Race and the Cherokee Nation: Sovereignty in the Nineteenth Century 0812240561, 9780812240566, 9780812290172

Table of contents :
List of Maps and Tables • ix
Introduction • 1
1. A Moment of Inclusion: Molley • 25
2. Racial Ideology in Transition: Shoe Boots • 39
3. The 1855 Marriage Law: Racial Lines Harden • 56
4. The Civil War: A Missed Opportunity • 74
5. The Cherokee Freedmen’s Story: The Boles Family • 93
6. Indian Slavery and Memory: Interracial Sex from the Slaves’ Perspective • 112
7. The Fight for Recognition Continues: Lucy Allen • 124
Appendix • 131
Notes • 137
Index • 173
Acknowledgments • 183

Citation preview

Race and the Cherokee Nation

Race and the Cherokee Nation Sovereignty in the Nineteenth Century

F AY A . Y A R B R O U G H

PENN University of Pennsylvania Press Philadelphia

Copyright © 2008 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Yarbrough, Fay A. Race and the Cherokee Nation : sovereignty in the nineteenth century / Fay A. Yarbrough. p. cm. ISBN-13: 978-0-8122-4056-6 (hardcover : alk. paper) ISBN-10: 0-8122-4056-1 (hardcover : alk. paper) 1. Cherokee Indians—Race identity. 2. Indians of North America—Mixed descent. 3. African Americans—Relations with Indians. 4. Slavery—Southern States—History. 5. Slavery—Oklahoma—History. 6. Ex-slaves of Indian tribes—Southern States— History. 7. Ex-slaves of Indian tribes—Oklahoma—History. 8. Southern States—Race relations. 9. Oklahoma—Race relations. I. Title. E99.C5Y37 2008 305.897
557—dc22 2007023281

For Arthur and Wilson And in memory of Betsey

Contents

List of Maps and Tables Introduction

ix

1

1. A Moment of Inclusion: Molley

25

2. Racial Ideology in Transition: Shoe Boots

39

3. The 1855 Marriage Law: Racial Lines Harden 4. The Civil War: A Missed Opportunity

56

74

5. The Cherokee Freedmen’s Story: The Boles Family

93

6. Indian Slavery and Memory: Interracial Sex from the Slaves’ Perspective 112 7. The Fight for Recognition Continues: Lucy Allen Appendix

131

Notes

137

Index

173

Acknowledgments

183

124

Maps and Tables

Map 1. Cherokee Land Cessions

14

Map 2. Southeastern Indian Territories Map 3. Indian Territories in Georgia

16 17

Map 4. Removal Routes of Southeastern Indians to Indian Territory 18 Map 5. Travel Routes of the Cherokee Removal (Trail of Tears, 1838) 20 Map 6. Indian Territory (1866–1889) Map 7. Districts of the Cherokee Nation

21 22

Table 1. Cherokee Nation Marriages Recorded by Year

77

Table 2. Cherokee Nation Marriages Recorded by Marriage Type Table 3. Interracial Cherokee Nation Marriages by Year

79

Table 4. Racial Identification of Men Married to Cherokee Brides 80 Table 5. Noncitizen Population by Race

81

Table 6. Racial Identification of Women Married to Cherokee Grooms 82

78

x

Maps and Tables

Table 7. Permitted Persons by District and Sex

84

Table 8. Population of the Cherokee Nation by Race and District, 1880 87 Table A.1. Marriage License Fees by District

133

Table A.2. Petitions for Marriage Licenses by District

133

Table A.3. Racial Identification of Men Included in Cherokee Nation Marriage Records 134 Table A.4. Racial Identification of Women Included in Cherokee Nation Marriage Records 134 Table A.5. Distribution of Marriages for Cherokee Women Table A.6. Distribution of Marriages for Cherokee Men

134 135

Table A.7. Interracial Cherokee Nation Marriages by District

135

Introduction

she was a yaller lady, almost full Injun, but she got tangled up wid de dark folks —Former slave Mandy Jones, 1930s, describing a female relative

During a 1930s interview with a worker from the Works Progress Administration, Drucilla Martin described herself and her family lineage: “I’se half Indian and I look it too, and if I wo’ gold rings in my ears and nose I would look just like my mammy did ’cause she was full blooded Indian. I don’t know what kind, but she was big and tall and had black hair, she would sit on it and it was as cou’se as a mule’s tail. She carried a tomhawk and eve’y one stepped to one side when they met her on the turnpike.”1 Martin, like many other former slaves whose recollections live on in the WPA slave narratives, claimed American Indian ancestry.2 Martin’s account of her family tree is representative of those of her contemporaries in its inclusion of an Indian woman and its lack of specificity about Indian tribal designations. The informants often declared their American Indian heritage with pride, speaking of black unions with Indians positively.3 The ex-slaves, however, maintained decidedly negative opinions of sexual relationships between blacks and whites. When the ex-slaves did identify the tribal affiliation of their Indian ancestors, they often referred to them as Cherokee. The former slaves’ frequent allusions to Indian mothers and grandmothers with long, flowing hair invites questions: What did Indians think of their unions with blacks? Further, what did American Indians think of unions with whites? How common were interracial relationships among American Indians during the nineteenth century? The casual reader might wonder if American Indians would have proudly proclaimed their African ancestry and mentioned black relatives. Or perhaps American Indians would have glossed over the occurrence of interracial sex and claimed an ignorance of any black claims to indigenous identity. Moreover, did American Indian attitudes toward interracial relations vary with

2

Introduction

the race and gender of the partners? The questions, hunches, and suppositions provoked by the testimony of ex-slaves call for an examination of interracial sex from an often-ignored perspective—that of American Indians. Rather than attempt to apply sweeping generalizations about perceptions of interracial sex to all indigenous groups, this book explores the attitudes of one specific group, Cherokee Indians. A number of reasons make the Cherokee Indians an appropriate subject: they produced a large number of written records in English during the nineteenth century; they practiced the enslavement of people of African descent, increasing the potential for interactions between both groups; and they lived in close proximity to the white American population, again increasing the potential for interactions between both groups. In particular, the presence of historical documents is especially useful. Finally, the frequency with which contemporary Americans, both black and white, claim Cherokee ancestry and refer to relationships occurring in the nineteenth century makes the question of just what Cherokee Indians thought about interracial sex particularly salient.4 Until recently, most of the scholarly literature on interracial sex in the antebellum period focused largely on American slavery and concerned relations between African-descended slaves and whites, leaving American Indians out of the picture.5 Perhaps the Judeo-Christian heritage of most Americans contributes to this reticence to discuss sex in general and interracial sex in particular. The transgression of racial boundaries stigmatizes interracial sex as taboo. Discussions of slavery that devote some space to the topic of miscegenation sometimes marginalize interracial sex as an infrequent occurrence within the slave community and almost always ignore American Indians.6 Suggestions that these relationships were frequently consensual and often ended in genuine feelings of mutual affection between master and slave have prompted more recent historians of slavery to minimize the violent and coercive aspects of most sexual activity between white men and enslaved women.7 Depictions of interracial sex in these larger works on slavery, then, often narrowly considered only specific kinds of interracial relationships, those between blacks and whites and, more specifically, those between black women and white men. Historical works discussing interracial sex more directly often approach the topic from the perspective of whites. Scholars have studied the personal papers of such figures as Mary Boykin Chesnut and the papers of such planters as Thomas Jefferson, James Henry Hammond, and the Manigault family and gleaned the overt and implied statements of whites to generate material exploring white attitudes toward amalgamation.8 The voices of the sexual partners of whites, however, were often

Introduction

3

missing. A recent discussion of interracial sex between white women and black men, for instance, investigates the white community’s response to such relationships.9 The place and status of the offspring of interracial unions in American society—how whites viewed such children—has also been a topic of interest.10 Newer works examine the political nature of the regulation of interracial sex in maintaining social order, constructing racial ideologies, and prescribing appropriate social behavior for whites.11 By and large, historians have neglected to consider that groups other than whites developed their own racial ideologies and had their own opinions of interracial sex. A few scholars have discussed interracial sex between blacks and American Indians and generally portray these relationships as consensual, often based on a conception of a kind of African and indigenous population equality.12 The popular myth is that blacks and American Indians were somehow equals and could freely enter into sexual unions with each other. The myth is certainly plausible; people of African descent and American Indians, after all, share a history of slavery and oppression by whites. Enslavement had brought blacks and American Indians into contact with each other, especially during the early colonial period, and created a situation in which sexual relationships could develop. Whites also often regarded members of both American Indian and black communities as inferiors. Historians have also argued that whites sometimes collapsed the racialized identities of blacks, mulattoes, and American Indians into one catchall category of nonwhite people.13 The stark dichotomy between white and nonwhite, however, is too simplistic. Whites were acutely aware of the differences between American Indians and blacks in the late antebellum period.14 By this era whites could legitimately enslave only blacks, but they treated American Indians as members of their own separate, self-governing nations. The American government sought treaties with indigenous tribes to recover slave property. Even free blacks in the South did not share the same freedom of movement and rights enjoyed by indigenous populations. Clearly, whites distinguished between blacks and American Indians. The misconception of African American and American Indian equality depends not on the presence of rights and privileges but upon the erroneous assumption that whites refused to recognize the differences between blacks and Indians. The popular myth of American Indian and African American equality also ignores the prejudices of groups other than whites and the practice of slaveholding among American Indians.15 The myth embraces the cultural affinity of Africans and American Indians but is reluctant to acknowledge a more sinister side to their interaction.16 By 1860, black slaves formed a sizable portion of the population in the Indian Territory;

4

Introduction

they were 18 percent of the Cherokee population, 14 percent of the Choctaw, 18 percent of the Chickasaw, and 10 percent of the Creek.17 The enslavement of blacks among indigenous populations apparently diverged very little from their enslavement by Europeans.18 Some scholars posit that the Indian attitude toward black slaves was a direct product of contact with Europeans.19 As a result, “Indians living more nearly in the tribal state and less influenced by the opinions and civilization of the white man welcomed the negro into the tribes and freely associated with him.”20 Theda Perdue claims that by 1830, after extended contact with whites and their African-descended slaves, “the Cherokees had come to view themselves as radically different from Africans.”21 For American Indians of any tribal affiliation, distancing themselves from African slaves made a great deal of sense.22 Indigenous populations, like poorer whites, needed to maintain the demarcation between who could and could not be enslaved in order to avoid becoming part of the bound labor force. Marriage law offered one tool for more explicitly delineating differences between the enslaved and free populations. Records associated with legislation regulating interracial marriage and with marriage licenses offer one way to access the attitudes of Cherokee Indians toward interracial sex in the nineteenth century. For instance, Cherokees carefully policed marriages between Indians and whites. Cherokee lawmakers created a marital process that, in its final iteration, required white men to obtain character references from Cherokee citizens, pay for special licenses, and renounce the legal protections and rights of American citizenship in order to marry Cherokee women. At the same time, Cherokee lawmakers consistently and repeatedly prohibited marriages between slaves, and then free people of color, and Cherokees or whites. The message was clear: whites were suitable marriage partners for Cherokees, but people of African descent were not. The acceptability of interracial sex and interracial unions depended on the race of the non-Cherokee partner. Examination of interracial sex from the perspective of Cherokee Indians, then, reveals a community at work creating a racial ideology.23 In describing some people as undesirable marriage partners and others as permissible, Cherokees were implicitly defining the boundaries of Cherokee identity. Marriage produces citizens.24 Cherokees had a racialized vision of their society that left no room for blacks and attempted to protect Cherokee racial identity by constraining sexual behavior: “The policing of sexual boundaries—the defense against hybridity—is precisely what keeps a racial group a racial group.”25 Blacks and black skin did not fit in with Cherokees’ self-perception. Cherokees identified more closely with whites, not just because of physical appearance but also in a

Introduction

5

perceived appearance of power and success. Whites in the South had held economic, political, and social power over blacks. Blacks appeared to be the least powerful group in the United States and the Cherokee Nation by all measures. Cherokees did not want to imagine themselves in these impotent terms or to draw any associations or parallels between themselves and blacks. Whiteness was within the limits of Cherokee identity, but blackness was not. Cherokee attempts to regulate who could and could not be a member of the Nation also expose the complex connections between race and citizenship. The traditional importance of matrilineally determined clan affiliations among the Cherokees highlighted the importance and influence of marriage in the creation of new members of Cherokee society. Finally, the development of a racial ideology in the Cherokee Nation had political ramifications: the Cherokees developed an ideology that would protect their political sovereignty. Because studies of interracial sex cannot ignore the progeny of such relations, such work necessarily demonstrates the socially contingent nature of racialized categories. People of mixed descent complicate notions of race and often confound efforts of racial classification. Sometimes, individuals of mixed descent do not fit prescribed racialized phenotypes, making the first, most visible marker of descent—physical appearance—meaningless. Further, biracial children would appear to have equal claim to the racialized identities of their mothers and fathers. Those individuals of mixed African, European, and Native descent presented a greater conundrum. Just what racial identity would a society assign to people whose very bodies represented the conjunction of several races? Societies answer the questions prompted by individuals of mixed descent by incorporating social factors into their definitions of race and formulation of racial difference. A person’s condition as slave or free, his or her descent from individuals who could be enslaved, tribal definitions of nationality, notions of blood purity, self-identification, and community perception all played into the definitions of racial categories for those of mixed race, in particular, but also for the general population. The meanings of racial labels are historically specific and change over time, making the concept of race slippery and difficult to explain or understand. Race does not refer to biology, skin color, or ideas of blood and descent, though people often use “race” as a substitute for these other ways to describe differences between populations of people. Race attaches social meaning to difference and is invoked to serve particular ends. Complicating my attempts to describe Cherokee conceptions of race is the state of the Nation’s racial ideology during the nineteenth century: notions of race and racial difference were nascent, developing and solidifying throughout the period. Though the Nation

6

Introduction

was freely incorporating the term “race” in legal statutes by the early nineteenth century, Cherokee legislators were ambiguous about the precise meaning of “race.”26 Often, Cherokees conflated race and citizenship or assigned the terms shifting meanings that sometimes overlapped. I use a variety of terms to examine how the Cherokees coded social identities. For the purposes of this study I define these terms as follows. Following the example of Ariela Gross, I turn to a formulation of racial categories that recognizes that part of the construction of race includes physical appearance as well as other more obviously socially constructed factors.27 Thus, I rely on physical description, lineage, community perception, and self-identification in classifying people as members of different racialized groups. Though I sometimes substitute the terms “black” and “people of African descent” for “colored” or “Negro,” I use them in the same manner as nineteenth-century Cherokees did. By the mid-nineteenth century, the Cherokees used “colored” and “Negro” to refer to all people of any African descent. Cherokee Indians would not have identified themselves or members of other indigenous groups without African ancestry as “colored” or as part of a population of “people of color.” I hesitate to use the term “African American” in place of “black” when referring to individuals who were not legally American citizens, such as slaves, or who did not identify with American culture, such as African-descended citizens of the Cherokee Nation. I adopt the term “mulatto” when the exslaves, whites, or Cherokees refer explicitly to an individual’s mixed African and European ancestry or when the individual identifies him- or herself as such. When someone’s mixed-race identity is known, I make that clear through terms such as African-Indian or Indian-European. Cherokee identity is an important social identity that initially flowed from matrilineally determined clan affiliations.28 Cherokee society was organized by clans, groups of families that claimed descent from a common ancestor. Prior to the nineteenth century, clan ties offered basic protections through the operation of blood law and clan vengeance. Clans were responsible for the actions and punishments of their members and for the retribution of crimes committed against members. A slave’s precarious position in Cherokee society stemmed from his or her lack of legal status by virtue of not belonging to a clan. One could kill a slave with impunity because he or she lacked a clan connection that would avenge the death.29 Similarly, war captives could be tortured without remorse. Slaves and war captives existed outside of recognized legal and personal rights and did not possess even the right to live.30 Within the Nation the absence of a clan membership meant the absence of any individual rights that others were bound to respect.

Introduction

7

Clans were matrilineal descent groups, and clan membership meant that any children produced in unions between Cherokees belonged to the mother’s clan. Likewise, the children of Cherokee women and nonCherokee men also belonged to the mother’s clan and therefore had an undeniable claim to membership in the Nation.31 As long as the children remained in the Nation, Cherokee authorities recognized these children of mixed race as Cherokees legally, culturally, and racially. I use the term “mixed blood” when Cherokees themselves referred to those of Indian and European ancestry as “mixed-bloods,” or as “half-bloods” and “half-breeds” during the nineteenth century, or when I quote authors who use this term.32 Often, however, Cherokees and Americans regarded those individuals of mixed European and American Indian ancestry who chose to live as citizens among indigenous groups as Indians, without reference to their mixed heritage. Cherokee men who produced children with European or African women, in contrast, produced children with no clan identity.33 Without clan ties, one could not claim legitimate membership in the Nation. Traditionally, then, to be Cherokee meant to be born to a Cherokee woman, to be descended from a Cherokee woman. Thus, Cherokee identity implied a genealogical connection to the Nation. The idea of legal citizenship emerged in the Nation only in the first third of the nineteenth century, when the Cherokees set out to write a constitution, formalize a governmental system, and define and limit who had access to rights and privileges in the Cherokee Nation. Clearly, those individuals who had been legitimate members of the Nation prior to the codification of formalized citizenship would be granted legal status. After 1825, Cherokee legislators also were willing to grant citizenship to the children of Cherokee men and white women despite the mothers’ lack of clan affiliations.34 The constitution, however, excluded the children of Cherokee men and free black women from legitimate membership in the Nation.35 “Cherokees by blood” or “native Cherokees” could now be born of Cherokee women or men, but only if they had no African ancestry. The practice of adoption created another social category in the Cherokee Nation. The custom of adoption among various Indian nations had long been a method for replenishing populations depleted by warfare and, later, disease. The Cherokees often replaced dead clan members with members of other tribes or Europeans captured in battle.36 Once a clan adopted an individual, the relationship was binding and complete, no matter what the nation of origin or race of an individual might be.37 The adopted person often received a new name as well as all of the rights and privileges that accrued to those born into the tribe. For all intents and purposes, adopted clan members became

8

Introduction

Cherokees in the eyes of fellow clan and Nation members. This adoption of individuals by clans differed from the adoption of a group or an entire tribe: in the former, individual clans made the decision to include someone in the clan, and in the latter, Cherokee political leaders negotiated the terms of inclusion of a group of people with other political leaders.38 Unlike in the case of clan adoptions, individuals adopted into the Cherokee Nation through political action in the nineteenth century might or might not receive the full and complete legal rights enjoyed by “Cherokees by birth” or “native Cherokees.” Early in the history of the southeastern Indians, the Cherokee and other Indian nations often did not adopt whites who married native women as clansmen, but accorded them the status of the husband of a kinswoman. Thus, norms of appropriate behavior for the intermarried white man were established; however, the law of blood and clan vengeance did not apply to these individuals.39 These unadopted intermarried white men remained outside of clan relationships but within Indian society because of their marriages to Indian women. Stated another way, the intermarried men were not citizens of the various Indian nations into which they had married. In the nineteenth century, this situation would change as Cherokee legislators wrote a series of detailed laws regulating and providing for the legal citizenship and adoption of all white men who married Cherokee women. Cherokee documents refer to these white men as “adopted whites” or “adopted citizens.” Nineteenth-century Cherokee Nation notions of identity and race, then, highlight the inadequacy of explanations of race based solely on descent and the especially difficult task of describing racial ideology among the Cherokees. Questions of racial identity involved a complex interplay of self-identification and community reputation, as well as blood, descent, and clan membership. Formerly, Cherokee identity had implied legal status as Cherokee, and legitimate membership in the tribe had implied Cherokee identity; Cherokee identity increasingly implied an Indian-raced identity. But the practice of adoption, particularly of intermarried whites, complicated this easy equation. One could now claim Cherokee citizenship without claiming a Cherokee identity or an Indian-raced identity. Further, Cherokee lawmakers refused to recognize the citizenship rights of many individuals of African descent despite their Cherokee ancestry. Thus, some individuals could claim a cultural and ancestral Cherokee identity though they were unrecognized by the Nation legally or socially. The Nation also ignored such individuals’ claims to a racialized Indian identity. The operation of race in the Cherokee Nation exposes the fiction of biologically discernible race. Cherokees did not necessarily subscribe to the racialized social hierarchy operating in the surrounding Southern states because the strict

Introduction

9

dichotomy of black and white left little room for Indians. Instead, the Cherokees created their own three-tiered racial order that placed Indians firmly on top. Legal records, such as statutes, treaty agreements, and census records, give proof of a developing Cherokee racial ideology and Cherokees’ changing self-perception. Through legislation, particularly regarding interracial marriage, Cherokee lawmakers also enacted a conception of Cherokee identity figured on blood, race, and legal citizenship. The Cherokee Nation focused on marriage laws to configure conceptions of race and gender in response to American attempts to infringe on indigenous sovereignty, but native groups also employed other strategies for survival within the larger American context. Some indigenous people accepted wholesale white Americans’ racialized ideas about inferiority and superiority and resigned themselves to a lower social status or struggled to assimilate into white society and virtually disappeared from the landscape. Other indigenous groups found common cultural and social ground with people of African descent, but that choice to identify with African Americans often led to the disappearance of those indigenous groups into the larger racialized category of “black.” Finally, other indigenous people, especially on the Plains, clung tenaciously to a racialized identity separate from that of either whites or blacks but then faced the federal government’s efforts to eradicate that identity through civilization programs that included boarding schools. And in some cases, particularly in the northeastern United States in the eighteenth century, despite the efforts of indigenous people to maintain a separate racialized identity, white Americans conflated people of Indian descent and people of African descent anyway. The Cherokee Nation had other options, but it was not the only indigenous group to adopt a racialized response to attacks on its sovereignty. Some authors would lay the blame for Cherokee racial attitudes toward blacks at the door of whites: historian James H. Johnston contends that those Indians who had experienced less contact with whites welcomed people of African descent into their communities.40 Similarly, William Loren Katz claims that Europeans preyed on racial differences and rivalries between native populations and Africans to push the two groups further apart: “Whites turned Indians into slavehunters and slaveowners and Africans into ‘Indian fighters.’”41 What Johnston and Katz ignore, however, is Cherokee choice and agency—that is, Cherokee complicity with whites in reducing blacks to a position of social inferiority. Cherokees were clearly influenced by whites’ ideas about race and observation of how whites treated blacks both free and slave, but Cherokees also created their own legislation permitting slavery, regulating slave behavior and the activities of free blacks, and prohibiting amalgamation.42

10

Introduction

This story of the evolution of racial ideology in the Cherokee Nation begins with a discussion of a petition claiming Molley of the Deer clan as a slave. Her story permits a look at traditional practices of clan membership, adoption, matrilineal descent, and blood vengeance in the Cherokee Nation and portends changes to come: Cherokee lawmakers began passing legislation to prevent marriage with their slaves of African descent. During early contact, Cherokee Indians had seen Africans first as the slaves of Europeans and then as fellow bondsmen. Cherokees had probably early associated slavery with Africans and wanted to put as much social distance as possible between themselves and blacks. The Cherokees were also moving away from the traditional practices of clan identification, adoption, matrilineal descent, and blood vengeance, as the petition of Shoe Boots in the second chapter demonstrates. Shoe Boots sought some legal recognition for his children by a slave woman of African descent; the Cherokee Council’s ambivalent response to his request reveals a transitional moment in the development of a Cherokee racial ideology. Cherokee legislators began policing interracial marriage and interracial sex in response to the growing number of Cherokee women choosing spouses outside of the Nation and the increasing population of “foreign” men seeking Cherokee wives to gain access to resources. First on the agenda was to remove the possibility of black marriage partners for Cherokee men and women early in the nineteenth century. Then the lawmakers incrementally 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. The intermarriage laws had the added consequences of limiting marital choice for Cherokee women and enlarging the marital options of Cherokee men. Cherokee lawmakers required white men to take oaths of allegiance to the Cherokee government and decline American legal protections and privileges. Chapter 3 focuses on the culmination of this legislation, the influential 1855 Cherokee law regulating marriage between Cherokee women and white men and the legal complications that arose from the law’s requirements. Cherokee lawmakers, all of whom were men, recognized the power Cherokee women possessed through their marital behavior and sought to curb this power. The Civil War was a watershed moment in American history, but its far-reaching effects were not limited to the United States. Some indigenous groups also participated in the war and experienced their own Reconstruction. Chapter 4 considers the aftermath of the Civil War and its effects on the citizenry of the Cherokee Nation. Federal officials forced the Nation to accept former slaves of Cherokees as citizens, but

Introduction

11

the Cherokees did so on their own terms, limiting the legal rights of the newly freed people. While simultaneously excluding people of African descent from the citizenry, Cherokee authorities were admitting white men who married Cherokee women to the rights of citizenship. This chapter draws on more than two thousand marriage records to analyze trends in interracial marriage and relates these trends to changes in the intermarriage laws. Finally, the chapter examines the growth of a panIndian identity among the Cherokees, as evidenced by their legislation and treaty agreements. Cherokee lawmakers, perhaps unintentionally, wrote a kind of identity transformation into the laws governing interracial marriage. White men who married into the Nation became legally Cherokee, forswearing legal, political, and judicial rights as well as citizenship in the United States. The Council enacted this requirement to preserve Cherokee jurisdiction in legal issues and political autonomy by changing white men’s legal identities upon marriage to Cherokee women. Through the various requirements of the intermarriage laws, Cherokee women, who had once been at the center of interracial marriage, became bodies exchanged to seal agreements between men. By the end of the nineteenth century, Cherokee women had lost some of the power they had to delineate the boundaries of Cherokee identity through their marital choices. Cherokee regulation of citizenship and intermarriage also reveals Cherokee prejudices toward people of African descent.43 Prior to the advent of written laws outlining procedures for marriage and defining citizenship, blacks could be fully integrated into the Cherokee community as free citizens with clan membership. Formal citizenship laws, however, granted citizenship only to the offspring of Cherokee women and men of African descent, not to those children of Cherokee fathers and African mothers. The Council then promptly prohibited marriage between persons of color and any Indians or whites in 1824, effectively locking blacks out of legitimate citizenship in the Cherokee Nation. When forced by the United States to accept freedmen in the Nation as citizens, the Cherokee legislature interpreted the rights and privileges of citizenship and the 1866 Treaty in such a way as to create a subordinate class of Cherokee citizenship that prevented blacks from enjoying full and equal recognition in the Nation. After Emancipation, the Council continued to leave anti-amalgamation statutes on the books while repealing other laws limiting the rights and freedoms of blacks. Chapter 5 follows the legal activity of Susan and Lemuel Boles to reveal Cherokee attitudes toward people of African descent, particularly the Cherokee Freedmen, at the end of the nineteenth century. Cherokee perception and treatment of interracial sex with partners of African descent contrasted sharply with blacks’ assessments of those

