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Portrait of Robert Banks, Cherokee Freedmen. Photo by Peggy Fontanet.

Magazine

From One Fire

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Posted 05.16.13

On an oppressively hot evening last May, David Cornsilk addressed a room of so-called “black Indians” at Gilcrease Hills Baptist Church in northwest Tulsa. He wore a leather-braided bolo tie clasped by an emerald quartz. Though Cornsilk never formally studied law, his voice bellowed with the rhetorical ire of a white-shoed seasoned litigator.

“By a show of hands, how many folks here tonight are Freedmen?” Cornsilk asked into the microphone. Each raised an arm. Visibly dismayed, Cornsilk shook his head. It was a trick question.

“No,” Cornsilk said. “The Freedmen died a long time ago. You are not Freedmen. You are Cherokee, and it is time that you begin to recognize who you are.”

Cornsilk is Cherokee, and a self-taught civil rights advocate and genealogist. He traces his slave-owning ancestors back to their aboriginal lands of Georgia and Tennessee—to a period before the Trail of Tears. Cornsilk is not a Cherokee Freedmen descendant. For nearly two decades, however, Cornsilk fought for the citizenship rights of Freedmen descendants—blacks who descend from slaves once owned by Cherokee and other tribes.

While working full-time as a clerk at Petsmart, Cornsilk took on America’s second-largest Indian tribe, the Cherokee Nation, in what led to a landmark tribal decision. Cornsilk served as a lay advocate, which permits non-lawyers to try cases before the Cherokee Nation’s highest court. When Cornsilk was not unloading dog food from truck beds and stocking shelves under the sounds of chirping parakeets, he composed legal briefs on the rights of Freedmen descendants, made oral arguments in court, and responded to a flurry of technical motions submitted by his opponents.

The legal advocacy would come at a personal cost for Cornsilk. Not long after his talk at Gilcrease Hills, he was unable to maintain two full-time jobs. So he sacrificed one. No sooner, Cornsilk failed to make rent on his one-bedroom apartment in Tulsa. He broke the lease and moved into his Honda Civic while seeking new employment. He began showering at the YMCA.

Outmatched and outspent by a team of Cherokee Nation lawyers, few considered Cornsilk a threat, and certainly not someone who could ignite debate on race and tribal power—but he did, and that debate would end up costing the Cherokee Nation millions of dollars in attorney’s fees, lobbyists, and public relations campaigns.

When Cornsilk was not unloading dog food from truck beds and stocking shelves under the sounds of chirping parakeets, he composed legal briefs on the rights of Freedmen descendants. 

The ongoing battle for tribal equal rights for Freedmen descendants has grown increasingly urgent. With other American Indian tribes across Oklahoma closely watching the impending U.S. court cases to signal the fate of their own Freedmen descendants and the extent of their sovereignty, Cornsilk believes that the present stakes could not be higher.

Not surprisingly, Cornsilk has grown more polemical. At the Baptist church Cornsilk said that if you do not think these folks in this room “have Cherokee ancestry and you have not done the research to find out, then you’re a racist.” Part of what helps make him so compelling is that on the surface—like Cherokee Principal Chief Bill John Baker and members of the Cherokee Nation Tribal Council—Cornsilk looks white.

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Kenneth Payton, a descendant of Cherokee freedmen, searches his ancestry with Gene Norris, senior genealogist at the Cherokee Heritage Center.
Images by Sam Russell. Courtesy of FREEDMEN, the documentary film.

Oppressed by the Oppressed

Headquartered in Tahlequah, Oklahoma, the Cherokee Nation and its wholly owned business arm earned over a billion dollars last year through a myriad of businesses such as gaming, U.S. Department of Defense contracts, and federally funded programs. Today, taxpayers help support the Cherokee Nation through federal grants.

The brutality committed by whites against American Indians—especially the Trail of Tears—has become a part of our national conscience. Yet it is hard to imagine that during this period an even more poorly documented atrocity was being perpetrated: The Cherokee were slave owners long before their forced removal from the southern states.

By the time gold was discovered in Georgia at the dawn of the 19th century, Cherokee slave codes were indistinguishable from those enacted by the rest of the South. Soon after, when the U.S. Indian Removal Act forced Cherokee and other Indians to relinquish their native land and move west, countless blacks enslaved by Cherokees crossed into the frontier bound and shackled. These black slaves suffered a far more violent experience than their Indian masters.

Nearly a third of the Cherokee Nation’s citizens lost their lives during the Trail of Tears; the number of their slaves killed remains unknown. Once the Cherokee Nation arrived in what later became Oklahoma, they prospered in part due to their agrarian roots, large-scale plantations, and practice of slavery.

Three decades later, when the Lincoln administration threatened slaveholders, the Cherokee Nation signed allegiance with the Confederacy. Finding themselves on the losing side of the Civil War, and their shrinking territory under threat once again, the Cherokee Nation sought to re-establish government-to-government relations with the US.

In the summer of 1866, just months after U.S. lawmakers amended the Constitution to bar slavery, the Cherokee Nation entered into a treaty with the federal government. Among a long list of terms, the treaty granted perpetual freedom and full tribal membership to Cherokee slaves and their descendants. The Treaty of 1866 named these black, newly minted Cherokee members “Freedmen.”

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Kenneth Payton, a descendant of Cherokee Freedmen. Image by Sam Russell.

Freedmen and Tribal Benefits

From the last row of Gilcrease Hills Baptist Church’s recreation hall, Kenneth Payton listened to David Cornsilk’s voice rise and fall. Payton looks like a professional basketball player. He is six foot five, wears a tracksuit, and drives a pick-up. Payton lives in Broken Arrow with his wife and three of his four boys. His young sons append the word “sir” to their responses, hinting at their father’s service in the United States Army. When we first met, Payton’s hand enveloped mine.

Once the Cherokee Nation arrived in what later became Oklahoma, they prospered in part due to their agrarian roots, large-scale plantations, and practice of slavery.

Payton and other Freedmen descendants are represented in the pending U.S. court case by Jon Velie, who is a licensed attorney based in Norman. Velie describes Payton as a “Cherokee of African descent.”The unfolding lawsuit led by Velie challenges the Cherokee Nation’s dismissal of its former black citizens. “It’s not a damages case,” Velie said.“The Freedmen citizens simply want to be reinstated as full members of the tribe.”

The ongoing litigation demands that the federal government enforce the 147-year-old treaty between the United States and Cherokee Nation, and restore tribal citizenship to Payton, his children, and potentially, tens of thousands of others who share similar ancestry. “I tell my kids all the time, ‘You are Cherokee,’ ” Payton said. “And they say, ‘Oh Dad, he is crazy,’ but it is true. We are Cherokee.”

Payton is not alone. During the year I spent reporting this story, nearly everyone I met in Oklahoma claimed Indian heritage. To many, the notion that Indian blood pumps through them, irrespective of quantum or degree, is a birthright. It suggests a dual identity. And it insinuates indigenous roots—a deeper, more authentic tie to land and country that predates statehood and union. But unlike most, Payton possesses the documents to back his claims.

After a rare public debate between Jon Velie and the Cherokee Nation’s Attorney General Todd Hembree, a young man stood to ask a question. Until this moment, the debate on Freedmen held at the University of Oklahoma School of Law had been pointed, though relatively cordial. An event organizer rushed to furnish the young Indian a wireless microphone. “What I do not understand is, what is it that these people want?” the young man demanded, directing his questions about the Freedmen at Velie. His voice did not require amplification. “What do they actually want? Or as my parents and grandparents would say, Gado usdi unaduli?”

I later learned that the young man’s name is Corey Still. He was a senior at the University of Oklahoma, and a full-blood Cherokee. Addressing Velie and the audience in his native Cherokee tongue was laced in subtext. If anyone else in the auditorium spoke Cherokee, including Freedmen descendants, it was not apparent. Cherokee Nation Attorney General Hembree has long argued that because his tribe is an independent sovereign with a distinct culture, it has an absolute right to self-determine its criteria for citizenship. Corey Still struck at the heart of a different, more veiled, but no less present sentiment.

