August 11, 2007

Freedmen case is clear

Cheyfitz:  The historical irony of H.R. 2824Morally, the issue is clear: Why attempt to disenfranchise a particular group of Cherokee Nation citizens based, it would appear, solely on their race? The response from the government of the nation has been that this move, contrary to the way it appears, is not racist--there are black Cherokees on the "blood" rolls, it argues--but a matter of sovereignty, a question of who gets to decide tribal enrollments: the nation itself or the federal government. While under federal Indian law the tribes are granted autonomy in the area of enrollment, the Secretary of the Interior, under the same proviso, has a right to intervene in these decisions. Legal matters notwithstanding, a nation constituted by "blood" is a nation constituted by racial borders; and a nation constituted by this kind of exclusivity is by definition racist. The irony here is that the constitution of tribal rolls by blood quantum is a federal imposition of the Dawes era, a stricture that the tribes themselves later adopted in contradiction of traditional practices.

Legally, the issue is also clear: as noted above, Article 9 of the Treaty of 1866 grants the "freedmen ... all the rights of native Cherokees." End of story. If Indian nations expect the federal government to abide by the treaties, which are the foundation of federal Indian law, recognizing the government-to-government relationship between Indian nations and the United States, then the federal government has a right to expect the same, even though the trail of treaties broken by the government is all too long. The irony here is also evident--the habitual treaty-breaker insists on the sanctity of the treaty--but does not negate the principle or fact of the law.

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