12

Introduction

same relationships. Through the words of the ex-slaves, Chapter 6 offers a glimpse at blacks’ attitudes toward their relationships with American Indians, many but not all of whom were Cherokees. The informants in the slave narratives resided all over the South and often did not indicate in their interviews if their current state of residence was also the state in which they had lived as slaves, making the tribal identity of the Indians described in many of their narratives unclear. For instance, a slave living in Oklahoma at the time of the interview may have migrated there from Texas after the Civil War. Similarly, the subjects of the antebellum and postbellum slave biographies and autobiographies did not all live in the same state. This chapter draws on all of these materials while emphasizing the words of those slaves who were owned by American Indians and/or lived in the Indian Territory and Georgia. Marriage laws in the Cherokee Nation, then, acted as a kind of window on racial attitudes indicating how Cherokee Indians were defining themselves and others.44 Changing proscriptions regarding whom Cherokees could and could not marry demonstrate the process through which Cherokee lawmakers worked out definitions of race and organized their society hierarchically. Within the Cherokee Nation, legislators recognized that marriage was not solely a private matter of personal choice but an institution that potentially had much larger consequences for the continued existence of the Nation as an independent political and cultural unit. The Cherokee Nation’s ability to regulate marriage, especially interracial marriage, served as a demonstration of sovereignty. Further, provisions of the intermarriage laws reinforced the Nation’s political authority. Finally, Cherokee marriage laws also mediated formulations of Cherokee identity. Chapter 7 demonstrates the persistent effects of nineteenth-century marriage laws on the status of people of African descent in the twenty-first-century Cherokee Nation. In an effort to consider interracial sex and racial ideology from the vantage point of the Cherokee Nation, I draw extensively on sources generated by the Cherokees themselves. The Cherokee Indians produced a great deal of legal material in the nineteenth century, the bulk of which was written in English, and these records are important historical sources for discerning Cherokee attitudes toward interracial sex. Early in the nineteenth century, the Cherokee Nation established a government very similar to the U.S. federal government with a written constitution, a judiciary, and legislative bodies. Government officials faithfully wrote everything down, generally in English, much to the benefit of modern historians. Cherokee district clerks recorded more than two thousand marriages. Legal statutes passed by the Cherokee Nation, court documents, district clerk records, newspapers, and personal papers also offered insight into the racial thinking of members of the Cherokee

Introduction

13

Nation.45 Finally, there are sources such as the “Indian Pioneer History,” a project sponsored by the WPA to interview people who had resided in the Indian Territory, and the WPA slave narratives. Obviously, an exploration of the language and stipulations of legal documents does not necessarily uncover the feelings of individual residents of the Cherokee Nation about race, citizenship, and Cherokee identity. The average nineteenth-century Cherokee citizen left few records for historians in general and even fewer discussing race and identity in particular. Statutory law does, however, provide insight into the powerful Cherokee elite’s thinking on issues of identity. As historian William Wiecek notes, “Statutory law is a distillation of some of the society’s most cherished values, or at least of the values of the class that wields the hegemonic power that produces laws. Statutes are one way, and a solemn and formal one, for the elite that imposes its values on a society to state what those values are and how behavior should conform to them. No other social act performs this function so conspicuously and directly. Statutory law is thus a valuable window on the hopes and fears of a society, of its image of itself, and of the ways it hoped to shape the time to come.”46 Though legal records may not explicitly define race and identity in the Cherokee Nation and may convey only the thinking of elites, they nonetheless are valuable tools for discovering what at least some Cherokees said themselves about such issues.47 The availability and nature of sources limited this study to the period from 1800 to 1890. By 1890, the creation of the Oklahoma Territory pushed the Indian Territory more directly under federal control. Before that time, the Cherokees had acted more autonomously, making their own decisions about how they defined race and to whom they would extend membership in the Nation. The temporal limits also dictated the geographical boundaries of the study. The Removal of American Indians west occurred during this period. Prior to 1839 the Nation was located in parts of the states of Georgia, Alabama, North Carolina, and Tennessee. After Removal, the Cherokee Nation occupied part of the Indian Territory, the northeast corner of present-day Oklahoma. Cherokees in North Carolina remained separate from the Cherokee Nation after Removal, forming their own governmental institutions and writing their own legislation. Their history is not part of the story followed here. To follow the evolution of racial ideology in the Cherokee Nation, it is important to understand the organization of the Nation and its governing structures as these, too, evolved in response to the dramatic events of the late eighteenth and early nineteenth centuries. What follows is a brief introductory sketch of Cherokee history from 1750 through the Civil War. During the mid-eighteenth century, Cherokee Indians resided in the interior of the southeast around the southern Appalachian Mountains.

14

Introduction

The Cherokees also claimed as hunting grounds part of the Ohio Valley encompassing much of present-day Kentucky and Virginia.48 Steady European expansion west from the Atlantic Ocean, however, would compel the Cherokee Indians to make agreements ceding land to the new arrivals (Map 1). Tensions between European settlers and between colonial powers over control of North America would lead to the Seven Years’ War. Initially, the Cherokees backed the British, but the duplicity of some British officials and attacks on Cherokee Indians by English settlers led some Cherokees to throw their support to the French. The British emerged as the dominant European power in North America at the end of the war and promptly issued the Proclamation of 1763 prohibiting English settlement on territory west of the Appalachian Mountains. However, the proclamation would prove to be unenforceable by British authorities, and British settlers would continue to stream into Cherokee territory.

Map 1. Cherokee Land Cessions

Introduction

15

During the Revolutionary War, a conflict due in part to disagreements between the British crown and its colonial subjects over Indian policy in North America, the Cherokees largely sided with the British, regarding royal officials as allies in attempting to enforce the Proclamation of 1763 and other treaty agreements. The British, however, were as effective in providing support and protection to the Cherokees during the Revolutionary War as they had been in preserving the boundary of the Proclamation of 1763. American militia from nearby states marched into Cherokee territory, destroying settlements and crops, and eventually wrested large land cessions from the tribe. Some Cherokee warriors also raided American settlements, but such action tended only to provoke harsh retribution from the Americans. Once again the majority of Cherokees had chosen the losing side in an international war. And once again the Cherokees found themselves negotiating the issues of territory and sovereignty with a new power. Fairly quickly, the new federal government attempted to address the “Indian Problem.” By 1790 the federal government passed the first in a series of Trade and Intercourse Acts in an attempt to apply uniform regulations to relations between the federal government, state governments, and individual Americans and various indigenous groups, including the Cherokee Indians.49 The acts set the boundaries between the United States and Indian territory; required a license for traders operating in Indian country; and required congressional approval for transfers of Indian land. The federal government hoped that these provisions would reduce tensions between indigenous groups and the federal government by preventing disputes over land in particular (Map 2). The federal government periodically renewed this version of the Intercourse Acts until 1834, when it added more requirements. During the first third of the nineteenth century, Cherokee legislators passed laws to organize Cherokee society: provisions defining membership in the Nation, outlining voter eligibility, regulating property ownership, establishing criminal behavior and punishment, and standardizing marriage.50 The Cherokee Nation established formal structures of governance modeled after American legal and political institutions. Its constitution was based on the American Constitution, with three branches: an executive branch embodied by the Principal Chief; a bicameral legislature consisting of a National Council and Committee; and a judiciary divided into district courts and a Supreme Court. The Cherokees also created a written language, Sequoyah’s Cherokee syllabary, at this time. Finally, in 1828 the Nation made a concerted effort to start a newspaper, the Cherokee Phoenix, with articles written in both English and Cherokee. White Georgians had long coveted Cherokee lands and interpreted the Cherokees’ inauguration of more formal governmental institutions

16

Introduction

Map 2. Southeastern Indian Territories

as a sign of the Nation’s plan for permanent occupation of part of the state (Map 3).51 Cherokee efforts to establish a government and constitution on par with the American federal government and recognized by federal authorities signaled the permanent presence of the Cherokee Nation in Georgia and its attempts to entrench itself legally within the state. White Georgians responded by questioning the sovereignty claims of the Cherokee Nation on several levels. Georgians insisted that the Cherokees were still uncivilized savages who lazily permitted vast tracts of land to go to waste.52 Further, white government officials in the state were adamant that the Cherokees could not have written their own constitution nor established their complex government alone; they insisted that whites must be guiding the uneducated and simple Indians.53 By 1831, state lawmakers had passed an act to limit contact between whites and Indians, requiring all white men living in the Cherokee Nation to obtain permits from the governor of Georgia and to take an oath of allegiance to support and defend the laws of the state.54 The state legislature also passed statutes to limit the legal rights of Indians and turned a blind eye to white incursions on Indian land.55 White squatters

Introduction

17

Map 3. Indian Territories in Georgia

occupied Cherokee land, stole property, and physically harassed members of the Cherokee Nation without legal repercussions. Tensions between white land seekers and Indians finally reached a fever pitch and induced the federal government to pass a revamped version of the Intercourse Acts. The 1834 version of the act kept the provisions of the earlier acts regarding traders’ licenses and the treaty requirement for any transfers of Indian lands, and also prohibited non-Indians from

18

Introduction

hunting, settling, or grazing their animals in Indian country. Perhaps most important, the 1834 Intercourse Act also claimed federal jurisdiction for all crimes committed in Indian country except those in which both parties were Indians. Thus, American citizens could not commit crimes among the Indians without fear of prosecution in American courts. The act also established the death penalty for the murder of an Indian by a non-Indian on tribal lands. This provision regarding federal and tribal jurisdictions would have significant implications for the kind of legislation the Cherokee Nation, as well as other indigenous groups, would pass in the nineteenth century and beyond. The new Intercourse Act, however, did not prevent the removal of the Cherokees and other Indians to territories to the west (Map 4). In 1835, in response to renewed pressure by whites who coveted Indian land for cotton and other cultivation and development, the Treaty of New Echota ceded all Cherokee lands east of the Mississippi River to the United States and signaled a dramatic turning point in the social and political history of the Cherokee Nation. The American military forcibly removed those Cherokees who refused to abandon their lands in the

Map 4. Removal Routes of Southeastern Indians to Indian Territory

Introduction

19

southeast. The physical trauma of Removal took a tremendous toll in human lives on the population of the Cherokee Nation. Russell Thornton suggests a total loss of 10,138 Cherokees, revising earlier estimates of roughly 4,000 lives lost in association with the Trail of Tears (Map 5).56 These new figures are based on comparisons between what Thornton estimates the Cherokee Nation population would have been if Removal had not occurred and the actual post-Removal population. He includes deaths associated with the Removal—for instance, those that occurred during the first year of living in the territory and attributable to malnutrition or outbreaks of disease such as cholera. Thornton also notes that non-births and out-migration account for some of his higher estimate. These figures translate into a 20–25 percent population decrease for the Cherokee Nation. Some Cherokees, particularly those with some wealth, had already moved west in the late 1820s and early 1830s. These “Old Settlers” had anticipated the unwillingness of Georgians and the U.S. government to allow Cherokees to remain in the southeast unmolested. From the inception of the Cherokee Phoenix, the newspaper’s pages often contained information on how this issue was unfolding: reports of action taken in the Georgia legislature with regard to Cherokee land rights, editorials from Georgia newspapers demanding that white settlers be given access to Cherokee lands, and congressional action concerning Cherokee territorial claims.57 The Old Settlers had moved into Arkansas Territory, East Texas, and parts of Indian Territory, and they had established their own government and taken up farming.58 Old Settlers often resented the new arrivals who expected Old Settlers to accept the government, chief, and societal forms of the Eastern Cherokees. The Eastern Cherokees, in contrast, often accused Old Settlers of having given up ancestral lands without a fight.59 Among the Eastern Cherokees, a divide existed between two factions: one led by Principal Chief John Ross and his followers, who opposed removal, and another prominent tribal member, John Ridge, and the socalled Treaty Party, who supported the signing of the Removal treaty.60 The arrival of the Eastern Cherokees in the Old Settlers’ western lands led to a great deal of civil unrest and a period of civil war.61 Politically this tension played out between the Old Settler, Ross, and Treaty Parties, each vying for control of the new government. Socially, clan vengeance ruled. An 1808 law had established the death penalty for anyone who signed away Cherokee land in a treaty without the approval of the Nation; in 1839, one of the signatories of the Treaty of New Echota, Major Ridge, along with his son John Ridge and Elias Boudinot, other supporters of the treaty, were assassinated. Some members of the Ridge clan sought vengeance while other Treaty Party families fled to Texas. For a

Map 5. Travel Routes of the Cherokee Removal (Trail of Tears, 1838)

Introduction

21

brief period, violence and bloodshed reigned until the various political parties could reach a compromise concerning the new government. Finally, a unified Cherokee Nation adopted the Tahlequah Constitution of 1839 to replace the New Echota Constitution of 1827. The new document retained many of the same provisions as its predecessor with respect to the branches of government and basic citizenship rights of Nation members. In fact, in many cases, the Nation appears to have re-ratified the constitution and laws of the southeastern Cherokees wholesale with little revision. The constitution also described the new geographical boundaries of the Nation within Indian Territory (Map 6). The Nation now consisted of nine districts, which also served as judicial districts for the courts and other legal administrative purposes: Cooweescoowee, Delaware, Saline, Tahlequah, Going Snake, Flint, Illinois, Canadian, and Sequoyah (Map 7). With the laws passed after the 1839 Constitution, the Cherokee legislature moved to establish itself as a sovereign nation with rights and boundaries that the American federal government would respect. (This new constitution did not apply to those Cherokees who had remained in North Carolina to form the Cherokee Nation East or to those Cherokee Indians living outside of the geographical boundaries of the Nation in the United States as American citizens. A small number of

Map 6. Indian Territory (1866–1889)

22

Introduction

Map 7. Districts of the Cherokee Nation

Cherokees had chosen to accept land allotments in Georgia, North Carolina, Tennessee, and the Territory of Alabama and American citizenship prior to Removal.)62 After the internal strife resulting from Removal, the Cherokee Nation experienced a couple of decades of relative peace and stability until the

Introduction

23

American Civil War arrived at the doorstep of Indian Territory. The Cherokee Nation officially sided with the Confederacy. After all, whites and indigenous groups in the Indian Territory, like the Cherokees, shared a history of free status, a status that Indians constantly asserted and reinforced in legislation. Cherokees and whites alike had also owned slaves and engaged in plantation agriculture. Historian Annie Heloise Abel argues that the Confederacy earnestly courted Cherokee support. Confederate officials made treaties with the various Indian nations based on relationships of equality and offering concessions.63 Southerners, particularly those without beliefs that countered those of the slaveholding class, also ran the Indian Office, which issued permits to traders in the Indian Territory. This control over access to the tribes translated into manipulation of the ideas that would be filtered to the native populations living in the territory.64 Despite the strong influence of Southern ideology and the elite slaveholding class in the Nation, many Cherokees deserted the Confederacy and fled to join the Union army instead.65 The ensuing confusion between the official allegiance of the Nation with the Confederacy and the individual allegiances of many Cherokee citizens with the Union played out on Cherokee lands. Union and Confederate forces were not sure whom the Cherokees supported; 9,000 Cherokees had deserted the Confederacy and joined the Union army and 6,500 joined the Confederacy.66 Northern and Southern military units marched through the Cherokee Nation raiding and burning homes, robbing the treasury, destroying fences and tools, and stealing herds. With the institution of slavery in upheaval, men away fighting the war, and fears of marauding armies, fields lay unused and overgrown. In the aftermath of the war, one contemporary observer noted its devastating effects on the Cherokee Nation: “Raided and sacked alternatively, not only by the Confederate and Union forces, but by the vindictive ferocity and hate of their own factional divisions, their country became a blackened and desolate waste. . . . That entire portion of their country which had been occupied by their settlements was distinguishable from the virgin prairie only by the scorced [sic] and blackened chimneys and the plowed but now neglected fields.”67 A year after the Confederacy surrendered, the federal government made a new treaty with the Cherokee Nation. While the Nation had abolished slavery voluntarily, Cherokees insisted that the freedmen were not entitled to the rights and privileges of Cherokee citizenship. The federal government, however, forced the Cherokee government to accept the former slaves as citizens and grant them rights in Article 9 of the 1866 Treaty, which stipulated the inclusion of the ex-slaves into the citizenry: “All freedmen who have been liberated by voluntary act of

24

Introduction

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.”68 Article 4 of the treaty called for territory in the Canadian District to be reserved for those freedmen who chose to reside there. Articles 5 and 6 permitted inhabitants of this area to establish a local government and a judicial system, in accordance with the laws of the Cherokee Nation, as well as providing for representation in the National Council.69 In the face of Cherokee reluctance to accept the newest citizens of the Nation, the U.S. government ordered the U.S. military to treat the freedmen as members of the Nation so that the freedmen would receive the same annuities, land, and educational advantages. Federal authorities even assigned Brevet Major General John B. Sanborn to regulate relations between the freedmen and the Cherokees. Thus, much like the Confederate South, the Cherokee Nation experienced a federal Reconstruction complete with an occupying federal military presence. The provisions of the Treaty of 1866 also challenged Cherokee political autonomy: the Nation’s power to determine the legitimacy of members of society diminished because the United States was now making decisions about Cherokee citizenship and mediating the relationship between some of the Nation’s citizens and the Cherokee government. The history of the Cherokee Indians from 1750 through the Civil War, then, can best be summarized as a period of negotiation, concession, and dramatic change. The Cherokee Indians found themselves constantly negotiating the boundaries of their physical territory and political sovereignty with colonial powers, then states and the federal government. Cherokee territorial boundaries contracted steadily during this period, while Cherokee political autonomy waxed and waned. These circumstances would lead the Cherokee Nation to formulate new, racialized definitions of Cherokee identity and citizenship.

Chapter 1

A Moment of Inclusion Molley

The Cherokees early applied racial labels to distinguish themselves from “others” living in the Nation. In 1824, the Cherokee Council passed a resolution to conduct a census of the Nation that included racial labels. The Council instructed census takers to count all males and females, subdivided by age groups; “the number of male negro slaves, and the number of female negro slaves”; as well as “the number of white men married to cherokee [sic] women; and the number of Cherokee men married to white women.”1 The language of the act authorized by Cherokee officials recognized three specific groups as the potential lawful residents of the Nation: Cherokees, “negro” slaves, and whites intermarried with Cherokees. And, indeed, the census data demonstrate that individuals were enumerated as Cherokees, intermarried whites, or black slaves.2 The Cherokees could have employed other categories for counting the residents of the Nation that did not reference racialized labels: by citizenship status (obtained by birth or adoption), by free or enslaved status, or solely by age and gender. Instead, they adopted the language of race: by 1824, the Cherokee Nation was already immersed in a racialized view of the world. The racialized categories prescribed by the legislation authorizing the census were relatively new to the Cherokee Nation, which was in the process of constructing racial meaning. Formerly, Cherokees conceived of a world inhabited by Cherokee clan members and nonmembers, which included other indigenous groups both friendly and hostile, European colonists, imported African slaves, and free Africans.3 The story of the slave woman Molley and her descendants highlights the centrality of clan membership to Cherokee identity. Moreover, her story shows that during the late eighteenth century, Cherokee ideas about race and identity were still fluid. Circumstances surrounding Molley’s entrance into the Cherokee Nation reveal the basic organization of Cherokee society and the traditional understanding of the concepts of adoption, slavery, and interracial marriage among the Cherokees. Elements of Molley’s story reflect the tenacity of traditional Cherokee practices but

26

Chapter 1

also hint at the legislative changes that were taking place, spurred by the presence of a growing population of individuals without traditional clan identities in the Nation. Molley arrived in the Cherokee Nation prior to the Revolutionary War under curious and tragic circumstances.4 Molley’s owner, Sam Dent, was a white trader who had married a Cherokee woman from the Deer clan. By “beating and otherwise mistreating” her during her pregnancy, Dent killed his wife. The Deer clan demanded satisfaction. One of the benefits of clan membership among the Cherokee Indians was protection: others would not harm you because they risked retaliation from your clan. Clan members were obligated to avenge each other’s deaths.5 Thus, Dent knew that failure to appease the Deer clan would cost him his life. Dent bought the slave girl Molley in Georgia and offered her to the Deer clan as a replacement for his dead wife. After a town council meeting, the clan agreed to accept Molley and her future descendants as members of the clan and Nation. Sam Dent escaped retribution, and the Deer clan emancipated Molley and gave her a new name, Chickaua, symbolizing her integration into the clan and Nation.6 Chickaua and her descendants became full and equal members of the Cherokee Nation with all of the rights, privileges, and protections associated with clan affiliation despite her former status as a slave and her African ancestry. Molley’s story might not have been preserved were it not for nineteenth-century legal attempts to return Molley and her descendants to slavery. Apparently, prior to the legal activity that precipitated a legal pronouncement of Molley’s status, Molley and her sons had lived unmolested as members of the Cherokee Nation for more than four decades. By 1833 a Molley Hightower claimed Chickaua, formerly Molley, and her descendants as Hightower’s slave property. Hightower presented a bill of sale from Sam Dent to Hightower’s father, who had also been an Indian trader living in the vicinity of Molley and her children. Hightower petitioned the Nation to hand over her slave property. Members of the Deer clan responded swiftly. They asked the Cherokee Council to prevent the “oppressive and illegal wrong attempted to be practiced on our Brother and Sister by the Hightowers in carrying into slavery two of whom have ever been and considered native Cherokees.”7 Not only did the clan recognize Molley and her children as full and free members of the Cherokee Nation, the clan defended her legal rights as a Cherokee and argued for her continued enjoyment of liberty and freedom. Other prominent Cherokees also certified the circumstances of Molley’s entrance into the Nation and adoption into the tribe. They further stated that she and her sons Isaac and Edward had resided in the Nation and “enjoyed the liberty of freedom.”8 The Deer clan, as well as other

A Moment of Inclusion

27

members of the Cherokee Nation, supported Molley’s claims to freedom and legitimate membership in the Nation.9 The legal documents also describe a transformation: Molley, an African-descended slave, had become, in the language of other Deer clan members, a “native” Cherokee. Late in the eighteenth century and early in the nineteenth century, then, Cherokees had a fairly broad understanding of Cherokee identity that was not tied to race or status but to clan. Molley, an unfree black person, could become Cherokee as a member of the Deer clan. Moreover, the Nation recognized Molley as Cherokee legally because of her own behavior and her acceptance by the larger Cherokee community. In other words, there was a performative and public component to Cherokee identity. Petitioners for Molley’s freedom noted her and her children’s continued residence in the Nation and other Cherokees’ acknowledgment of the family’s free status. This understanding of the nature of Cherokee identity demonstrates that Cherokees had not yet racialized social identities based on descent. Molley’s lack of Cherokee ancestry did not exclude her from Cherokee identity, nor did her African ancestry. Further, Molley could move not only from slavery to freedom but from “black” to “Cherokee.” Molley’s story also provides a point of entry for an exploration of Cherokee marriage practices: her owner, Sam Dent, was a white man who married a Cherokee woman. Just what was his status, and that of other intermarried white men, in the Cherokee Nation? More generally, what form did marriage between Cherokees take? As stated earlier, clan membership was determined through matrilineal descent. Basing social structures on matrilineal clans customarily had led to a lack of regulation of marriage by Cherokee authorities: early Cherokees had few rites or ceremonies marking marriage, as well as no notion of contract or betrothal.10 In an 1825 act that is one of the few references to the codified legal regulation of marriage between native Cherokees, the Council limited all men, be they white noncitizens or native Cherokee citizens, to only one legal wife.11 Historian John Phillip Reid offers a summary of the informal, unwritten legal provisions that governed marriages between Cherokees.12 According to Reid, “Cherokee marriage was not binding on either husband or wife.”13 Thus, Cherokees had no legal restrictions on adultery or fornication, which permitted a kind of gender equality because women were allowed the same sexual freedom as men.14 Husbands and wives could separate at any time because clan law had simplified divorce by establishing rules about property, kinship, and the clan membership of children.15 Polygamy was apparently legal, as the 1819 and 1825 laws prohibiting it only for white men and then for all men attest.16 Cherokee citizens understood and accepted all of these early statutes as settled law. Hence, the Cherokee constitution could

28

Chapter 1

omit laws regulating marriage between citizens, and Cherokee leaders did not find it necessary to codify them in subsequent legislation. The image of traditional marriage between Cherokees that emerged for many Americans at the time was one of promiscuity, infidelity, and polygamy. Some scholars might argue that the ease of divorce in the Cherokee Nation deterred polygamy, but the operation of matrilineally determined clans offers a more satisfactory explanation.17 The usual benefits of polygamy, such as using multiple wives as an indicator of wealth, to create ties to leaders, to permit women to share household labor, to produce many offspring, and to vary sexual partners, did not apply in the Cherokee Nation. Upon marriage, Cherokee women maintained their own property rights and clan affiliations did not change. Thus, the husband did not suddenly become a member of the ruling clan through marriage; he remained a member of his clan. The husband moved into his wife’s home, which was located in a female-centered household in which sisters or other female relatives shared labor. Any offspring from the union were members of their mother’s clan; Cherokee children did not traditionally have an identity as their father’s children. The simplicity of divorce meant that a Cherokee man could easily vary his sexual partners. The matrilineal nature of clan relationships often eliminated the impetus to form polygamous unions. Of course, what explanations of Reid and others, based on the operation of clans, do not account for are those Cherokee men who did have multiple wives. Through polygamous marriage Cherokee men might solidify alliances with several other clans. Cherokee men may also have achieved status not through their economic support of their wives but from the male’s own ability to attract numerous mates. And Cherokee sisters or female cousins might all choose to wed one male to lessen their shared household burdens. In the end, however, clan considerations probably lessened the extent to which polygamous marriage occurred in the Cherokee Nation. The Cherokee Nation’s attempt to gain America’s recognition as a legitimate and sovereign nation by imitating white legal protections for women and marriage prompted the passage of the acts on marriage. By passing these acts the Nation revealed American influences on Cherokee jurisprudence: to prevent Cherokee women from being taken advantage of sexually and discarded by white men who only sought entree to the tribe and its resources; to mimic white marriage patterns; to place white men’s marriages to Cherokee women on equal footing with white men’s marriages to white women; to stabilize unions; and to minimize a perception of sexual promiscuity among Cherokee Indians. Americans had interpreted the Cherokee society’s lack of a legalized system for marriage as indicative of a culture with no binding form of marriage to restrain rampant sexual activity.

