Law & Principles

Slave-owning past remains problem for Choctaws

August 19, 2020

Ray Carter

The Choctaw Nation of Oklahoma, whose members owned Black slaves and fought on the side of the Confederacy in the Civil War, is now opposing federal efforts to require that descendants of the tribe’s former slaves, called Freedmen, be given promised rights before the tribe can receive federal housing funds. Choctaw leaders say any such requirement infringes upon tribal sovereignty.

“The Freedman issue is a problem caused by the United States, not the Choctaw Nation,” Choctaw Nation Chief Gary Batton wrote in a June 25 letter to U.S. House Speaker Nancy Pelosi. “Congress should not be permitted to abuse its power by forcing the Choctaw Nation to fix America’s longstanding problems of systemic racism rooted in America’s enslavement of African Americans.”

The tribe’s argument has drawn strong pushback from individuals descended from former slaves owned by members of five Oklahoma tribes—the Choctaw, Chickasaw, Cherokee, Seminole, and Muscogee (Creek) nations.

In a subsequent letter of response, Marilyn Vann, president of the Descendants of Freedmen of the Five Civilized Tribes Association, said Batton is “incorrect” in claiming the Freedmen issue is a “problem caused by the United States.”

“The Choctaw freedmen issue was caused by the Choctaw nation’s system of permanent enslavement of people of African descent, its waging war on the United States during the Civil War by joining the confederate states in 1861 (ratified through a treaty) primarily to protect the chattel slavery system, and subsequent failure to uphold the promises and commitments it made to the Choctaw freedmen tribal members adopted by the tribe and their descendants—issues on which Mr. Batton is totally silent.”

Following the conclusion of the Civil War, the five slave-owning tribes in Oklahoma that fought with the Confederacy signed new treaties with the U.S. government.

In the Choctaw Nation’s 1866 treaty, the federal government promised the Choctaws and the Chickasaw Nation $300,000, an amount equal to roughly $4.8 million today, in return for the tribes making “such laws, rules, and regulations as may be necessary to give all persons of African descent, resident in the said nation at the date of the treaty of Fort Smith, and their descendants, heretofore held in slavery among said nations, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said nations …”

The Choctaw Nation granted citizenship to its former slaves and received its federal payment in subsequent years. However, the tribal constitution adopted by Choctaw voters in 1983 effectively eliminated Freedman citizens because its section on tribal membership declared, “The Choctaw Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the original rolls of the Choctaw Nation … and their lineal descendants.”

Issues tied to the 1866 treaty have arisen again in Congress, where reauthorization of the Native American Housing and Self-Determination Reauthorization Act (NAHASDA) is being debated.

U.S. Rep. Maxine Waters, a California Democrat who chairs the U.S. House Committee on Financial Services, has proposed amending that law to require that the federal secretary of Housing and Urban Development “withhold all or partial funds to a tribe or tribal entity” if officials determine “that the tribe is not in compliance with obligations under its 1866 treaty with the United States as it relates to the inclusion of persons who are lineal descendants of Freedmen as having the rights of the citizens of such tribes ...”

That amendment could have significant financial implications for the Choctaw Nation.

In a July 7 column in The Oklahoma Eagle, Eli Grayson, a Freedman descendant who is also a citizen of the Muscogee (Creek) Nation by blood, noted that the U.S. Department of Housing and Urban Development is expected to provide the Choctaw, Chickasaw, Cherokee, Seminole, and Muscogee (Creek) nations $62.2 million in NAHASDA grant funds this year. Although the five tribes represent just eight-tenths of one percent of the 573 federally recognized tribes in the United States today, they are expected to receive around 10 percent of all NAHASDA grant funds.

Batton said Waters’ legislation would “over-ride the federally approved Constitution of the Choctaw Nation, subjugate the sovereignty, self-governance and self-determination of the Choctaw Nation to the control of the federal government, and by-pass tribal and federal judicial procedures.”

“Our Choctaw Constitution, adopted by the Choctaw citizens and subsequently approved by the United States government in 1983, requires every applicant for tribal citizenship to show direct lineal descendancy to a Choctaw citizen of Choctaw blood on the 1906 Choctaw citizen roll,” Batton wrote. “The Choctaw Nation could not comply with Chairwoman Waters’ bill language without violating the Choctaw Constitution.”

Vann said there are approximately 200,000 individuals today who are descendants of the slaves of the Choctaw, Cherokee, Chickasaw, Muscogee (Creek), and Seminole nations, and that Batton’s letter “disparages the Freedmen and their rich history, preferring to keep their story buried and continue the stain of legacy that continues to haunt our nation.”

“To be clear, the language that Chairman Waters has drafted applies only to the 5 Civilized Tribes that held black slaves and entered Treaties with the Confederate States,” Vann wrote. “Contrary to assertions by some, the language also is not an infringement on Native American sovereignty or the right to determine citizenship. Indeed, the 1866 Treaties that each of the Tribes ratified limited the sovereignty and right to determine citizenship by including language that specifically abolished slavery within the 5 Tribes, set up provisions for tribal citizenship of the Freedmen, and introduced provisions dealing with land allotments.”