To Payton and other Freedmen descendants, their ongoing lawsuit is about acceptance. Payton seeks on behalf of his family, living and dead, recognition of his tribal identity. But implicit in the enforcement of a century-old treaty—and this is what Corey Still was alluding to—are the present-day benefits that come with tribal citizenship: free health care, educational scholarships, and housing assistance, to name a few. In Indian country, the idea that black “non-Indians” are unjustly suing tribes solely for economic benefits has been the source of much racially charged vitriol.

Several months after the debate, clutching his birth certificate and grandparents’ death certificates, Payton drove his pick-up from Broken Arrow to Tahlequah. Dense woods conceal the Cherokee Heritage Center’s genealogy center, which offers free services to would-be Cherokee. Gene Norris, the center’s senior genealogist, told Payton that Cherokee citizenship is determined by linking an ancestor to the federal Dawes Rolls, which were completed in 1907. Norris inspected the authenticity of Payton’s paperwork, led Payton to a computer, and searched for Payton’s relatives on a digitized version of the rolls.

“Here’s Emma,” Norris said. Norris discovered Emma Mackee, Payton’s great-grandmother, listed on the rolls. He then attempted to explain that there are subsections to the rolls. They include “By Blood” and “Freedmen,” among others. The nuance left Payton scratching his shaved head. Your great-grandmother is on the Freedmen subsection, Norris explained, adding that until the litigation is resolved, the Cherokee Nation is not accepting any Freedmen applications for citizenship.

“You can go ahead and apply but they probably won’t process it,” Norris said.

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Cherokee Nation Holiday Parade, September, 2012. Image by Sam Russell.

Indian Blood

For hundreds of years, the question of who is an Indian has vexed the federal government and tribes alike. By the end of the 19th century, being an Indian usually came with one of two things: benefit or despair. More often, it came with both at once. Tribal economic benefits encouraged fraudulent citizenship claims by white, non-Indian imposters. Despair drove many true Indians away from federal officials.

Up until 1893, the dozens of tribes residing in Indian Territory owned millions of acres communally. The Cherokee Nation was the largest and most powerful tribe among them. Cloaked under efforts to assimilate Indians into American society and usher greater economic opportunity, in 1887, the federal government passed a law that began negotiations to chop up tribal lands. A federal commission was later organized and tasked with persuading the Cherokee Nation and other major tribes—known as the Five Civilized Tribes—to carve their land into allotments that could be bought and sold. The man appointed to lead the commission was a former abolitionist Massachusetts Senator named Henry Dawes.

On November 28, 1893, U.S. Secretary of the Interior Hoke Smith [1] issued instructions to Dawes and other commission members. The contents of that letter, according to Kent Carter, author of The Dawes Commission and the Allotment of the Five Civilized Tribes, were not made public at the time.

“What I do not understand is, what is it that these people want?” the young man demanded.

“Success in your negotiations will mean the total abolition of the tribal autonomy of the Five Civilized Tribes and the wiping out the quasi-independent governments within our territorial limits,” Smith wrote to Dawes. The feds were making way for the 46th state: Oklahoma, which derives from Choctaw words, “okla” and “huma,” or “red” and “people.”

Tribes “absolutely decided to take a united front and oppose the allotment of their land and the termination of tribal governments,” Dr. Brad Agnew, a history professor at Northeastern State University in Tahlequah, said. After multiple attempts, Dawes failed to convince leaders of the Cherokee Nation to split and relinquish their lands. Congress responded by passing another law. In 1898—just a a year after the region’s first commercial oil well was drilled [2]—a new federal law effectively forced the Cherokee Nation and other tribes into submission. The plan: Each Indian citizen or head of household would be granted over a hundred acres. Before the land could be divided, Dawes and his commission had to answer: Who is an Indian?

The challenge was further complicated by internal tribal factions, which were a consequence of removal. Over time, many white colonialists had married into the tribe, and their light-skinned descendants often ascended to positions of power. “If you look at pictures of the leaders of the Cherokee Nation, most of them, they dressed white, they looked white,” Professor Agnew said. “They were white for all intents and purposes.” Principal Chief John Ross, for instance, who led the Cherokee Nation from 1828 until his death in 1866, was seven-eighths Scottish. [3]

While the Dawes Rolls were finalized, a succession of new oil wells sprouted across the region. Railroad systems linking east and west coasts that had once been obstructed by Indian reservations were either fully connected or on the way to becoming so. During his final years, Senator Dawes, who had once been viewed as a friend to American Indians, was plagued by sickness. He died in 1903. His colleagues helped finish what historians agree was a herculean task.

The federal Dawes Rolls of the Five Civilized Tribes closed on March 5, 1907, superseding all previous Indian citizenship rolls. Seven months later, tribal jurisdictions crumbled. Borders of what had been Oklahoma Territory were expanded and redrawn. Oklahoma became a state on November 16, 1907. At its birth, Oklahoma was the leading oil-producing state in the U.S. It would maintain that distinction until 1921—the same year, it turns out, Oklahoma’s Adair county would earn two distinctions of its own: highest concentration of Cherokee full-blood residents, and poorest county in the nation.

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Cherokee Nation Holiday Parade, September, 2012
Image by Sam Russell.

State of the Nation

During Labor Day weekend of 2012, as most Americans relished the final days of summer, the Cherokee Nation erupted in celebration. The festivities marked the commemoration of the signing of the Cherokee Tribal Constitution. On Friday night, a powwow commenced the weekend’s events. Beads of sweat streamed down faces masked in paint. Full-blood Cherokees cloaked in tribal regalia—brightly colored feathered headdresses, leather leggings, and beaded dresses—howled and chanted and struck communal drums. Hundreds danced to the throbbing beats. Cherokee folklore says that the pounding of drums embody the tribe’s pulsing heart and enduring fire.

For three days, over the course of dozens of dizzying events, despite a dogged heat, potent displays of tribal nationalism did not subside. “Once that fire dies down, then that’s when all the tribes will die down,” a young Cherokee said,“and it is our job to pass it from generation to generation.” If the federal government had attempted to wipe out the Cherokee Nation, they had done so in vain. Bill John Baker, Principal Chief of the Cherokee Nation, who has a shock of white hair, spent the long weekend promoting a message of tribal unification. He seemed to emerge magically at each event, serving as master of ceremonies. “We all come from one fire,” Chief Baker said.

“They welcomed us. It was quite unusual,” he said. “The way they looked at us and clapped, it was like, ‘Glad y’all here. You made it.”

To Rodslen Brown-King, a Freedmen descendant, Chief Baker’s message stood in contrast to his actions— or lack there of—upon entering office. Cherokee people, she says, derive from “one fire,” but it is the inclusion of the Freedmen in that metaphor where her interpretation diverges from the chief ’s.The morning after the powwow, Brown-King, her three brothers, eight sisters, two sons, two daughters, and ten grandchildren, displayed their own message of tribal unification—not in a courtroom but in the Cherokee Holiday Parade. Just after dawn on Saturday, Brown-King and her family applied final touches to their Freedmen parade float, which included an eight-foot working waterfall. Before the parade began, sidewalks lining Tahlequah’s Muskogee Avenue were littered with lawn chairs and young families eager to secure good views.

Between floats, sirens wailed as local fireman crammed in buzzing go-carts spun in circles. A college marching band honked freshly polished golden horns. As the army of floats drifted down the street, it grew increasingly apparent that nearly everyone—both parade participants and bystanders packing the streets—looked the same: white. The full-blood Cherokee who had starred at the powwow the night before had all but vanished. Save for Rodslen Brown-King and her family, no other blacks were in sight. So when they were finally directed by tribal officials to pull their oversized pick-up truck into the parade line, it was not just the extravagance of their float that drew attention.

Rodslen, who is in her late 40s, fit, and has long, locked hair, jogged alongside the Freedmen float. She waved and tossed candies to the small children dotting the street. As the Freedmen float rolled by, an elderly white woman seated in a canvas chair rocked her head back and forth in apparent disgust. The overwhelming majority of those in attendance, however, cheered Rodslen and her family along. Most agreed that the Freedmen float was impressive. Willoman Brown, Jr., Rodslen’s son, gazed at onlookers as he steered the pick-up pulling the float with one hand on the wheel and an elbow fixed on the window ledge. “They welcomed us. It was quite unusual,” he said. “The way they looked at us and clapped, it was like, ‘Glad y’all here. You made it.’ ”

Several hours after the parade, on the other side of town, Chief Baker delivered his State of the Nation address to a large, air-conditioned auditorium. More than once, he was overcome by emotion. While discussing his efforts to bridge a divided Cherokee Nation, Chief Baker choked up. He was forced to pause until the threat of his own tears subsided. U.S. Congressman Tom Cole and Baker’s cabinet, including Attorney General Todd Hemebree, along with members of the Cherokee Nation Tribal Council, crowded the first rows. Baker’s predecessor, Chief Chad Smith, who led the Cherokee Nation for 12 years—and oversaw a tribal constitutional amendment that removed Freedmen descendants—did not attend. During last year’s highly contested tribal election, Smith lost to Baker by a sliver of votes.