A Moment of Inclusion

29

Nineteenth-century Cherokee marriage laws called for the adoption into the Nation, but not into a specific clan, of all white men who married Cherokee women.18 Unlike earlier practices during the colonial period, which would seem to have permitted white men to choose or refuse formal adoption into the tribe, the newer marriage laws demanded that all white men who married Cherokee women become citizens. The Cherokees did not adopt these intermarried white men in the traditional manner, however; there is little evidence that the intermarried white men exchanged their names for Cherokee names or became members of specific clans. Further, the intermarried whites received rights in the Cherokee Nation, but not the full rights of those native citizens. For instance, intermarried whites did not draw annuity funds, nor could they hold high political office.19 In contrast, intermarried white men gained rights to virtually limitless land in the Cherokee Nation through their marriages because Cherokees owned land communally and permitted individual Nation members to improve as much land as he or she was able. For propertyless, poor white men, the lure of land was surely enticing. White women also married into the Nation and gained some citizenship rights, but the Cherokee legislature did not delineate the procedures for these unions with the same specificity as for intermarried white men. The frequency with which Cherokee women chose white men as husbands combined with the new legal provisions regarding intermarried whites would translate into an expanding population of Cherokee citizens who were not Cherokee racially or culturally. As construed under the Cherokee Nation’s legislation granting citizenship to intermarried white men, marriages between white men and Cherokee women, in particular, affected the entire Cherokee Nation by introducing new citizens to the tribe. All of them lacked clan affiliations, except perhaps a few who were adopted into a clan. White men, as the children of non-Cherokee mothers, lacked clan relationships. The mixed-race children of Indian and white unions developed ties with their white fathers and other white family members, strengthening the bonds between the Cherokee community and whites in the United States. The influx of white men into the Cherokee Nation changed not only the physical complexion of the tribe but its legal and political practices as well. For instance, Cherokee legislators adopted some American understandings of property and inheritance laws so that white men could leave property to their Cherokee children.20 This shift was a revolutionary change in thinking for a traditionally matrilineal society in which children inherited property and clan identity through their mothers. Cherokee Nation lawmakers provided for the continuance of the practices of matrilineal inheritance of property and female property

30

Chapter 1

ownership despite the introduction into the citizenry, through intermarriage, of white men who pushed American ideas about women’s relationship to property. An 1819 act stipulated that Cherokee women retained their property rights upon marrying white men and that a white man could not dispose of his Cherokee wife’s property without her consent.21 This legislation continued long-standing Cherokee tradition that women maintained property rights even during marriage and flew in the face of American law that did not offer similar recognition of women’s right to own and control property while legally wed.22 Should a white man abandon his Cherokee wife without good reason, he forfeited Cherokee citizenship and had to pay a settlement determined by the Cherokee Committee and Council for breach of marriage. The Nation intended these provisions to foil the practice of marrying Cherokee women solely to gain access to their property or Cherokee citizenship. The concerns of Cherokee lawmakers mirrored those of white officials, who also noted that white men sought Indian wives to obtain land and property. In 1817 Hugh Montgomery, writing to William Rabun, governor of Georgia, to collect a fee for reporting such offenders, observed that “others (if possible) More Lax in their Morrels & Still Less Delicate in their taste will [Kiss] a Squaw for the privallage of their Land & Range, he then becomes a Landlord and he has his Croppers, Tenants, & Hirelings &c. &c.”23 Thirteen years later, however, Montgomery moderated his position because of the supposedly civilizing effect on Cherokee society of interactions between Cherokees and whites. He found that those Cherokees of mixed Indian and white ancestry were much further “developed” than their counterparts of Cherokee descent alone.24 The changing land situation may have helped persuade Montgomery that white men residing on Indian land could have a positive influence on Indian society. As land became increasingly settled and scarce in states such as South Carolina, North Carolina, Georgia, Tennessee, and Kentucky, white men turned their sights on Indian territories where tribes seemed to own more land than they were able to cultivate. Marrying Indian wives was the only way for non-Cherokee men to gain control over land and citizenship rights within the Nation. The brand of citizenship the Nation bestowed on intermarried whites included political rights except the holding of high political offices. Citizenship in the Nation also gave whites access to land for building improvements and raising cattle and crops and access to forests for lumber and fruit. For poor, propertyless men, marriage to a Cherokee woman could mean an improvement in their material condition. In terms of political rights, intermarried white men could vote; the suffrage was limited to free male citizens over eighteen years of age except “Negroes” and the mixed offspring of “negro” women and Indian or white men.25

A Moment of Inclusion

31

The Constitution restricted seats in the General Council to “free Cherokee male citizens” and limited the position of Principal Chief to “a natural born citizen” of the Nation.26 Not surprisingly, Cherokee lawmakers excluded intermarried white men from holding high political office. Members of the legislature and the principal chief had responsibility for approving treaties negotiated with the United States and determined land policy within the Nation. At a time when the federal government and the state of Georgia were calling for the removal of Indians to territories further west, Cherokee legislators wanted to ensure that decisionmaking power remained firmly out of the hands of white men. There was no impediment, however, to appointing intermarried white citizens to the judiciary.27 Intermarried white women received the same protections under the law as Cherokee women.28 In sum, intermarried whites enjoyed many of the privileges of citizenship that native Cherokees enjoyed. The change in citizenship status was not nominal but entitled white men and women to real benefits. In light of the connection between intermarriage and access to Cherokee citizenship rights, Cherokee governing bodies quickly established laws regulating legal unions between “foreigners” and Cherokees. One of the earliest written laws governing marriage in the Nation dealt specifically with interracial marriage. In 1819 the National Committee and Council announced that white men marrying Cherokee women must obtain a license from the National Clerk and have their ceremonies solemnized by a minister of the gospel or other authorized person. Only by following this procedure could white men be admitted to the privilege of Cherokee citizenship.29 This law suggests that unions between white men and Cherokee women were often informal, confirming comments made by contemporary observers.30 In the eighteenth century, many white traders had kept several wives among different Indian tribes to maximize access to goods and trade routes, while they also maintained a legal white wife.31 The new law formalized these connections legally both within and outside of the Cherokee Nation. The act also limited white men to one legal wife, perhaps to prevent white men from maintaining a legal marriage to a white woman while also having a Cherokee wife whom U.S. law would consider a mistress or concubine. The law established equality between Cherokee women and white women as potential marriage partners for white men since marriages with women of either group were now legally binding, and, by the same token, it limited the sexual freedom of white men who could no longer have multiple wives of varying legal status. Cherokees fast realized that citizenship was valuable and created legislation to limit access to it. In 1829 Cherokees passed an act declaring that intermarried whites would lose their citizenship upon the death of

32

Chapter 1

their Cherokee spouses unless the marriage had produced children.32 The Nation recognized these children as citizens and probably wanted to ensure that the children were raised in a Cherokee social and cultural environment. Not even the existence of children, however, could prevent the forfeiture of citizenship if the surviving intermarried spouse remarried a white person. The law left the status of the children unclear in this case; however, most intermarried whites were men and any children produced in these unions belonged to the mother’s clan.33 Thus, lawmakers probably realized that a tradition existed to ensure that care would be given to these children. Since clan connections were matrilineal, and white men without Cherokee spouses lacked ties to any clan, these men would produce children without ties to a clan. Unions between intermarried whites and another non-Cherokee person threatened the Cherokee social structure because the union had the potential to create citizens without any ancestral or kin connection to the tribe— hence the denial of citizenship to intermarried whites who then remarried non-Cherokees. Racial considerations early crept into the laws regulating marriage, articulating a racial hierarchy in the Cherokee Nation that resembled that of the larger American South. An 1824 law declared that “intermarriages between negro slaves and indians, or whites, shall not be lawful” and prescribed a penalty of fifty-nine stripes on the bare back for Indian or white men marrying “negro” women slaves and twenty-five lashes for Indian or white women who married a male “negro” slave.34 This act contradicts the notion that marriage (at least formal, recognized, legal marriage) between Indians and slaves was not rare.35 Cherokee lawmakers seem to be conflating race and status, shifting toward an understanding of race as signifying condition and vice versa. If they wanted to limit marriage between free and unfree people, why add the racial qualifier of “negro”? If the intent was to prevent interracial marriage, why include the term “slave” in the descriptor? The censuses of 1809 and 1835 list only one racialized category of slaves: “black slaves.” Free blacks do not appear on the census, but “mixed negroes” do.36 Individuals of mixed black and Indian ancestry may have been included in the larger category of “Cherokee” in the early part of the nineteenth century, but their position in society was definitely in transition.37 As for the rest of the antebellum South, for Cherokees African descent and black skin denoted slavery, and perpetual servitude applied only to black people. Slave owners who permitted their “property” to intermarry with Indians or whites faced a fine of $50. The language of the Cherokee law prohibiting marriage with people of African descent seems similar to 1662 and 1691 Virginia statutes that prohibited whites from marrying nonwhites. Interestingly, the 1691 Virginia statute prohibited white men

A Moment of Inclusion

33

and women from marrying “Negroes,” mulattoes, or Indians.38 Clearly the Cherokee Nation passed their own anti-amalgamation law to distinguish themselves racially from blacks while identifying as social equals with whites. The Virginia law placed both Indians and “Negroes” outside the boundaries of acceptability by clearly stating that neither was an appropriate marriage partner for whites. In eighteenth-century Virginia, whites regarded both blacks and Indians as occupiers of a position of inferiority in the social hierarchy. The Cherokee law reordered the hierarchy so that Indians and whites were equal legally and racially. This law also mimicked white Southern laws that constrained the behavior and rights of slaves, reinforcing the notion that Cherokees and whites shared values as slaveholding societies. Marriage between slaves and free people had the potential to undermine the overall system of slavery. The ability of a slave to marry legally reinforced the humanity of individuals who were at once both property and human beings and fully neither.39 Judicial officials might choose to emphasize a slave’s status as property or as a human being, depending on the circumstances of a case.40 Slave owners bought and sold slaves as moveable commodities but also acknowledged slaves as human beings responsible for their actions: slaves could be prosecuted for murder, theft, or rape. Recognizing the ability of a slave to marry, however, implied a recognition of that union’s right to exist, thereby circumscribing some of the authority of slave masters to dispose of property as they wished. A slave’s marriage to a free person was fraught with more danger because of the interpretation of marriage as a contract between two equal parties.41 Further, within the Cherokee Nation the ability to marry was a fundamental right of citizenship. A Cherokee could confer citizenship on a spouse through marriage. As a slave-owning society, the Cherokees passed laws that reinforced their ability to control their property and sanctioned the ownership of slaves. Thus, just as in the American South, Cherokee lawmakers would prohibit legal marriages between slaves and free people to preserve the institution of slavery. The law prohibiting legal marriages between colored persons and Cherokees or whites simultaneously distinguished between free and slave to determine who could be legitimate members of Cherokee society and adopted racial distinctions to keep those of African descent out. The willingness of Cherokee legal authorities to accept Molley as a citizen is more striking given this legal context. By 1833 the Cherokee Nation had passed laws restricting the rights of Cherokees of African descent and prohibiting marriages between “negro” slaves and both Indians and whites.42 The passage of legislation targeting specific racialized categories highlights the legal contestation of the place of blacks in the Nation. Instead of extrapolating from this new legislation that Molley

34

Chapter 1

and her descendants were not entitled to Cherokee citizenship and returning them to slavery, the Nation chose to honor older notions of what it meant to be Cherokee. The Deer clan placed clan membership above considerations of race or status and pushed National authorities to respect the clan’s determination of Molley’s legitimacy as a Cherokee citizen. Molley’s legal citizenship then conferred legitimacy on her sons because clan membership was fixed matrilineally. Anthropologist Circe Sturm stresses how Molley’s story exemplifies the strength of the matrilineal clan system because Molley’s sons retained Cherokee citizenship through her, yet the racial implications of the story are even more dramatic.43 By the end of the nineteenth century, African ancestry would preclude full and equal membership in the Nation, but Molley’s Cherokee citizenship reflects the values of a period that viewed Cherokee identity in less racially rigid terms. As Cherokee lawmakers combined Cherokee tradition and American influences in considering citizenship and race in new ways, they also turned their attention to regulating reproduction. Formerly, Cherokee women had produced legitimate new members of society through childbirth. Traditional Cherokee beliefs imbued the process of reproduction with power. Cherokees believed that pregnant and menstruating women were extremely powerful, even dangerous to others.44 Cherokee women also customarily had a great deal of control over their own reproductive activities, having the right to practice abortion and infanticide.45 But the right would change in the context of the effects of early contact with Europeans, which decimated native populations. By the early nineteenth century, the southeastern Indians may have been beginning to recover, partly because intermixture with whites and Africans increased immunities to some diseases that had once devastated various tribes, and tribes were gaining some geographical stability.46 For Indians, perhaps more than for any other North American group, the issues of reproduction and population growth were particularly salient. This understanding of the importance of childbirth to larger Cherokee society played out in laws to prevent abortion. In 1826 the Council passed an act for punishing what it considered infanticide committed during pregnancy—more succinctly, abortion.47 Women, as well as their accomplices, found guilty of this crime received fifty lashes. Those individuals convicted of falsely accusing a woman of this crime “through maliciousness, with the intent of injuring or destroying the character of such woman” also received fifty lashes and were ordered to pay a fine for the benefit of the slandered person. Clearly, the Nation perceived the crime of abortion as serious and the accusation as dangerous. After Removal, the new government again passed a law punishing infanticide during pregnancy, but without the

A Moment of Inclusion

35

stipulation of penalties for those who falsely accused women of the crime.48 This act was one of the first passed by the new government, which reflects the urgency with which they approached the issue of abortion. Many Cherokees died during the forced march from Georgia to the newly established Indian Territory; concerns about sustaining the Cherokee population probably mounted in the aftermath of the Trail of Tears. The new law criminalized an act that had been the prerogative of Cherokee women. Another adjustment in Cherokee marriage law recognized the children of Cherokee men and white women as Cherokee citizens, which weakened the position of Cherokee women who had formerly been necessary to reproduce the citizenry. The Cherokee Council extended citizenship to “‘the children of Cherokee men and white women living in the Cherokee Nation as man and wife’ and made them ‘entitled to all the immunities and privileges enjoyed by citizens descending from the Cherokee race, by the mother’s side’” in November 1825.49 Prior to the passage of this law, the status of offspring produced in such unions was ambiguous. As a consequence of the 1825 legislation, Cherokee women were not the only women who gave birth to Cherokee children; white women could do so also. More accurately, Cherokee men could now create Cherokee citizens. Lawmakers were not ready to recognize all of the children of Cherokee men as citizens, however; the legislature did not include the children of Cherokee men and free black women as citizens. On the other hand, and in a nod to more traditional practices, a claim to Cherokee citizenship by birth to a Cherokee woman remained indisputable. The 1827 Cherokee Constitution, for instance, permitted citizenship, albeit with restrictions, for descendants of Cherokee women and free black men.50 Formalized Cherokee citizenship simultaneously honored and ignored the traditional significance of clan membership. The children of Cherokee women and non-Cherokee men could not be denied Cherokee citizenship, but some could have their legal rights restricted because of the race of their fathers. Further, some Cherokee citizens did not have to have clan membership to be citizens because of the race of their mothers. Cherokee legislators wrote racial considerations into definitions of legal citizenship. The newly minted citizenship laws of 1825 and 1827 also signaled a shift from requiring a maternal ancestral relationship to the tribe to be a member of the Nation to accepting any ancestral relationship, for whites at least, to be a member of the Nation.51 The Nation did not automatically recognize the children of Cherokee men and free black women, though they shared a hereditary relationship to the tribe, as Cherokees racially or as Cherokee citizens legally. Hereditary relationships to the tribe, then, did not confirm the same racial identity

36

Chapter 1

or legal status for everyone. Furthermore, Cherokee women’s central role in determining legitimate membership in the Nation diminished. Contemporary writers and legislators couched the regulation of interracial marriage in a language of protection and concern for the wellbeing of the Nation. A Cherokee editorial writer with the pen name “Socrates” claimed as early as 1828 that current laws were “extremely defective, inasmuch as every species of characters are privileged to marry our citizens usually to the injury of the woman, and a source of affliction to the parent.” He considered Cherokee women to be the main victims of the failures of the intermarriage law. Socrates wanted to deny undesirable white men “the privilege of intermarrying with Cherokee women, and thereby rendering their existence wretched and inflicting a deep rooted and corrupted ignorance among our people.”52 Socrates’ statements imply unscrupulous white men easily and frequently took advantage of Cherokee women, who, in Socrates’ view, perhaps lacked good judgment. Thus, patronizingly, Socrates viewed Cherokee women as the beneficiaries of a change in the law, though some Cherokee women may have seen the law as restricting their marital choices. The court case of James Petit, which Socrates would no doubt have viewed as confirmation of his argument, reveals the potentially disastrous results for those Cherokee women who chose white spouses. The drama played out publicly on the pages of the Cherokee Phoenix. The story began with a notice placed by James Petit, a white man, accusing his wife Elizabeth, a Cherokee woman, of abandoning him with no cause and warning others that he would not be responsible for any debts Elizabeth incurred.53 In February Elizabeth Petit responded by writing to editor Elias Boudinot to share her side of the story. Elizabeth claimed that James had forced her from their home and destroyed all of her stock, for which she wanted some compensation. She was currently relying on the generosity of others to provide her lodging and sustenance.54 By October 1829, the Cherokee Council and Committee charged James Petit with bigamy and mistreatment of his Cherokee wife. The governing body fined Petit $500 and forfeited his plantation for the benefit of Elizabeth. She also retained custody of their child.55 This case represents the workings of several different aspects of marriage laws and Cherokee custom: the limit of one wife for white men, a husband’s inability to dispose of his wife’s property, the prevention of the abuse of Cherokee wives, the matrilineal nature of clan membership for children, and the jurisdiction of the Cherokee Council over intermarried whites in the Nation. The laws, then, had teeth; they were not just statements for show to the United States but legal devices for the protection of Cherokee women. Cherokee men, however, appeared to marry whites less often and did not suffer any ill effects from marrying white women. In fact, Socrates

A Moment of Inclusion

37

did not mention this form of intermarriage at all. Statistics may explain this omission: despite the fairly even sex ratio between Cherokee males over age eighteen and Cherokee females over age sixteen, the census records reveal that among marriages legally registered by clerks, rates of marriage between Cherokee women and white men were much higher than those between Cherokee men and white women.56 Another reason why Socrates avoided criticizing the marital choices of Cherokee men may be that he was unwilling to advocate restricting the sexual choices of Cherokee men.57 Socrates also made no references to intermarriage between people of African descent and Cherokees, which indicates just how far removed people of African descent were from acceptability as legitimate marital partners and/or members of Cherokee society. Such unions were almost unthinkable. The codification of laws regarding marriage and citizenship during the first third of the nineteenth century forms the backdrop for Molley’s entrance into the Cherokee legal records and demonstrates that the Cherokee Nation was in the process of fixing meaning to race. With these laws, Cherokee legislators formalized the practice of marriage in the Nation. Further, the emergent idea of legal citizenship in the Nation provided the context for the creation of a written constitution that defined and limited who had access to rights and privileges in the Cherokee Nation. In a continuation of earlier traditions stressing the importance of matrilineal clan ties, Molley and her children remained members of the Cherokee Nation. At the same time, however, a growing population of individuals without clan ties tested and reshaped older understandings of Cherokee identity. The formerly one-to-one ratio between Cherokee racial and legal identity changed. Being Cherokee had once meant being born of a Cherokee woman, thus claiming Cherokee descent through one’s mother. Early in the nineteenth century, however, Cherokee lawmakers began to accept individuals not born of Cherokee women (those born of Cherokee men and white women) as citizens and to limit the citizenship rights of certain children of Cherokee women (those with fathers of African descent). Yet in this milieu, Molley—a woman of African descent with neither a Cherokee mother nor father, formerly a slave, and adopted by the Deer clan—and her sons were able to preserve their status as Cherokee citizens. Molley’s story reveals that Cherokee ideas about race and citizenship had not yet hardened. Moreover, Molley’s example suggests that identity in the Cherokee Nation remained a complex blend of lineage and legal and social interpretation. An 1834 letter questioning the citizenship of Hosea Morgan provides an eloquent example of how self-identification, physical appearance, community perception, and behavior intersected to construct raced

38

Chapter 1

identities in the Cherokee Nation. In asserting that Morgan had no rights to the Cherokee domain, several Cherokee petitioners noted that Morgan had the “appearance of a Spaniard but [was] representing himself to be a Catawba Indian having spent many years among the Spaniards.”58 This one statement contains several methods for ascribing a racialized identity to Morgan. First, the petitioners noted Morgan’s physical appearance; he looked like a Spaniard. Morgan’s own self-identification, however, was that of Catawba Indian. Finally, there is the element of association and of behavior—Morgan had spent many years among the Spaniards, and the petitioners seem to suggest that Morgan’s time with the Spaniards contributed to his physical appearance and the community’s perception of him as Spanish. Another letter reiterated, “The Old man is supposed to be a Spaniard but calls himself a Catawba Indian.”59 Again, there is a disjuncture between Morgan’s physical appearance, the community’s perception of his appearance, and his own claims. The 1835 Cherokee census did include individuals described as “Mixed Catawbas” and “Mixed Spanish,” so either one of these designations was in the realm of possibility for a resident, though not necessarily a citizen, of the Nation.60 Still further complicating how the wider Cherokee community perceived Morgan was his marital situation: “His wife & children are Negroes.”61 The Cherokee Indians had made their position on amalgamation clear when they prohibited unions between “negro slaves” and Indians or whites in 1824 and would restate this prohibition to include free persons of color in 1839.62 Not only was Hosea Morgan’s physical appearance ambiguous, his behavior was not within the bounds of acceptability for Cherokees. Perhaps Morgan’s interracial marriage and part in producing children that might further confuse racial identity attracted the attention of his Cherokee neighbors and brought his own racial identity into question. Though the Cherokee community turned to Morgan’s physical appearance, behavior, and his own assertions to assess his identity, Morgan confounded easy racial classification. Some members of the community, though they could not say with certainty what Morgan was, were sure of what Morgan was not: he was not a native Cherokee. The issue of who was not a native Cherokee would grow in importance throughout the nineteenth century.

Chapter 2

Racial Ideology in Transition Shoe Boots

While Molley and her sons were living inconspicuously, unaware of the looming legal battle that would question their citizenship and status as free people, the Cherokee war hero Shoe Boots was writing a petition that demonstrates that a shift in attitudes toward people of African descent in the Cherokee Nation was already taking place. On October 10, 1824, Shoe Boots wrote a letter to the chiefs in council requesting that the Nation recognize his children’s freedom and grant them Cherokee citizenship.1 The mother of Shoe Boots’s children was not a Cherokee; this fact alone excluded the children from Cherokee citizenship, since Shoe Boots’s children lacked a matrilineally determined clan identity. But race and status further impeded official Cherokee recognition of Shoe Boots’s children: Shoe Boots had conceived these children with a slave he owned, a woman of African descent named Danell.2 He confessed in his letter, “being in possession of some black people and being crest, in my affections, I debased myself, and took one of my black women by the name of Danell, by her I have had three children.”3 Shoe Boots feared the “bone of my bone and flesh of my flesh” would be distributed among his friends and family as property according to his will should he die. He could not bear the thought that his children and grandchildren might remain in perpetual bondage. Shoe Boots asked not only for the freedom of Elizabeth, John, and Polly but also for their official recognition as Cherokee citizens. Shoe Boots’s personal history represents the tremendous range of opportunities for and the variety of interracial relationships that could exist in the Cherokee Nation. Shoe Boots had initially married a Cherokee woman. While still married, Shoe Boots captured Clarinda Ellington, a young white girl, in a 1792 raid. Shoe Boots and his wife kept Clarinda as a slave. When Shoe Boots’s Cherokee wife died some years later, he and Clarinda married and had several children. By this time Clarinda’s family had located her and tried unsuccessfully to convince her to return to Kentucky. Finally, through some subterfuge and despite promises that the stay in Kentucky would be brief, Clarinda had returned to her family

40

Chapter 2

in Kentucky with her children in 1804; Shoe Boots would never see his children by Clarinda again. A few years later Shoe Boots began a relationship with Danell, his slave, and with her had several children, who became the subject of this petition.4 In one life, Shoe Boots’s experiences serve as a kind of paradigm of the larger Cherokee Nation’s interactions with the black and white populations of the United States. The Council’s response to Shoe Boots’s petition reveals ambivalence about Shoe Boots’s relationship with his slave woman and his part-black children. The National Council agreed to grant freedom to Shoe Boots’s three children by a “slave” and recognize “their inheritance to the Cherokee Country.”5 The Council claimed to have “no objections” to the petition; however, the Council included a reprimand with the bestowal of freedom and Cherokee citizenship that belies this assertion. The Council admonished Shoe Boots to “Cease begetting any more Children by his said Slave Woman.”6 The Council was willing to accept Shoe Boots’s partblack children as free citizens of the Nation, but Council members clearly felt uncomfortable with the sexual relationship that had produced the children. Council members officially warned Shoe Boots that his relationship with a black, enslaved woman was improper and inappropriate. Shoe Boots had violated taboos about sex between individuals of different statuses and different races. Some consideration was likely given to Shoe Boots and his request because of his prominence in the Nation. He was a venerated war hero with ties to the Cherokee elite.7 Thus, in spite of objections to Shoe Boots’s relationship with Danell, the Council admitted his children to the citizenry on November 6, 1824. The Council’s admonition did not, however, deter Shoe Boots from continuing his relationship with Danell, by whom he would have two more children. Some scholars have described Shoe Boots’s years-long relationship with Danell as a marriage or a common-law marriage.8 Several contemporary observers also described Shoe Boots and Danell as husband and wife and testified that Shoe Boots claimed Danell as his wife when questioned about the matter.9 Shoe Boots, however, did not refer to Danell as his wife in his petition and even described his relationship with her as “debas[ing].” Perhaps most telling, Shoe Boots asked for freedom and Cherokee citizenship only for his children but not for Danell. After his death in 1829, Shoe Boots’s sisters inherited the two remaining children as slave property and petitioned the Council to emancipate them and grant them Cherokee citizenship, but the Council refused, citing their earlier warning to Shoe Boots. Again, Shoe Boots’s sisters neglected to ask for the freedom or citizenship of their nephews’ mother, Danell. It remains unclear precisely what legal status Danell held. The children remained slave property, and eventually a white man claimed the boys as well as the rest of Shoe Boots’s estate. The claimant

Racial Ideology in Transition

41

removed the boys from the Nation and separated them from their Cherokee family. Shoe Boots’s worst fears for his mixed African and Cherokee children were realized. Shoe Boots’s situation may have prompted further Cherokee legislation to clarify the limits of interracial marriage and the ability of people of African descent to obtain Cherokee citizenship. Three weeks after the Council received Shoe Boots’s request, and perhaps in reaction to the issues Shoe Boots’s request magnified, the Council passed legislation that prohibited intermarriage between African-descended slaves and Indian or white free citizens.10 Since Shoe Boots’s petition provided a legal record of his relationship with a slave woman, and legitimate children are produced by legitimate unions, the Council feared that granting legitimacy to Shoe Boots’s children might be interpreted as legitimizing the union between Shoe Boots and Danell, at least legally. Cherokee legislators may have wanted to prevent even the appearance of permitting formal relationships between themselves and slaves. Without official sanctions or prohibitions against marriage between slaves and masters, outsiders might interpret long-standing sexual relationships between slaves and masters or slaves and free people as a form of common-law marriage. Sexual relations between masters and slaves remained a prerogative of the master class, and lawmakers were careful not to circumscribe it, but the law specifically precluded the formalization or legalization of these relations as marriages. Lawmakers then had to explicate the rights of any children such informal relations might produce. The Council wrote a clause into the 1827 Cherokee constitution excluding the children of Cherokee men with women “of the African race” from the citizenry; however, this clause did extend citizenship to “the children of Cherokee men and white women living in the Nation as man and wife.”11 The children of Cherokee men and black women had no rights to Cherokee citizenship, and the children of Cherokee women and black men could not hold political office in the Cherokee Nation despite being citizens. The Nation was defining the limits of Cherokee identity through legal action: individuals of African descent without an undeniable claim to clan membership could not be lawful Cherokees. However, Cherokee intermixture with whites was acceptable, even when such unions produced children without clan affiliations. Only the children of Cherokee women had clear claims to clan membership and Cherokee identity. Hence, the Nation recognized as legitimate citizens only the part-black children of Cherokee women. Further, to underscore the undesirability of people of African descent in the citizenry, the Council limited the political rights of these individuals, prohibiting them from holding office in the Cherokee Nation. In other words, the

