Cherokee Nation Supreme Court rules citizenship not determined ‘by blood’

Editor’s note: An earlier version of this story originally appeared on KOSU. It has been updated with additional material for its airing on The World.

In a historic ruling on Feb. 22, the Cherokee Nation Supreme Court struck the term “by blood” from its constitution and laws.

The decision effectively ends a decadeslong debate over citizenship status in the largest tribe in the country.

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Citizenship in the Cherokee Nation is not based on blood. Still, the language in the tribe’s laws, constitution, and policies is central to an ongoing cultural and legal debate over whether the descendants of Cherokee Freedmen, who were formerly enslaved by the tribe, should be considered tribal members. The recent ruling upholds the 1866 treaty that the tribal nation signed with the federal government affirming their right to citizenship.

“One hundred and fifty-five years after the 1866 treaty, Native Cherokees must fully step into the promise they made on the ‘far end of the Trail of Tears,’” Cherokee Nation Supreme Court Justice Shawna Baker wrote, referencing the US Supreme Court’s McGirt ruling last summer. “By doing so, the Cherokee Nation, as a whole, lifts itself into the 21st century and sheds the heavy weight of antebellum and pervasiveness of racism and racial injustice for all.”

Cherokee Nation Attorney General Sara Hill welcomed last week’s unanimous opinion. Noting its thoughtfulness, she said the court’s opinion upholds a fundamental responsibility to honor the rights of Cherokee Nation citizens that were established in treaties with the US government.

“The Cherokee Nation itself made promises, as well. And the promises were made to the Cherokee Freedmen and their descendants, and the nation has an obligation to honor that.”

“The Cherokee Nation itself made promises, as well. And the promises were made to the Cherokee Freedmen and their descendants, and the nation has an obligation to honor that.”

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Last week’s decision came in response to the 2017 federal case, Cherokee Nation v. Nash, which determined that Freedmen citizens enjoy full rights like any other Cherokee citizen. After the ruling, Hill requested the Supreme Court set a hearing and issue a ruling to strike the “by blood” language in the Cherokee Nation’s constitution.

“The federal court and Cherokee Nation Supreme Court concluded in 2017 that the Cherokee Nation is bound by the Treaty of 1866 to recognize descendants of Cherokee Freedmen as full citizens,” Hill said in a statement. “Cherokee Nation has abided by those court orders and will continue to do so.”

An antiquated notion  

The issue of “by-blood” citizenship arose when Marilyn Vann, a Cherokee Freedmen, decided to run for a seat on the Cherokee Nation tribal council. Her candidacy was challenged by other Cherokee citizens who cited the language in the tribe’s constitution. Vann gained her Cherokee citizenship in 2006 and was one of the plaintiffs in the federal lawsuit.

“We’ve come to the 21st century, and the Cherokee Nation is a tribe that has long been adopting other peoples into the nation to help the nation grow and stay strong,” Vann said.

The Cherokee Nation has accepted Freedmen as citizens into the tribe, as well as Shawnee and Delaware individuals.

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Vann said she was pleasantly surprised by the speed of last week’s ruling, but she still worries that while the ruling legally ends citizenship questions for Freedmen, it may do little to change the legacy of anti-Black racism that remains from the tribe’s history of enslavement.

“There are still persons within the tribe that are opposed to the Freedmen.”

“There are still persons within the tribe that are opposed to the Freedmen,” Vann said. 

She also pointed out that another constitutional amendment could be introduced to overturn this ruling, although that is unlikely to happen. 

Still, the ruling is a major civil rights win for the tribal nation, said The University of Oklahoma law professor Taiawagi Helton. The question that remains is whether leaders of the other four tribes who have treaty obligations to descendants of Freedmen — Seminole Nation, Choctaw Nation, Muskogee (Creek) Nation, and Chickasaw Nation — will look at this decision and grant citizenship to their Freedmen.

“The court makes an incredibly powerful statement rejecting a relic of a painful and ugly racial past that the court compares to Jim Crow laws in Southern states,” Helton said. 

He said the Cherokee Nation is doing away with what many believe is an antiquated notion of tribal citizenship as defined “by blood” rather than nationality, considering tribes are recognized as sovereign nations.

Tribal nations, not the federal government, have the right to determine who qualifies as a tribal citizen, Helton said. It is entirely within the tribe’s right to require a blood quantum, he said, but the Cherokee Nation has made clear that it wants to move on from that painful and divisive part of its history. 

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“If it is your right to reject these people on the basis of race, is that how you want to exercise that right?” Helton said.

‘Their voice has been smothered out’ 

For now, Vann said she plans on continuing with her campaign for a place on the tribal council in the June 6 election.

“We’ll just continue to try to outreach to the people,” Vann said. “In hopes that sufficient people will believe that I’ve earned the right to represent them.” 

Principal Chief Chuck Hoskin Jr.,  the Cherokee Nation’s leader, also wants to make good on promises. Two weeks before the ruling, he issued a statement saying that Cherokee citizens must be equal under the law regardless of descendancy and have the right to hold public office.

But not everyone is happy about this decision. And for some, it’s not because they don’t support the Cherokee Freedmen — although there is some anti-Black racism within the tribal nation. 

Charli Barnoski is a 32-year-old mother of three and a Cherokee citizen. She says leadership in the Cherokee Nation disrespected the process when they removed the words “by blood.” 

“The constitution states that we as the people, we as the Cherokee people have the power to change the constitution. Whether that be a vote of the people or a constitutional convention.” 

“The constitution states that we as the people, we as the Cherokee people have the power to change the constitution. Whether that be a vote of the people or a constitutional convention,” she said. 

Barnoski supports the Freedmen but thinks what leadership did was illegal.

She’s not alone. 

Tribal councilors Wes Nofire, Harley Buzzard and Julia Coates filed a motion to intervene when Attorney General Sara Hill asked the Supreme Court to remove the “by blood” language.

“The foundation of our democracy is at stake when any one branch of Government believes they have the supreme authority to amend, alter or strike any part of the Constitution without a vote by the People,” Nofire stated to the Cherokee Phoenix, the Cherokee Nation’s newspaper after the decision was made.

Nofire said some citizens are upset because they feel that “their voice has been smothered out.”

Making good on promises 

Nofire thinks what the Supreme Court did last week undermines democracy and says he thinks all of the Supreme Court justices should be removed. If the words were going to be removed from the constitution, he says it should’ve been done through a constitutional amendment. In 2007, the tribal nation voted to insert those words “by blood” into their governing document.

“It’s almost as if this chief, this leader is better and knows better than everybody else,” said Nofire who thinks that no leader should be able to change the constitution.

Attorney General Hill and Hoskin both agreed that getting rid of the term “by blood” was necessary to shed the image of racism within the tribal nation. 

“I understand the identity politics in which they play.” 

“I understand the identity politics in which they play,” Nofire said when asked if he understood the reason behind taking out the language.

“You can make a determination that this is a racist narrative, that way it gives them an excuse,” Nofire said.

Still, Attorney General Hill and Principal Chief Hoskin believe this is living up to the tribal nation’s promise when they signed the treaty in 1866.

Hill said that Cherokees are wrestling with their own history and that this decision recognized the promises made on both sides — to honor the treaty they signed in 1866.  

“Those promises were made directly to the Cherokee Freedmen and their descendants. And the nation has an obligation to honor that.”