Turtle Talk

From H-Net (h/t to Legal History Blog):

Fay A. Yarbrough. Race and the Cherokee Nation: Sovereignty in the
Nineteenth Century. Philadephia University of Pennsylvania Press,
2008. x + 184 pp. ISBN 978-0-8122-4056-6; $55.00 (cloth), ISBN
978-0-8122-4056-6.

Reviewed by John Gesick
Published on H-Genocide (March, 2009)
Commissioned by Elisa G. von Joeden-Forgey

Nineteenth-Century Practices, Twenty-First Century Decisions

This seminal study of Cherokee race relations during the antebellum
and post-Civil War eras and their consequences in the twentieth and
twenty-first centuries has broad applications across many
disciplines–not just to history or sociology or anthropology, but to
the legal and educational fields as well. The author has approached
this subject with sensitivity and pragmatic analysis. She has drawn
thoughtful conclusions based on the empirical analysis of a host of
available documents and of numerical data that she collected from
census records, marriage records, and other demographic sources.
Where the results might be inconclusive, Yarbrough offers avenues for
further investigation and analysis.

This review begins with the end. Yarbrough’s second-to-last paragraph
reflects that on March 3, 2007, the tribal citizenship of about 3,800
“freedmen” (a category that includes women) was revoked because a
court decided they did not meet the “by blood” requirement of
Cherokee citizenship law. The Cherokee freedmen were black slaves
taken in by the Cherokee Nation who were later emancipated by the
Emancipation Proclamation. Their descendents were entitled to
Cherokee Nation status into the twenty-first century. The origins of
the new citizenship policy can be traced to the Treaty of 1866 with
the United States, which created two categories of legal
citizenship–Cherokee citizenship by birth and by law. The “by birth”
requirement would eventually become a “by blood” requirement in 1880,
when the 1880 U.S. census was taken. In this census the federal
government defined membership in the Cherokee Nation using the
language of “blood” and “nativity.” Citizenship then applied to
anyone who was connected to the Cherokee Nation “by blood.” Blood
quantum, however that may have been determined, was thus not
originally the sole measure of citizenship. Decisive was _connection_
by blood. So, citizens by law could be adoptees from outside of the
Cherokee Nation who had no biological “blood” connection.

This decision marked the culmination of debates about identity and
belonging that had been developing within the Cherokee Nation since
it first adopted the institution of slavery and encountered European
colonists.[1] Although the recent tribal ruling is certain to be
appealed by the freedmen, its origins date to several centuries ago,
thus making it a complex and difficult issue. The author Susan
Miller, who wrote _In Search of Coacoochee’s Bones_ (2003) and is
herself a Seminole, has noted to me that the issue of
disenfranchisement of freedmen is not restricted to the Cherokee
Nation.Rather, it is an issue being addressed by the Seminole Nation
as well. Yarbrough’s work is significant in that it explores and
analyzes the variables that led to the Cherokee expulsion of the
freedmen, from the earliest modern debates about Cherokee citizenship
to the most recent legal decision. One cannot help but suspect that
the Cherokee model will affect in some way the other nations who not
only engaged in slavery but also permitted varying degrees of
interracial marriages. In my own work with the Kickapoo Indians and
their relations with the Black Seminoles in Mexico, it became
apparent that the modern-day descendents of the Black Seminoles might
experience a possible disenfranchisement along the lines of the
Cherokee freedmen. To date, however, there is no evidence that this
will happen in the foreseeable future. What will happen in the long
term is another question. Yarbrough’s work then stands of and by
itself as a model for further investigations into the issues of race
and the tribal nations.

One question that this work raises is whether the Cherokees were
selective in their racial bias, that is, whether they preferred
unions with people of European descent over unions with African
Americans. The answer is yes. Yarbrough points out a number of times
in Cherokee history when whites were favored over African slaves for
marriage and Cherokee citizenship. Yarbrough’s data was collected
from marriage records and census data, among other sources. According
to the evidence, the Cherokee made cultural determinations about a
person’s suitability for marriage on a case-by-case basis. For
example, if a Cherokee woman wanted to marry either a white American
or an African slave, members of her clan, usually men, would vote on
whether the marriage should or should not be sanctioned.

The Cherokee Nation found justification for its discriminatory
actions in its constitution, which was based on the American
Constitution. Although neither constitution directly addressed race
relations, the Cherokees were aware of laws regarding slavery that
defined slaves as chattel. It is possible that they followed as well
the Lincoln-Douglas debates of 1858. Cherokees admired the practices
of southern white Americans towards their black slaves and could
have sensed that such actions were protected under the Constitution.
Whatever the case, Yarbrough’s data convincingly reflects a Cherokee
bias towards marriage with white Americans over black slaves and
freedmen. Yarbrough supports her interpretations with empirical
evidence, which clearly shows a greater number of marriages concluded
between Cherokees and whites than between Cherokees and African
slaves. For example, over 2,300 cases of marriage in the Cherokee
Nation’s district clerk’s records were examined along with data from
the 1880 census which “enumerates citizens of the Cherokee Nation”
(p. 87). Based on her findings, the author maintains that the
evolution of racial bias within the Cherokee Nation shows an
increasing exclusion of former slaves and freedmen from Cherokee
citizenship while making exceptions for white membership in the
Cherokee Nation, albeit with some restrictions.