Chief Baker did not mention the Freedmen descendants, or how their ongoing litigation bled into the election he ultimately won. Baker did not bring up or explain why, just a year earlier, the federal government turned off a faucet flowing millions of dollars to the Cherokee Nation. And he did not mention the costs— both to the Cherokee Nation’s coffers and reputation—of maintaining the fight to keep Kenneth Payton, Rodslen Brown-King, and thousands more Freedmen descendants out of the tribe.

The exclusion of the Freedmen in Chief Baker’s State of the Nation speech reflects the chasm between how the tribe perceives itself internally and how outsiders perceive it. For a tribe that has fallen victim to unspeakable crimes historically, it is difficult to accept its own original sin. “We never held slaves,” an elderly full-blood Cherokee told me after the speech. [4] Perhaps the reason Chief Baker passed over the Freedmen is because so few members of the tribe acknowledge their own stained history, let alone recent events that shaped the Freedmen dissension. Advocates say that much of what occurred in the Freedmen case took place in secret, or as a tribal judge put it, “through silence.”

The 2007 constitutional amendment that permanently removed the Freedmen descendants, even Attorney General Hembree concedes, was done in haste. In that special election, which clenched the disenfranchisement of Freedmen descendants, less than seven percent of the tribe cast votes. The Freedmen descendants are easy to ignore. They make up a minority of the tribe. But like African Americans in state and national elections, Freedmen descendants might constitute a powerful block. After more than a century maintaining tribal voting rights, it was this threat—the fear that the Freedmen descendants may band together to unseat an incumbent chief—that first led to their ouster.The extent of their unwillingness to go quietly was impossible to foresee. So too was the resolve of their advocates.

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David Cornsilk addresses freedmen descendants at Gilcrease Hills Baptist Church in northwest Tulsa Image by Sam Russell.

The Rise of David Cornsilk

The two men met while standing beside each other under a blistering sun. The line to vote for the next Cherokee Principal Chief snaked around the courthouse. The man who would later reach the voter registration table first was elderly, smallish, and appeared black. The man who stood directly behind him was young, tall, and appeared white. It was 1983—a century after the Dawes Commission was established. As the line inched forward, the two men struck up a conversation on tribal politics and Oklahoma’s relentless heat. The black man introduced himself as Roger Nero. The white man introduced himself as David Cornsilk.

When Nero reached the registration table, a light- skinned Cherokee woman requested to see Nero’s tribal identification card. “ ‘We don’t let you people vote anymore,’ ” Cornsilk recalled the tribal official saying to Nero. The official instructed Nero to vacate the building. “When I handed her my card, she smiled and said no problem and handed me a ballot,” Cornsilk said. Cornsilk did not discover until after the election that Nero was a Freedmen descendant. At the time, Nero was 82. He was an infant during Oklahoma statehood; Nero’s name appears on the original Dawes Rolls.

“Part of my job was to deal with Freedmen applicants,” Cornsilk said. “I started reading their histories, and I came to the realization that we really screwed these people.”

Nero filed a lawsuit against the tribe in U.S. courts. The court dismissed the suit and ruled that Nero’s case was a tribal matter. “He was old and didn’t have any money and pretty much let it go,”Cornsilk said. Nero’s failure to gather traction and his subsequent death haunted Cornsilk, who later landed a position within the Cherokee Nation’s department of tribal registration. “Part of my job was to deal with Freedmen applicants,” Cornsilk said. “I started reading their histories, and I came to the realization that we really screwed these people.”

During the two decades that followed, Cornsilk advocated for the rights of Freedmen descendants with mixed results. In 1988, while still a tribal employee, he wrote a letter of protest on behalf of Freedmen—garnering the support of six additional tribal employees who signed in solidarity—and sent it to then-Principal Chief Wilma Mankiller. Cornsilk told me that his letter resulted in threats by senior tribal officials. “I never heard from the chief, but I got a call from the chief ’s aide who said, ‘We do not talk about the Freedmen, and anyone who does, does not work for the tribe.’ ” Tribal officials deny these claims.

After a decade of advocating for the Freedmen while still a tribal employee, Cornsilk grew disenchanted by tribal leadership. He quit working for the tribe, and after a quick stint working for the Bureau of Indian Affairs in Washington, D.C., Cornsilk returned to Tahlequah to begin his work as an official “lay advocate.” After an elderly black woman named Bernice Riggs was denied Cherokee citizenship by the tribe, Cornsilk obtained permission from the Cherokee tribal court to petition an appeal on her behalf. Cornsilk said that Cherokee tribal members told him that Riggs lived on “Nigger Hill,” a neighborhood outside Tahlequah where many Freedmen descendants reside. The Riggs case was not successful, yet it solidified Cornsilk as an unwavering Freedmen advocate.

With a receding hairline and newly separated from his full-blood Cherokee wife, Cornsilk moved to Tulsa in 2000 and accepted a full-time clerk position at Petsmart. While working there in the summer of 2003, Cornsilk received a phone call from Marilyn Vann, an engineer by trade, and leader of the Freedmen Descendants of the Five Civilized Tribes. Jon Velie, the Norman-based attorney, represents Vann.

After helping to bring legal action against the Seminole Nation several years earlier, Velie earned a reputation as a civil rights attorney. [5] In 2000, the Seminole Nation, which is smaller than the Cherokee Nation and based in Wewoka, stripped their Freedmen descendants of citizenship rights with a tribal constitutional amendment. Velie was part of the legal team that secured a federal court decision in favor of Seminole Freedmen. Now, with Velie on the Cherokee Freedmen case pro bono, he and Vann were preparing a legal offensive against the Cherokee Nation.

Vann called Cornsilk and invited him to address a Freedmen descendants’ meeting in north Tulsa. Vann believed that Cornsilk understood the Freedmen plight as well as anyone. “He knew a great deal about Cherokee law and history and genealogy,” Vann said.

To Vann and other Freedmen advocates, the summer of 2003 brought with it a great sense of urgency. Principal Chief Chad Smith, who was first elected to the tribe’s highest office in 1999, had just clinched his second term. According to Cornsilk, designating Cherokee Freedmen as “non-Indians” was a priority throughout Smith’s first term. That May, Cherokee Freedmen descendants were excluded from the general election that secured Smith’s second term.

But there was something else at stake during the 2003 general tribal election to which the Freedmen were not a party. Smith had run in part on a platform to remove federal oversight of the Cherokee Nation. At the time, the Cherokee Constitution required approval of new tribal amendments by the Secretary of the Interior—the head of the same federal agency that attempted to wipe out the Cherokee Nation’s government. The 2003 general election included a tribal constitutional referendum. Smith’s administration presented Cherokee citizens with an opportunity to vote to approve a tribal amendment removing federal approval of future amendments. To fellow Cherokee, it was an easy sell. If American Indian tribes are truly sovereign, what business is it of the U.S. government to approve their constitutional amendments?

But Smith still needed federal approval for such an amendment. That May, in addition to voting for Chief Smith, the majority of Cherokee citizens— excluding the Freedmen—had just voted in favor of the constitutional amendment. This was not enough to win over Department of Interior officials. Senior members within that federal agency realized the implications of approving such a measure—one that would forever forfeit their veto power over changes to the Cherokee tribal constitution. That same summer, the Department of Interior received alarming letters from Jon Velie; he warned of legal action should the Department of Interior fail to “honor its treaty obligations,” and enforce the voting and citizenship rights of Cherokee Freedmen descendants.

 If American Indian tribes are truly sovereign, what business is it of the federal government to approve their constitutional amendments?