42

Chapter 2

Cherokee Nation always recognized as citizens the children of Cherokee women and any non-Cherokee man but restricted only the rights of children produced in unions between Cherokee women and men of African descent. The constitutional clause points to the resiliency and strength of matrilineal clan affiliations while simultaneously acknowledging that racial considerations could nullify rights based on clan relationships. Having admitted three of Shoe Boots’s mixed-race children to citizenship, the Cherokee Nation thereby extended the full protections of Cherokee citizenship to each of them. As free citizens of the Cherokee Nation, Elizabeth and Polly conferred status and citizenship upon their own children. It is unclear if John, the son, would have been able to confer citizenship upon any children by a non-Cherokee spouse, given the persistent importance of matrilineal ties to the Nation. Through Elizabeth and Polly, Shoe Boots had several free, part-black granddaughters. When white slave hunters captured Shoe Boots’s granddaughters near Fort Gibson some years after Removal, the Cherokee Nation sent two Cherokees, Charles Landrum and Pigeon Half Breed, to recover the women. Landrum and Half Breed pursued the slave catchers to Missouri and freed the women. The Council then reimbursed Landrum and Half Breed for the expenses incurred while acting on behalf of Cherokee citizens.12 Although the Council may only reluctantly have granted Shoe Boots’s children citizenship, the Council’s commitment to these part-African Cherokee citizens was complete. At the same time that Cherokee legal authorities recognized and honored their commitment to these citizens despite their African ancestry, however, lawmakers were in the process of excluding other people from Cherokee citizenship because of their African ancestry. The African presence in the Cherokee Nation was not insubstantial: by 1835, slaves of African descent constituted 9 percent of the Cherokee Nation’s population.13 Moreover, in 1835 the Cherokee Nation was still located in the southeastern United States and surrounded by slaveholding states. Thus, though the majority of Cherokees were not slaveholders, many likely had knowledge of and/or contact with slaves of African descent, and concerns about how outsiders might view Cherokee interactions with their enslaved property and people of African descent would not have seemed far-fetched. The language of the racial categories delineated in the 1835 census also indicates the impact of American racial thinking on the Cherokees. The federal government conducted the census, but it is unclear whether Cherokee or U.S. officials set the parameters for enumerating the population. In a decidedly un-Cherokee move, federal census takers in 1835 distinguished between Cherokees of different blood quantum, such as

Racial Ideology in Transition

43

“Halfbloods,” “Quarterbloods,” and “Fullbloods.” Older Cherokee practices did not recognize variations in blood quantum among members of the Nation; censuses conducted by the Cherokees themselves did not specify blood quantum in this manner.14 While American census officials used the term “blood” as a racial term indicating Indian descent, traditional Cherokees understood “blood” to denote nationality, as in “to be a Cherokee by blood.” By the first third of the nineteenth century, however, the pages of the Cherokee Phoenix, the official newspaper of the Nation, contained some references to individuals as “mixed blood Cherokee and white” and “full blood Cherokee[s].”15 Prominent Cherokees also referenced “half breeds and full Indians.”16 A nascent Cherokee racial ideology, then, was emerging, one that would borrow elements from American racial thinking. For Cherokees, the process of accepting the new language of “blood” would continue throughout the nineteenth century. What drove this change from seeing Cherokees as one undifferentiated group to a group that can be subdivided by blood quantum? Certainly, the Cherokees borrowed some of this terminology from Americans. However, the new language also reflects incipient change in Cherokee thinking about identity. The new quantification of Cherokee “blood” implies several things: first, that Cherokee identity resides in or is somehow connected to “blood” and transmitted by “blood”; second, that Cherokee identity can be measured; and third, that individuals can be more or less Cherokee when compared to each other. Understanding Cherokee identity as a measure of ancestry or heredity is dramatically different from older conceptions of Cherokee identity based on clan relationships, in which individuals could be fully Cherokee without possessing any Cherokee ancestry. The result of developing a quantifiable definition of Cherokee identity based on ancestry would dramatically affect the process of enrollment late in the nineteenth century and the modern procedure for obtaining membership in the Cherokee Nation, both of which require tracing an individual’s lineage to a “Cherokee by blood.”17 The year 1835 produced not only a change in the language of the census but also the important Treaty of New Echota. As stated earlier, this treaty outlined Cherokee land cessions east of the Mississippi River to the United States and led to the forced removal in 1838–39 of those Cherokees who remained in the southeast. The majority of the Cherokee population regarded the treaty and the Trail of Tears as evidence of the federal government’s blatant disregard for Cherokee national sovereignty. Once in Indian Territory in 1839, Cherokee legislators wrote a new constitution recognizing the importance of reestablishing a sense of national sovereignty through their legal institutions. The new constitution also represented a bid to demonstrate similarities between themselves

44

Chapter 2

and Americans in an attempt to prevent future incursions by the federal or state governments on Cherokee sovereignty and territory. Although the Tahlequah Constitution of 1839 preserved many of the stipulations of the New Echota Constitution of 1827, the real change in post-Removal Cherokee jurisprudence is reflected in the language used to describe those of African descent. As the following discussion of postRemoval law will show, Cherokees made a sustained effort to distinguish themselves legally from those of African descent. Cherokees also drew clearer connections between whites and Indians as sharing the common identity of “not black” and “not slave.” Given whites’ conceptions of race at the time, it would have been difficult for Indians to define themselves as white racially and convince other whites of the validity of this claim. It was possible, however, to stake a common claim to a free identity. Cherokee legislators continued to allow marriages between white men and Cherokee women, reiterating a kind of equality between Indians and whites, but they complicated the procedure for legalizing such unions. In the laws passed after the 1839 constitution, the Cherokee legislature moved to establish a kind of equality with the federal government, again by imitating whites’ governmental and judicial practices as well as seeking common ground in a whiter identity that clearly defined itself in opposition to blackness. In a culmination of earlier Cherokee practices and attitudes, the Cherokee Nation passed the “Act to prevent Amalgamation with Colored Persons” in 1839. The act demonstrates the operation of two ideologies about the ordering of social hierarchies, using the language of both status and race. The act prohibited intermarriage “between a free male or female citizen with any slave or person of color not entitled to the rights of citizenship under the laws of the Cherokee Nation.”18 Unlike the earlier 1824 law, this statute did not list Indians, whites, and black slaves as separate categories. The term “free” encompassed both Indians and whites and excluded black slaves; it was Indians’ and whites’ status as free individuals that united them. Slaves and persons of color, however, were racially linked as descendants of Africans. Invoking status to differentiate between groups had the benefit of incorporating racial distinctions: the vast majority of blacks in the Cherokee Nation were slaves. Perhaps some would argue that it was the shared status of noncitizen that made slaves and persons of color unsuitable as marriage partners. The law, however, did not prohibit marriage between just any noncitizen and Cherokees; whites and Cherokees could and did still wed lawfully. It was the race, then, not the lack of citizenship, of free people of color that lawmakers found so objectionable.19 And so it was the race of the slaves, not their status as unfree people or noncitizens, that most concerned Cherokee authorities.

Racial Ideology in Transition

45

The punishments for violating the anti-amalgamation statute did not vary by condition but by race and gender, as in: “but any colored male who may be convicted under this act shall receive one hundred lashes”; other violators, regardless of race or gender, received no more than fifty lashes as punishment. “Colored” men received the harshest penalties for transgressing racial and sexual taboos. As written, the punishment clause suggests several possible interpretations: first, lawmakers wanted to deter “colored” men, in particular, from participating in interracial unions; second, the enormity of the crime was considered greater when committed by a “colored” man; and finally, “colored” men were thought to require more correction to modify their behavior. In any case, the statute implies that the sexual behavior of men of African descent was particularly threatening.20 What Cherokee lawmakers found so threatening about this particular form of interracial marriage may have had less to do with “colored” men and more to do with the reproduction of legitimate members of society and the sexuality of Cherokee women. On the surface, the law constrains the behavior of men of African descent, but perhaps the other targets of the anti-amalgamation statute were Cherokee women in their capacity to produce citizens.21 Since Cherokee descent was matrilineal, citizenship could not be denied when gained by birth through a Cherokee woman. In contrast, sexual relationships between Cherokee men and women of African descent, whether free or enslaved, did not produce Cherokee citizens (unless the Cherokee man had the stature of a Shoe Boots). In sexual relationships with men of African descent, Cherokee women would produce Cherokee citizens of African descent; if Cherokee women married men of African descent, not only would their children be Cherokee citizens, so too could their husbands gain rights and privileges in the Nation. Cherokees at this time were trying to demonstrate to whites how alike Indians and whites were in government, in education, and in behavior.22 When many states had anti-amalgamation laws on the books, creating legal familial ties with the “colored” population and recognizing citizens who physically resembled slaves would weaken the contention that Cherokees were similar to whites.23 Circumscribing the behavior of “colored” men was a way to control the sexuality of Cherokee women without acknowledging women’s sexuality or giving any power to female sexual choice. The law determined the boundaries, physically and ideologically, of Cherokee citizenship by limiting the sexual choices of women who were the mediators of legitimate membership in the Nation. Finally, this post-Removal law highlights a moment when Cherokees began to racialize the term “free.” Cherokees intended the term “free” in this statute to exclude people of African descent; “free” would increasingly take on the racial meaning of “not black.” Because the vast majority

46

Chapter 2

of people of African descent in the Cherokee Nation were enslaved, and the Cherokees had abandoned the practice of enslaving other indigenous populations and whites, the unfree population in the Nation shared the characteristic of being descended from Africans. Thus, Cherokees could equate enslaved or unfree status with the racialized identity of “colored.” This law also demonstrates that Cherokee legal thinkers more frequently thought of individuals who had been regarded as Cherokees of African descent, people such as Molley and her sons or Shoe Boots’s children with Danell, as “colored people” with Cherokee citizenship rights. The language of the statute indicates that there were persons of color “not entitled to the rights of citizenship under the laws of the Cherokee Nation” whom the law intended to prosecute, and persons of color in the Nation who were entitled to such citizenship rights.24 The term “free male or female citizen” did not encompass “colored people” with Cherokee citizenship rights. Cherokee legislators prohibited legally sanctioned unions between Indians or whites and “persons of color,” but it did not outlaw sexual contact between them. As part of a slaveholding society, legal authorities may have been unwilling to abridge the rights of masters over their enslaved property. Hence the lawmakers limited the prohibition to marriage and not sex. Given the inability of Cherokee men to bestow citizenship upon their children with women of African descent, Cherokee men had been unlikely to marry “colored” women anyway prior to the passage of the 1839 legislation. Cherokee women, however, were unconstrained by concerns for the citizenship status of their offspring and may have found some men of African descent attractive as potential mates for various reasons. Thus, the law did circumscribe the marital options of Cherokee women. Sexual relationships between Cherokee women and men of African descent were by no means common, but some evidence for such relationships prior to Removal does exist.25 For example, Sarah Hill found a fourteen-year-old girl listed as the daughter of a Cherokee woman and “‘a negro man here with the Indians’” in an 1851 census of Bird Town, located near the Oconaluftee and Tuckasegee Rivers in North Carolina. The age of the girl indicates the relationship must have begun prior to Removal.26 Further, William G. McLoughlin and Walter H. Conser, Jr., found sixty “mixed negroes”—that is, people of Cherokee and African descent—in the 1835 census of the Cherokee Nation.27 It is unclear whether these individuals were free or enslaved, but their presence in the census does provoke questions. Many were likely the products of relationships between slave masters and slave women, but Cherokee women could also own slaves and participate in sexual relationships with black men. Also, the reminiscences of ex-slaves suggest relationships between

Racial Ideology in Transition

47

Cherokee women and slave men that may have occurred prior to Removal.28 Some relationships between Cherokee women and men of African descent also could have occurred during the colonial period when Indians were still vulnerable to enslavement. Men of African descent with agricultural experience may have appealed to some Cherokee women as partners. Traditionally, Cherokee women performed agricultural labor while Cherokee men provided meat through hunting expeditions: despite the best efforts of the federal government and its civilization program, many Cherokee men resisted American attempts to rewrite gender roles and make farmers of native men.29 Men of African descent, however, often had obtained agricultural skills as slaves and, moreover, had likely abandoned any culturally based reluctance to labor in the fields. Such partners could contribute to the household economy of Cherokee women. Thus, while the law prohibiting legal unions between Indians or whites and people of color did circumscribe the marital options of Cherokee women, it did not necessarily deter their sexual relationships with men of African descent. Cherokee adoption of anti-amalgamation statutes and controls on the behavior of slaves in 1840 may be interpreted as a bid for legitimacy through the imitation of Southern antebellum slave codes or as the effort of a slaveholding society to protect its own “peculiar institution.”30 The Cherokee Nation’s new laws prohibited slaves, free “negroes” not of Cherokee ancestry, and mulattoes from owning property or improvements, and sheriffs were empowered to confiscate and sell this property, with the proceeds going to the violator.31 The language of this 1840 statute, along with other codes regulating the behavior of people of color, implies that there were some “free negroes” who were of Cherokee descent, hinting, perhaps, at legitimate sexual relationships between Cherokees and blacks before Removal. Permitting a slave, whom slaveholding societies treated as a form of property, to own property would undermine the entire system; slave ownership of property would recognize the slave as something other than property and would give the slave and master a common status as property owners: What, then, could prevent a slave from owning another slave? Oddly, the method for disposing of this property was fairly generous, however; even slaves would receive the profits from the sale of their property. Another act intended to control the behavior of people of African descent made it illegal to teach “any free negro or negroes not of Cherokee blood, or any slave belonging to any citizen or citizens of the Nation, to read or write.” The penalty was a fine of between $100 and $500.32 Again, the legal language of the act points to the presence of free people of mixed Cherokee and African descent in the Nation who

48

Chapter 2

were exempt from the prohibition on literacy for “negroes.” For slaves, literacy could mean access to information through newspapers and books, possibly enabling a slave to escape or plan insurrection. Slaveholders found slave literacy frightening. Another law forced “negroes,” residing in the Nation but not freed by a Cherokee citizen, to leave Cherokee territory. The Council viewed free “negroes” without ties to the community as particularly dangerous because they were potential inciters of rebellion and running away among slaves.33 In a departure from laws governing the behavior of slaves and free blacks in the antebellum South, Cherokee laws exempted free people of color with Cherokee ancestry from these prohibitions on behavior. There was no corresponding exemption in the slaveholding South for free people of color with white ancestry. Another difference between the Cherokee codes and Southern slave codes was that Cherokees forbade everyone—Cherokee, white, enslaved, and free—from carrying weapons; only officers of the law could legally bear arms.34 Given the Nation’s history of violence just after Removal and the lingering practice of clan vengeance, legislators may have seen a real need for this law.35 Much like current gun control proponents, Cherokees of the nineteenth century would have argued that keeping guns out of the hands of the masses would prevent widespread crime and violent behavior. Thus, closer examination of Cherokee statutes that might have appeared to be carbon copies of Southern laws reveals that Cherokees were shaping legislation to meet their own needs and conceptions of citizenship. Because ancestry was such an important component of Cherokee identity and legitimate membership in the Nation, the Council passed laws that recognized ancestry and its connection to the privileges of citizenship. The notion that Cherokees blindly accepted wholesale the laws of the United States ignores Cherokee agency and real differences between Cherokee and American jurisprudence regarding slavery. Historian Theda Perdue notes that the Cherokee Nation adopted comparatively fewer laws governing the behavior of masters and slaves before the Removal. Further, the Cherokee codes usually reserved for the master the authority to punish slaves for rebellion or insubordination.36 The slave codes of the antebellum South were much more elaborate, governing many more aspects of slave behavior. Cherokees did not institute a pass system, organize patrols, or establish special courts or use regular courts to adjudicate charges brought against slaves.37 Cherokees seemed to recognize the authority of the master as paramount and provided for less government intervention to mediate the master-slave relationship. To regulate interracial marriage, citizenship, and slavery, the laws passed by the Cherokees meshed their own notions of racial categories and hierarchies and perceptions of Cherokee identity with the

Racial Ideology in Transition

49

more practical concerns of establishing legitimacy with the United States as a sovereign nation and preserving slavery. Cherokee authorities found sexual contact between men of African descent and Cherokee or white women particularly threatening, imposing the harshest penalties on men of African descent not only in coerced interactions but even in consensual, legalized unions. In 1839, the Cherokee legislature mandated that any “negro” convicted of raping a “free female, not of negro blood” would receive death by hanging as his punishment while other men would endure a hundred lashes.38 Oddly, the 1825 law outlining the punishment for rape had made no distinctions in the race of the victim or the race of the perpetrator.39 By 1839 the Nation obviously had decided that the crime of rape between a black man and a free woman was particularly dangerous and deserving of the harshest punishment.40 These measures sought to prevent free female citizens, as the producers of legitimate members of Cherokee society, from bearing children of African descent who might claim Cherokee citizenship. The 1839 rape law also made a distinction between different kinds of women; some were apparently more sexually inviolate than others. Only the rape of a free woman lacking “negro blood” merited the death of the perpetrator as punishment. The law equalized the status of Cherokee and white women by prescribing the same punishment for attacks on the bodies of both; it smoothed over racial differences between Indians and whites by pointing to the shared characteristic of being free and not possessing “negro blood.” The law reflected Cherokees’ desire to bridge the racial gap between Indians and whites. The amended law also raises the question of whether or not the Cherokee Nation recognized the crime of rape against black women’s bodies in general and enslaved women in particular. Did “negro” men receive a lesser punishment for raping “negro” women? Did Indian or white men face any punishment for attacking “negro” women? Did Cherokee legal authorities recognize the possibility of raping a slave woman? The statute is maddeningly silent about such questions. Clearly the National Council’s attempts to limit the acceptable marriage partners of Cherokee women through the anti-amalgamation law reflected a larger legal effort to protect the racial purity of the Cherokee Nation. Penalizing “colored” men for marriages with Cherokee women reduced the number of potential sexual partners available to Cherokee women and perhaps led more Cherokee women to form unions with Cherokee men. Cherokee women were already intermarrying with white men in large numbers and creating a new kind of Cherokee citizen with ties to the outside white community, and some lawmakers also wanted to remove the option of white men as potential partners for Cherokee women.41

50

Chapter 2

As early as 1828, the Cherokee writing as Socrates had publicly aired specific misgivings about the high rates of intermarriage between Cherokee women and white men of poor character: in a fairly long opinion piece, he disparaged marriages between Cherokee women and “the [white] thief, the robber, the vagabond and the tippler and adulterer” and called for more government regulation of intermarriage between whites and Cherokees.42 The Council did not, however, attempt to restrict the sexual choices of Cherokee men. The laws regulating interracial marriage with whites applied specifically to unions between Cherokee women and white men. Officials, of course, wrote legislation that recognized the presence of white women married to Cherokee men in the Nation but did not regulate the terms for such unions. Cherokee men could marry white women or Cherokee women with equal ease. Apparently, legal authorities in the Nation did not think Cherokee men required protection from the clutches of scheming white women of questionable respectability. Cherokee men did not need the government to rescue them from their own inability to choose marriage partners wisely because Cherokee men tended to choose wives from within the Nation. Thus, intermarriage between Cherokee men and non-Cherokee women seemed to be less of an issue. The laws regarding amalgamation applied to all Cherokee citizens, both male and female, but did little to restrict Cherokee men’s sexual access to black women. Within the Nation, the overwhelming majority of black women were slaves. Much as in the American South, Cherokee slave owners and overseers rarely sought legal unions with slave women. Cherokee jurisprudence did not recognize the children of female slaves as citizens; thus, there was little incentive for Cherokee men to legalize these unions. Relationships between Cherokee men and black women tended to be informal when they arose, so prohibitions on marriage would not have affected them. The possibility of informal, undocumented unions between Cherokee men and black women does not suggest that sexual relationships between Cherokee men and black women were rampant or the norm between masters and slaves; instead, the lack of legal prohibitions on such unions points to the unwillingness of lawmakers, many of whom belonged to slaveholding families, to infringe on the prerogatives of masters over slaves or to constrain the sexual behavior of fellow men.43 In 1839, the same year in which the Cherokee legislature passed a strengthened anti-amalgamation statute prohibiting the unions of Indians and whites with people of African descent, Cherokee authorities also more explicitly outlined the terms under which white men could legally marry Cherokee women and become citizens of the Cherokee Nation. The National Council required “any white man, or citizen of the

Racial Ideology in Transition

51

United States, who may come into this Nation and take a Cherokee woman to wife” to obtain a written license from the clerk of the circuit or district court and be married by a minister of the gospel, a judge, or some other authorized official.44 The license cost five dollars, which was expensive by contemporary standards. The clerk registered the issuance of the license to the couple who then gave the license to the person officiating at the marriage. The marriage official returned the license to the clerk after certifying that he had performed a marriage ceremony uniting the couple named in the license. Obtaining a license, however, was not enough, for the law required proof that a marriage had indeed taken place. The high cost of the license was most likely aimed at preventing men of small means from marrying into the Nation for access to land and resources. The expense may have limited intermarriage to non-Cherokee men of some wealth or those who had the support of the prospective bride’s family; her family may have been willing to contribute all or part of the cost of the license. People seem to value that for which they pay more. Non-Cherokee men who failed to comply with the provisions of the act (and for some the cost may have been prohibitive) or who legally married and then abandoned their Cherokee wives would be denied any of the rights of Cherokee citizenship. If the Nation discovered that a man who had legally married a Cherokee woman had a wife elsewhere, Nation authorities would remove him as an intruder. While the Cherokee Nation placed restrictions on intermarriage between Indians and whites, some state laws prohibited these unions entirely. White men who followed the procedure for lawful marriage into the Cherokee Nation enjoyed many political rights. Intermarried white men could vote; the suffrage was limited to free male citizens over eighteen years of age except “Negroes” and the mixed offspring of “negro” women and Indian or white men. The Constitution restricted seats in the General Council to “free Cherokee male citizens” and limited the position of Principal Chief to “a natural born citizen” of the Nation. Once properly married to a Cherokee woman, then, white men, though excluded from high political office, could participate in the civic life of the Cherokee Nation. Hence, the Cherokee legislature’s attempts to regulate marriage between Cherokee women and white men in fact had the effect of regulating which white men would be admitted to Cherokee citizenship. By 1840, several members of the Cherokee Council were apparently having second thoughts about permitting marriages between Cherokee women and white men and introduced a law to prohibit unions between any white men, good character notwithstanding, and Cherokee women. Ethan Allen Hitchcock describes the circumstances surrounding the

52

Chapter 2

introduction and failure of the law in a stunningly revealing exchange with a woman of European and Cherokee ancestry: “[Ms. Wolfe] Says that last year some of the council wanted to make law prohibiting white men from marrying among the Cherokees, and she thought they would have passed the law but for her father; that he was abused, accused of wishing to have white men marry his daughters; that he told them such a law would put them back to their former state of wildness. Then she remarked that Cherokee men had better behave better and stop drinking whiskey and then the ‘Cherokee girls would marry them.’”45 Clearly, there were differing opinions among the Cherokees about the effects of intermarriage with whites: some saw intermarriage as a way to “civilize” the population while others saw it as a threat. Marrying whites created social and legal ties with the United States that could undercut Cherokee practices; conversely, white advocates of the Nation and Cherokee rights sometimes emerged from these unions. The Council failed to pass this law prohibiting intermarriage with white men, in part because of the large number of Cherokee legislators and community elites of mixed racial ancestry such as Chief John Ross, the Bushyheads, and the Ridge family.46 Rennard Strickland, a historian of the Cherokee legal system, argues that “much of the early written Cherokee law was an instrument designed to serve the needs of a small group of wealthy mixed blood Cherokees” and “mixed bloods freely acknowledged that the system was designed and introduced by a tribal minority.”47 Cherokee lawmakers often had close ties to the white community through marriage and as the product of such unions. Legislators were highly unlikely to legislate against the unions that produced themselves and many others in the Cherokee elite. Thus, the racial background of many Cherokee legislators militated against outlawing intermarriage between whites and Cherokees entirely. In contrast, Cherokee authorities did create a complicated marriage process that included petitions, oaths, testimonials, and a large fee that applied only to intermarriage between Cherokee women and “foreign men.” Through this process, American men, largely white, became citizens of the Cherokee Nation. Legislation prohibiting intermarriage with people of African descent, however, would remain on the books throughout the nineteenth century.48 While the Cherokee Council may have been unable or unwilling to prohibit marriages between Cherokee Indians and whites, the Council did pass legislation that reveals two social hierarchies: a binary system based on the legal distinction between citizens and noncitizens and a triracial system of black, white, and Indian. In 1841 the National Council authorized a census and established the duties of census takers to enumerate all citizens of the Cherokee Nation. The possible categories to be assigned to individuals residing in the Nation distinguished between

Racial Ideology in Transition

53

Cherokee citizens and noncitizens “such as free negroes, whites, or Indians of any other nation, who are not of Cherokee blood.”49 Lawmakers divided society first between Cherokee citizens and noncitizens; then they divided noncitizens into three racial groups: blacks, whites, and Indians. These guidelines reflect a new tension between a very specific Cherokee identity and a more general Indian identity. The act at once separates Cherokees from other indigenous groups and lumps all of the non-Cherokee indigenous groups together, suggesting that those other indigenous populations, and perhaps all indigenous groups, in fact, share something in common. Finally, the act injects the language of “blood,” a further indication of how the concept of Cherokee “blood” was gaining meaning and importance. In 1843 the National Council passed the “Act to legalize Intermarriage with White Men,” which further tightened the provisions of the intermarriage law. The Nation had apparently decided that the conditions they had placed on intermarriage as a means of obtaining citizenship in 1839 were too vague and lenient. In the new act, white men and other citizens of the United States hoping to marry Cherokee women had to make their intentions known to the National Council by applying for a license from the Clerk of the National Committee.50 The Council revoked the authority of district and circuit court clerks to issue marriage licenses.51 This new regulation meant that the National Council would be informed of each white man living in the Nation as an intermarried citizen. More important, the law clearly pronounced that any nonCherokee man who sought a marriage license in the Nation was choosing to “alienate himself from the protection of all other governments,” renounce allegiance to any other country or government, and agree to abide by the Cherokee constitution and laws. To ensure that there would be no confusion about this portion of the law, the President or Clerk of the National Council would administer an oath to this effect to any would-be groom.52 The law insisted that those men unwilling to swear the oath be removed from the Nation as intruders. Three years later, the legislature followed up the revamped intermarriage act with a more permanent change in citizenship status for intermarried whites who lost their Cherokee spouses through death: the surviving widow or widower would retain Cherokee citizenship unless he or she married a white person.53 This act departed from an earlier 1829 act on the status of citizenship for intermarried whites that had permitted continued citizenship for the surviving white spouse only if the union had produced children. Otherwise, the earlier law had revoked all of the privileges and rights of Cherokee citizenship. In both cases, remarrying a white person nullified citizenship for intermarried whites. The Cherokee government expected white spouses of