Beginning with 1750 as a foundation for the study and ending with the
Cherokee decision to disenfranchise the freedmen in 2007, Yarbrough
analyzes in detail the decisions about citizenship made by the
Cherokee legal system. She finds that these became increasingly
exclusionary for the black population but inclusive for the white
population. Through the use of charts, maps, and tables she clearly
charts the nation’s history in this area of interracial inclusion and
exclusion. Several examples bearing on these interpretations are well
presented in chapter 4, which covers the Cherokees and the Civil War,
such as “Racial Identification of Women Married to Cherokee Grooms”
which includes “Cherokee, White, Other Indian, U.S. Citizen, Adopted
White, and Race not Listed” (p. 82) Table 4, “Racial Identification
of Men Married to Cherokee Brides,” includes Cherokee, White,
Colored, Other Indian, U.S. Citizen, Other White, Adopted White and
Race Not Listed” (p. 80).

Although Yarbrough begins in 1750, the main focus of the book is on
the evolution of the idea of the Cherokee Nation and race during the
nineteenth century. That she is sensitive and respectful of the term
“race” is evident in the introduction. Because she must herself
engage in the difficult business of classification, Yarbrough is
forced to make difficult decisions concerning the people she comes
across in the nineteenth-century historical record. She combines not
only physical appearances but also cultural traditions in
interpreting somebody’s position within past Cherokee society. In
Yarbrough’s words, she relied “on physical description, lineage,
community perception, and self identification in classifying people
as members of racialized [_sic_] groups” (p. 6).

Yarbrough reminds the reader that the Cherokee, like other indigenous
tribes of the American Southeast, developed ideas about citizenship
based on lineality. In this case, matrilineality was the binding
measure of acceptance and assignment of roles within the nation and
later a determinant of the “by blood” connection as well.
Furthermore, Yarbrough is sensitive to the social significance of the
clan, for if there was no acceptance of a non-Cherokee by a clan, the
importance of the non-Cherokee in Cherokee life was greatly
diminished. For example, if a Cherokee male married a white or black
woman, then there could be no clan affiliation or citizenship because
the woman was not a Cherokee. However, if a Cherokee woman married a
white or black man, then theoretically there could be a clan that
would welcome her mate and thus perhaps grant him citizenship. This
gender difference was due to the role of matrilineality in
determining group belonging.

However, several factors later cast the acceptance and granting of
citizenship to a white or black man into doubt. One of these factors
was the evolution of the Cherokee constitution in the early years of
the nineteenth century. For a little background on Cherokee legal
history, one needs to begin with the 1790 American Trade and
Intercourse Acts. These were an attempt by the United States to
establish uniform trade regulations not only for the federal
government but also for the states, individual Americans, and
indigenous groups such as the Cherokee Nation. Based on these acts
the Cherokee Nation began to create a governing system based on the
American Constitution, with three branches of government, a presiding
leader, a bicameral legislature, and a judiciary. The Cherokee also
reduced their language to Sequoyah’s Cherokee syllabary so as to have
a unified linguistic system. And then, times changed. There was the
Indian Removal and subsequent interpretations of the 1834 Intercourse
Act which was increasingly questioned by American citizens and
American courts concerning Cherokee citizenship requirements and the
legal jurisdictions of the Cherokee courts and American courts. “The
language of the Intercourse Acts left the status of intermarried or,
later, adopted citizens such as the freedmen open to judicial
interpretation. So many American citizens ignored or attempted to
circumvent the jurisdictional limits set by the Intercourse Acts by
marriage into the Nation” (p. 63). Ultimately this dispute led to the
Cherokee 1855 Marriage Law. This law “essentially excluded people of
African descent from legitimate citizenship”(p. 73). In 1839 the
Cherokee Nation passed the Tahlequah Constitution to replace the
first constitution, keeping the structure of its government intact.
Following the 1839 constitution the Cherokee Nation began passing
laws establishing itself as a sovereign polity with rights that it
expected the United States to respect. Over time these constitutional
revisions reflected the influence of American racism on Cherokee
views of identity. These racialized concepts of identity were carried
into the twentieth century. Yarbrough suggests that the Cherokees
adopted attitudes towards the black population–both freedman and
slave–similar to those adopted by southern slave owners. Perhaps the
best explanation for this adaptation of southern slave owners’
attitudes by the Cherokees is that it was due to several factors:
First, the white slave owners were successful in controlling their
slaves; second, such practices maintained the superiority of the
whites. Adopting this cultural form of control would ensure the
Cherokees their supremacy as well.

