will consider the tensions evoked by the citizenship rights originally stipulated in an 1866 Treaty; referenced in a 1905 ruling as a “revolution” and “the new order of things;” and, finally affirmed in Hogan’s decision. The Court’s reliance on the contested racial categories embedded in the tribal rolls sidesteps these tensions. Still, acknowledging that Freedmen and native Cherokee have equal citizenship rights marks a turning point along the continuum of race-based policies that have impacted the Five Tribes. Revisionist scholars might argue that Hogan’s decision should not mask, enshrine, or erase the biases of hypo-descent and White privilege that are part of a fuller accounting of the Five Tribes’ legacy. Situating the decision within a broader revisionist frame illuminates the implications of this “new order of things” among the Cherokee, the Five Tribes, and perhaps as a model for our still-evolving nation.