The feds were now apprehensive. They worried that approving the amendment to remove oversight of future amendments would equip the Cherokee Nation—much like the Seminole Nation had a few years earlier—with the legal framework to turn around and remove their Freedmen by constitutional amendment. [6] Still, there were deeper tensions at play. After centuries of federal encroachment over tribal affairs, the Department of Interior labored to implement a policy that provided greater sovereign power to tribes, not less. The feds sought to strike a balance between providing more autonomy to Indian Nations and protecting the civil rights of Freedmen descendants. It was a tenuous balance at best.

In a letter to Chief Smith, Neal McCaleb, assistant secretary of the Department of Interior at the time, expressed the federal government’s willingness to approve the amendment under the following conditions:

All members of the Cherokee Nation, including the Freedman descendants who are otherwise qualified, must be provided an equal opportunity to vote in the election. Second, under current law, no amendment to the Nation’s Constitution can eliminate the Freedmen from membership in the Nation absent Congressional authorization.

While serving as Cherokee Nation Principal Chief, and after he was defeated in 2011 by challenger, Bill John Baker, Chad Smith refused multiple requests to be interviewed for this story. [7] An examination of the letters he wrote over the last decade, court documents, and his speeches illustrate that Smith’s stance toward Cherokee Freedmen descendants is unambiguous. In response to the Department of Interior’s letter, Smith assured the federal government that citizenship rights would not be affected by the tribal constitutional amendment. Smith responded to Department of Interior:

Nothing in the pending Constitutional Amendment will substantively alter in any manner whatsoever existing rules under the 1976 Constitution governing citizenship in the Cherokee Nation.

Smith was not being disingenuous, but he was not being forthcoming either. Though he did not say so at the time, Smith had always held the position that it was the original intention of 1976 Tribal Constitution— the most recently ratified Cherokee constitution at the time—to remove Freedmen citizenship. Smith, who was a trained lawyer and had recently spent a semester teaching Indian law at Dartmouth College, kept quiet on the issue. The Cherokee Nation’s highest court would later disagree with Smith’s interpretation.

In May 2003, the Cherokee Nation held its tribal elections. The tribal constitutional amendment to remove federal approval of future tribal amendments was placed on the ballot. The majority of the Cherokee Nation’s citizens voted in favor of the amendment. Also, Chief Smith was elected to his second term in office. The Cherokee Freedmen, however, were not permitted to vote in this election.

That summer, the Department of Interior, Jon Velie, and Chief Smith exchanged a flurry of letters.To Smith, the controversy over the tribal citizenship rights for Freedmen descendants was an internal tribal issue. At stake was the Cherokee Nation’s right to self-determination. When the Department of Interior officials directly questioned Smith’s interpretation of the tribal constitution, and expressed reluctance to approve the tribal amendment removing its federal veto powers, Smith’s tone grew more antagonistic. Smith wrote back to the Department of Interior:

In the age of self-determination and self-governance, I am shocked to find the contents and tone of your letter to be both patronizing and very paternalistic. It appears that some officials in your department desire to re- turn to the era of “bureaucratic imperialism.”. . . It is a fact that the Cherokee people have decided their leadership and approved a constitutional amendment on May 24, 2003, by a democratic process in accordance with Cherokee Law.

Velie saw it differently. [8] However, the Department of Interior ultimately caved. Near summer’s end in 2003, the Department of Interior formally recognized Smith as Chief of the Cherokee Nation for his second term—despite the Freedmen’s exclusion at the polls. They did not, however, approve the tribal amendment removing federal approval of future tribal amendments. Nevertheless, on August 11, 2003, on behalf of Marilyn Vann, Kenneth Payton, Rodslen Brown-King, and other Freedmen descendants, Jon Velie filed a lawsuit in District Court against the Secretary of Interior, claiming that Smith was elected as chief without the Freedmen vote, in violation of the 1866 Treaty.

Cornsilk, paradoxically, was not pleased to learn about the lawsuit. Make no mistake, Cornsilk was vehemently opposed to the Cherokee Nation’s exclusion of their Freedmen. But it is difficult to overstate just how deeply Cornsilk’s Cherokee nationalistic sentiments run. Cornsilk was—and generally remains—against involving the federal government in tribal affairs. Velie’s maneuvering, meanwhile, was strategic. Velie did not file suit directly against the Cherokee Nation. Such an approach, as the Nero case illustrated, risked early dismissal. Instead, Velie filed suit against the Department of Interior in an attempt to compel the federal agency to enforce treaty obligations over the Cherokee Nation. But to Cornsilk, the Cherokee Nation had been betrayed by federal government too many times to justify their present-day involvement.

 

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Jon Velie, attorney who represents the Cherokee and Seminole freedmen
Image by Sam Russell.

When Cornsilk received the call and invitation from Vann to address the Freedmen descendants, he appeared after a day’s work at Petsmart.The meeting took place at the Rudisill Regional Library, located in a predominately black neighborhood in north Tulsa, though within Cherokee Nation boundaries. “This woman stands up and talks about how she was mistreated by the Cherokee Nation,” Cornsilk said. She said that Cherokee Nation officials had abused her because she appears black. The woman speaking was clad in formal dress and an old-fashioned hat. Her name is Lucy Allen. Cornsilk then stood up and addressed the room. He spoke of Roger Nero and Bernice Riggs. He also expressed his contempt for Chief Smith and his removal of the Freedmen. After the meeting, Lucy Allen pulled Cornsilk aside. Allen asked Cornsilk what could be done to combat Chief Smith.

“Let’s sue,” Cornsilk told Allen. Of course, he was talking about tribal court.

“I don’t know what came over me. I was overcome with emotion, and concern for her, the Freedmen, and the future of my tribe,” Cornsilk said.

It took nearly a year for his Petsmart colleagues to realize that Cornsilk was actively litigating on behalf of Lucy Allen and Cherokee Freedmen descendants outside of work hours.

“Whenever I had free time, I worked on the Freedmen case,” Cornsilk said. At first, Cornsilk did not own a computer. He ended up purchasing one after securing a line of credit with Dell. He named his personal computer “Cherokee War Machine.”

Early attempts by Cornsilk’s opponents to dismiss the tribal case on various technicalities were unsuccessful. At least two out of the three tribal judges did not wish to see a tribal constitutional case dismissed on anything but the case’s merits. “I would say that I didn’t have a personal life,” Cornsilk said. “My life was the case.”

Cornsilk was a registered tribal lay advocate, working on behalf of Lucy Allen, so the majority of the court awarded Cornsilk a wide breadth of latitude—similar to one who represents oneself in court.

“I didn’t try to twist anything or dazzle anyone with fancy words,” Cornsilk said.

As Cornsilk pushed through early stages of the case, the Department of Interior took notice, as did the Justice Department. Cornsilk’s tribal court case threatened Velie’s ongoing litigation in the U.S. court system. The two cases more or less concerned the same issue. Through the lens of outsiders, Cornsilk’s lawsuit supplied credence and legitimacy to Cherokee Nation tribal courts. [9]

As Cornsilk pushed through early stages of the case, the Department of Interior took notice.

Velie realized that Cornsilk’s tribal suit supplied new ammunition for Smith’s response to the feds. Smith had always argued that the Cherokee Nation had its own court system intact. In letters and briefs filed by the Cherokee Nation seeking early dismissal of Velie’s suit, Smith often cited the older Nero case. Smith and his administration argued that the proper venue for the Freedmen grievances was indeed in tribal court. And no sooner did Cornsilk bring the Lucy Allen petition forward did Velie urge Cornsilk to drop the case. There was too much at stake. Also, as Cornsilk began litigating in tribal court, more obvious risks emerged. Cornsilk worked at Petsmart. What could he possibly know about tribal law? If Cornsilk lost—and most experts expected him to do so—it could thwart success of future litigation. What’s more, Chief Smith had appointed the majority of tribal judges to the Cherokee Nation’s highest court. Few expected Cornsilk to prevail.

And then there was the issue of Cornsilk’s opponents. Cornsilk’s preliminary research led him to believe that his best tactic was to file the Lucy Allen lawsuit against the Cherokee Nation Tribal Council, which functions as the tribe’s legislative body. Cornsilk argued that the new Cherokee Nation requirement that determined tribal citizenship link to the “by blood” subsection of the Dawes Rolls was extra-constitutional, and therefore unconstitutional. At the time, one of the tribal council’s longtime members—with greater political ambitions—was Bill John Baker. The tribal council selected their attorney to defend Cornsilk’s petition: a young rising Cherokee Nation tribal lawyer, Todd Hembree.

