#h'wx3 5
April 2005
2rkg 2hUje Cherokee Observer
Freedmen vs.Intermarried whites
By David Cornsilk
Freedmen rights and the origins of
those rights has been played and replayed enough times that everyone
should either have read them, or know
where to read them. But the difference
between the freedmen and their descendants versus the intermarried
whites is an important issue to dissect
and understand.
ORIGIN OF CITIZENSHIP
RIGHTS
Freedmen - formerly slaves with no
more rights than a chair or a cow - the
Native Cherokees by blood exercised
their common law right to adopt
people into the Nation when they
made citizens of the freedmen. Adoption had been performed in the past
through acts of the national council
(revisit the cases of Molley Tucker
and the children of Shoeboots). Prior
to the formation of a national council, adoption into the nation was accomplished at the local level through
town councils. The freedmen and their
descendants were made citizens of the
Cherokee Nation through an amendment to the Constitution in 1866.
Their descendants were made equal
to Native Cherokees by blood through
that same amendment. Prior to the
arrival of Europeans in North
America, the Cherokee people, from
time to time, intermarried with Indians of other Nations. Those Indians
became citizens of the Cherokee Nation under the governance of the local town councils. The first intermarriages between whites and Cherokees
took place in the 1700s and brought
white men, married to Cherokee
women, into the Nation. Because the
Cherokees already had a very well developed legal strategy whereby nonCherokee Indians were incorporated
into the Nation as citizens, it was no
difficult stretch to apply that common
law right to white men marrying
Cherokee women. As more and more
white men came into the Nation and
took Cherokee wives, the question of
the rights of those men became more
and more of a national question. Because the common law right of Cherokee women to bestow citizenship
upon a non-Cherokee spouse was unquestioned, these men enjoyed nearly
all of the same rights as Cherokee men
with one exception. They were not
permitted to hold public office. But
they were allowed to vote and they
were recognized as ‘heirs to the
Cherokee estate’ so long as they were
married to the Cherokee wife. It was
not long after intermarriage with
whites began, that the first Cherokee
men took white wives. These marriages caused great changes in the political systems of the Cherokees and
set a course for the destruction of the
power of Cherokee women and the ascendancy of a patriachal system we
continue to recover from to this very
day. These early marriages required
legislation from the National Council
to make citizens of their clanless, halfbreed, and legally NOT Cherokee
children. But because Cherokee
women did not participate in the electoral processes of the Nation, the citizenship rights of white women was
significant only in the fact that they
bacame ‘heirs to the Cherokee estate.’
As more and more white families
moved near the old Cherokee Nation,
more and more white men married
Cherokee women. The influence of
these men, while still in its infancy in
1839, was of great concern to tribal
leaders. Of even greater concern was
the fact that unscrupulous white men
began marrying Cherokee women to
gain access to Cherokee lands. Cherokee women were being abused by
their white husbands whose only love
was for the land his wife held. The
National Council responded by passing a law which provided for the protection of a Cherokee woman’s assets
and provided that no white man could
lay claim to his wifes property and if
the marriage should come to an end,
the wife keeps all of her property and
the white man or woman leaving the
marriage would also lose their citizenship and other accrued rights in the
Cherokee Nation. The National Council also required testiments to the
white man’s good character before he
could marry a Cherokee woman. But
the period of 1839 to 1866 did not
see a large number of intermarriages
between Cherokees and whites because of the isolation of the Cherokee Nation from the centers of white
population. However, following the
Civil War, huge numbers of whites
flooded west of the Mississippi and
brought large numbers of whites into
and around the Cherokee Nation. The
number of intermarriages increased
accordingly and the Cherokee government, fearing a takeover of the Nation by greedy whites marrying
Cherokees for access to land passed
a marriage act which stripped Cherokees by blood of a portion of their
common law rights. While still able
to pass to a non-Cherokee spouse the
rights of citizenship afforded intermarried whites, the Council removed
the right of a Cherokee by blood to
give to their spouse any right to the
Cherokee estate. So those whites married to Cherokees before November
1, 1875, were equal to Cherokees by
blood in their right to share in the
Cherokee estate. That is why there is
an intermarried whites section of the
Dawes Roll. you will find that the
Dawes Commission first attempted to
enroll all intermarried whites as citizens and give them land, but in the
landmark case of Daniel Redbird vs.
Cherokee Nation, the U.S. Supreme
Court found that the Nov. 1, 1875 cutoff stripped those whites marrying after that date of any right to the Cherokee soil. All intermarried whites
whose marriage took place after Nov.
