Law & Principles
Tribes’ alleged treaty violations focus of Senate hearing
July 28, 2022
The history of federal-tribe relations is littered with tales of broken treaties. But a U.S. Senate hearing flipped the typical script this week as lawmakers considered whether five Oklahoma tribes have been violating their treaties for more than 100 years by denying citizenship to the descendants of their former black slaves.
Some tribal leaders downplayed or dismissed the legitimacy of their 1866 treaties when testifying before members of the U.S. Senate Committee on Indian Affairs—even though those same tribal governments have separately touted those same treaties in recent U.S. Supreme Court cases.
“Phrases and terms utilized within the treaty are not the words of the Seminole,” said Brian Thomas Palmer, assistant chief of the Seminole Nation of Oklahoma. “They’re the words and desires of the federal government.”
“The treaty of 1866 has often been characterized as a Reconstruction treaty,” said Jonodev Chaudhuri, ambassador for the Muscogee (Creek) Nation. “For us it was not. It was a land grab that stripped us of half of our reservation by force.”
At issue is whether five tribes—the Cherokee, Choctaw, Chickasaw, Muscogee (Creek), and Seminole—have abided by the promises they made in 1866 when signing new treaties with the U.S. government after the tribes sided with the Confederacy and warred against the Union during the Civil War.
Among the provisions of the 1866 treaties were promises to provide citizenship to the tribes’ former slaves and their descendants, typically referred to as Freedmen.
In written testimony provided to senators, Marilyn Vann, president of Descendants of Freedmen of the Five Civilized Tribes Association, noted that “the continuation of African chattel slavery” was a “primary reason” the five tribes allied themselves with the Confederate cause.
“Although not all tribal members owned slaves, the leadership of the five tribes were slaveholders, and many of the tribal members’ wealth was due to the slave-based economy,” Vann stated. “Some of the tribal slavers owned hundreds of slaves, lived in mansions, and had large plantations.”
Following the defeat of the Confederacy and its five tribal allies, the tribes had to sign new treaties that included citizenship for former slaves.
But all five tribes have strongly resisted implementation of those provisions ever since. Freedmen advocates say only the Cherokee Nation has truly abided by its treaty promises—and that has occurred only in recent years.
“The enslavement of other human beings, and the subsequent denial to them and their descendants of their basic rights, was a stain on the Cherokee Nation,” Chuck Hoskin, Jr., principal chief of the Cherokee Nation, told lawmakers. “And it’s a stain that must be lifted.”
Although Hoskin touted the Cherokees’ embrace of Freedmen as tribal citizens, he later conceded that Cherokee officials have had “internal debates and discussions about whether this is what the treaty meant.”
Other tribal officials indicated that requiring acceptance of Freedmen descendants would undermine their sovereignty despite the 1866 treaties.
“Tribal membership is based on blood, not race,” said Michael Burrage, general counsel for the Choctaw Nation. “Today, the Choctaw Nation tribal members include African Americans as well as those from other races. All the members of our tribe share one characteristic in common: They are Choctaw by blood and they are all lineal descendants of Choctaw Indians.”
Burrage pointed to provisions of the Choctaw constitution that bar many Freedmen descendants from tribal citizenship, noting that document received federal approval before taking effect.
“It is the federal government, by placing tribal membership in a political arena, that initiated this Freedmen issue, not the Choctaw Nation,” Burrage said. “If there’s a problem, the federal government needs to find another solution that does not infringe upon the rights of the Choctaw people or the integrity of our self-governance.”
Chaudhuri similarly touted blood requirements for citizenship.
“The Muscogee (Creek) Nation is proud of our diverse citizenship,” Chaudhuri said. “We have citizens who have mixed ancestry who are also white, African American, Mexican American, and many other heritages. I myself am Creek and Asian. But whatever else we may be, we are all Creek Indians by blood.”
He decried calls to mandate Freedmen citizenship as “another colonial intervention by the United States.”
Stephen Greetham, senior counsel for the Chickasaw Nation, said the provisions of his tribe’s 1866 treaty allowed the Chickasaw to bar their former slaves from tribal citizenship.
“Relevant to the committee’s inquiry, the Chickasaw Nation’s 1866 treaty provides for a land cession to the United States, but conditions federal compensation on the nation’s choosing to extend citizenship to freed persons,” Greetham said. “That choice was neither made nor supplanted by the treaty, which only spoke to the consequence of whichever choice the Chickasaw made. The Chickasaw people deliberated and chose not to extend citizenship. In doing so, the Chickasaw expressly relinquished any claim to compensation for the lands the United States took. This choice was not a violation of the treaty, but its implementation.”
But Vann noted the Choctaw Nation “was paid its full share of the funds and interest” while the Chickasaw Nation received partial payment.
Senators were told various tribes have denied benefits owed to Freedmen under their treaty obligations.
U.S. Rep. Maxine Waters, D-Calif., told senators, “Currently, there are tribes that are implementing federally funded programs in a way that actively discriminates against descendants of Freedmen in direct violation of treaty obligations.”
Officials with the Biden administration indicated that little will be done to address the issue under current law.
Bryan Newland, assistant secretary for Indian affairs at the U.S. Department of the Interior, told lawmakers the agency relies on tribal governments when such controversies arise.
“Determining eligibility for those services is a challenge for the department when considering the Freedmen descendants,” Newland said. “The department generally defers to tribes to determine who is, and who is not, a tribal citizen, as tribes have inherent authority to determine who qualifies as a tribal citizen.”
Vann and other Freedmen advocates say congressional action is required.
“Can the tribes change without congressional and federal intervention?” Vann said. “History says, ‘No.’”
She said the Cherokee Nation only came into compliance with its treaty obligations in 2017 after federal courts ruled against them, and she noted opposition to Freedmen rights continues to be debated in tribal politics.
While tribal leaders often couch their opposition to Freedmen citizenship as a defense of tribal sovereignty, Vann noted the real-world application of that stance often focuses on money as much as abstract values.
“The Creek Nation issued $4,500 checks from COVID-19 funds to each by-blood citizen,” Vann said. “Not a nickel went to the Creek Freedmen, a clear violation of that treaty. By the way, the Seminole Nation leadership denied the Freedmen citizens its share of the COVID funds as well.”