Velie was correct to worry about Cornsilk’s tribal court filing. It would emerge later in a congressional investigation that the feds perceived the Cherokee Freedmen differently than the Seminole Freedmen case. In the Seminole case, Jon Velie’s legal team had already convinced the federal government to force the Seminole Nation to reinstate citizenship rights to its Freedmen descendants, or forfeit federal funding, and with it, a license to operate lucrative casinos. The Department of Interior later told members of Congress that they involved themselves in the Seminole Freedmen case because, unlike the Cherokee Nation, the Seminole Nation did not have an adequate tribal court system in place. The Cherokee Nation did, and as the tribal case dragged on, Cornsilk helped prove it.

As Cornsilk’s case reached its final stages, Hembree and Cornsilk filed motions almost daily.

“I threw everything in except the kitchen sink,” Cornsilk said.

On March 7, 2006, nine months after Cornsilk’s closing arguments, a tribal court clerk placed a call to Petsmart. One of Cornsilk’s colleagues paged him over the loudspeaker. Cornsilk was unloading dog food from a truck bed out back and missed the page. The colleague tracked down Cornsilk and informed him that he had a call. When Cornsilk lifted the phone, Lisa Fields, the court clerk asked Cornsilk if he was sitting down.

“No,” Cornsilk replied. “Should I be?’”

“You won,” she told him. “You won the Freedmen lawsuit.”

“My knees got weak and I felt myself get faint,” he recalled.

Cornsilk asked Fields to fax over the decision. Petsmart staff packed around the office watching the fax machine spit out pages.

“They were like, ‘There’s another one,’ ” he said. “Everything I had done: writing the letter to Wilma Mankiller, standing there with Nero, everything flashed before my eyes.”

Petsmart later promoted Cornsilk to assistant manager.

Attorney_General

Todd Hembree, Cherokee Nation Attorney General debating against jon Velie
Image by Sam Russell.

Bending the Will of a People

The day after David Cornsilk defeated Hembree in tribal court, he received a congratulatory call from an official at the U.S. Justice Department. Two weeks later, Chief Smith issued a memorandum to the Cherokee Nation registrar:

“With no requirement for proof of Cherokee blood, certain Registration procedures must necessarily be adjusted accordingly,” Smith wrote. “Applications from prospective citizens without Cherokee blood are to be processed on the same basis as all other applications for citizenship.”

In light of the Lucy Allen decision, Smith instructed senior tribal leaders to revise forms, brochures, and to inform other staff of the implications of the tribal court’s decision. “I thought it was over,” Cornsilk said, “but I underestimated the racism of Chad Smith.” In a letter Smith would later write to members of Congress, he denied that the following events were motivated by racial prejudice.

Cornsilk’s victory, however, was accompanied by a curious opinion. Stacy Leeds, then a Cherokee tribal court justice, wrote the majority decision, the precise wording of which armed Smith’s administration and their supporters with new leverage. Leeds narrowly wrote that there is no “clear language in the 1976 Cherokee Constitution to exclude the Freedman from citizenship.” However, Leeds also noted that the Cherokee citizenry has the ultimate authority to define tribal citizenship, but they “must do so expressly:”

If the Cherokee people wish to limit tribal citizenship, and such limitation would terminate the pre-existing citizenship of even one Cherokee citizen, then it must be done in the open. It cannot be accomplished through silence

It was around these few sentences that Smith and his supporters would stage a new strategy. Smith proposed passing a tribal constitutional amendment on Freedmen citizenship through public referendum. This presented a chance, Smith claimed, for Cherokee citizens to vote—in the open—to overturn the result of the tribal court’s decision.

“The issue at hand is what classes [10] of people should be citizens of the Cherokee Nation, and who should make that decision, the courts or the Cherokee people themselves,” Smith said during his 2006 State of the Nation address, after the Allen decision. “The process to decide the issue of Freedmen citizenship is a constitutional amendment at the polls.”

With another election for Principal Chief looming, Smith faced an important year. Smith’s third-term as Principal Chief was at stake, and he and his supporters acted swiftly. Almost immediately after the tribal court decision, Smiths’ supporters and anti-Freedmen advocates advanced a tribal petition. Their goal was to garner enough signatures to bring forth a referendum at the polls. Cornsilk countered by launching an aggressive campaign to register new Freedmen. As a result of Cornsilk’s tribal court win, Cherokee citizenship rights had been restored to Freedmen descendants. Cornsilk and Vann’s efforts helped secure Cherokee citizenship to about 2,800 Freedmen descendants. Though they didn’t know it at the time, the window for Freedmen descendants to apply for tribal citizenship was closing.

When Cornsilk lifted the phone, Lisa Fields, the Court Clerk asked Cornsilk if he was sitting down.

Velie contends that after the Allen decision, Smith and his administration set out to increase the size of the Cherokee Nation’s then-highest court. The Allen case had been decided by three judges in a 2-to-1 decision, with Stacy Leeds writing for the majority. After the Allen decision, Smith appointed two new members to the court and renamed it: The Cherokee Supreme Court. During a rare public debate, Velie said that Smith intentionally “dismantled the court” to exert tighter control over its decisions. Smith interrupted Velie’s allotted time to say, “That’s not true.” Stacy Leeds contends that court expansion plans were set in motion before Smith became chief. Leeds said that the court’s expansion had no correlation to the Freedmen issue. Nevertheless, the court’s expansion would play a critical role in a lawsuit Cornsilk would file next.

In late 2006, David Cornsilk, Marilyn Vann, and other volunteers began inspecting various signatures gathered by petition leaders. Cornsilk and Vann discovered inconsistencies, and what they believed were fraudulent signatories. Cornsilk once more filed suit in tribal court challenging the authenticity of the various petitions. The recently expanded tribal court invalidated some signatures, but overall ruled against Cornsilk. Stacy Leeds, in this case, wrote a lone dissenting opinion calling the petition glaringly fraudulent.

That December, Stacy Leeds’s term as tribal justice expired.Chief Smith did not appoint her to an additional term. In January 2007, Leeds launched a campaign to run for chief of the Cherokee Nation against Chad Smith in the forthcoming general election. Leeds, who had supported Smith in a prior campaign, said that that Smith lost all objectivity and was not listening to or considering different perspectives. “There were subtle abuses of power occurring at many levels in the government,” Leeds wrote in an email. “But the idea that a sitting Principal Chief would orchestrate a popular vote to overturn a ruling of the Nation’s highest court and thereby strip a group of Cherokee citizens of their legal rights is a good example of why new leadership was necessary.”

With the petition’s 2,100 signatures now authenticated by the Cherokee Nation’s highest court and the tribal council, the date for the special constitutional amendment was set for March 3, 2007—just several months before an already scheduled general election. On this day, out of the 8,000 Cherokee citizens who cast votes, over three-quarters voted in favor of permanently excluding Cherokee Freedman descendants from tribal citizenship. [11] The nearly 2,800 Freedmen who were permitted to vote during the special election fell short of a victory. Nearly one year later to the day, Cornsilk’s victory was overturned.

Three weeks later, the Cherokee Nation tribal registrar issued letters to Freedmen descendants: “We regret to inform you that you are not eligible for citizenship in the Cherokee Nation.” Six days later, another letter was issued to each enrolled Cherokee Freedmen descendant. “This letter is to inform you that because of the Constitutional Amendment, you are no longer eligible to receive health services through Cherokee Nation,” the Cherokee Nation’s clinic administrator wrote. Two months later, Stacy Leeds lost in the general election to incumbent Chief Smith. She is now dean of the law school at the University of Arkansas.

“With only four months to put a campaign together with zero dollars in an initial campaign fund, we came very close to unseating a two-term incumbent,” Leeds said. Nearly twice as many Cherokee voted in the general election compared to the special election.

When Lincoln’s statue revealed itself drenched in light, Vann, who had been chatting with Velie, fell silent. 

Freedmen_lane

freedman Lane is located in the area known as “four mile” outside of Tahlequah. Some of the Cherokee Nation’s former slaves are buried nearby in unmarked graves. Image by Sam Russell.