54

Chapter 2

Cherokees to live in the Nation, abide by the Nation’s laws, maintain a Cherokee spouse, and have Cherokee children. The 1846 act regarding the status of intermarried widows and widowers solidified the position of intermarried whites within Cherokee society. Cherokee authorities did not recognize legal marriage between blacks and Cherokees; however, this lack of legal recognition for such unions did not mean that such relationships did not occur. For example, the Delaware District civil court records contain the 1854 case of Cricket, who was charged with “takeing Collored wife.” The court tried and acquitted Cricket of the crime.54 This brief but tantalizing glimpse at the operation of the anti-amalgamation statute asks more questions than it answers. Who reported the “crime” and why? Why was Cricket acquitted? Did the court decide the bride was not “colored” after all? Did Cricket actually attempt to legally marry a “colored” woman or was the couple maintaining a less formal union? As a slaveholding society, Cherokees recognized the authority of masters over slaves and that some sexual contact between the races was bound to transpire; was the boundary that Cricket crossed, then, not having a sexual relationship with a colored woman but attempting to legitimize the relationship by making her his wife legally? Perhaps in bringing charges against Cricket but not convicting him of the crime, the court was attempting to express societal disapproval of this type of interracial relationship and to warn Cricket to bring his behavior back in line with social standards. The court case does suggest that it was not the wife’s status but her race that placed her beyond the margins of acceptability and prompted legal action, for she was not described as a slave. Interestingly, the weight of the crime rested on Cricket; the court did not bring charges against his alleged “colored” wife. The court put the onus of good behavior on Cricket. In this entry, the “colored” woman remains anonymous, reduced to a body that is the location of a crime. One cannot help but wonder what happened to Cricket and the woman at the conclusion of the trial. Did they continue an informal relationship, unmolested by the authorities? Or did the legal action taken by the Nation induce them to separate? Unfortunately, the brief court entry offers no answers. What it does tell us is that individuals attempted to formalize their relationships in spite of the legal injunction prohibiting unions between Cherokees and people of African descent. In an era when Cherokee lawmakers continued to make detailed provisions for the inclusion of whites into the Cherokee citizenry as the spouses of Cherokee men and women, lawmakers simultaneously excluded people of African descent from citizenship in the Nation. Marriage laws lumped black slaves and free people of color, who often were of African and Cherokee descent, into the same category of racially

Racial Ideology in Transition

55

forbidden marriage partners. Cherokee legislators then approved the removal of all free blacks from the Nation unless sponsored by a Cherokee citizen.55 By simultaneously prohibiting marriages of Cherokees and whites with blacks and demanding the expulsion of “free negroes,” Cherokee lawmakers attempted to prevent the growth of a free black population in the Nation. Cherokee authorities limited legitimate interracial sexual contact between people of African descent and Indians or whites to ensure that the only people of African descent in the Nation would be slaves. The Cherokee Council’s response to Shoe Boots’s petition represents a transitional moment in Cherokee racial thinking: the potential for people of African descent to become legitimate members of the Cherokee Nation, as Molley and her sons had done, was diminishing. Cherokee lawmakers had honored the war hero’s request for the legal recognition and acceptance of his children by a slave woman of African descent; however, they also had insisted that Shoe Boots “Cease begetting any more Children by his said Slave Woman,” and later they had refused to admit into citizenship Shoe Boots’s subsequent children by Danell.56 At the same time, Cherokee officials were granting full citizenship rights to the children of Cherokees and whites and permitting citizenship for the white spouses of Nation members. As Cherokees more closely aligned themselves with whites, they incrementally circumscribed the rights of people of African descent in order to distance themselves from blacks. While whites could be legitimate members of the Cherokee Nation, there was little space for legitimate black Cherokee citizens. Increasingly, being Cherokee meant not being black.

Chapter 3

The 1855 Marriage Law Racial Lines Harden

In 1878, a Choctaw case entered the Cherokee legal system, a case that offers unique insight into the intersection of race, marriage, and citizenship in the Cherokee Nation. At times during the nineteenth century, other member nations of the so-called Five Civilized Tribes—the Chickasaws, Choctaws, Creeks, and Seminoles—turned to Cherokee legal authorities for guidance in legal matters. The Cherokee Nation had created a written constitution, formalized its structures of governance, and begun passing legal statutes prior to these other groups; Cherokee authorities, then, had more experience in adjudicating matters in a more “American” style. The Cherokee courts had jurisdiction in Choctaw legal matters only when Choctaw authorities sought Cherokee legal expertise and heard this particular case in 1878 at the behest of Choctaw authorities. The courts accused James E. Reynolds, an intermarried white man in the Choctaw Nation, of murdering another intermarried Choctaw.1 The case exposed the ambiguous legal status of intermarried whites in Indian Territory. Indian courts assumed that because both the victim and the alleged perpetrator were Choctaw citizens, Indian courts had the authority to prosecute the case and mete out justice; however, American courts might interpret the legal status of intermarried whites differently. Federal courts might attempt to exercise authority over such a case because neither the accused nor the victim was a native Choctaw. The Cherokee Nation, in an attempt to preempt such uncertainty, had inserted a disavowal of U.S. judicial protections and privileges into the oath of allegiance required for whites seeking Cherokee wives in 1855.2 Thus, the Cherokee court’s decision regarding who had jurisdiction over the case hinged on the citizenship of the wives: if the women were Choctaws by birth, the men as intermarried whites would also be Choctaw citizens, and the Choctaw courts would decide the case. In the end, the Cherokee court ruled that the wives were in fact Choctaw and the case fell to the Choctaw courts.

The 1855 Marriage Law

57

The Cherokee court’s decision in this case and others involving interracial marriage and its regulation often provoked complicated jurisdictional questions and solutions that revealed a hardening Cherokee racial ideology. Through legislation, Cherokees were making clear their conception of race and racial hierarchy. Cherokees were increasingly adopting a racial rubric predicated on the difference between blacks and all other people, instead of following the American example of dividing society between whites and all nonwhites. In other words, Cherokees were articulating a system of racialized social identities in which what entitled one to full political, social, and legal rights was not whiteness, but a lack of blackness. Under this system, Cherokees and whites shared a similar status in the Nation because of their shared status as free people who were not of African descent. Cherokee lawmakers cemented this racial hierarchy through the passage of legislation permitting marriages between Cherokees and whites, especially a detailed 1855 statute regulating marriage between Cherokee women and “foreign men,” and prohibiting legal unions between Cherokee Indians or whites and people of African descent; however, the behavior of individuals in the Cherokee Nation did not always conform to the wishes of lawmakers. The1855 intermarriage act passed by the Cherokee Council required petitions signed by members of the tribe, oaths, testimonials of the worthiness of the potential spouse, and a large fee from white men seeking to marry Cherokee women. This final iteration of this intermarriage act tested the resolve of white men to marry Cherokee women; the process was both complicated and expensive. The title of this law, “An Act Regulating Intermarriages with White Men,” presumed, as previous intermarriage laws had done, that the only potential non-Cherokee marital partners for Cherokee women were white. White men still had to procure a marriage license from a clerk of one of the district courts and pay five dollars, but the law now also required the white men to take the following specific oath: “I do solemnly swear that I will honor, defend, and submit to the constitution and laws of the Cherokee Nation and will neither claim nor seek from the United States government or its judicial tribunals any protection, privileges, or redress, incompatible with the same as guaranteed to the Cherokee Nation by the United States, in treaty stipulations entered into between them.”3 The language of this oath made clear the precise nature of the commitment white men would be making to the Nation; marrying a Cherokee wife was not just a private marital commitment between two people but a public, national commitment. Before a white man could obtain this license or swear this oath, however, he had to present to the clerk a “certificate of good moral character, signed by at least seven respectable Cherokee citizens.”

58

Chapter 3

This stipulation prevented white men of questionable behavior, those so lamented by Socrates in his newspaper article, from marrying Cherokee women.4 Though the language of the laws did not identify men as the only appropriate Cherokee signers of the certificate, invariably the prospective groom sought the signature of male citizens.5 With the new requirements, Cherokee men introduced a method for monitoring and controlling the entrance of white men into the tribe as intermarried citizens. A white man could not marry into the Nation without first obtaining the approval of a number of Cherokee men. This new intermarriage act still required ministers and judges who solemnized unions to attach a marriage certificate to the license and return the documents to the district clerk. The Nation only recognized marriages between citizens of the United States and Cherokee women that adhered to the conditions outlined in this act. Ministers who performed marriages between couples without obtaining the necessary petitions and license could be taken to court and fined one hundred dollars. White men who had not complied with the act were to be removed as intruders. Numerous white women also appear in the marriage records as marrying Cherokee men and other U.S. citizens, but these unions rarely required a license.6 The lack of paperwork in these cases indicates that marriages between white women and Cherokee men legally resembled same-race marriages between Cherokee citizens more than marriages between citizens and noncitizens. The 1855 version of the intermarriage act represented a further attempt to prevent white men from using marriage with Cherokee women solely to gain access to the Nation’s resources. The fear was not unfounded on the part of the Cherokee Nation: as late as 1885, a Cherokee woman, Lula N. Beauchamp, swore in a divorce decree that her husband, Comodore Beauchamp, told her repeatedly that he had only married her to gain Cherokee citizenship.7 Lawmakers decreed that white men who married lawfully according to the terms of the act and then abandoned their Cherokee wives forfeited all of the rights and privileges of Cherokee citizenship and were subject to removal as intruders, but the legal definition of abandonment in these cases was vague; when was a case of abandonment simply a mutually agreed upon separation? The Council may have interpreted any end to the marriage as abandonment by the white spouse and ejected the intermarried white citizen from the Nation. District clerks recorded several divorce decrees in which white husbands were stripped of their Cherokee citizenship upon divorce from their Cherokee wives, suggesting that a separation of any kind, even one initiated by the wife, meant the loss of citizenship for intermarried white men.8

The 1855 Marriage Law

59

White men had obvious financial incentives to marry Cherokee women. Prior to 1890, lands in the Indian Territory were not open for white settlement. Taking an Indian wife was the only way to gain access to the apparently abundant and unoccupied land in the territory. Ras LeForce remembered white men marrying Indian girls in order to gain grazing rights for cattle. Indian citizens could allow their cattle to roam open territory and graze at will, but U.S. citizens had no right to graze and water cattle on Indian lands. The alternative was for white men to “hunt up some Indian and let him hold them [the cattle] in his name.”9 What would prevent the Indian citizen from claiming the cattle in his own name and denying any compensation to the original owner of the cattle? This arrangement was unpredictable at best. LeForce claimed that “some of these white men became immensely rich” by gaining grazing access to Indian land through their Indian wives. William James, who was white, claimed that white men married Indian girls to get a “leather permit” and patronizingly added, “After that he didn’t have to pay any permit to the Indians and was allowed the same privileges as an Indian but he usually made more money, for he was more capable of making money than an Indian.”10 Marriage became a way to avoid paying permit fees to Indian nations to remain in the territory legally. Then, at least according to James, white men’s natural industriousness and intelligence would come to the fore and ensure monetary success. There was clearly a perception among white men that marriage to Indian women meant almost automatic financial gain. D. W. Moulds recalled, “George Dickson had married a Cherokee girl so he was financially better off than most white men in the country.”11 This marriage elevated Dickson’s financial standing compared to that of other white men in the community. Legally marrying a Cherokee woman entitled a white man to citizenship rights in the Nation and land ownership. Communally held lands enabled each citizen to claim as much land, without payment, as he or she could improve. This prospect must have been extremely attractive to landless white men from southern and eastern states that were experiencing a land crunch. Marriage to Indian women ensured quick entry into the landholding class and represented a move up economically for many white men.12 Another provision of the 1855 Cherokee intermarriage law stipulated that white citizens of the Nation through marriage who prosecuted a Cherokee Indian in Cherokee courts for offenses committed in the Nation lost all citizenship rights and faced removal, a measure that corresponded with the conditions of the Intercourse Acts. The federal government had passed these acts to prevent legal jurisdictional disputes between U.S. and Cherokee courts, but some of the provisions of

60

Chapter 3

the Cherokee Nation’s intermarriage law suggest that the terms of the Intercourse Acts were often ignored. Technically, U.S. courts had no jurisdiction over crimes committed by Indians in the Indian Territory, and Cherokee courts had no jurisdiction over either crimes committed outside of the Nation or crimes within the Nation that involved American citizens, because of the provisions of the Intercourse Acts.13 The Cherokee intermarriage law, however, clearly outlined a penalty for intermarried whites who prosecuted Cherokees in Cherokee court. The fear may have been that Americans unable to bring suit against Cherokees in U.S. courts might seek Cherokee citizenship in order to pursue legal action in the Nation’s judicial system. Or, in the opposite case, adopted citizens who took legal action in the Nation but disagreed with the court’s decision might then claim their rights as U.S. citizens and seek redress in American courts. In 1883, just such a case occurred when adopted citizen J. W. Smith brought a suit against M. O. Ghormley. When the Cherokee courts found against Smith, he took action in U.S. court.14 Cherokee Nation lawmakers had probably dealt with other similar questions of competing sovereignties and citizenships and realized that this would continue to be a problem, as legal cases would later show. The required oath and the terms of the 1855 intermarriage act sought to circumvent this type of dilemma by transparently stating what effect intermarriage with citizens of the Nation would have on U.S. citizenship. Despite the conditions outlined in the Intercourse Act of 1834, disputes continued to surface about the respective authority of federal and Cherokee courts. At other times defendants in Cherokee courts and prisoners held in Cherokee prisons would claim to be American citizens and ask to be released entirely or turned over to U.S. courts.15 Sometimes the reverse occurred when individuals arrested outside of Indian Territory claimed to be Cherokee citizens and asked to be returned to the Nation for punishment.16 A common defense tactic was to challenge the Cherokee citizenship of the plaintiff in civil cases in order to have the case dismissed for lack of jurisdiction.17 Though it is not clear that noncitizens were barred from giving testimony in Cherokee courts, witnesses also often faced questions verifying their own citizenship or that of the litigants.18 The jurisdictional dispute could also center on the location of the crime committed. Judge J. L. Parker, presiding over an American court, insisted “the prohibition against the jurisdiction of the courts of the United States to try an Indian for an offence committed on another Indian applies only when the offence is committed in the Indian Country.”19 Moreover, his decision stated that if an Indian committed a crime outside of the Indian Territory, even on another Indian, he should be subject to the laws where the crime was committed.

The 1855 Marriage Law

61

The Cherokees disagreed with federal interpretations of the Intercourse Acts. Cherokee authorities wanted complete jurisdiction over cases involving only Cherokee citizens, adopted or otherwise; they contested the legality of arrests of Cherokees by American authorities for crimes committed against other Cherokees within the Nation.20 These disputes led to complaints by the Cherokees that some U.S. judges refused to recognize any Cherokee laws or jurisdiction and took up any cases involving adopted white citizens of the Nation, even those already arbitrated by the Cherokee courts.21 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 marrying into the Nation, as the case of Smith versus Ghormley showed, that the Cherokee Nation wrote the penalties for violating the Intercourse Act into the intermarriage law as well as required the oath of allegiance for intermarried white men. Testimony from contemporaries of this time period suggests that in actual practice there was some variation from the conditions for the marriage act laid out in the law for white men hoping to marry Cherokee women. Christopher Jordan, a white man born in Arkansas in 1852, claimed that he had to get not seven but twelve Cherokee citizens to sign his petition as well as twelve white men to vouch for his reputation.22 Henry Clay Payne, who married Cherokee woman Rosy Coody in 1887, also claimed that he needed twelve signatures of people who knew him in Kansas, in addition to twelve signatures from Cherokee Nation citizens and ten dollars.23 Several district courts also recorded affidavits from the prospective groom’s home county and state confirming his good character, that he had never voted in a state election, and that he was not already married or divorced.24 What explains the imposition of conditions that went beyond the requirements of the law? The process may have varied by district.25 Cherokee lawmakers put the execution of the terms of the act in the hands of the district clerk. Thus, some prospective grooms may have remembered paying ten dollars when they married their Cherokee wives: “$5.00 went to the Capital, Talequah [sic], $2.50 as a clerk’s fee and $2.50 for performing the ceremony.”26 Some clerks may have seen their duties as potentially lucrative. Though the law called for only seven signatures, the existing petitions in district court records generally included seven or ten signatures.27 The expense and hassle of obtaining all of those signatures and affidavits tested the resolve of those white men who sought Cherokee wives: Christopher Jordan remarked years later, “I will never forget how hard it was for a white man to get married to a native Cherokee.”28 The procedure offered several checks on the character of white

62

Chapter 3

men who would be citizens of the Nation, as well as an evaluation of their financial means. This may have been the ultimate aim of the Council, to firm the commitment of white men to their Cherokee wives by complicating the marriage act so that only the most serious candidates applied for a license. A secondary result of this intermarriage act may have been a greater effort on the part of young couples to gain the approval of Cherokee parents. The first, most obvious place to turn for signers of the petition needed to acquire a marriage license would be the male relatives of the Cherokee bride: her father, uncles, brothers, and cousins. Presumably there would have been some contact between the suitor and the woman’s family putting the family members in a position of being able to comment on the suitor’s character. Also, if a girl’s family was unhappy with her choice, the family could discourage neighbors and friends from signing the petition of the American man. Likewise, if a man lacked the assets himself to pay the license fee, the woman’s family members might be willing to contribute if they approved of the match. These provisions, then, may have increased Cherokee parents’ ability to control the marriage choices of their daughters. Perhaps another residual, unintended effect of the law was an increased influence of the families of the grooms. A male citizen of the United States might also turn to his family members for aid to collect the fee or for affidavits about his good character when required by a district clerk. Thus, families could express disapproval and disrupt the process by refusing to supply money or legal documents. In some ways, then, the law was a subtle reaffirmation of parental authority in the selection of their children’s spouses. In this procedure the role of the Cherokee woman and her power to choose a spouse is almost lost. In fact, in several cases white men applied for and received marriage licenses with the support of Cherokee men without naming the future wife.29 Other district clerks solemnized marriages without ever recording the woman’s name.30 In previous intermarriage acts, the identity of the woman had been important because she conferred citizenship by consenting to marry; it was through her, her choices, and her actions that an outsider gained citizenship. Now, in the cases where the woman remained anonymous, the marriage act became a transaction in women’s bodies between men; her identity had become less important than the clearly entered names of the male petitioner and the male signers of the document, and the woman had become almost incidental to the entire act. One also wonders if American men could seek and obtain licenses to intermarry in the Nation without having yet met the intended bride. Would a man with hopes of meeting and wooing a Cherokee wife get his paperwork in order ahead of time and then search for a bride? Would, then, any Cherokee woman do? This

The 1855 Marriage Law

63

cold formulation reduces Cherokee women to vessels of citizenship, objects wanted only for their connection to material gain. Ironically, lawmakers had claimed the original intent of the intermarriage act was to protect Cherokee women from just such mercenary behavior by white men. Instead of Cherokee women being at the center of intermarriage, white men—their suitability and reputation—became the focus of the act. In a reconceptualization of marriage reminiscent of the frontier pattern of exchanging women as gifts and offerings of goodwill, men, Cherokee and otherwise, reached an agreement and exchanged Cherokee women as a symbol of their relationship.31 The behavior of interracial couples at this time confirms that this version of the intermarriage law was not merely a paper tiger but a law that many took great pains to satisfy. The Cherokee Nation refused to acknowledge marriages solemnized outside of the territory and thus did not bestow any of the rights of Cherokee citizenship upon these “foreign” husbands. Many couples that had previously married in nearby states would remarry in the Nation to gain the Cherokee government’s recognition of their unions.32 Couples understood that without this recognition, American men could not become citizens of the Nation.33 Thus, minister Ed Sunday remarried three couples that had already married in Texas in order to make the white men citizens of the Cherokee Nation.34 Anna Killough Wyss remembered a Mr. Watson who “performed many wedding ceremonies, not only among the young people but among the older people as well. These bridegrooms were usually squawmen who had been married by the tribal custom but wanted the civil marriage ceremony in order to have the rights of citizens among the Cherokees.”35 Clearly, average citizens were familiar with and understood the intermarriage law as both spectators and participants.36 The high number of marriages between white men and Cherokee women recorded by district clerks also indicates that knowledge and observance of the law was widespread; the majority of existing marriage licenses united interracial couples.37 The ramifications for noncompliance were serious: several acts declared that those persons not having the rights of Cherokee citizenship but living in the Nation were subject to removal as intruders.38 As a result, more than material gain or citizenship rights were at stake in legalizing unions; the Nation could break up relationships outside the bounds of legally recognized marriage by expelling the husbands as intruders. Despite the penalties outlined, conformity with the law was not universal. Some American men did not approach the oath of allegiance to the Nation blithely but comprehended the full import of their actions and balked at the consequences. When William Anthony Cummins went to the district clerk in 1881 with his intended Elizabeth McDaniels,

64

Chapter 3

he refused to take the oath: “So I asked him about the oath. He told me I would have to renounce my allegiance to the United States and swear allegiance to the Cherokee Nation and to submit all grievances to their courts, in other words become a Cherokee Indian. I couldn’t take that oath and told him so. I told him I would never sever my relations with the United States under any circumstances, so good-bye; that I could get married some place else.”39 Cummins was not ready to “become a Cherokee Indian,” to change his identity from American citizen to Cherokee citizen or, more radically, from white to Indian. He appreciated the enormity of the commitment he would be making in changing his citizenship. So, Cummins instead took his bride to a missionary of the Methodist Church to seek a religious ceremony for their union so that he could avoid swearing the oath of allegiance. He realized that no court records would be made of this type of marriage, but he claimed his marriage was legal and customary. No doubt community members, and most likely family members, would have recognized this union, but the marriage would not have been legal as far as Cherokee authorities were concerned. Alex R. Matheson, an observer, also noted that a white man could marry a Cherokee girl without following the procedure of petition, oath, and fees, but that citizenship would not follow from these unions.40 The comments of Cummins and Matheson hint that not all white men who chose Cherokee wives observed the requirements of the intermarriage law, and that many informal unions existed. As for Cummins, perhaps there were procedural roadblocks to marrying legally into the Nation. The lack of money or petition signers could easily derail the proceedings. Further, Matheson’s discussion of the option of not legalizing unions as a choice for white men implies that the Nation did not always enforce the penalties for ignoring the law. Perhaps the Nation did not force submission because it was in the best interest of the white men involved to legalize their marriages. The Nation may also have lacked the resources to search for and prosecute every American man living in the territory without benefit of legal marriage. Cherokee lawmakers apparently regarded non-Cherokee women marrying into the Nation as less threatening than their male counterparts; the legislators wrote no laws regulating this type of intermarriage; and the law policing marriage between Cherokee women and foreign men did not apply to foreign women and Cherokee men: “At that time an Indian man could marry a white woman when he pleased.”41 No laws required white women to swear the oath of allegiance to the Nation. Nor did Cherokee men have to pay a fee to obtain a license to marry outside of the tribe. White women also did not seek petitions signed by Cherokees attesting to good moral character or affidavits from home counties

The 1855 Marriage Law

65

about their reputation, voting behavior (obviously at this time women were not members of the electorate), or marital status. In fact, the marriage entries for couples in which the women were white and the men Cherokee closely resembled the entries for marriages between two members of the Nation.42 Comparisons show that in both types of marriages, the district clerk listed the unions almost as marriage announcements. Entries generally stated that marriage had been solemnized between parties A and B and sometimes included the hometown of each party and the location of the ceremony. These entries came after the marriage had become a fact. The entries for marriages between foreign men and Cherokee women, however, usually contained much more information and clerks started recording them before the marriage act was completed. Entries frequently included a copy of the petition along with the names of the signers.43 The wording of the license often stated the potential groom’s compliance with the 1855 act regulating intermarriage, his swearing of the oath, and authorized religious officials to perform the ceremony. The entry then sometimes contained the statement of the officiating clergyman testifying to his solemnization of the marriage rites.44 The records of district court clerks reveal that the legal perception of marriages between Cherokee men and white women also more closely resembled the understanding of marriages between two Cherokees. This practice seems to be another way to equate Cherokee and white women; a Cherokee man could marry either with little difficulty under the law. For white men, however, marrying a Cherokee woman was fraught with more difficulty than choosing a white wife, conceivably implying that the value of the Cherokee wife was greater. The 1855 intermarriage law also did not constrict the choices of Cherokee men in choosing partners as it did the choices of white men. Moreover, because Cherokee men could confer citizenship on their children by white women by 1825, Cherokee men did not need Cherokee wives to produce Cherokee citizens.45 The law limited the marital choices of Cherokee women and white men while enlarging those of Cherokee men. Though lawmakers did not establish a procedure for Cherokee men to marry white women, they must have recognized these marriages as legal because they anticipated the citizenship status of widowed white women. The 1855 intermarriage law provided that intermarried white women widowed by the death of a Cherokee spouse continued to enjoy all of the privileges and rights of citizenship unless they remarried a white man.46 Some people were evidently confused about intermarried white women’s access to citizenship because women did not swear the oath of allegiance to the Cherokee Nation.47 It seemed that the Nation perceived no need to ensure the allegiance of white women. While prevailing nineteenth-century

66

Chapter 3

ideas about marriage in Europe and the United States presumed that a woman’s first allegiance would be to her spouse, a Cherokee woman’s first allegiance belonged to her clan. Therefore, Cherokees recognized that husbands and wives did not always have the same interests or shared loyalties. Yet, even though foreign women had no clan allegiances, the Nation did not require them to take the oath. The lack of a required oath of allegiance for white women marrying into the Nation was due partly to the matrilineal nature of kinship and identity among the Cherokees. A foreign woman’s only clan connections existed through her husband, effectively making his clan interests her clan interests. Whereas foreign men presented a danger because of their ability to upset inheritance practices, turn to U.S. courts for redress of grievances, and challenge the political order, American women were not legitimate legal and political actors in the United States or in the Cherokee Nation. Women in the Nation, whether Cherokee or otherwise, did not vote or hold political office.48 And finally, in the realm of sexual choice, the introduction of more men into the Nation meant more competition between men for wives. Permitting a relatively simple process for marriage between foreign women and Nation members led to more sexual choice for Cherokee men. Cherokee lawmakers, an entirely male group, increased the options for themselves and other Cherokee men by choosing not to complicate the marriage act for this type of interracial couple. The oath of allegiance required for white men by the 1855 intermarriage law made the decision in the case of accused murderer James E. Reynolds, an intermarried white man in the Choctaw Nation, simple for Cherokee officials.49 Cherokee judicial officials had only to determine if the spouses of the accused and the victim were Choctaw citizens by birth. Then, the men, as intermarried whites, would also be Choctaw citizens, and the Choctaw courts would decide the case. Again, the Intercourse Acts stipulated that both parties had to be members of the indigenous group for the matter to be adjudicated by indigenous courts. This court case also established more firmly that for all tribes either matrilineal or patrilineal descent from an Indian entitled an individual to citizenship.50 What was important was a blood connection to the tribe; the source was irrelevant. The court ruled that the wives of both the victim and the assailant were in fact Choctaw through patrilineal blood connections to the Choctaw Nation and handed jurisdiction over the murder case back to Choctaw courts. In some ways, by the middle of the nineteenth century, white men completed two transformations, legal and racial, by marrying Indian women and taking on Indian citizenship and identity. The Cherokee courts merely upheld this understanding of the transformation wrought by marriage.

