During the American Civil War, the Cherokee Nation entered into a treaty with the Confederate States of America, which the U.S. government regarded as having abrogated the Tribe’s prior treaties with the United States. After the war, the federal government sought to restore political relations with the Tribe through a new treaty. It aimed to ensure that the Tribe, which had permitted slavery prior to the war, would provide for the well being of its formerly enslaved persons, referred to as “freedmen.”

The Treaty of July 19, 1866, between the Cherokee Nation and the United States accomplished those goals. Article 9 of the treaty contained the following language:

that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees[.] (Treaty of July 19, 1866, 14 Stat 799 at 801.)

In 2007, the Cherokee Nation amended its constitution to exclude descendants of Cherokee Freedmen from membership in the Tribe (unless they could also document descent from those listed on rolls of “Cherokees by blood”). The Cherokee Nation subsequently sought a federal court declaration that the non-Indian descendants of freedmen were not citizens of the Cherokee Nation.

The United States filed a counterclaim in the case, captioned Cherokee Nation v. Nash, on behalf of the Cherokee Freedmen. Working under contract to the U.S. Department of Justice, HRA conducted historical research and prepared an expert report on Article 9 of the 1866 Cherokee Treaty. We collected relevant records from the National Archives, Oklahoma Historical Society, University of Oklahoma’s Western History Collections, and Cherokee Heritage Center Archives, as well as digitized collections.

HRA’s report examined the negotiation of the 1866 treaty and the subsequent implementation of Article 9. It revealed that the U.S. government intended—and the Cherokee Nation understood—that Article 9 required citizenship in the Cherokee Nation for the freedmen and their descendants. In a 2017 opinion, the U.S. District Court for the District of Columbia confirmed that Article 9 granted the Cherokee Freedmen the right of citizenship in the Cherokee Nation.