1, 1875 were stricken from the Dawes
Roll. Now you ask, why are any white
descendants of intermarried whites
enrolled on Dawes NOT eligible for
enrollment and how are they different from the freedmen. The common
law right of bestowing citizenship
rights on a non-Cherokee spouse was
relative only to that spouse. It was understood that the common law right
applied only to the spouse and did not
extend to other members of the white
person’s family, including any white
children he may have prior to his
Cherokee marriage. The white
person’s children by his Cherokee
spouse were, by virtue of their Cherokee blood, themselves citizens of the
Nation and heirs to the Cherokee estate. An adopted citizen had no common law rights and therefore could not
pass their granted citizenship to anyone, not even their children. Of
course, through the Nation’s common
law, the non-Cherokee children of
white citizens could have been
adopted, but there was no drive for
such legislation and none was ever
passed. In comparison, we find that
the Freedmen and the intermarried
whites were both adopted into the
Cherokee Nation through the common
law of the Nation. The rights of intermarried whites originated in the right
of Cherokee women to bestow rights
upon their spouse and was rooted in
the ancient matriachal practices of the
Nation. As law was taken from the
hands of the people and vested in a
government, the Nation, as a whole
also had certain rights of adoption,
more wholesale than those of individual Cherokees by blood and more
prospective in nature. While whites
became citizens in limited form and
only with rights vested in the individual, groups were adopted by the
National body politic with broader
rights and rights vested in future generations, even though many of those
person yet to be born would have NO
Cherokee blood. It is through this process the Cherokee Nation became a
multi-ethnic entity.
And so that we are clear that the adoption of the Freedmen was not an event
taking place in isolation or an
anomolous event in Cherokee history,
we find wholesale adoptions taking
place in Cherokee history at various
times. The first recorded wholesale
adoption event took place around the
year 1712 with the adoption of a band
of Natchez Indians from Mississippi.
And following the Trail of Tears, the
Cherokee National Council recognized the rights of certain Creek Indians living in the Cherokee Nation,
providing for their adoption and integration into the Cherokee Nation as
citizens as heirs to the Cherokee estate. And, along with the Freedmen,
the Cherokee Nation adopted the
Delaware and Shawnee bands now
residing in the Cherokee Nation
.
Council meeting needs support
Last month, Cherokee Councilman
Joe Crittenden presented legislation
that the council twice voted unanimously to approve, which cleans up
the wording in the governing law
should the people, by circulating petitions, choose to exercise their constitutional rights.
The law also has serious defects that
compromise the safety of our citizens,
the integrity of the election process
and the security of our services. Our
chief, giving not one word of truth in
his reason for doing so, chose to veto
this legislation. Monday at the regular meeting, the Cherokee council will
attempt to override that veto, which
requires two-thirds support.
Hastings Shade and I were proponents
on a recent petition drive that resulted
in us having to hold approximately
6,000 names on four different petitions until the election commission-
ers are legally seated.
In that drive, we initially went to the
court to be assured petitions were
valid and within law. But the Judicial
Appeals Tribunal could find nothing
giving them jurisdiction to even review the petitions. The new law corrects this by requiring people to begin any drive by first filing with the
court any petition for a determination
that it is in conformance with Cherokee law prior to circulation.
As per the old law, a petition requires
your voter registration number, which
is the same as your tribal registration
number. The new law requires a
birthdate instead.
With identity theft and fraud being
rampant, it is important that the law
requiring personal information on
petitions be updated to prevent the
world's fastest-growing white collar
crime from infiltrating our obsolete
system. It is critical that our council
overrides this veto.
With the wisdom gained from our recent petition drive and extensive experience within our government, I can
assure you that the current law makes
it quite easy for nontribal members to
access services using fraudulent identification with few consequences if
caught.
When America decides to fight for
democracy abroad, your children risk
death. Cherokees can win this same
liberty and democracy for their posterity by showing overwhelming support through their attendance at the 6
p.m. Monday meeting in the Tribal
Complex.
JACK EDWARD CRITTENDEN
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2rkg 2hUje
CHEROKEE
OBSERVER
Cherokee chiefs in traditionalist dress
Is one of these your daddy?
Filing Fees Frivolous!
As you know the JAT has just, or I
should say unjustly established filing
fees obviously for the purpose of
restricting access to the courts by the
Cherokee People. Last week we saw
Todd Hembree defend the Council in
Cornsilk v Fraily over their
unconstitutional intervention into the
Freedmen case in Federal Court. John
has reported that Todd spent all his
energy complaining about so-called
frivolous lawsuits filed by the likes
of John Cornsilk and Robin Mayes. I
will point out right now that I know
of no lawsuits in the JAT ever being
determined frivolous with perhaps the
exception of those filed by Chad
Smith in the 1995 elections. Anyway,
we also know that Jackie Bob Martin
and Todd Hembree authored
legislation that would award costs in
the event that a suit was determined
frivolous etc… Now Todd and the
Slate of Eight propose filing fees at
the February meeting and the act
passes unanimously I think. The JAT
is not obligated to charge the fees but
the conflicted Justice Matlock who is
now Chief Justice apparently
understands and follows this direction
and violation of separation of powers.
