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.

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. 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.

Footnotes

1. 1. After U.S. Secretary of the Interior, Hoke Smith, wrote the letter 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 stripping 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 masters. 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 U.S. 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 U.S. 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 commemoration 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.