Starting Points Journal: “Removing ‘By Blood’: Context and Politics in the Cherokee Supreme Court Decision to Alter the Constitution”
By Aaron Kushner
“In early February, 2021, Cherokee Nation Attorney General Sarah Hill filed a motion asking the Cherokee Supreme Court to strike the words “by blood” from the Cherokee Constitution. Hill’s request, reportedly an attempt to “bring closure” to the “difficult history” of Cherokee Freedmen (descendants of formerly enslaved people that Cherokees once held in captivity), sought to harmonize the wording of the law with a 2017 U.S. District Court ruling. U.S. Judge Thomas Hogan in that 2017 ruling indicated that the Cherokee Nation mistakenly argued that Freedmen citizenship is bound to the Cherokee Constitution – Freedmen citizenship is instead bound to the “rights of native Cherokees.” Hogan based his ruling on the Treaty of 1866, wherein, he argued, “the Cherokee Nation concedes that its power to determine tribal membership can be [and is] limited by treaty.” While legally, Freedmen possessed all the rights of Cherokee Nation citizens after that 2017 ruling, the Cherokee Constitution still contained the words “by blood” with respect to citizenship.
The Cherokee Supreme Court did on February 22, 2021 as the Attorney General requested, striking the words “by blood” from the Cherokee Constitution. There are several interesting features of this decision, which the Court used to try to close the 2017 issue. First, Freedmen already legally possessed the right to run for tribal office before the Court’s attempt to change the language. Second, the Cherokee Supreme Court does not have the constitutional authority to unilaterally amend the text of the Cherokee Constitution. Reflecting upon these two points may offer us some clarity as to why the Court acted in this manner and what the implications are of their actions…”
Aaron Kushner is the Associate Editor of Starting Points: A Journal of American Principles & American Practices and a Postdoctoral Fellow at Arizona State University’s School of Civic and Economic Thought and Leadership. He is a project manager for the Living Repository of the Arizona Constitution Project and his research focuses on citizenship, the tension between liberal and non-liberal thought, and political development. More specifically, he studies how indigenous political communities formed constitutional governments while in conflict with liberal republics. His dissertation focused on the development of citizenship in the Cherokee Nation.
Kushner is a JMC fellow.
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