The 1855 Marriage Law

67

Some of the American legal decisions about the jurisdiction of courts spoke directly to the limits of marriage and citizenship to define race and countered Cherokee legal interpretations. Controversy arose between the Cherokee and American legal systems in 1885 over the case of a murdered adopted white citizen by the name of French.51 Judge J. L. Parker of Ft. Smith, Arkansas, advised Principal Chief Dennis W. Bushyhead to save Cherokee money in court costs by turning the alleged murderer over to the U.S. marshals and U.S. court system. Parker claimed that if the Cherokee courts tried and convicted an Indian by birth for the crime, the federal government would take no further action. If, however, the Nation’s courts acquitted an Indian of the crime, federal authorities would arrest the alleged perpetrator and try him or her in U.S. court. Parker based his comments on the remarks of Chief Justice Taney in an 1845 U.S. Supreme Court case and enclosed Taney’s decision in the letter. The first portion of the decision established the jurisdiction of U.S. courts over white men who might commit a crime in Indian Territory. Taney’s decision in U. S. v. William S. Rogers stated, “and a white citizen of the United States, who has been adopted by the tribe, and permanently domiciled among them, is not an Indian, within the meaning of this exception: he is liable to be tried for the crime of murder by the circuit court of the United States for the district of Arkansas.”52 The Taney opinion further stated that an adult white male adopted by a tribe at a mature age was not an Indian; he might be entitled to certain privileges in the tribe and follow their laws, but he could not be an Indian.53 In other words, U.S. citizenship took precedence over Cherokee citizenship. The language of the decision also conflates race and citizenship: “a white citizen of the United States . . . is not an Indian.” The first part of the statement describes a legal and racial identity, citizenship and whiteness, but the second part refers only to a racial identity. Thus, if racial identity was fixed, so too was legal identity. Additionally, U.S. law overruled Cherokee law: Judge Parker used Chief Justice Taney’s decision to claim U.S. jurisdiction in cases involving adopted white male citizens of the Nation despite the fact that those men had taken an oath relinquishing their rights as American citizens and, specifically, the privileges of U.S. courts.54 According to the American legal thinkers, a person might marry an Indian, live like an Indian, and vote and enjoy the rights of an Indian, but these facts could not make you an Indian or a citizen of an Indian nation. Neither citizenship nor race was so easily transformed. The competing and contradictory legal interpretations of the meaning of intermarriage reveal real differences between Cherokee and American conceptualizations of race and citizenship. For American legal thinkers, racial identity was a permanent category; once born white, a person could

68

Chapter 3

not become a member of another race. Further, race appeared to be determined by descent because it was a characteristic with which one was born—hence its stability as a category. And race was closely linked to citizenship. Under this rubric, behavior, oaths, and legal activity could not change the reality of race. The language of the Taney decision also blurred race and citizenship; because racial identity was unchanging, so was citizenship. A white man could not become an Indian, in spite of his own behavior and words; therefore, he could not be a citizen of an Indian nation and entirely subject to their laws. He retained his whiteness and, thus, his access to American citizenship.55 The Cherokees defined citizenship less rigidly. They were more interested in the behavior, not the ancestry, of adopted whites when determining citizenship status. If whites followed Cherokee laws, married Cherokee people, lived in the Nation, and swore loyalty to the government, the Cherokees considered them citizens of the Nation. Similarly, Cherokees constructed race more broadly. Perhaps the large number of people of mixed European and Indian ancestry living in the Nation explains Cherokee attitudes. The Cherokees’ long-standing history of intermarrying with whites had resulted in the rise of many part-white men to elite status and positions of leadership. Principal Chief John Ross, for instance, was reputedly one-eighth Cherokee and seven-eighths white.56 Many Cherokees could have passed for white in appearance in wider U.S. society but chose to remain in the Nation with their families, adhering to the laws and marrying other members of the tribe. Appearance, then, became less of a marker for race than behavior in the Cherokee Nation. In other words, the Cherokees subscribed to more performative definitions of citizenship and race while Americans understood race as a biological fact, and further linked citizenship status to ancestry.57 For whites, the permanent nature of a white racial identity and legal status may have been gender specific and protected only for white men. Evidently, a white woman’s legal status was vulnerable to change depending on her choice of sexual partner. For instance, in Virginia in 1723, the Assembly passed legislation that revoked the tax-exempt status of free black women and Indian women in the colony. In contrast, white women, and more specifically their husbands, continued to enjoy tax-exempt status unless the white woman married a free black or Indian man. The Assembly intended the change in the law to prevent nonwhite free men from having access to tax-exempt labor from their wives, but the new legislation also revealed a limitation on the racial identity of white women: white women could become less white by marrying a nonwhite man.58 A white woman who married a black or Indian man lost some of her legal white racial identity, as evidenced by her loss of a white legal privilege. As in the case of the Cherokee jurisprudence, marriage could

The 1855 Marriage Law

69

change one’s legal, and to some extent racial, identity. White women were also penalized for their sexual association with black men outside of the bounds of matrimony in colonial Virginia. A free white woman who bore the illegitimate children of a black or mulatto man faced a fine of £15 or being sold for a five-year term if she lacked the funds to pay the fine. Her child would have had to serve an indenture of thirty years. A female servant who bore an illegitimate child of color would have had two years added to her service to her master and would also be sold for five more years of servitude.59 The racial identity of these white women shifted legally so that they existed in a kind of racial limbo. As the mothers of mulatto children and the sexual partners of black men, the women lost some of the legal privileges of whiteness, yet they were not exactly black either. In the Cherokee Nation, however, both white men and women who married into the tribe divested themselves of American citizenship and became Cherokees entitled to most of the legal protections of other citizens. Cherokees and white Americans premised their racial hierarchies on different racial dichotomies: Cherokees divided the world into black and nonblack categories while white Americans perceived the world as white and nonwhite. Historian Peter Wallenstein shows that this formulation for the premising of racial hierarchy in Oklahoma emerged during the first half of the twentieth century; however, it reflects nineteenth-century ideas in the Cherokee Nation.60 Cherokee anti-amalgamation statutes drew the color line between Negro slaves and non-Negro Indians and whites in 1824 and then later between free citizens (Cherokee or white) and any person of color.61 Cherokees attempted to bridge differences between themselves and whites by drawing connections between both groups based on a shared status of freedom. After Emancipation, Cherokees relied on an understanding of racial difference predicated on negative affinities. In other words, Cherokees and whites were essentially the same because they were not black. Thus, all nonblack groups were more or less equal. Whites, on the other hand, focused on the binary opposition of white and nonwhite, as when the Virginia legislature outlawed interracial marriage by prohibiting “negroes,” mulattoes, and Indians from marrying “English, or other white women.”62 By the mid-nineteenth century, whites often conflated the identities of those of African descent and those of American Indian descent. For instance, though in North America the term “mulatto” usually referred to the offspring of one white and one black parent, whites would often describe American Indians and those of mixed Indian and white ancestry as “mulatto” even though they had no African ancestry.63 White legislators in colonial Virginia legally defined the term “mulatto” to include “the child of an Indian, and the child, grandchild or great grandchild of

70

Chapter 3

a negro.”64 White Americans, it would seem, were more than willing to lump those of African descent and American Indian descent in one group united by their nonwhiteness. In American society, being white was what mattered. For Cherokees, not being black was most important to their sense of racial identity. In other words, just where Indians fell in the black/white dichotomy depended on the race of those doing the defining. The location of American Indians in these competing racial rubrics could determine the success of Indian attempts to maintain sovereignty, political power, economic leverage, and social status. Though Cherokees and whites may have disagreed about the permanence of racial categories and the ideologies buttressing them, they appear to have been in agreement on one aspect of racial thinking: the possession of any African ancestry could make one a “Negro.” Prior to 1866, the Cherokees included language in their constitution that prohibited any person of “negro or mulatto parentage, either by the father or mother’s side” from holding any office in the Cherokee government.65 Strict interpretation of this statement could suggest that someone who was one-quarter “negro” might be eligible for office. It is more likely, however, that the provision barred all men of any Negro ancestry from holding political office in the Cherokee Nation. In the early nineteenth century, people often used terms such as “mulatto” with less consideration for actual definitions. Thus, census-takers or community members might describe a black person with a light complexion as “mulatto” even if he or she was not the offspring of one black parent and one white parent. Moreover, many Cherokees and white Americans regarded mulattoes as simply “negro.” The Cherokee Constitution also denied citizenship to the descendants of Cherokee men and women of African descent, be they free or enslaved.66 The degree of African heritage such a person possessed was irrelevant; any amount precluded Cherokee citizenship for her offspring. Any African ancestry placed a person firmly in the category “Negro.” Moreover, African ancestry seemed to override any other type of racial identification. This was similar to whites’ understanding of race with regard to blacks. Despite physical appearance, relation to a longago African ancestor often determined one’s racial classification. For both Cherokees and whites, little African ancestry was required to be deemed a “Negro,” and once so labeled, a person’s racial classification was generally permanent.67 The 1855 “Act Regulating Intermarriages with White Men” left no room for relationships between Cherokees and blacks. The language of the act as well as other legislation referred specifically to white men and white women as the potential partners of Cherokees who married outside of the Nation. The lack of recognition for the possibility of legal unions existing between Cherokees and blacks derived from the 1839

The 1855 Marriage Law

71

act preventing amalgamation with colored persons, which was still in effect, but that did not prevent such unions from occurring. Sarah Ann Harlan, a part-Indian resident of the Indian Territory during the mid-nineteenth century, recalled a case of an Indian man pursuing a relationship with a black woman despite the legal injunctions prohibiting such unions: “The War was progressing rapidly, and I wanted to get away from Tishomingo; not on account of the War, but on account of an Indian man wanting to marry one of the negroes. We finally kept her in the house to try to keep him from coming to see her. My husband sent word that he had called on the United States officers, and that it was unlawful for an Indian to have a negro wife.”68 Here again, Harlan’s account fascinates because of the questions it provokes. Was Harlan’s slave receptive to the attentions of the Indian man? Was he unaware of the law or just willing to ignore it? As a member of the master class, Harlan surely knew of sexual relationships between slaves and masters. Harlan may have found the Indian man’s interest in her slave threatening precisely because he was not a slaveholder, not this slave woman’s master. Harlan and her husband were concerned enough to contact the U.S. authorities for help.69 The Indian man’s intention to marry a slave girl, not just carry on an illicit affair with her, also upset the prescribed order for such interracial relationships. Harlan probably found his determination to marry a slave girl incomprehensible; the would-be groom went so far as to threaten Harlan’s husband’s life. As fate would have it, the prospective groom was murdered not long after this dispute with the Harlans; thus, Emancipation would not present an opportunity for this couple to marry.70 Before the Civil War, Cherokee laws never granted recognition to unions between Cherokees or whites and people of African descent despite the fact that the sizeable number of black people who resided in the Nation continued to grow and although the potential for such unions clearly existed. By 1860, the slave population had grown to 18 percent of the entire population of the Nation.71 Many slaves were culturally Cherokee, speaking only the Cherokee language and living immersed in Cherokee life and traditions. Often Cherokee Nation slaves, and more generally slaves in the Indian Territory, drew distinctions between themselves and slaves from the surrounding Southern states; the slaves themselves recognized the cultural differences between Cherokees and Americans.72 Moreover, some Cherokee Nation slaves were of mixed Cherokee and African descent. Much as in the antebellum South, despite social and sometimes legal injunctions against sexual contact between blacks and whites or blacks and Cherokees, natural inclination and the will of the master over the slave would not be deterred. As human chattel, slaves, of course, could not legally be accepted as citizens of the Cherokee Nation.

72

Chapter 3

The slave population represented a group that was often culturally Cherokee, and sometimes descended from Cherokees, but unacknowledged as Cherokees legally or racially. At the same time that the Cherokee Nation passed detailed laws policing marriages between its citizens and noncitizens, the legislature continued to see no reason to enact specific procedures to regulate marriages between Cherokees. Most likely Cherokees continued to follow older patterns of marriage without registering unions with district clerks.73 The lack of entries about these marriages in district court records suggests that Cherokee couples did not always seek legal recognition of their unions.74 A religious official probably solemnized the marriage, and family and community members accepted the union as completely respectable. The need to legalize these unions was less pressing because no citizenship rights were at stake and no threat of removal loomed for a non-Cherokee spouse. The lack of legal recognition, along with existing customs about female property ownership and the clan membership of children produced by the union, also would have simplified divorce. The dearth of legislation governing marriage between nation members implies that these unions were personal and private issues, whereas the marriages of Cherokee women and foreign men were national concerns in which spousal choice was in some way mediated by Cherokee jurisprudence. The out-marriage behavior of Cherokee women had consequences that extended far beyond the domain of the home and smacked of the political, and thus required governmental regulation. The Cherokee Nation’s posture regarding interracial marriage established a legal equality between Cherokees and whites and, more broadly, between the Cherokee Nation and the United States. Cherokee women and white men could marry legally, unlike in some other states. In fact, the legal hoop-jumping required of white men hoping to marry Cherokee women implied that white men were seeking a privilege, that such men were marrying above their station. Perhaps more importantly, Cherokees wanted American authorities to view the Nation as a sovereign country with the power to regulate its own internal affairs and negotiate treaties and agreements with other sovereign countries, just like the United States. One way that Cherokee lawmakers hoped to demonstrate the comparable sovereignty of both countries was to create a legal equality in one of the most fundamental relationships in society: marriage. Cherokee authorities also wanted to dictate the terms under which new people entered the citizenry because citizenship in the Cherokee Nation came with real benefits in the form of access to land, natural resources, and annuity funds. The intermarriage statute required white men who wished to marry Cherokee women to take an oath relinquishing American legal rights and protections to prevent sticky jurisdictional

The 1855 Marriage Law

73

disputes between U.S. and Cherokee courts that could prove damaging to Cherokee sovereignty. Most strikingly, the Cherokee intermarriage law of 1855, with its language providing for unions solely between Cherokee Indians and whites, along with the anti-amalgamation statute, revealed a racial ideology and hierarchy that excluded people of African descent from legitimate citizenship. In case the preexisting anti-amalgamation law had left any doubt, the intermarriage law did not acknowledge that people of African descent were potential marriage partners for Cherokee citizens. The omission again reiterates a kind of equality between Cherokees and whites: the two groups shared the characteristic of not being of African descent and being legally prohibited from marrying people of African descent. And people of African descent occupied a lower position in the social hierarchy. 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.

Chapter 4

The Civil War A Missed Opportunity

In 1866, the Cherokee Nation stood at a crossroads: with the emancipation of the slaves, Cherokees had to rethink definitions of citizenship and Cherokee identity. The year represented a moment pregnant with possibility. The Cherokees could choose to accept their former slaves as full and equal members of society. Race would become meaningless in discussions of Cherokee citizenship. Further, the Nation could also opt to incorporate intermarried white citizens with complete and full rights as Cherokee citizens. The Nation, however, chose to uphold and strengthen older racial divisions in Cherokee society and create a hierarchy of legal citizenship. The Cherokees fought against admitting their former slaves into Cherokee citizenship and did so only at the insistence of federal authorities. Once the Cherokees capitulated to American demands to extend citizenship to the freed people, the Cherokee legislature resolved to keep the freed people separate from other citizens of the Nation. In a similar vein, Cherokee authorities maintained a separate legal category for intermarried whites. Legislators continued to admit intermarried whites into the Nation only when those whites followed specific procedures and placed some limits on the legal rights to which intermarried whites were entitled. Emancipation and the Civil War did little to change the racial attitudes of Cherokees toward blacks or the Nation’s willingness to accept marriages between its native citizens and former slaves. Though the Cherokee Nation abolished slavery voluntarily, it was only at the behest of the federal government that it admitted freedmen to the citizenry. And despite this influx of a large number of new black citizens into the Nation, the Cherokee legislature made no adjustments to the laws governing interracial marriage or to anti-amalgamation statutes. Other statutes passed by the Cherokee Nation, however, would demonstrate changing ideas about both Cherokee and Indian identity. While neglecting to remove the prohibition on marriages between Cherokees or whites and people of color, the Nation did repeal laws that proscribed literacy for blacks and barred trading with blacks.1 The legal

The Civil War

75

actions of the Council suggest that the Council recognized and was willing to address some of the racial inequities in the law; as far as lawmakers were concerned, however, the subject of intermarriage with blacks remained taboo, as it did in Southern states.2 Slavery had been abolished, and freedmen, as well as other free people of color, were now citizens of the Nation. The argument that the status of blacks, slave versus free or citizen versus noncitizen, made them undesirable marriage partners became moot. Racial or cultural difference alone also could not account for the aversion to intermarriage with blacks. After all, the Cherokees were more than willing to accept intermarriage with whites and had even established detailed procedures to govern the practice. What, then, made intermarriage with colored people so unacceptable in Cherokee society? In February 1863 the Council voted to emancipate all slaves in the Cherokee Nation and abolish the institution, and no longer did lawmakers deem it necessary to make the distinction between free and unfree peoples but between colored persons and others.3 This was the source of the contradictory revisionist language of the 1868 reprint of the 1839 law that seemed to recognize that slavery as an institution no longer existed while simultaneously playing on the common connection to freedom, which people define in opposition to slavery, of whites and Indians: “intermarriage shall not be lawful between a free male or female citizen with any person of color.”4 In recognition of the institution of slavery, the earlier 1824 and 1839 forms of the anti-amalgamation statutes had specified that Negro slaves, not the larger category of persons of color, were unacceptable marriage partners.5 This bit of rewritten legality reinforces the contention that it was not just the condition of slaves that Cherokees found so objectionable but also the African ancestry of slaves. Cherokees saw themselves as racially different from blacks and wanted to preserve that difference and distance between the two groups by preventing intermarriage between them.6 The origins of Cherokee ideas about race and the development of racial prejudice are less important to this study than the recognition that the ideas were present in Cherokee society and played out in marriage laws. During early contact, Cherokee Indians saw Africans first as the slaves of Europeans and then as fellow bondsmen. Cherokees probably early associated slavery with Africans and wanted to put as much social distance as possible between themselves and blacks. Cherokee Indians then made strategic decisions to align themselves politically, socially, and economically with whites. To be sure, the U.S. government pressured the Cherokee Nation to adopt white practices, but Cherokee elites and lawmakers also embraced some distinctive behaviors in an effort to ensure the survival and continuance of the Nation. Then, when

76

Chapter 4

the Nation abolished slavery and could have dealt with blacks more equitably, the Nation chose first to fight admitting blacks to citizenship, then to limit citizenship to as few blacks as possible, and finally to take further action to limit the rights of those freedmen who did obtain citizenship. Cherokee lawmakers attempted to deny full and equal citizenship to blacks in spite of white insistence they do otherwise. This obstinacy, again, is evidence that Cherokees did not always follow and blindly accept white attitudes and examples, but sometimes acted autonomously. The Nation, admittedly at the insistence of the United States, accepted people of African descent as citizens but continued to prevent marriage with them.7 This implies that rights to marriage were somehow more sacred or inviolate than rights to citizenship. What made the institution of marriage so exceptional, so deserving of protection? Perhaps it is the both religious and secular nature of the commitment. Or the simultaneously public and private character of the institution may explain its extraordinary status. A more satisfying explanation for the special protections for the institution of marriage is its connection to the production of the legitimate members of a society, that is, marriage’s production of citizens. And Cherokees had little incentive to produce citizens who had ties to people of African descent, a group that had little social, economic, or political power in the United States. The results of the Civil War seemed to confirm Cherokee efforts to pull away from people of African descent: the South had just lost and was home to a large population of black slaves, while the Northern victors of the war had a very small black population. After the war, even as legislative action continued to prohibit marriages between people of African descent and Cherokees, district clerks busily recorded numerous marriages between Cherokees and whites. The marriage records span the years 1855 through 1889 with a few gaps, but the vast majority of the records came after 1867: the years of 1855 to 1867 produced only 1 percent of the cases in this study. Another 2 percent of cases lacked any data about the date the record was produced. As Table 1 shows, the number of unions recorded increases steadily throughout the time period with a sharp increase between 1867 and 1868. This sudden spike in the number of unions might be explained by the recovery from a prolonged period of instability after the Civil War. The Cherokee Nation had officially joined the Confederacy and after the Union victory spent some time negotiating the status of the Nation, as well as the position of the newly emancipated slaves, with the federal government. Improved record keeping may have come after all of these negotiations took place as the National government attempted to return to some semblance of normalcy.

The Civil War

77

Table 1. Cherokee Nation Marriages Recorded by Year Number 1855 1858 1859 1860 1865 1866 1867 1868 1869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1888 1889 Total Year Not Listed Total

1 5 4 2 1 2 8 63 73 47 58 56 70 85 67 71 59 102 125 115 76 87 110 130 121 158 180 219 198 2,293 46 2,339

Percentage .0 .2 .2 .1 .0 .1 .3 2.7 3.1 2.0 2.5 2.4 3.0 3.6 2.9 3.0 2.5 4.4 5.3 4.9 3.2 3.7 4.7 5.6 5.2 6.8 7.7 9.4 8.5 98.0 2.0 100.0

Interracial unions represent the majority of the unions recorded by Cherokee Nation district clerks. Table 2 shows that fully two-thirds of the records indicate that the prospective bride and groom were not of the same race.8 Another eighth of the records confirmed the marriages of intraracial couples. In the rest of the cases, either one or both of the partners had no racial designation given. To avoid overestimating the incidence of interracial marriage, even when only one of the partners lacked a racial designation, I chose not to include those cases as interracial marriages. Instead, only cases in which the races of both parties can be confirmed are taken into account.

78

Chapter 4 Table 2. Cherokee Nation Marriages Recorded by Marriage Type

Race Not Listed Race Illegible Interracial Marriage Same Race Marriage Total

Number

Percentage

498 2 1,549 290 2,339

21.3 0.1 66.2 12.4 100.0

Note: Marriages in which the race of one of the partners was not determined were excluded from categorization as interracial or same-race marriages.

Further, the increase in recorded interracial marriages over time, as seen in Table 3, reflects the fact that interracial marriages are the overwhelming majority of unions represented in the available written marriage records for the period.9 Another factor is that the potential for contact between settlers and Indians rose, and thus the potential for marriages between Cherokee and American populations also rose, as settlers marched toward the Pacific Ocean in search of arable land and added to the population of non-Cherokees in the Nation in the nineteenth century. The demographic data suggest a large gap between the actual number of same-race Cherokee unions and the number of same-race Cherokee unions recorded by district clerks.10 In other words, a small segment of the population accounted for a majority of the marriage records, and a large portion of the population appears not to show up in the records at all. Does this disparity indicate that the majority of Cherokee couples were not seeking legal marriage? A simple explanation for this gap might be that records of intraracial marriages between Cherokees were lost. A more satisfying explanation for the absence of these records is that many Cherokee couples did not register their same-race unions with Cherokee authorities. Gaining official, legal recognition of a union complicated the ease of divorce and forced official ceremony onto relatively simple traditional Cherokee marriage practices. Individual Cherokees might see real benefits in not seeking legal sanction for their unions: community members probably recognized these unions as respectable and valid socially, and the couple could easily dissolve the relationship without seeking legislative action to legally sever ties between the husband and wife.11 Still other Cherokees may have seen using older forms of marriage as preserving traditional customs and practices and rejecting white culture. The explanation for the low number of Cherokee couples seeking legal recognition of their unions provokes the opposite question: why would Cherokee couples formalize their unions at all? In the end, questions of

The Civil War

79

Table 3. Interracial Cherokee Nation Marriages by Year

1855 1858 1859 1865 1866 1867 1868 1869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1888 1889 Total Year Not Listed Total

Number

Percentage

1 5 4 1 1 7 42 56 36 46 52 62 76 59 49 40 67 83 89 51 59 73 84 64 73 96 130 119 1,525 24 1,549

0.1 0.3 0.3 0.1 0.1 0.5 2.7 3.6 2.3 3.0 3.4 4.0 4.9 3.8 3.2 2.6 4.3 5.4 5.7 3.3 3.8 4.7 5.4 4.1 4.7 6.2 8.4 7.7 98.5 1.5 100.0

Note: Marriages in which the race of one of the partners was not determined were excluded from categorization as interracial or same-race marriages.

citizenship with its incumbent rights to annuities and land did not come into play in marriages between Cherokees as it did in interracial unions involving Cherokee citizens; issues of inheritance and property, however, did arise. The Cherokee Nation was increasingly adopting American attitudes toward property and moving away from matrilineally determined kinship and property inheritance. How, then, would the heirs of a parent who died intestate prove their legitimate claim to the parent’s property if their parents were never legally wed? How would a widow claim the property of her late husband without legal documentation of their relationship? Legal

80

Chapter 4

marriage simplified questions of property inheritance and legitimacy. Wealthier Cherokees certainly would have seen the advantages of formalizing their unions. Perhaps more importantly, the Christian missionaries had also been successful in converting some Cherokees. Concerned with issues of sin, redemption, and the welfare of their immortal souls, some Cherokees would have sought religious sanction for their unions. In turn, Cherokee law called on religious officials to report unions that they solemnized to the district clerks for inclusion in official records. Interracial marriages are overrepresented in the available marriage records. Again, this study does not argue that these marriage records are complete or that the rates of interracial marriages found here reflect actual rates of intermarriage for the entire Cherokee Nation in the nineteenth century. The records do, however, reveal trends within the population of interracial couples in the Cherokee Nation. That is, the numbers do demonstrate patterns in the race and gender of the most likely participants in interracial unions within the Nation. Cherokee women were the most active participants, by far, in interracial marriages in the Cherokee Nation, and they overwhelmingly chose unions with white men. Cherokee women appear in the marriage records more frequently in general: Cherokee brides participated in more than seven-tenths of the unions.12 Cherokee brides also chose white spouses in substantial numbers. Table 4, which lists the marital choices of Cherokee women, shows that Cherokee women legally married white men more than 80 percent of the time and chose Cherokee spouses at much lower rates, less than 15 percent. Cherokee women very rarely chose colored men as marriage partners. Cherokee women might have formed unions with whites who entered the Cherokee Nation as laborers with legal permits and also with the intruder population. The Cherokee Nation issued permits to white