Race and Politics

Later that summer, in Washington, D.C., Representative Diane Watson, D-Los Angeles, caught wind of the Cherokee Freedmen’s disenrollment. At the time, Representative Watson served on the Congressional Black Caucus. After studying the case, meeting with Freedmen and their advocates, and checking the veracity of their statements with officials at Bureau of Indian Affairs,Watson drafted legislation.

From the moment Watson began seeking co- sponsors to the bill, the Cherokee Nation unleashed a comprehensive response. The bill’s scope and substance was sweeping and unequivocal. Its purpose was to “sever the United States relations with the Cherokee Nation of Oklahoma until the Cherokee Nation restored the rights of the Freedman.” Congressman Mel Watt, D-North Carolina, who like Watson is black, co-sponsored the bill. “Once I reviewed the facts and the background information and history,” Congressman Watt said, “You don’t turn and look the other way.”

With hundreds of millions of federal dollars on the line, and millions more at stake related to its gaming license, [12] the Cherokee Nation applied extensive resources to its defense. Jack Abramoff, the Cherokee Nation’s former lobbyist—who was hired by Chief Smith to lobby on behalf of “sovereignty issues,” and who personally contributed to Smith’s campaign for Cherokee Principal Chief—was serving time in federal prison on unrelated convictions.The Cherokee Nation’s hired external lobbyists, Tony Podesta of the Podesta Group and brother of John Podesta, who was White House Chief of Staff in the Clinton Administration, and Lanny Davis, special counsel to President Clinton during his impeachment proceedings and now a D.C.- based lobbyist. The Cherokee Nation’s D.C. team applied primary pressure against Congress.

Officially, Podesta concentrated on battling against the proposed bill while Davis focused most of his energy on the ongoing Vann case. In practice, Davis also helped the Cherokee Nation lobby Congress to kill Watson’s proposed bill. As a former attorney to President Clinton, Davis is well connected in Washington—connected to a degree his fees reflect. “The Cherokee Nation put on a full court press,” explained Bert Hammond, principal advisor to Representative Watson. “I’m sure that their law firm got paid millions and millions of dollars to lobby on their behalf.” [13] As part of its policy, the Podesta Group does not discuss its relationships with current or former clients, and Lanny Davis did not respond to interview requests.

Watson, and other members of the Black Caucus introduced the bill, which was submitted in 2008 to the House Natural Resources and House Judiciary committees. The National NAACP supported the bill, framing the Cherokee Nation’s 2007 constitutional amendment as racist. Smith rejected the “inflammatory misrepresentations” against the tribe. “The 2007 vote to amend its constitution was a crucial vote for the future of the Cherokee Nation and its own sense of identity,” Smith wrote to members of Congress. “This vote has been falsely characterized as racist, while, in fact, the vote was for an explicit clarification of who is a documented Indian in regards to citizenship in the Cherokee Nation.”

Podesta and Davis, along with Paula Ragsdale, [14] the Cherokee Nation’s in-house D.C.-based lobbyist at the time, argued that the bill’s central issue was currently under

judicial review by U.S. Appeals Court and District Court of Washington, D.C. Cherokee lobbyists now felt that U.S. courts were best positioned to rule on the issue. Nearly five years after filing, the Vann case had not yet reached the merits stage.

Watson eventually changed the bill’s language so that it would be referred to the judiciary committee. The change was strategic because John Conyers, another member of the Black Caucus, chaired the committee at the time. It was expected that as a representative known for his leadership on civil rights issues, Conyers would lend his support to the Freedmen. But the bill failed to gather steam. Asked why the bill was eventually killed, Hammond replied, “my clinical reaction is that the Cherokee chief had been around here spreading money around,” he said. “And they have money to spread around. [15]

Members of Congress, including Barney Frank, a Massachusetts representative at the time known for backing civil rights issues, lobbied the U.S. Justice Department to take action against the Cherokee Nation. The Podesta Group made similar appeals, this time before the Obama administration. On April 30, 2009, Representative Watson submitted a letter to U.S. Attorney General Eric Holder requesting that the Justice Department’s Civil Rights Division open an investigation into the “plight of the Freedman” and Smith’s “illegal elections.” Holder did not respond until nearly four months later—that is, after President Obama appointed Kimberly Teehee, a Cherokee, as his Senior Policy Advisor for Native American Affairs. On August 12, 2009, Holder notified members of Congress of his unwillingness to open a civil rights investigation on Smith. Holder cited the pending Vann case in U.S. courts.

Velie_Vann_Washington

Jon Velie and marilyn Vann visit the National Lincoln memorial in washington, D.C. Image by Sam Russell.

The Jury Within

To ascend to the main floor of the National Lincoln Memorial in Washington, D.C., Marilyn Vann, who suffers from health problems, required the assistance of an elevator. To reach it on a cool night this past October, Vann shuffled uneasily through a corridor beneath the memorial. The corridor doubles as a museum illustrating critical events that shaped the Civil Rights Movement. Walls are etched in black and white portraits of Dr. Martin Luther King, Jr., whose “I Have a Dream” speech crackled over loud speakers. Vann’s attorney, Jon Velie, joined her. The next morning, nearly a decade after they first filed their lawsuit, the two were once again due in federal court. But tonight, Vann wished to set her eyes on the memorial depicting the former president. Once at the top, the elevator’s doors drew open like stage curtains. When Lincoln’s statue revealed itself drenched in light, Vann, who had been chatting with Velie, fell silent.

From the outside, it is difficult to understand why the Vann case has yet to be argued on its merits. It is helpful to think about the case not as two parties on the same playing field seeking to right a wrong, but rather one party demanding that one country apply its laws or treaties over another. The case continues to unravel at a glacial pace because to the Cherokee Nation, its supreme authority to self-determination is at stake. Perhaps nobody understands this better than David Cornsilk. In spite of his staunch role advocating on behalf of the Freedmen, Cornsilk believes that each time the Cherokee Nation is dragged into a U.S. court, the tribe’s sovereignty is diminished. [16] Cornsilk blames the Cherokee Nation for exposing the tribe—and potentially establishing a dangerous precedent for all American Indian nations—over what he calls an unequivocal repression of the Cherokee Freedmen descendants’ tribal rights. Cornsilk says that there is simply no other option than to pursue justice in U.S. courts. To Cornsilk, the only hope for the Freedmen’s chance of regaining their tribal citizenship hinges on the work of Vann and Velie.

At the U.S. Federal Court of Appeals hearing the morning after Vann and Velie visited the Lincoln Memorial, those anticipating a resolution were sorely disappointed. As Jon Velie’s and Todd Hembree’s legal teams argued before three white federal appellate judges, there was a sense that something historical was unfolding. But nobody—not even the local law students who crowded near the front of the courtroom—seemed to have a firm grasp of what was occurring.“Tome,that was all legal mumbo jumbo,” a Freedmen descendant who lives in Washington, D.C., told me after the hearing. The lawyers argued over whether the chief of the Cherokee Nation could be named as a defendant—or in legal jargon, if Ex parte Young applies to the Cherokee Nation. Two months later, in December, the court ruled in favor of the Freedmen, delivering a blow to the Cherokee Nation and a victorious jolt to Vann, Velie, and Freedmen advocates.

The Vann case may now proceed, but in spite of the latest Freedmen victory, the case could drag on for years to come. In one instance, the Cherokee Nation could appeal this latest decision—a legal procedural decision—to the U.S. Supreme Court. It’s an attractive option. So far, the Cherokee Nation’s legal maneuvering has succeeded in stalling the Vann case. “The Cherokee Nation says that it wants this case to be settled, but what they’re really doing is delaying,”  Velie said, “while over 90 percent of the Freedmen are denied citizenship.” And at least in one glaringly obvious way, even if Velie’s team were to ultimately win the case, they have already lost. The Cherokee Freedmen descendants remain disenfranchised. It is no surprise then that nearly two years into his tenure, Freedmen descendants have grown increasingly disillusioned by Smith’s successor: Principal Chief Bill John Baker.