Alongside the development of Cherokee discrimination against black
people, there were also restrictions in place for whites seeking
acceptance in the Cherokee Nation. For example, Cherokee legislators
noticed in the early eighteenth century that Cherokee women were
increasingly seeking non-nation spouses while at the same time there
were non-Native American men seeking Cherokee wives for the purpose
of increasing their access to Cherokee natural resources.
Consequently, “First on the agenda was to remove the possibility of
black marriage partners for Cherokee men and women early in the19th
century. Then the lawmakers … complicated the process for
intermarriage between white men and Cherokee women, ostensibly to
protect Cherokee women from making bad choices and to protect the
Nation from the bad choices that women might make” (p. 10). These
restrictions were fairly consistent through the constitutional
revisions of 1827 and 1855. However, after the Civil War, which is
addressed in chapter 4, the United States began to forcibly require
the Cherokee Nation to accept the freed slaves, or freedmen, as
Cherokee citizens. The nation acquiesced to American demands, but, as
Yarbrough writes, “on their own terms,” thus “limiting the legal
rights of the newly freed people” (p. 11). White men seeking to marry
into the nation did not face these same restrictions.

Yarbrough’s closing comments in chapter 3 clearly state the Cherokee
attitude towards the slaves: “The regulation of interracial marriage
in the Cherokee Nation, then served multiple functions: The laws
reinforced Cherokee sovereignty, marked Cherokees and whites as
social and racial equals, and starkly reduced people of African
descent to an inferior status”(p. 73). That attitude persisted in the
aftermath of the Civil War even though the U. S. government was
demanding acceptance of the freemen into the nation. Nevertheless, in
fairness to the Cherokee Nation, the governing council did emancipate
the slaves in their nation and abolished slavery in 1863. On the
surface it seemed the Cherokee Nation was acquiescing to American
demands. However, such was not entirely the case. It is here that
Yarbrough uses available empirical data to explain or conceptualize
the Cherokee approach to non-Cherokee and non-Native American unions,
especially concerning marriages between Cherokee women and white men.
For example, “Cherokee women were the most active participants, by
far, in interracial marriages in the Cherokee Nation, and they
overwhelmingly chose unions with White men” (p. 80). Table 4, “Racial
Identification of Men Married to Cherokee Brides,” reflects that 14
percent of these men were Cherokee, 0.8 percent were “colored,” 1.9
percent were “other Indian,” and 82 percent were white. Furthermore,
according to table 5, more white laborers were issued permits to
legally reside in the nation than black laborers. This data is based
on the Cherokee Nation’s 1880 census. What becomes apparent after the
Civil War is that the Cherokees began to recognize three racial
entities within the nation and these were natives, whites, and
blacks. The Cherokees also viewed themselves as racially distinct
from whites and blacks. Yarbrough then goes on to discuss criteria
for one to be considered native Cherokee by birth and by blood. This
eventually became the “by blood” doctrine for citizenship rights. In
other words the Cherokees were increasingly laying the groundwork for
their own self-identity by more clearly defining the identities of
those categories of people who were neither Cherokee nor Native
American. It was according to this interpretive tradition that in
2007 the Cherokee Nation declared that those not of Cherokee blood
could not be citizens of the Cherokee Nation.

One of the more interesting treatments Yarbrough brings to her work
is her intertwining of actual case studies, drawn from interviews she
conducted herself or from other sources such as the WPA interviews of
the 1930s, with statistical data. This book raises several
interesting questions for future research. For example, what is the
position of other tribal nations, such as the Choctaws, Creeks, and
Seminoles, on the issue of race and tribal citizenship? Did these
nations establish guidelines for citizenship and were they
exclusionary to persons of non-Native American origin?

In conclusion, Yarbrough’s work is timely and provocative. It is
provocative in a positive sense for it addresses an issue that is
seldom discussed by the general public or by scholars. She has done
very well in provoking open discussion about Native Americans, racial
issues, and the continuing effort by Native Americans to define who
they are in America. As white and black Americans continue to define,
redefine, and search for possible solutions to racism, segregation,
and ethnic identity, so too do Native Americans. In a sense Yarbrough
has offered a poignant insight–that human beings, after hundreds of
years in this “New World,” are still wrestling with what is fair,
just, and equal to all of its citizens and trying to maintain a sense
of balance, a sense of fairness to all concerned. The Cherokee Nation
is coming to grips with these issues and addressing them in its own
ways. Will its journey be copied by other nations? Therein lies the
question for further inquiry.

Note

[1]. Slavery was common among Indians throughout the Southeast and
Southwest. A number of the Southeastern Indians adopted the European
concept of slavery but their practices differed from nation to
nation.

Citation: John Gesick. Review of Yarbrough, Fay A., _Race and the
Cherokee Nation: Sovereignty in the Nineteenth Century_. H-Genocide,
H-Net Reviews. March, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=23044

This work is licensed under a Creative Commons
Attribution-Noncommercial-No Derivative Works 3.0 United States
License.