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• 1 media/1866 Cherokee Delegation to Washington, DC.jpg 2023-07-10T11:52:12+00:00 Complications to Emancipation and Recognition 24 image_header 2025-01-21T20:58:03+00:00

  The Cherokee Nation decided to join the Confederate States of America in 1861, at the start of the Civil War. In a national meeting for Cherokees to decide upon their allegiance to the Confederacy, Principal Chief John Ross “emphasized that adherence to the Confederacy would promote preservation of the institution of slavery, instead of its destruction.”¹ This promise to preserve chattel slavery, which enabled continued Cherokee enslavement of Africans, was a main drive for the political divisions between the Union- and Confederate-supporting Cherokees even before the war’s commencement. 
  
  The Civil War intruded on Cherokee land in 1861, shortly after the war began. As Cherokee enslavers grew increasingly vulnerable over the course of the war, the reactions of enslaved individuals to these social changes varied widely: some fiercely resisted further exploitation, while others sought freedom by fleeing their homes; others joined the armies of either the Confederate States or the Union.² Many of those enslaved by the Cherokee were also taken out of the Cherokee Nation by Cherokee slaveholders seeking refuge in other Indigenous nations or in the nearby states of Kansas, Arkansas, and Texas. 
  
  A pivotal moment for enslaved Africans and their descendants arrived with the Treaty of 1866, which effectively freed the Cherokee Freedmen who had been enslaved by the Cherokees. An important provision of this treaty required the Freedmen to additionally receive the same rights and benefits as Cherokee citizens. However, there were strict restrictions determining how the Freedmen could be recognized as citizens, which required that they had been enslaved and liberated by Cherokees and returned to the Cherokee Nation within six months of the proclamation of the treaty. This complicated the freed people’s lives in unexpected ways, especially for those who had to make a return journey, were not literate, or were disconnected from their social networks. 
  
  1862, Sept. 22—President Abraham Lincoln issues a preliminary U.S. Emancipation Proclamation. The finalized proclamation is officially issued on January 1, 1863, and goes into effect on June 25, 1863. 
  
  1863, Feb. 21—The Cherokee National Council passes an act that abolishes slavery in the Cherokee Nation, stating that “all Negro and other slaves within the limits of the Cherokee Nation, be, and they are hereby Emancipated from Slavery. And any person or persons who may have been held in slavery, are hereby declared to be forever free.” This act goes into effect on June 25, 1863, well before legal emancipation in the United States on December 6, 1865. However, this law does not specify how freed people will become part of the Cherokee Nation, leading to much confusion and many problems concerning their citizenship status. 

  Treaty of 1866

  1866, July 19—Following a long negotiation between the US government and the Cherokee, John Ross, the pro-Union principal chief of the Cherokee Nation, signs the Treaty of 1866. The treaty grants Cherokee citizenship to all freed Black slaves, thereafter known as Freedmen, and their descendants residing within tribal boundaries (Article 9). It also sets aside 160 acres of land for each head of household for Freedmen to settle (Article 4), and grants them voting rights and self-determination within the rules of the Cherokee Nation (Article 5 and Article 10). Under the provisions of this treaty, the Freedmen are officially recognized as citizens of the Cherokee Nation.
  
  

  1866, Aug. 11—The Treaty of 1866 is proclaimed.
  
  1866, Oct. 19—Principal Chief William P. Ross notifies Cherokee citizens that certain provisions of the 1866 Treaty would “cause a census to be taken of the Cherokee people” that would include “the names, ages, and residence . . . of all blacks admitted to the full rights of Cherokee citizenship by the 9th Article of the Treaty.”³
  
  1866, Nov. 26—Amendments to Article 3, Section 5 of the 1836 Cherokee Nation Constitution are made in accordance with the Treaty of 1866. This leads to the creation of a six-month time limit from July 19, 1866, within which the Freedmen who left the Nation during the war are required to return to claim Cherokee citizenship. This amendment severely limits the physical possibility of the Cherokee freed people’s claims to citizenship because they are required to return to the Cherokee Nation with their limited time and resources. It is also difficult to prove their residence in the Nation during this period without any material proofs. 

  1880 Cherokee Nation Census

  1883, Mar.—The US Congress appropriates $300,000 to the Cherokee Nation that the Cherokee National Council can freely distribute. This is in response to the Cherokee Nation’s request in January for the remaining balance of funds for western lands sold to the US that had been used to relocate Indian nations. 
  
  1883, May 19—The Cherokee National Council passes an act creating a roll of “citizens of the Cherokee Nation by blood” to receive payments from the funds appropriated by Congress in March 1883. The restriction of “by blood” is in direct opposition to the Treaty of 1866’s promise of full citizenship for all freed people, regardless of their direct lineage to Cherokees. 
  