While Baker was still running for Chief of the Cherokee Nation and serving as a member of the Cherokee Nation Tribal Council, he agreed to sit down with me at his campaign headquarters. Baker’s campaign occupied a front office within Baker Furniture—a sprawling warehouse store he owns along Tahlequah’s main drag. Outside, a red, white, and blue two-story banner depicting Baker’s image fluttered against a breeze. I said to Baker that the majority of Cherokee Nation leadership positions appear to be filled by white-appearing Cherokee citizens. “Well, we’ve never been a tribe of full-bloods,” Baker said. When I mentioned that historians suggest that Freedmen descendants may have more Cherokee blood running through them than white-appearing “by-blood” Cherokee, Baker conceded that it wasn’t fair.

“Why don’t you and the tribal council change policy?” I asked.

“It is not fair,” Baker said. “But it is our way [17].”

Advocates say, however, that during his campaign, Baker positioned himself politically as an ally to the Freedmen cause only to later betray them after he won. Indeed, his rise to the tribe’s highest office was a consequence of the Freedmen vote, they say. Today, under federal agreement, only a small fraction of potential Cherokee Freedmen are permitted to vote in tribal elections. These are the 2,800 Freedmen descendants who successfully registered during the year-long window following Cornsilk’s tribal court victory and the tribal constitutional referendum that stripped it away. This highly limited number of Freedmen descendants are permitted to vote in tribal elections under an agreement between U.S. Congress, the Department of Interior, and the Cherokee Nation—while the Vann case plays out in U.S. courts.

In the June 2011 general tribal election, in which incumbent Chief Smith campaigned for his fourth term, it was first reported that Baker beat Smith by a handful of votes. Given Smith’s 12-year posture toward Freedmen descendants, advocates say that the fraction of potential Freedmen descendants who were permitted to vote supported Baker as a block—handing Baker an edge. The Cherokee Nation’s highest court later ruled that the June 2011 tribal election results were too close to call. Another general election was scheduled for that September. Then, in August, just three weeks before the newly scheduled special election, the same tribal court ruled to strip the voting rights of the marginal 2,800 Cherokee Freedmen descendants— in apparent violation of the federal agreement. Baker, joining the side of Freedmen advocates, was outraged. After all, without the fractional Freedmen vote, the election would have no doubt once again swung in Smith’s favor.

For years, Freedmen advocacy journalists and bloggers have vilified the tribe and its leaders with little balance, framing the Cherokee leaders and citizens as racists. 

After Representative Frank and his colleagues protested, the federal government froze tens of millions of dollars in U.S. taxpayer funds scheduled for distribution to the Cherokee Nation that fall. An emergency U.S. court hearing took place in Washington, D.C., days before the September election. The ruling—another Velie victory—led to the reinstatement of voting rights to the limited 2,800 Freedmen. The public relations damage to Smith and his administration surged. Smith never recovered. Baker ended up winning the special general election by an even wider margin. [18] Now, thrust into his second year as chief, as the Vann case drags on, [19] the hopes held among Freedmen descendants that Baker would drop the U.S. court case and support their cause have all but evaporated.

Many of those sentiments have served to only strengthen the case against the Cherokee Nation within the court of public opinion. It is here that the Cherokee Nation may be fighting a losing battle. Each time the Vann case twists and turns, the tribe is forced into the public relations quagmire that comes with defending against a decade-long lawsuit in which race—at least appears—to play a critical role. For years, Freedmen advocacy journalists and bloggers have vilified the tribe and its leaders with little balance, framing the Cherokee leaders and citizens as racists. In cases where race is the central question of law, this court tends to favor the plaintiffs. [20]

On the ground in Tahlequah, there are signs emerging that the entrenched division surrounding the Freedmen controversy that once so heavily blanketed the Cherokee Nation is slowly receding. Cherokee citizens have grown undoubtedly more docile, and in many cases, supportive of the Freedmen. “I think they have a right to claim citizenship,” a teenage full-blood Cherokee told me after a powwow. Perhaps unfairly, fear of appearing racist—even if race is not, in fact, a factor—has taken a stronger hold. This may help explain why Corey Still, the University of Oklahoma full- blood Cherokee, had a change of heart. After the public debate in Norman, when the floor opened for questions, Still aggressively cross-examined Jon Velie from the audience. When I approached Still afterwards and introduced myself as a journalist and filmmaker, he agreed to share his personal feelings about the Freedmen during a formal interview. Months later, Still changed his mind.

Cornsilk attributes any changing tide, however slight, not to the tribe’s public relations woes or new strategy, but to education. He says that the case has helped reveal the truth about the Cherokee Freedmen to the rest of the tribe. Many Cherokee who did vote against the Freedmen in 2007 are regretful of doing so now, he said. “Overcoming racism is a long process,” Cornsilk said. He believes that if another constitutional referendum took place today, while close, the Freedmen would be welcomed back into the tribe. What Cornsilk and Velie have achieved through their legal advocacy— from within and outside the tribe respectively—is given voice to Freedmen descendants like Lucy Allen and Marilyn Vann. And if part of their goal is to force more Cherokee to confront their own stained history with slavery, and move closer toward tribal reconciliation, then no matter the outcome of the Vann case, they are winning.

Cornsilk attributes any changing tide, however slight, not to tribe’s public relations woes or new strategy, but to education.

Velie is less optimistic, not about the potential of the Cherokee people to support the Freedmen, but of their tribal political leaders to abstain from leveraging race for political gains. Velie says that, at present, the vast majority of the Cherokee Freedmen still cannot vote or run for tribal office. He is charging on. If Velie is ultimately successful in the U.S. courts, one person now poised to help process Freedmen descendants—like Kenneth Payton [21] and Rodslen Brown-King and their children— as newly minted Cherokee citizens is none other than David Cornsilk. This January, Chief Bill John Baker hired David Cornsilk to return to work within the Cherokee Nation Registration Office. There was one condition. Cornsilk would have to cease from publically criticizing the tribe’s position toward its Freedmen descendants. When the job was first offered, Cornsilk was still living in his car. Regardless, Cornsilk refused to sign the gag order. In need of a talented genealogist—or perhaps in the execution of the long-tested political strategy of keeping friends close, enemies closer—the Cherokee Nation hired Cornsilk anyway. Cornsilk has since moved into a new apartment.

 

Cornsilk_Honda

David Cornsilk in his Honda Civic. Image by Sam Russell.


Footnotes

1. 1. After U.S. Secretary of the Interior, Hoke Smith, wrote the let- ter to the Dawes Commission demanding the abolition of tribal governments, he moved from Washington, D.C., to Georgia. In 1906, Hoke Smith ran successfully for governor—an event that sparked race riots across Georgia’s capital. Hoke Smith ran on a platform promising to pass a state constitutional amendment strip- ing the voting rights of blacks. The Civil War had ended nearly half a century earlier, freeing slaves and outlawing its practice across the country. Yet under Hoke Smith’s administration, Georgia passed some of the most virulent Jim Crow laws. Over the next six decades, they assured the dominance of white political and economic power at the expense of blacks.

2. The Nellie Johnstone Number One was the first commercial oil well drilled in what was then Indian Territory. After obtaining a lease from the Cherokee Nation, George Keeler, William Johnstone, and Frank Overlees, working with the Cudahy Oil Company, drilled the well on April 15, 1897. According to Frank F. Finny, in Chronicles of Oklahoma, until the “Cudahy well came in the evidence that oil could be found in important quantities in Indian Territory was inconclusive . . . ”

3.Subsections of the Dawes Rolls served to distinguish the tribe’s primary factions: mixed-bloods, full-bloods, adopted Indians, and Freedmen. Historians argue that the distinctions were designed not because one group listed on the Dawes Rolls was considered more or less Indian than the other, but rather to protect the economic interests of full-bloods, who were still rooted in their own language and culture. Many full-bloods were so distrustful of the federal government that they hid out from Dawes commissioners. “The tragedy is, those who are the most Indian are not considered Indian today,” Professor Agnew said. Many Freedmen, meanwhile, descended not just from slaves but African mothers and Cherokee fathers. “Masters frequently made use of female slaves, and those slaves produced children,” Agnew explained. “John Ross was an eighth Indian. And I suspect that many of the Freedmen have more Indian blood than that.”