As David pointed out there are big
questions about the constitutionality
of doing this considering the CNO
constitution indicates the Cherokee
People will have unrestricted access
to the system of justice. What can we
do about it? Well it looks bad and any
kind of challenge here would be
without a place to file. There may be
a solution for the Cherokee People
in the petition law that Chad just
preserved by his veto. A Referendum
petition that would put this act on
hold until the next election would
take about 325 signatures. Don’t get
too excited here, as there is a 90-day
window to accomplish the petition
and the clock started ticking February
15th when the meeting adjourned. If
my figures were right that would give
us 18 days. I know some experienced
Cherokee petition carriers that say
they could and would get 350
signatures with in the time limit if
they could get $2.00 per Cherokee
that signed their petition. I know this
is a gamble but I would rather see my
money go to this cause than to filing
fees that are designed to restrict our
access to the court. Therefore I will
pledge $100.00 of the $700.00
needed to accomplish the goal and
ask if anyone else would pledge any
amount they can. Or if you prefer to
get a petition and get signatures that
would be even better. The thing is
with just 18 days we need to act fast
so what’s the verdict?
“The United Cherokee Nation, One
Nation United”
NOTE: Contact your District
Councilmember Today
TRAIL OF TEARS
The Trail of Tears refers to the
route followed by fifteen thousand
Cherokee during their 1838 removal and forced march from
Georgia to Indian Territory
(present day Oklahoma).
In 1791, a U.S. treaty had recognized Cherokee territory in Georgia as independent, and the Cherokee people had created a thriving
republic with a written constitution. For decades, the state of
Georgia sought to enforce its au-
thority over the Cherokee Nation,
but its efforts had little effect until the election of President Andrew Jackson, a longtime supporter of Indian removal. Although the Supreme Court delared
Congress's 1830 Indian removal
bill unconstitutional ( Worcester
v. Georgia, 1832), the national and
state harassment continued, culminating the rounding up of the
Cherokee by troops in 1838. The
Cherokees were forced to abandon
their property, livestock, and ancestral burial grounds and move
to camps in Tennessee. From
there, in the midst of severe
winter weather, they were
marched another eight hundred
miles to Indian Territory. An estimated four thousand peopleover 25 percent of the Cherokee
Nation--died during the march.
The Trail of Tears, the path the
Cherokee followed, became a
national monument in 1987,
serving as a symbol of the
wrongs suffered by Indians at
the hands of the U.S. government.
CHEROKEE SOCIAL STRUCTURE
Cherokee society was organized
into seven clans. A clan was an
expanded family with right of
inheritance and clan membership
being determined through the
maternal side of the family.
Clan membership gave structure
and stability to people's lives by
providing rules for social
relationships such as who could
marry whom and where to look for
help. After the immediate family
group of children, parents, and
grandparents, the clan was the most
important group to which a person
belonged. The seven clan system
of Cherokee society dictated that
the council house in each town
have seven sides with provisions
to seat each clan separately. Wallhanging woven into the mats
probably indicated where each clan
should sit. In addition to mats the
council house in Oconaluftee
Village in Cherokee, North
Carolina, is furnished with dance
masks, wands, and gourd dippers.
In the center of the council house
the sacred fire burned
continuously, fueled by seven
different kinds of wood.[see last
months issue] We have two lists
of council fire woods. The woods
used in the fire varied with the
availability of different trees from
place to place.
The strong native American
tobacco was one of the most
important plants used at council
meetings. Pipes and the smoking
of tobacco were reserved for
special ceremonial occasions
among the Cherokee as among
most other North American
peoples. Pipes were smoked to
signify agreement and accord of
the people on the issues in question:
both within the tribe and with other
Check
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peoples. Pipe smoking honored
all involved. Stems for ceremonial
pipes were frequently made of
sourwood because of the easily
removable pith. The bowls of the
pipes were fashioned of soapstone
or clay. Towns were organized
under two different kinds of
leadership, the White and the Red.
The White leadership of
peacetime, with a headman, a
beloved woman, and a council of
elders. The members of the council
came from each of the clans. They
were wise older men. The Red
organization took over during
times of emergency or war; they
also had a headman, a war woman,
and a council of men from the
seven clans.
Courtesy of Paul B. Hamel &
Mary U. Chiltoskey--"Cherokee
Plants-a 400 year history."