  In protest of this exclusionary act, the Freedmen, along with the adopted Shawnees and Delawares, begin to organize Freedmen conventions in Tahlequah and Cooweescoowee districts.⁴ Seeking assistance from the US government, the group of Freedmen and related parties choose J. Milton Turner, an African American lawyer from St. Louis, as their attorney and select Moses Whitmire and William Thompson to go to Washington to present their concerns to Congress in a meeting on December 21, 1883. The Freedmen also send a petition to Congress arguing their rights as citizens to the economic growth of the Nation before and after emancipation. These measures demonstrate the collective efforts of freed people to gain their rights protected by the Treaty of 1866, which ironically required aids of the American government. 
  
  1886—The Cherokee legislature downplays the Treaty of 1866’s stipulation on the rights of the Freedmen: “The phrase ‘all the rights of Native Cherokees,’ as used in the 9th and 15th Articles of the Treaty of July 19, 1866, between the United States and this Nation, is hereby construed to mean the individual rights, privileges, and benefits enjoyed by white adopted citizens of this Nation.”⁵ This excludes the Freedmen from Cherokee land ownership and per capita revenue by the Nation through the sale of land, which the adopted white citizens with Cherokee spouses have access to.

  The Dawes Act

  1887, Feb. 8—The General Allotment Act to the Five Tribes of the Indian Territory (the Dawes Act) passes. By dividing communal tribal land and allotting it to individual Native Americans, this act tries to assimilate Indians into the American economic system. While the Cherokee Nation is not subject to this act, the United States still desires to buy the Cherokee Outlet. 

  1888, Oct. 19—A bill to distribute a $75,000 appropriation out of the $300,000 to the Cherokee Freedmen and their descendants, as well as the Delawares and Shawnees, becomes law. To distribute the money per capita, a committee is established for the Cherokees to determine the Freedmen citizens entitled to share the distribution of funds.⁶ The registered Cherokee Freedmen receive the same per capita payment as the Cherokees by blood. This is a great success won by Cherokee Freedmen’s constant efforts to claim their rights. 
  
  Due to ongoing disputes over the status of Cherokee Freedmen within the Cherokee Nation, the US government interfered more with the Nation to ensure a fair distribution of per capita payments. The US government argued for the Freedmen to receive the same rights of annuities, land, and education, challenging the political autonomy of the Cherokees to define citizenship and its rights. This involved creating census rolls to determine the number and identity of Cherokee citizens who held the rights to these benefits. More significantly, this intervention marked the beginning of US efforts to undermine Indigenous nations’ sovereignty, ultimately laying the groundwork for disbanding their communities and seizing their lands.
  
  Beginning with the Dawes Act, the federal government used the racial ideology that Native American identity was tied to Indian blood quantum to break up the shared land held by the Cherokees, redistributing it to the individual Indians and thus controlling allotment. What used to be a communal property and site of identity had become an individual property, equivalent to economic and cultural dispossession. In addition to the Cherokee communal ties being weakened, blood quantum also limited the number of Cherokees qualified for the allotment. This was more detrimental to the Freedmen, who had the same rights to Cherokee citizenship even without “Indian blood.” The creation of the national census thus became a subject of dispute, with Cherokees constantly attacking the census as being fraudulent.
  
  1889 Wallace Roll

  1890—The creation of the Oklahoma Territory puts Indian Territory under federal control.
  
  1891, Dec. 19—The United States negotiates an agreement with the Cherokee Nation in which the Cherokee Nation agrees to transfer the Cherokee Outlet to the United States for $8,595,736.12.⁷
  
  1896 Kern-Clifton Roll
  
  1896, June 10—In the Indian Appropriation Act of 1896, Congress directs the Dawes Commission to make a census roll identifying the citizens of the Five Tribes, including the Cherokee Nation, in anticipation of the eventual allotment of tribal lands, dissolution of tribal governments, and intended statehood. The Dawes Commission accepts applications from Cherokee citizens, including Freedmen, for citizenship in the Indian nations. 
  
  1898, June 28—While the Five Tribes did not cooperate with the Dawes Commission’s mission to secure allotment agreements, the Curtis Act passes. This law abolishes tribal legal systems and sanctions the Commission to the Five Civilized Tribes to begin allotting lands in Indian Territory. To enable this process, the Dawes Commission is charged with making a roll of the Cherokee Freedmen by the Curtis Act.

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  Footnotes

  1. Cherokee Freedmen’s Opp’n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 235-3; Interior’s Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 234-4.↵
  2. Celia E. Naylor, African Cherokees in Indian Territory: From Chattel to Citizens (University of North Carolina Press, 2008), 140–151.↵
  3. Interior’s Motion for Summary Judgment, Exhibit 9, Ex. 9, Message of Honorable William P. Ross to the Cherokee Council, ECF No. 234-9.↵
  4. Naylor, African Cherokees in Indian Territory, 167.↵
  5. Quoted in Fay A. Yarbrough, Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (University of Pennsylvania Press, 2008), 88.↵
  6. Daniel F. Littlefield, The Cherokee Freedmen: From Emancipation to American Citizenship (Greenwood, 1978), 138–39.↵
  7. Cherokee Nation, 270 U.S. at 480–81.↵