4. Many Cherokee slaves were branded like cattle, stripped of their identity, and bestowed with the surnames of their Cherokee mas- ters. According to Rudi Halliburton, Jr., author of Red Over Black: Black Slavery Among the Cherokee Indians, slaves who attempted to escape—and there were many—were hunted with dogs. Cherokee militias were often formed to track and capture runaway slaves, who were promptly returned to their masters or publicly executed, serving as a warning to others.

5. Indeed, Jon Velie’s pro bono civil rights career launched when the lawsuit he and is team filed on behalf of Seminole Freedmen in the U.S. courts was ruled in their favor. To Velie and other advocates, it was a win. But today, 13 years later, it is also perceived as a loss. “Does racism exist? Of course it does,” Jon Velie said. “But this is legal racism.” And to Velie, the implications of the ongoing Cherokee Nation litigation extend from Tahlequah to Wewoka and across Indian country.

6. These sentiments emerged in the exchange of letters written by officials from the Department of Interior to Chief Smith and the Cherokee Nation.

7. When Smith was still chief he said through a spokesperson that he could not comment on the case because it was currently being litigated. I later approached him personally, he refused to answer my questions regarding the case. After he lost the tribal election, I called his private law office and left multiple messages with his secretary requesting an interview. He did not return my calls.

8. Velie felt that all elections that took place in 2003 were illegal because the Freedmen were not permitted to vote. Velie wanted the elections invalidated.

9.Like the federal government and states, federally recognized tribes normally enjoy general immunity from lawsuits. For petitioners like the Freedmen, this often leaves no other option but to sue in tribal courts. In Roger Nero’s case, which was in essence, a civil rights case, Nero attempted to sue in US Courts over his right to vote in a tribal election. But his petition was too narrow and focused on the particulars of tribal registration policy. As a consequence, a judge held that permitting the case to be decided in US Courts would curb the tribe’s capacity to “maintain itself as a culturally and politically distinct entity.” It ruled that the proper jurisdiction for Nero’s suit was in tribal court.

10. Here, Chief Smith’s choice of word (“classes”) is laced in racial undertones. It is precisely this kind of tone and choice of wording that caused many Freedmen to feel offended by Chief Smith’s political rhetoric.

11. During an interview with Todd Hembree, I asked if the 2007 Cherokee constitutional amendment that overturned Cornsilk’s landmark tribal ruling and removed the Cherokee Freedmen was political. Hembree said that he is a realist. “It wasn’t a mere coincidence that we had a special election in March of 2007 when there was a general election a few months later.” But then he revealed that after years fighting against Cornsilk in tribal court and losing, during the 2007 special election he personally voted against the constitutional amendment that removed the Freedmen. “I did not vote for that petition, but that is my right as an individual,” Hembree said. “Now, when the Cherokee people speak in overwhelming percentages, that’s who I represent

12. Cherokee Nation’s chief concern, according to interviews, was that the bill threatened the tribe’s license to operate casinos. At the time, gaming made up the majority of the tribe’s business arm’s $520 million in annual revenue. Curiously, members of Congress who ultimately co-supported the bill were unaware that the Cherokee Nation’s business arm, then known as Cherokee Industries, was engaged in manufacturing contracts with the Department of Defense. Also, according to a senior official within the Cherokee’s business arm, had the Watson bill become law, the tribe’s defense contracts would have remained intact, though this seems unlikely.

13. According to public filings, the Podesta Group, a registered lobbying group, earned $60,000 per year for their directly lobbying efforts and certainly much more for “counsel” and “advice”. However, because Lanny Davis was hired as an attorney, as opposed to a lobbyist, his fee remains unknown. He has been rumored to charge $600 per hour.

14. Findings also suggest that relationships—which in this case extended even beyond the incestuous nature known for fueling D.C. politics—played a significant role in killing the proposed legislation. Pat Ragsdale, the then number three at the Bureau of Indian Affairs within the Department of Interior, is married to Paula Ragsdale, the Cherokee Nation’s internal D.C. lobbyist.

15. During a 2011 public event in Tulsa marking the commem- oration of the Tulsa Race Riots, then-Chief Smith responded to accusations of tribal racism targeting blacks by showing the audience a video recording of a speech John Conyers delivered at the tribe’s headquarters in 2009. The substance of Conyers’ speech focused on the Trail of Tears; he did not mention the Freedmen. It is presumed that Smith hoped Conyers’ presence at the Cherokee Nation alone was vindication.

16. Though they share similarities, Native American tribes are not states. They are semi-autonomous nations with inherent sovereign rights. “Without sovereignty, we’re nothing more than a Kiwanis club or a Rotary club,”Todd Hembree said.

17. Since last year’s election, Chief Baker has turned down requests to be interviewed.

18. “Let’s hope that the new chief has a better attitude,” Congressman Watt said. “And if he doesn’t, we’ll fight the new chief just like we did Chief Smith.” Freedmen advocates, particularly David Cornsilk, have been disappointed in the apparent reluctance of members of Congress to take action to support the Freedmen cause.

19. Today, the Cherokee Nation argues that the 1866 Treaty guaranteed membership rights to Freedmen and their descendants. In 1867, the Cherokee Nation amended their tribal constitution to include the word “citizenship” rights to their Freedmen. Now, the tribe says that it had a sovereign right to do so, just as it had an equal right to amend their constitution nearly 150 years later to remove their Freedmen descendants by tribal constitutional amendment. The tribe supports the 1866 Treaty, but believes there is a distinction between membership rights and citizenship rights.

20. Where Baker has largely fallen silent on the Freedmen controversy since taking office, Todd Hembree has spoken openly about the case. In doing so, Hembree is leading the official shift in tone toward the Cherokee Freedmen—from the top down. It is an important front in the tribe’s new public relations strategy. Gone is the combative tone toward Cherokee Freedmen that helped define the Smith administration. Hembree has helped replace it with a sense of transparency and civility, while still doggedly litigating against Velie and the Freedmen’s claims. The night before the Cherokee Nation Tribal parade—as Rodslen Brown-King and her family wheeled the Freedmen float into place for the next morning’s festivities—Hembree dined with the owners of one of Tahlequah’s finer dining establishments. Comfortable in a dark suit, seemingly earnest, and at ease rubbing shoulders with Tahlequah’s elite, it’s hard not to see Hembree for his own political ambitions. He looks like a lot like a chief waiting in the wings.

As it turns out, tribal politics are in Hembree’s blood; he is the great- great grandson of Cherokee Nation Principal Chief John Ross, who was seven-eighths Scottish. This helps explain why Hembree also looks white. The color of Hembree’s skin makes him no less Cherokee, he says. “If someone thinks that just because we’re light- skinned we don’t live a Cherokee life or believe in the Cherokee ways,” Hembree said, “I’m just going to sadly disagree with them.” David Cornsilk finds this double standard prevalent throughout the Cherokee Nation. Cornsilk says that one who looks Caucasian and calls oneself Cherokee isn’t questioned, but if one who appears black claims Cherokee citizenship, he or she is discriminated against.

Hembree, like his former boss, Chief Smith, is adamant that the Freedmen case has never been about race. What matters to Todd Hembree now, however, is that the people of the Cherokee Nation have spoken; the referendum that led to the Cherokee’s tribal constitution amendment was legal, and his job is clear: to defend Cherokee law and the tribe’s sovereign rights. “Without sovereignty, we’re nothing more than a Rotary club,” Hembree said. American Indian tribes are sovereign, but to what extent? Stacy Leeds, the former tribal justice—whose crucial tribal court decision ruled in favor of Cornsilk’s legal argument over Hembree’s—said that there is no doubt that a tribe has a sovereign right to define its citizenship. “There is also no doubt that sovereignty cannot be a reason for casting legality and morality aside,” she said.

21. On an overcast afternoon last spring at Kenneth Payton’s home in Broken Arrow, he flipped through a series of family photographs.“To be included and to feel included would change the whole dynamic,” he said. As Payton’s sons horsed around upstairs, I asked Payton if his children understood their heritage. “The younger ones, if somebody came up to them they would say, ‘Yeah, I’m Indian,” he said. On the surface, Payton appears black, and Hembree white, but draw in closer and gradations emerge. For all of their divisiveness, Freedmen and Cherokee officials share one common purpose: closing the gap between how they perceive themselves from the within, and how they are perceived from the outside.


Originally published in This Land, Vol. 4 Issue 10. May 15, 2013.

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