Table 4. Racial Identification of Men Married to Cherokee Brides

Cherokee White Colored Other Indian U.S. Citizen Other White Adopted White Race Not Listed Total

Number

Percentage

239 1,376 13 2 31 1 3 7 1,672

14.3 82.3 .8 .1 1.9 .1 .2 .4 100.0

The Civil War

81

Table 5. Noncitizen Population by Race District Canadian Cooweescoowee Delaware Flint Going Snake Illinois Saline Sequoyah Tahlequah Total

White Intruders

Colored Intruders

Indian Intruders

Permitted Whites

Permitted Colored

Total

64 327 75 45 46 164 24 136 50 931

35 564 3 1 2 97 5 35 15 757

7 21 1 0 0 101 0 2 1 133

123 228 210 28 48 20 28 87 37 809

6 9 6 1 1 0 1 6 0 30

235 1,149 295 75 97 382 58 266 103 2,660

Note: The data in this table comes from the 1880 census conducted by the Cherokee Nation, Table K, p. 13.

laborers to legally reside in the Nation much more frequently than to colored laborers (Table 5). Often Cherokees hired white men with technical skills, such as mechanics, to labor in the Nation and also came to sharecropping agreements with white families once blacks ceased to be an option for labor.13 Cherokees had only unwillingly granted citizenship to the Cherokee Freedmen and presumably would not have encouraged other “colored” people to enter the Nation by granting them permits to legally live and work within the limits of the Nation. In districts other than Canadian, Cooweescoowee, and Illinois, white intruders also substantially outnumbered black intruders illegally squatting on land in the Nation. Cherokee men preferred Cherokee women as spouses, according to the available marriage records (Table 6).14 Cherokee men entered formalized exogamous relationships less frequently than Cherokee women; in fact, Cherokee men married out at less than one-third of the rate that Cherokee women did. Cherokee men and women did agree, it would seem, on the undesirability of blacks as marriage partners. Cherokee men did not choose to formalize their unions with black women at all, according to these records. This demographic picture of marriage in the Cherokee Nation in the late nineteenth century, of course, provokes many questions about causation: what explains the high rates of exogamous marriage among Cherokee women? What value did Cherokee women place on white husbands? In turn, what value did white men place on Indian wives? Why did Cherokee men seek Cherokee wives? The confluence of several different factors offers some explanation for these trends in Cherokee marital choice. One, though its observance was

82

Chapter 4 Table 6. Racial Identification of Women Married to Cherokee Grooms

Cherokee White Other Indian U.S. Citizen Adopted White Race Not Listed Total

Number

Percentage

239 20 2 66 2 16 345

69.3 5.8 0.6 19.1 0.6 4.6 100.0

on the decline, was the traditional matrilineal configuration of Cherokee society. In order to ensure a child’s full access to citizenship and social rights in the Nation, Cherokee men would choose Cherokee women as spouses. Similarly, the importance of clan connections in the Nation and their derivation through mothers would favor Cherokee women as potential partners for Cherokee men. Cherokee women, in contrast, were not constrained by clan and citizenship questions to limit their marital choices. Knowing that the status of their children was not in question, Cherokee women could choose spouses from outside of the Cherokee Nation without worry. Cherokee women and their families may have continued to see white men as a source of financial security as they had earlier, when establishing a marital connection with these traders protected Indian access to these goods.15 Indians may have continued to associate white men with the ability to provide for families. In the late 1870s Cheyenne and Arapaho Indian Agent Jonathan Miles would comment, “it is not difficult for a white man to secure an Indian wife. The woman’s parents treat her as so much property, to be disposed of to the best advantages and the belief is prevalent that by securing for his daughter a white husband, the future sustenance of the family is secured.”16 The ability of men to provide for their families was thrown into dramatic relief during the second half of the nineteenth century when populations of buffalo were being decimated by whites, limiting native men’s options for contributing to the welfare of their families. The federal government was encouraging native groups, such as the Cherokees, to turn to farming to support themselves. Among the Cherokee, women had been the main source of agricultural labor, as well as slaves when the institution still existed, but Cherokee men had not participated in farming. White men, however, were very familiar with agricultural work and were accustomed to performing the brunt of the labor. Cherokee women

The Civil War

83

might have found this lessening in their own agricultural labor as well as white men’s farming expertise very attractive in a potential mate. Another concern for Cherokees that may have guided their behavior in choosing marriage partners was the incest taboo. Josephine Pennington claimed that Indian girls married whites because they had been unknowingly marrying relatives in the tribe and giving birth to children with birth defects. Marrying a white spouse guaranteed that the parties were not related.17 Elements of Pennington’s assertion seem fantastic. It appears implausible that fears of incest would be strong enough to motivate a community to marry exogamously or that a community might deplete the population of marriageable individuals. Further consideration, however, makes part of Pennington’s claim seem less outlandish. Almost every society prohibits incest. In the Cherokee Nation clan connections were extensive and marriage within a clan was forbidden, though the couple might not actually be related by blood. And the observance of matrilineal clan membership was on the decline, which may have meant it was unclear who fell inside and outside of clan relationships. So while the incident of birth defects might not have actually been on the rise, perhaps some Cherokees thought the number of potential Cherokee mates was decreasing and sought marriage outside of their community. Financial incentives also enticed white men to seek marriages with Cherokee women. As stated earlier, prior to 1890, marriage to Cherokee women remained the only way for white men to gain access to seemingly limitless and empty land in the territory and to obtain grazing rights for cattle, since U.S. citizens still had no right to graze and water cattle on Indian lands.18 Marriage to an Indian woman was also a way to avoid paying permit fees to Indian nations to remain in the territory legally.19 Some white men were sure that marriage to an Indian woman would lead to economic success, since through legal union with a Cherokee woman, white men would acquire citizenship rights in the Nation and land ownership.20 Communally held lands meant that each citizen could claim as much land, without payment, as he or she could improve. Thus, some landless white men without the means to purchase property could still join the landholding class by seeking marriage to Indian women.21 The imbalance in the sex ratio of the white population might also explain white men’s willingness to marry Indian women. Historian Murray R. Wickett notes that many of the white men who came to the Indian Territory were single, whereas many of the white women who arrived did so in family groups as wives and mothers.22 As a result, very few white women were available for marriage with white men. The soldier population offers an admittedly more extreme example of the skewed sex ratio in the white population of the Indian Territory. This population was

84

Chapter 4

Table 7. Permitted Persons by District and Sex District Canadian Cooweescoowee Delaware Flint Going Snake Illinois Saline Sequoyah Tahlequah Total

Males

Females

Total

Total Including Families

128 235 215 28 49 20 29 90 36 830

1 2 1 1 0 0 0 3 1 9

129 237 216 29 49 20 29 93 37 839

386 842 715 94 161 42 73 312 120 2,745

overrepresented by single, young white men. A soldier stationed at Fort Sill complained, “Thare is only one white girl in the neighborhood and she is caught and cold weather is coming. What will I do for a bed fellow this winter? Send me one and I will marry her right off.”23 Given few opportunities to meet and marry white women, Indian women must have been increasingly attractive as a marital option. Ella Coody Robinson remembered a good deal of interaction between young white army officers at Fort Gibson and Cherokee girls.24 The small population of single white women might also account for the low rates of intermarriage between Cherokee men and white women in the Nation: the few white women available were probably quickly removed from the marriage mart by white men living in the territory. The sexual composition of the population of noncitizens living in the Cherokee Nation by permit also reinforces the contention that white men greatly outnumbered white women residing in the Nation. As Table 5 shows, Cherokee authorities rarely issued permits to colored people to live in the Nation.25 Within the population of permitted noncitizens, very few were women (Table 7).26 Of course, some men brought families with them, but the census takers did not enumerate the sexes of the family members of individual permit holders. There were undoubtedly, then, more white women living in the Nation than is revealed by the issuance of permits, but these women were likely the wives, mothers, and daughters of white men working in the Nation. Few of these white women would have been available for marriage. The districts with the largest populations of male noncitizens also were the districts with the highest rates of intermarriage between Cherokee women and white men: Canadian, Cooweescoowee, and Delaware districts.27

The Civil War

85

Members of the Cherokee Nation assuredly had gendered and racialized ideas about the acceptability of particular outsiders as marriage partners, which may also explain the greater frequency with which Cherokee women versus Cherokee men married exogamously.28 White women brought little to the marriage table, as far as Cherokees were concerned. They often did not bring their own wealth to a marriage, and the relationship between white women’s labor and wealth was less obvious than the link between white men’s labor and potential wealth. White women entered the Nation as clanless individuals and therefore could not bestow clan connections on their children with Cherokee men. White women also lacked the agricultural skills that many Cherokee men desired: white women in the United States were not responsible for agricultural labor in the way that Cherokee women had been traditionally. (This might make white women think twice about marrying Cherokee men.) Thus, the larger Cherokee community might have seen a white woman as inadequate to the task of being a wife to a Cherokee man, with little compensation for her shortcomings; however, they might have accepted white men because of their attractiveness as providers and because they were willing to shoulder the burden of agricultural labor, perhaps a welcome respite for many Cherokee women. The language of legislation produced by the Cherokee legislature after the Civil War reflected the Cherokee understanding of three distinct racial groups in the Nation. The legislature authorized a census in 1866 that stipulated that census officials “take down the name and age of the head of each family, and of each member thereof, of all the citizens of the Cherokee Nation, classing according to age males over eighteen and under eighteen, giving the number of natives, whites, and Africans.”29 Native Cherokees were clearly seen as a separate group from adopted whites and the Cherokee Freedmen. The organization of the census results manifests this thinking. Within each named district, a group of names of heads of household, unidentified by race, is followed by names identified as white or colored citizens of the Nation and noncitizens such as intruders and those with citizenship claims pending.30 It is clear that the first group of citizens listed after each district heading were “native” Cherokees. The names include many traditional Cherokee names such as Cher-nee-lucky and Chicken Rooster.31 Listed first, the native Cherokee population, it would seem, needed no introduction, no special heading, in the minds of census takers. The official guidelines for conducting the 1880 census include an interesting omission that intimates that Cherokees may have been thinking of themselves more frequently as Indians than as Cherokees: there is

86

Chapter 4

no mention of “Cherokees” as a group. The National Council required the enumeration of all heads of families, giving a complete registration of births, deaths, and marriages, also, the age and sex, and names of all males above the age of eighteen years; the names of all females above the age of eighteen years; the names of all males under the age of eighteen years; the names of all females under the age of eighteen years; the names, sex, and ages of all orphans under sixteen years; the names of all whites entitled by law to citizenship, within the ages above specified; the names of whites not so entitled; the names of all colored persons entitled by law to citizenship, within said ages, and the names of all such persons not so entitled; and the names of all Indians not so entitled.32

The three groups included for enumeration in the census were whites, colored persons, and Indians. In the case of whites and colored persons, the Council specified that census takers count both those individuals entitled to Cherokee citizenship and those residing in the Nation illegally. The provisions regarding the third category for enumeration, Indians, exemplify the change in Cherokee racial self-perception. The early portion of the instructions specifying the counting of heads of household and classification of the population by age and gender did not explicitly mention Cherokees or Indians but most likely referred to Cherokees or Cherokees by birth. If the three stated available racial categories were black, white, and Indian, the term “Indian” used later in the instructions must have included the Cherokees. By requiring a separate enumeration from blacks and whites, Cherokees obliquely affirmed their separateness from both groups and their “Indian-ness.” Though the act did not state this explicitly, the separate enumeration of those individuals who would have accessed Cherokee citizenship by adoption or the Treaty of 1866 implies that lawmakers recognized at least two categories of legal citizenship: Cherokee citizens by birth and Cherokee citizens by law. The final segment dealing with counting the human population ordered census officials to name all Indians not entitled to Cherokee citizenship. Where is the directive to count the Indians who were entitled to Cherokee citizenship? After all, as early as 1843 an agreement between the Cherokee, Creek, and Osage Nations permitted the citizens of any of the party nations to become citizens of other party nations.33 Thus, some Creeks or Osages likely lived in the Cherokee Nation as Cherokee citizens. The language of the act implies that the earlier-mentioned categories of people entitled to citizenship included all Indians, so that “Indian” encompassed Cherokees as well as Indians originally from other tribes. Despite the provisions of the act authorizing the 1880 census, the Cherokee Nation’s actual report summarizing the census results reverts

The Civil War

87

Table 8. Population of the Cherokee Nation by Race and District, 1880 District Canadian Cooweescoowee Delaware Flint Going Snake Illinois Saline Sequoyah Tahlequah Total

Cherokees White Black Delaware Shawnee Creek Misc. Total by blood 1,372 1,797 2,371 1,469 2,015 1,556 1,212 1,217 2,298 15,307

128 70 220 546 274 101 49 12 108 5 87 539 19 122 54 125 93 456 1,032 1,976

0 600 72 0 0 0 0 0 0 672

0 290 209 0 0 4 0 0 0 503

8 1 0 10 5 155 0 12 41 232

2 1,580 4 3,458 3 3,030 0 1,540 0 2,133 0 2,341 0 1,353 4 1,412 0 2,888 13 19,735

Note: This data comes from the 1880 census and enumerates citizens of the Cherokee Nation; it does not include the intruder population or those noncitizens with legal permits to reside in the Nation.

to the language of “blood” and “nativity.” One could be a “native Cherokee” only if one was a “Cherokee by blood.” Included in the demographic data about the gender and age of Cherokee citizens was an accounting of the number of “Native” and “Adopted” citizens in the Nation by district.34 Again, Cherokees were distinguishing between Cherokee citizens by birth, those with a blood connection to the Nation through either parent, and by law, those without a blood connection to the Nation granted citizenship through legal adoption, a distinction that would not have been made prior to the nineteenth century. Census takers also collected data on the “races” of the citizen population. As Table 8 shows, the racial categories consisted of “Cherokees by blood,” “Whites,” “Colored,” “Delawares,” “Shawnees,” “Creeks,” and “Miscellaneous.”35 The “Miscellaneous” category prompts interesting questions: just what individuals, thirteen in total, fell into this racial category? What about them qualified them for the separate designation? Most assuredly, census takers classified some individuals of mixed race and ambiguous physical appearance in this way. The instructions to the census takers included racial categorization but did not include dividing the Cherokee citizenry by “blood” and “nativity”; however, census takers chose to collect and report data in precisely this manner. “Blood” and “nativity” had become increasingly important parts of a Cherokee identity. As the Cherokee Nation developed a hierarchy of legal citizenship, being a native Cherokee had real economic benefits. Native Cherokees, as citizens of the Nation, had civil and political rights, could hold all offices in the National government, and received remuneration from

88

Chapter 4

annuity funds paid by the federal government for Cherokee land. Cherokees by birth could improve as much land as they wished so long as they did not settle and improve land within one-fourth of a mile of another person’s field, home, or other improvement, a right that was perhaps most attractive to noncitizens.36 Cherokees by birth enjoyed the most political rights and freedoms of all citizens in the Nation. Meanwhile, American citizens who married into the Nation during the nineteenth century formed another implicit class of Cherokee citizenship. Intermarried whites received most civil and political rights but did not receive annuity rights. In other words, through marriages to Cherokee partners, American citizens acquired voting rights in Cherokee elections and gained access to land to improve as much of the public domain as they desired, along with other Cherokee citizens. American citizens did not, however, obtain rights to annuity funds individually but could benefit from the annuity funds of their Cherokee spouses. Intermarried white men could not hold high office in the Nation or bring suits against other Cherokee citizens in court. Intermarried whites also lost their Cherokee citizenship if their Cherokee spouse died and they remarried a white person.37 Persons of “negro or mulatto parentage, either by the father or mother side” remained ineligible to hold any political office in the Nation, and the children of “Indian men by negro women who may have been set free” remained ineligible to vote.38 Legal citizens of the Nation who were of Cherokee and African descent could improve as much of the public domain as they desired, but it is unclear if they were eligible for receipt of annuity funds. As Cherokee “blood” grew in significance in defining Cherokee citizenship and identity, it became increasingly clear that African “blood” could negate it. In 1886 the Cherokee legislature clarified the de facto categories of Cherokee citizenship by grounding them more firmly in legal statutes. The Council passed an act in direct response to the crisis created by admitting freedmen and friendly Indians to Cherokee citizenship. The Council argued that the United States had failed to define what rights and privileges were attached to Cherokee citizenship for freedmen and adopted Indians; further, the Council claimed sole authority to determine the meaning of the 1866 treaty’s stipulations. As a consequence, Cherokee lawmakers declared that when freedmen and friendly Indians were granted the rights of native Cherokees, “The phrase ‘all the rights of Native Cherokees,’ as used in the 9th and 15th Articles of the Treaty of July 19, 1866, between the United States and this Nation, is hereby construed to mean the individual rights, privileges, and benefits enjoyed by white adopted citizens of this Nation.”39 What this meant was that Cherokee Freedmen and friendly Indians all living in the Nation as

The Civil War

89

citizens were entitled to “civil, political, and personal rights” but not rights to communal Cherokee land ownership or any per capita revenue obtained by the Nation through the sale of land.40 Further, the act acknowledged that adopted whites had not been granted the same rights and privileges as other Cherokee citizens. At first glance, the 1886 act might appear to lump adopted whites, adopted freedmen, and friendly Indians into one group of equal status; all three groups possessed an inferior class of Cherokee citizenship. Closer examination, however, exposes the real inequities of a law that placed blacks in the least tenable position of all adopted citizens. White adopted citizens became members of the Nation through marriage, so they achieved greater access to land than freedmen because of their Cherokee spouses. Cherokee spouses kept their share of revenue from the sale of lands by the Nation and could control as much land as their families could improve. Therefore, white adopted citizens generally had access to both per capita money and greater land ownership that freedmen lacked. Cherokee legislation granted friendly Indians the most favorable class of citizenship available to adopted citizens. Friendly Indians that made treaties with the Cherokee Nation and paid for the right to remain on Cherokee territory could make arrangements with the Nation to include rights to domain and/or per capita money. The Cherokee government’s willingness to accord members of other native groups rights that most closely approximated the rights of Cherokees by birth implies a recognition of a kind of commonality among indigenous populations. In this case, indigenous groups shared a similar relationship to the land. Further, Cherokee authorities identified groups of friendly Indians as sovereign units capable of maintaining treaty relationships with other sovereign nations. Adopted whites, on the other hand, entered the Nation as individuals with no ability to make treaty agreements. The Cherokee Nation, however, did not recognize the freedmen as a sovereign unit, though they joined the Cherokee citizenry in a manner similar to those of the friendly Indians—as a group and through treaty agreement with the federal government. Part of the difference between freedmen and friendly Indians was that the freedmen did not negotiate any rights themselves and lacked a similar claim to land as an indigenous population. More important, the Cherokees had opposed the inclusion of their former slaves in the citizenry and did so only because they were forced to accede to the demands of the federal government, while their relations with friendly Indians were entirely voluntary. The freedmen did not have the option of negotiating treaty terms; thus, the act operatively barred freedmen from obtaining per capita money. According to the new 1886 legislation, the freedmen could only use land in common with other Cherokee citizens “without acquiring

90

Chapter 4

any right or title to the Cherokee domain.”41 The freedmen did not become communal owners of the land with native Cherokees, which meant that the freedmen were not entitled to any proceeds from sales of Cherokee land to the federal government or payments from land usage agreements between Cherokees and other native groups. Article 4 of the 1866 treaty had granted 160 acres to each freed person who chose to live in the designated section of the Cherokee Nation.42 Native Cherokee citizens and intermarried white citizens, however, could improve as much land as they wanted without acreage restrictions. The freedmen had access to land in the Nation but not the full access guaranteed to native members of the tribe. Thus, the 1886 law placed greater limits on the citizenship of Cherokee Freedmen than on that of any other group of adopted citizens in the Nation. The freedmen possessed the bare minimum of rights to be classified as citizens in the Cherokee Nation. Coupled with the continued refusal of the Council to recognize marriages between people of color and Indians or whites, the realities of the 1886 law provide further evidence of racial prejudice playing out in legislative action and legal statutes. The language of several treaty agreements between the Cherokee Nation and other indigenous tribes reflects a move toward the official recognition of common Indian identity among indigenous populations.43 As early as 1843, the Cherokees, Creeks, and Osages recognized, “The removal of the Indian tribes from the homes of their fathers, east of the Mississippi, has there extinguished our ancient council fires, and changed our position in regard to each other.”44 The compact reflected the tribes’ cognizance of their shifting positions on the North American continent and the precarious existence of all indigenous tribes in relation to the federal government. The provisions of the agreements ensured amity between the several tribes, granted citizenship to the members of compact nations, and regulated the punishment of criminal activity involving members of the compact nations. Groups that had traditionally considered themselves very distinct and separate and may have even participated in warfare against each other in the past were now invoking a shared identity as “Indian tribes.”45 Later treaties made between the Cherokee Nation and Delaware and Shawnee tribes in 1867 and 1869 made specific reference to the “Cherokee Nation of Indians,” “Delaware tribe of Indians,” and “Shawnee tribe of Indians.”46 The treaties provided for settling “friendly Indians” on Cherokee lands and sketched out the terms for “friendly Indians” to receive annuity funds from the federal government. In these examples, tribal names became modifiers of the noun “Indian.” Thus, labels such as “Cherokee,” “Delaware,” and “Shawnee” described different types of Indians. Members of these different tribes, then, were part of a larger

The Civil War

91

group. The Indian authors of the treaty also appeared to differentiate between nations and tribes. “Nations” and “tribes” most likely described varying levels of political organization. Nations had more formal governing structures outlined by a written constitution and specific territorial boundaries. Tribes, in contrast, were more loosely organized politically, perhaps along more traditional lines, without the institutions of a legislature and courts or a written constitution. The treaty referred to the Cherokees as a nation while referring to the Delaware and Shawnee as tribes, and, indeed, the Cherokees may have had the most formalized and institutionalized government of all of the indigenous groups in North America during the nineteenth century.47 The Cherokee Nation simultaneously moved toward creating a common Indian identity and stressing the importance of Cherokee ancestry specifically, which were contradictory impulses explained by the reality of the relationship between the federal government and indigenous populations. The federal government did not negotiate treaties with Indians generically, but with specific tribal groups. For instance, after the Civil War federal authorities drew up surrender agreements with the Cherokee Nation, Choctaw and Chickasaw Nations, Creek Nation, and Seminole Nation separately, not as a unit.48 These individual agreements and other treaties determined land boundaries, annuity fund payments, and the sale of more territory to the United States. In other words, the treaties were very specific and could include different terms for different populations. Treaties between the United States and the various Indian tribes and nations reified the separate identity of each group. Treaty agreements also recognized the rights of native populations to govern themselves and regulate the behavior of citizens, which served to further reinforce the separation of the Indian nations. Within the Cherokee Nation, citizens benefited from specific and valuable citizenship rights. The Nation possessed finite natural resources in land, timber, and mining, as well as a fixed supply of money obtained from selling land to the federal government. The National government, as well as individual Cherokees, had a vested interest in limiting citizenship because the population determined the availability of land and the amount of annuity payments to be made to each citizen—hence, the nineteenth-century Cherokee interest in “blood” or ancestry and its relation to citizenship. The addition of new members through intermarriage and the adoption of freedmen to the Nation would test resources. The Cherokees began to consider what it meant to be Cherokee and just who had the right to claim this identity legally as well as culturally. At the same time that the federal government crafted treaties with various Indian nations separately, federal authorities also reinforced the growth of a pan-Indian identity. The federal government referred to

92

Chapter 4

lands occupied by the various southeastern tribes as the “Indian country” and later established the Indian Territory. The Bureau of Indian Affairs sent Indian agents to supervise and interact with the different indigenous populations. All of these actions served to foster a homogenized conception of Indian identity. At the same time, native groups realized that they all were threatened by the expansionist policies of the federal government. In spite of treaty agreements, Americans continually encroached on tribal territory. Within the Nation, Cherokees also increasingly made distinctions between Indians and other groups, carefully limiting the rights of non-Indian citizens residing within their territory. In light of the precariousness of their continued existence as a nation, the Cherokees were moving toward embracing both a panIndian identity and a tripartite conception of race and legal citizenship.

Chapter 5

The Cherokee Freedmen’s Story The Boles Family

The introduction of the large population of freedmen into the Nation had sharpened the boundaries of Cherokee citizenship. While the existence of a racialized system of slavery before the Civil War had permitted the Nation to avoid questions and controversy about the legal place of blacks in Cherokee society, Cherokee authorities had faced a dilemma when the federal government forced the Nation to grant citizenship to the ex-slaves. The Nation had responded by legally redefining Cherokee citizenship and creating new categories of citizens with varying legal rights. Cherokee Freedmen could not be full citizens; they could not exercise all the rights of Cherokee citizens by birth. An examination of marriage between Cherokee Freedmen and African Americans demonstrates the constrained nature of citizenship for freedmen who were members of the Nation. Marriages between Cherokee Freedmen and African Americans from the surrounding states tested the limits of intermarriage laws and revealed the precarious position of blacks living within the Cherokee Nation after the Civil War. The provisions of the 1855 law that regulated marriages between Cherokee citizens and foreigners, still in force in the 1880s, left the legality of marriages between the Cherokee Freedmen and African Americans in question. Further, when such unions occurred, the legal status of the African American partner was also unclear. Legal opinions issued by Cherokee judicial officials contradicted the practice of Cherokee district clerks. Jurists declared that Cherokee Freedmen could not confer Cherokee citizenship upon their American spouses, but Cherokee district clerks issued marriage licenses to these couples in precisely the same procedure that applied to Cherokee women who married white Americans. Some Cherokee Freedmen themselves sought to define sharp racial and cultural lines to strengthen their position in Cherokee society. They refused to see any similarities between themselves and African Americans and submitted to a kind of lesser class of citizenship in order to preserve what few rights and benefits accrued from being Cherokee Freedmen instead of American ex-slaves.