Vann said the Choctaw’s 1983 constitution was adopted in an election limited to voters who were descended from individuals listed as Choctaw by blood on the Dawes rolls. The Dawes rolls are federal lists of individuals accepted as eligible for tribal membership in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole nations from 1898 until as late as 1914 as part of the process for allotting land.

“It is ironic that Mr. Batton speaks of unfairness when the Choctaw Nation blocked Freedmen from voting on a Constitution that stripped the Freedmen of their citizenship rights in violation of the Principal Chiefs Act and the 1866 treaty,” Vann writes.

She said appeals to tribal sovereignty echo arguments put forth in previous decades when Black citizens were disenfranchised and worse.

“For Mr. Batton to imply that the disenrollment was proper based on sovereignty is little different than Mississippi denying blacks to vote or go to the library (funded by the taxpayers) based on state’s rights,” Vann wrote.

Questioning Validity of Tribal Treaties?

In his letter to Pelosi, Batton appeared to dismiss or downplay the continuing validity of the 1866 treaty.

“It is untenable for Chairwoman Waters to ask the 116th Congress to reach back into indefensible and conflictive periods of history and impose just one portion of a treaty imposed upon the Choctaw Nation in 1866 without regard to the meandering mass of countervailing treaties, law and policy that followed the 1866 treaty,” Batton wrote. “Likewise, it would be both unseemly and unfair for Congress to take the extreme step of holding hostage housing assistance otherwise due the Choctaw Nation in 2020 until the Choctaw Nation complies with a provision of the 1866 Treaty, especially since the United States itself has wholly breached its obligations under many other provisions of the same 1866 Treaty.”

Batton’s criticism of the 1866 treaty came only months after the Choctaw Nation joined a brief filed with the U.S. Supreme Court that cited the 1866 treaty and even older treaties.

In the McGirt v. Oklahoma case, the U.S. Supreme Court ultimately held that the Muscogee (Creek) Nation reservation was never formally abolished. That ruling is expected to also apply to the Choctaw Nation and others, giving the five tribes significantly increased regulatory authority throughout much of eastern Oklahoma.

In the McGirt case, the Muskogee (Creek) Nation filed a brief that specifically cited its 1866 treaty, which is similar to the one signed by the Choctaw Nation.

“Oklahoma’s claim that a Reservation was never established for the Nation in the Indian Territory is divorced from both text and history,” the Creek Nation brief stated. “The Treaty of 1866 expressly refers to the Nation’s Territory as a ‘Reservation.’ … That was no slip of the pen, but rather reflected the defining characteristics of the Creek territory.”

A brief filed in that case by the Choctaw Nation, the Chickasaw Nation, and other parties reached even further back into history, stating that the Choctaw Nation “exercises its Treaty right of self-government within the boundaries set forth in the 1855 Treaty.” The Choctaw brief also stated it and the Chickasaw Nation “hold their Reservations under treaty with the United States, see Treaty of Dancing Rabbit Creek, Sept. 27, 1830.”

The Choctaw and Chickasaw nations’ U.S. Supreme Court brief also explicitly referenced the 1866 treaties, saying, “The Chickasaw Nation governs within the boundaries described in the 1855 and 1866 Treaties.” The tribes referenced their 1866 treaties again in the brief when discussing how the two tribes reached a settlement with the state of Oklahoma over water rights in “the Nations’ Reservations.”

Vann said the U.S. Supreme Court’s McGirt decision makes clear that “the 1866 Treaties remain valid,” and said any associated claim that the Choctaw Nation’s reservation status remains intact today is “based on the 1866 treaty—the last treaty signed between the U.S. government and the Choctaw nation.”

Batton said he supports efforts “to shape real and meaningful ways to address the systemic racism that continues to consign African Americans to economic under-privilege and discrimination long after the Emancipation Proclamation,” but objected to the Choctaw Nation being singled out.

“Today, it should shock the American conscience that Chairwoman Waters is asking Congress to force the Choctaw Nation to bear the heavy burden of repairing America’s breach with African Americans,” Batton wrote. “America should solve its own problems.”

But Vann argued the Choctaws’ role in systemic racism is neither insignificant nor fleeting.

She noted the 1860 federal Census showed there were 13,666 Choctaw Nation tribal members at that time who collectively owned 2,298 slaves. The Census found one Choctaw, Robert Jones, owned 230 slaves.

Vann also noted the Choctaw and Chickasaw nations’ treaties gave Freedmen smaller allotments of land than other tribal members, unlike the treaties signed by the Cherokee, Creek, and Seminole nations. When tribal property was allotted following the passage of federal laws in 1898 and 1902, Choctaw Freedmen received 40-acre allotments while other tribal members received 320-acre allotments, “including adopted whites,” Vann wrote. The rolls taken by the federal Dawes commission showed there were 17,488 Choctaws by blood at that time; 1,651 adopted whites; 6,029 Freedmen; and 1,660 Mississippi Choctaw members of the tribe.

“The Choctaw Freedmen and their descendants have suffered in deprivation and poverty—certainly in part due to racist laws passed at Oklahoma statehood but largely due to the Choctaw nation’s choice to abuse and enslave people solely due to their color and African ancestry,” Vann said.