94

Chapter 5

The legal questions provoked by Lemuel and Susan Boles’s attempts in 1889 to gain their property demonstrate how Cherokee courts could expose the shortcomings of the laws governing intermarriage, as well as blacks’ particularly ambiguous place in Cherokee society.1 The influx of new residents, both legal and intruder, to the Cherokee Nation after the Civil War, as well as the mobility of populations during the tumultuous post-Emancipation era, made it difficult for Cherokee officials to monitor and remove illegal residents. Often, technically illegal residents, such as Cherokee Freedmen who had not returned to the Nation during the time allotted by the Treaty of 1866 and white squatters, lived within Indian Territory with relatively little interference from the authorities.2 Court appearances brought individuals to the attention of the authorities and could lead to uncomfortable questions about citizenship claims. For African Americans who claimed Cherokee citizenship through marriage to a Cherokee freedperson, taking legal action in Cherokee courts or being summoned to court might reveal that a union was in fact not legal or that the Cherokee Nation refused to recognize citizenship rights. The example of the Boles family created questions about the legality of marriages between Cherokee Freedmen and American citizens, the legal standing of the American spouse, the applicability of the intermarriage laws to blacks, and the jurisdiction of Cherokee courts. The heart of the legal dispute between Susan and Lemuel Boles and George Vann was property rights. Each party claimed ownership of an improvement—that is, use of land that had been built on or cultivated. Cherokee Nation law did not permit the outright individual ownership of land by citizens, but it did provide for citizens to access as much land as they could improve. The law required only that improvements to the land, such as homes, barns, fences, or plowed fields, remain one-fourth of a mile away from a neighbor’s improvement.3 The Boleses asserted that they had made an improvement and then sold it to George Vann. After George Vann was unable to make payments on the property, the Boleses reclaimed the improvement and the surrounding land. George Vann maintained that he had purchased the improvement for Bill Vann; thus, Bill Vann was responsible for paying the Boleses and was the only party who could return the improvements to the Boleses. Bill Vann continued to live on the land and make further improvements. He then rented improvements to yet another party, Fox McCaleb. The litigants asked the Cherokee courts to sort through the tangle of conflicting claims to determine the lawful owners of the improvements. The race and citizenship status of the plaintiffs further complicated efforts to ascertain the legal ownership of the improvements: Susan Boles was a Cherokee freedwoman married to Lemuel Boles, a black U.S. citizen.4

The Cherokee Freedmen’s Story

95

In cases like this one, the nature of the citizenship rights of Cherokee Freedmen was often unclear and increasingly under attack by Cherokee Nation authorities. The suit between the Boleses and George Vann remained in the Cherokee legal system in various legal forms for close to a decade.5 The initial proceeding in 1889 listed Lemuel Boles as the plaintiff and George Vann as the defendant.6 George Vann successfully petitioned to have his name stricken from the suit as a disinterested party, but his name continued to appear as the defendant in subsequent records of the case.7 By 1898, the courts finally recognized that George Vann was not a defendant in the case and listed the plaintiff as Susan Boles and the defendants as Fox McCaleb and William Vann.8 Various appeals and the substitution of litigants account for some of the nine years devoted to the case. More important, however, was the tenacity of the Boles family. Susan and Lemuel Boles committed time and money to pursue their property rights.9 The defendants were also willing to fight, both legally and physically according to the testimony, to maintain their rights to the land and improvements in question. The prolonged legal action demonstrates a certain level of legal knowledge among the general population. People were willing to invoke legal force; the courts were not an abstract legal concept but a means for protecting property. Both parties also used the appeals process, signaling a basic understanding of legal procedures. Cherokee citizens knew their rights and how to use them.10 The Boles case began in May 1889, when Lemuel Boles brought suit against George Vann in Cooweescoowee district court for one-third interest in an improvement. In a common legal tactic of the day, the defendant, George Vann, made a motion to dismiss the case for lack of jurisdiction. Vann claimed that Boles was not a citizen of the Cherokee Nation but a colored foreigner who had married Susan Vann, a colored Cherokee citizen by virtue of the Treaty of 1866, which admitted freedmen to the Cherokee citizenry. Vann further stated that the National Council, the Supreme Court of the Cherokee Nation, and decisions by the U.S. Department of the Interior declared that any foreigner who married a freedman citizen of the Cherokee Nation was not entitled to the same rights as natives of the Cherokee Nation. Cherokee courts had no legal authority to handle civil cases involving U.S. citizens, and Vann was proposing that Boles, despite his marriage to a Cherokee citizen, remained a U.S. citizen. Boles replied that he obtained a license to marry Susan Vann in the Saline district from the court clerk and that the district judge officiated at the ceremony.11 The outcome of the motion for dismissal was contingent on the citizenship status of Lemuel Boles. George Vann’s argument for dismissing the case reveals a fairly astute understanding of the operation of Cherokee jurisprudence. Vann knew

96

Chapter 5

the limits of Cherokee authority and sought to place Boles’s case against him outside of them, which he accomplished by insisting that Lemuel Boles was not a legitimate Cherokee citizen. Vann also recognized that Cherokee law did not grant the freedmen the same rights as native Cherokees. Vann conceded that Susan Vann, a Cherokee freedperson, and Lemuel Boles were married, thus acknowledging a legal relationship between them. But he dismissed their claims, basing his argument on Susan’s status as a Cherokee freedperson by claiming, in essence, that she did not have the legal right to confer citizenship upon foreigners. Vann cited the opinions of three separate legal bodies to support his motion: Cherokee legislative and judicial organs as well as a federal department. Vann’s subtle invocation of the decisions of the federal Department of the Interior also acknowledged that an authority existed beyond and was superior to that of Cherokee legal officials. Lemuel Boles asserted the validity of his case and his right to Cherokee citizenship based on Cherokee law, specifically statutes governing intermarriage, and his marriage to Susan Vann, a Cherokee freedwoman. Boles’s response rested on two basic principles: a Cherokee freedperson could confer citizenship on an American spouse, and the Cherokee Nation’s legal recognition of Susan as a Cherokee citizen and of Boles’s marriage to Susan Vann implied an acceptance of his right to Cherokee citizenship. The statement that a district judge had officiated at the union between Boles and Vann implies a judicial recognition by deed of the validity of the marriage and Boles’s claim to citizenship. Boles’s action of bringing the suit to court suggests that he viewed his citizenship status as secure—that is, Boles had no idea that his legal activity might put his Cherokee citizenship in jeopardy. While George Vann’s position depended on legal decisions espoused by Cherokee legislative and judicial bodies and U.S. federal decrees, Boles’s argument relied on the practical, day-to-day functioning of the law. In other words, Vann would reason that lawmakers’ stated opinions overrode the daily actions of clerks and judges; conversely, Boles would privilege the actual behavior of district clerks and judges over official statements of Cherokee policy. Court documents corroborate Boles’s account of his legal marriage. On August 2, 1868, the Saline district clerk recorded a marriage between a Leonard Bowles and a Susan Vann.12 This legal entry matched Boles’s statement that his marriage to Susan took place in Saline district. Interestingly, the clerk noted that Susan Vann was a colored citizen of the Cherokee Nation and referred to Bowles only as a U.S. citizen. Given the existing laws prohibiting marriage between blacks and any other racial group, the clerk may have assumed that the groom’s race was implied when the bride’s race was indicated.13 The clerk also recorded Bowles’s petition signed by several Cherokees affirming his

The Cherokee Freedmen’s Story

97

good character and responsible nature and supporting his efforts to marry into the Cherokee Nation. The form of this marriage entry matched the numerous surrounding entries for marriages between white men and native Cherokee women.14 All of the white grooms were entitled to Cherokee citizenship because of their marriages. The Saline district clerk, at least, treated Leonard Bowles as though Bowles was gaining Cherokee citizenship through his marriage to Susan Vann. Faced with strong evidence favoring both parties, the Cherokee court took no action, choosing to hold the case under advisement. Finding the citizenship status of Lemuel Boles difficult to determine, the court opted for more time to review the evidence. The court’s indecision is somewhat surprising in light of the legal opinion issued in 1884 that prohibited Cherokee district clerks from issuing marriage licenses to colored noncitizens to marry Cherokee Freedmen because the laws approving intermarriage applied only to whites.15 Similarly, another official, A. B. Upshaw, had informed the U.S. Indian Agent in 1885 that he thought Cherokee freedwomen could not confer citizenship on colored noncitizens.16 Hence, the decision in 1889 should have been clear: Lemuel Boles’s marriage to Susan Vann did not entitle him to Cherokee citizenship. Consequently, Boles could not bring suit in Cherokee court, and Boles’s claim against George Vann should have been dismissed. Cherokee lawmakers, who had been forced by federal officials to extend citizenship to the Cherokee Freedmen, should have seen the case between Boles and Vann as an opportunity to limit the rights of Cherokee Freedmen and prevent the introduction of more colored people to the citizenry. Instead, the court hesitated to take a stand. The court’s dilemma might have come from the post facto nature of the legal opinions about marriages between Cherokee Freedmen and colored noncitizens: the statements had come nearly twenty years after Lemuel Boles and Susan Vann married. Boles had followed the same procedure as white men intermarrying into the Nation and seeking Cherokee citizenship. Could the legal opinions retroactively revoke Boles’s Cherokee citizenship? Or should the decisions apply only to future marriages to be contracted between Cherokee Freedmen and colored noncitizens? Obviously, George Vann would have argued for the former interpretation while Boles would have favored the latter. The judge may have chosen to defer his decision in order to consult other legal officials about the merits of the positions of the plaintiff and defendant. Most likely, the court was hoping some other solution might present itself: that the parties might reach some sort of private settlement, or that one of the parties would lose interest in the case and drop it. To be fair to the judge of the Cooweescoowee court, Cherokee law itself was unclear about the status of marriages involving colored people,

98

Chapter 5

be they Cherokee citizens or American citizens. Although anti-amalgamation statutes, which prevented marriages between colored persons and Indians or whites, remained on the books, regardless of the citizenship of the parties, district clerks recorded several marriages between Cherokee women and African American men.17 The marriages followed the same legal procedures outlined by the intermarriage act regulating marriages between Cherokee women and white men. The district clerks did not question the legality of these interracial unions despite the existence of the anti-amalgamation laws. Were these unions actually legal? Did the anti-amalgamation law invalidate the actions of district clerks? No record of legal decisions answering these questions remains. The lack of legal documentation for prosecution of individuals for violating bans on particular kinds of interracial marriage suggests that interracial couples usually lived unmolested by the authorities. Likely it was only when the couple attracted negative legal attention that Cherokee officials stepped in and made a determination about the citizenship of the intermarried colored men. While the threat was not always executed, Cherokee/black couples lived with the constant danger of having their unions dissolved by legal officials. Cherokee legal attitudes toward intermarried African American men were contradictory at best. Intermarried colored men would complain to Cherokee courts that they received fewer rights than intermarried white men in the Cherokee Nation even though, according to Cherokee legal pronouncements, intermarried African American men should not have received any rights from the Cherokee government.18 Further, Cherokee lawmakers had sometimes defended their right to expel intermarried African American men from the Cherokee Nation.19 Nonetheless, Cherokee officials often permitted intermarried African American men to remain in the Cherokee Nation despite the restrictions and granted them some civil rights, which indicates a degree of legal recognition and legitimacy for interracial marriages between Cherokee women and African American men. The juxtaposition of the presence of intermarried African American men in the Cherokee Nation and the legal injunctions preventing marriages between African American men and Cherokee women or between African Americans and Cherokee Freedmen exposes an incongruity between Cherokee legal thought and Cherokee legal behavior. The ambiguity in Cherokee law between proclamation and enforcement—between what the law stated and what lawmakers prosecuted, between whom the Cherokee Freedmen could legally marry and whom they actually married without legal repercussions—created space for interracial unions within the Cherokee Nation. Obviously, Cherokee Freedmen could marry other Cherokee Freedmen with no question

The Cherokee Freedmen’s Story

99

about the validity of the union; marriages between Cherokee citizens who were not of the same race, however, provoked uncertainty. These marriages would not introduce new outsiders to the citizenry and further stretch Cherokee land and monetary resources, yet the anti-amalgamation act made these marriages illegal. This fact adds further support to the argument that the anti-amalgamation law was about race and racial hierarchies, not citizenship and status. Cherokee authorities, however, rarely pursued the noncitizen or the Cherokee violators of the anti-amalgamation statute. (No unions between native Cherokees and Cherokee Freedmen appear in the marriage records of this study, perhaps because such marriages would not require certification by district clerks to prevent one of the parties from being removed as an intruder.) Unions between “colored” Cherokee citizens and African Americans, such as the one between Susan and Lemuel Boles, illuminate the power of local officials, such as district court clerks and judges, to determine the actual functioning of the law. By the mid-1880s tribal courts were interpreting Cherokee marriage law strictly, refusing marriage licenses to Cherokee Freedmen who married noncitizens.20 Yet in 1889 the Saline district clerk would in fact issue a license to an African American man and a Cherokee freedwoman to marry: Mark Crowford obtained a license and legally married Lena Ward.21 Apparently, the legal announcements of the court were not well publicized. The Cherokee Council and other legal officials, however, seem to have been fairly efficient about informing the public and local officials about other changes in the law and legal decisions.22 The extent to which Cherokee judicial officials disseminated to district clerks the prohibition of the issuance of marriage licenses to Cherokee Freedmen marrying noncitizen spouses offers an indicator of the strength of the Nation’s commitment to preventing such unions. Thus, the lack of widespread dissemination of this particular legal announcement suggests that the Cherokee Nation was not very concerned about marriages between the freedmen and noncitizens. The legal decision prohibiting intermarriage might have been more a statement of legal principle than a prescribed course of action. More likely, district clerks closer to the daily lives and experiences of rank-and-file citizens of the Cherokee Nation may not have been willing to infringe upon the marital choices of Cherokee citizens, colored or native, for the sake of law.23 In light of the acceptance of the Crowford/ Ward union and variance between law and prosecution, perhaps the Cooweescoowee court judge’s reluctance to agree with George Vann’s contention that Lemuel Boles was not a Cherokee citizen by marriage is less surprising. In the end, the court’s indecision about Lemuel Boles’s Cherokee citizenship paid off: Lemuel Boles withdrew from the suit, rendering

100

Chapter 5

questions about his citizenship status moot. The case, instead, reappears in the court docket with Susan Boles as the plaintiff.24 In effect, Lemuel Boles circumvented any controversy about his right to Cherokee citizenship by removing himself from the case. Neither legal authorities nor the defendant questioned Susan Boles’s Cherokee citizenship. With Susan Boles as the plaintiff, the case could not be thrown out on jurisdictional grounds. Perhaps the couple was also concerned that the court’s decision might be negative and lead to Lemuel’s removal. In any case, the court avoided being forced into making a determination, and the Boleses proceeded with their suit. Curiously, George Vann also bowed out of the legal proceedings by having his name “stricken from the suit as being a party not interested in the case.”25 Thus, the original parties, Lemuel Boles and George Vann, recede from the suit as litigants to appear only as witnesses in the later proceedings. Boles’s continued residence in the Cherokee Nation and his subsequent appearance in other court action, however, suggest that he occupied some intermediary status: he was not an intermarried citizen as authorized by statute, but Cherokee authorities also declined to remove him from the Nation. Boles served repeatedly as a witness in the suit taken up by his wife against George Vann and acted as a witness in a suit between Susan Merrill and Ike Rogers as well.26 Questions directed to Boles in these legal proceedings indicated his status as a noncitizen. He alone answered questions about obtaining a permit to remain in the Nation; attorneys asked other witnesses if they were members of the tribe. Interestingly, George and Eli Vann also testified as witnesses in the Merrill vs. Rogers case, hinting at some web of connection between them and Lemuel Boles. Clearly, the legal authorities did not accept Boles as a Cherokee citizen; yet if the Cherokee authorities believed Boles’s right to citizenship to be fraudulent, they could have easily banished him from the Nation as an intruder.27 Instead, Boles appears to have remained in the Cherokee Nation with the knowledge and cooperation of Cherokee authorities. Boles’s alternative was to purchase from Cherokee authorities permits for legal residence in the Nation. The Cherokee legal system’s reluctance to eject Boles implies a willingness to recognize his union to Cherokee freedwoman Susan Vann and the concomitant right to remain in the Nation as her husband. The testimony provided by the litigants and witnesses in later court proceedings between the Boleses and George Vann offers more information about the actual dispute and the nature of the relations between these particular witnesses and litigants. The court docket for the original suit brought by Lemuel Boles against George Vann consisted only of the statement of the complaint, Vann’s move to dismiss the case, and Boles’s response. Susan Boles’s subsequent legal actions supply much

The Cherokee Freedmen’s Story

101

greater detail. In 1880, Susan Boles had sold George Vann an improvement. George Vann claimed to have purchased the improvement for William (Bill) Vann and his wife. George had been unable to continue to make payments on the improvement and had asked Susan Boles for a refund of the money he had already paid and, in return, had given her a bill of sale. Bill Vann, however, had continued to live on the disputed property and made further improvements to the land. Four or five years later, Bill Vann had rented a portion of that land to Fox McCaleb. Several years after that transaction, Susan Boles attempted to reclaim the property and improvements and charged that Bill Vann and Fox McCaleb were intruders. Boles placed a tent and household goods in a field of the disputed property and attempted to begin plowing the land, in hopes of settling her daughter on the land. Not surprisingly, Bill Vann and McCaleb disagreed with Boles’s claim and promptly arrived with pistols and threw her property over a fence. Bill Vann claimed that George Vann had no right to convey the land and improvements back to Susan Boles because Bill was the one who purchased the land in 1880. George Vann had acted in Bill’s behalf, thus only Bill could have returned the property to Susan Boles. Further, because the Boleses had left the land vacant for so long, the defendants insisted the land had returned to the public domain and was open to settlement by any citizen of the Cherokee Nation.28 The outcome of the case depended on how a jury would interpret the transaction between Susan Boles and George Vann and the Boleses’ occupation or lack of occupation of the land. That Boles’s wife, Susan, and the defendant shared the surname Vann suggests a possible familial connection that further complicates the operation of law and marriage in this legal battle. The legal documents do not divulge George Vann’s race; however, he is most likely the George Vann who appears in the 1880 Census of the Cherokee Nation as “adopted colored” and aged thirty.29 The legal documents connected to the case indicate that George Vann was forty-eight years old in 1898, which fits the age of the Vann listed in the census.30 Moreover, the 1880 census indicates that Vann was living in Cooweescoowee district in 1880 along with Susan Boles as well as several other participants in the court case: Eli Vann, Dank (Duck) Vann, and William Vann, Jr. Each of these participants is also listed as “adopted colored” in the 1880 census.31 The Cherokee Vann family had been an extremely prominent slaveholding family prior to the Civil War. By 1835, Joseph Vann of Hamilton County, Tennessee, had been the largest slaveholder in the Cherokee Nation with 110 slaves. Several other Vann family members had owned slaves as well.32 Many Cherokees had moved to the Indian Territory with their slave property along with other moveable goods.33 Perhaps Susan and George were cousins or, at least, slaves owned by the same family. If

102

Chapter 5

not, their being of the same age cohort and living in the same vicinity suggests the two likely knew each other prior to their legal suit. A George Vann appeared on the petition in support of Leonard Bowles’s request for a license to marry Susan Vann, a detail that adds more complexity to the question of the relationship between Susan and George Vann. The petition clearly affirmed Bowles’s “good moral Character” and “industrious habits” before recommending “him to become a citizen of the Cherokee Nation by marrying a col’d woman and citizen of the said Dist. and Nation.”34 In 1868, at least, George Vann did believe that colored citizens of the Cherokee Nation could confer Cherokee citizenship on American spouses. He publicly and legally supported Susan Vann’s right to confer citizenship on a noncitizen spouse, as well as Bowles’s right to claim Cherokee citizenship. The petition included the signatures of seven Cherokee citizens, as required by the 1855 law governing marriage between Cherokee citizens and noncitizens.35 Two other signatories were also Vanns; likely Susan had turned to male relatives and close familial connections, perhaps a former owner, to obtain the needed signatures for the petition.36 Presumably the signers also thought colored Cherokee citizens could bestow citizenship on noncitizens through marriage. The district clerk duly recorded the petition and marriage as though he concurred with this interpretation of the intermarriage law’s applicability to colored Cherokee citizens. In light of George Vann’s former support of the union between Susan Vann and Leonard Bowles, as well as Bowles’s claims to Cherokee citizenship, Vann’s subsequent attempts to have Bowles’s Cherokee citizenship repudiated and Susan Vann’s citizenship rights circumscribed are all the more startling. George Vann’s signature on Leonard Bowles’s petition for a marriage license offers little definite evidence about Vann’s race, but it does add weight to the supposition of some relationship between Susan and George Vann. The requirement that noncitizen men who hoped to marry Cherokee citizens obtain the signatures of seven Cherokee citizens on the petition for a marriage license was sometimes fulfilled by signers who noted they were Cherokees “by blood,” but Leonard Bowles’s petition contains no such statement.37 Couples probably approached male family members first to collect the needed signatures for the petition. The family likely had some contact with the prospective groom and would be able to comment on his good character and worthiness for Cherokee citizenship. Close family friends might be another source for signatories on the petition. Thus, while George Vann’s signature on the petition does not reveal his race, it does again suggest a possible familial connection between Susan and George Vann. Though the legal documents lack a clear statement of George Vann’s race, other evidence suggests that Vann was colored. The most complete

The Cherokee Freedmen’s Story

103

account of the events did not indicate the races of any of the witnesses or parties.38 Lemuel Boles’s race appeared in court documents only because his race and citizenship, as well as those of Susan Vann, could disqualify the Boles’s claim. Thus, the absence of racial designations is not an indication that individuals were not colored. The testimony provided by some of the witnesses in the case suggests that George Vann was unable to write. Both Susan Boles and George Vann testified that when Boles requested a bill of sale for the property in question, Vann went to a Captain Hirchly, a white man, to obtain the document.39 Vann testified, “Cap. Hirchly wrote the Bill of sale and Mrs. Boles wanted it. Cap. Hirchly knowed what to put in the Bill of sale and I told him what to write inthe [sic] Bill of sale.” At some point George Vann also asked Emma Henderson to write a bill of sale to document the transaction between himself and Susan Boles, with Dunk Vann as a witness.40 Coincidentally, Emma was the Boleses’ daughter.41 If George was a member of the formerly slaveholding Vann family, he would likely be quite literate. In general, the Cherokee Nation had fairly high rates of literacy, especially toward the latter part of the nineteenth century. By 1841, Cherokee lawmakers had implemented a system of “free compulsory tax-supported education” for all citizens, perhaps the first of its kind in the world.42 Thus, as a native Cherokee George Vann would have been able to write his own bill of sale. Former slaves, however, had been denied literacy until Emancipation.43 George Vann’s likely identity as a freedman would account for his apparent illiteracy. The residential proximity of the parties and witnesses and the frequency with which the surname Vann appears in this case also hint at a familial tie between Susan Boles and George Vann. Several of the witnesses who appeared in the suit between Susan Boles (formerly Vann) and Bill Vann shared the Vann name: George Vann, Dunk Vann, Dave Vann, and Eli Vann all testified in the suit.44 Eli, George, and Dunk Vann even tried to broker a compromise between Susan Boles and Bill Vann to avoid a legal battle.45 Perhaps family members were intervening to avoid turning a private, family matter into a public spectacle that would divide the family. George Vann’s own withdrawal from the case might have been due, in part, to feelings of familial loyalty. The testimony further suggests that the numerous Vanns lived in the same area, sometimes with each other. Bill Vann and his wife had lived with George Vann and his wife for a short period of time. The inability of the wives to coexist amicably in the same home had caused George to seek another nearby homestead to which Bill and his wife could relocate.46 Susan Boles owned an adjacent property. Data on the distribution of the population of people of African descent in the Cherokee Nation demonstrates that they tended to congregate in the Cooweescoowee, Illinois, and Tahlequah districts.47

104

Chapter 5

Within these districts, people of African descent, both Cherokee citizens and American citizens, often formed their own communities away from the prejudices of Cherokees and whites.48 Thus, George Vann’s residence in the Cooweescoowee district community and connection to the web of relationships again intimates that he was of African descent and somehow related to Susan Boles. The legal testimony also exposes how active women were in the public activities of initiating legal actions in Cherokee courts and conducting business transactions. When Lemuel Boles’s legal position was in question, Susan replaced him as the plaintiff in the case. Susan Boles also bought and sold property independently and, apparently, with little interference from Lemuel. Susan had directed Lemuel to make the initial purchase of the land in dispute for her. Lemuel testified that after the purchase he told his wife and George Vann “to make their own trades.”49 Susan then made her own demands to George Vann for payment and staked her own claim on the property by settling her daughter Jennie and some household goods on it.50 When the various male parties to the transaction had questions or concerns about the property or wanted to negotiate a sale, they sought Susan, not Lemuel, to make arrangements. Clearly, Susan Boles was recognized as a property holder in her own right. This recognition, along with the challenged citizenship claim of Lemuel Boles, might also explain Susan’s substitution as the plaintiff in this court case. Perhaps Susan’s autonomy was a holdover from the traditionally matrilineal roots of Cherokee society. Susan Boles may have grown up seeing Cherokee women control and manage their own property and continued to follow that example. Susan Boles’s standing as a legitimate Cherokee citizen through whom Lemuel gained access to Cherokee citizenship may also have reinforced her ability to control property. With the citizenship status of intermarried African Americans in doubt, Cherokee citizens may have seen Susan Boles as the lawful arbiter of property in the Boles family. The Boleses’ daughters, Jennie and Emma, also played important parts in the case. Emma Henderson, at least, was literate, which is not surprising given the determination with which many freedpeople sought education for themselves and their children. Emma also acted as a witness testifying in her mother’s behalf, and her literacy enabled her to write a bill of sale for Susan Boles. The bills of sale are the few legal documents that existed to verify the various transactions involving the disputed land and improvements. Emma’s presence at some of the events and as a witness in the case also suggests that she lived in the area. In contrast, Jennie’s presence in the suit is less active but had greater ramifications. Susan Boles desired control of the property in question in order to settle her daughter Jennie on the site. Boles was aiding Jennie’s

The Cherokee Freedmen’s Story

105

establishment of a household when Boles placed a tent and household goods on the land to assert her ownership. Interestingly, no mention of Jennie’s husband was made, though one would presume that she would have continued to live with her parents if she were single. The suit in some ways represents the Boles women’s efforts to maintain familial networks by settling on land near each other. The familial nature of the Boles/Vann dispute adds another layer of complexity to the legal questions of citizenship and intermarriage highlighted by the case. The decision to initiate legal action against a family member has the potential to explode a family, creating rifts and factions that a judge’s legal decree might not so easily mend. Suing a business acquaintance does not engage the emotions in the same way as suing a family member. Further, introducing a familial dispute into the court system suggests that all other avenues for settlement have been attempted and failed. Court testimony demonstrates that the parties, as well as neighbors and relatives, made efforts more than once to resolve the situation without seeking judicial intervention.51 Family members may, and in the Boles/Vann case did, exploit each other’s vulnerabilities. Knowing that the repercussions of questioning Lemuel Boles’s citizenship might include ejection from the Cherokee Nation as an intruder, George Vann still used this tactic to have the suit dismissed. It is unlikely that Lemuel Boles’s family members would have taken this threat to his citizenship lightly. Beyond the legal questions it provoked, Lemuel Boles’s presence in the Cooweescoowee court raises issues of family loyalty and tensions within the black community between colored Cherokee citizens and intermarried African Americans. The legal contestation of Lemuel Boles’s citizenship status represents a potential fissure within the colored population living in the Cherokee Nation. George Vann’s move to have the original suit dismissed on the grounds that Lemuel Boles was not a Cherokee citizen exemplifies the efforts of some Cherokee Freedmen to draw distinctions between themselves and freedmen from the United States. In some ways, the Cherokee Freedmen differed from American freedmen culturally. Many Cherokee citizens of African descent had lived in the Cherokee Nation for their entire lives; some spoke the Cherokee language fluently, and some spoke no English at all. These freedmen had grown up cooking and eating Indian foods and immersed in native practices and traditions. Although unrecognized by Cherokee lawmakers, numerous freedmen could also claim descent through Cherokee ancestry. Many Cherokee Freedmen identified more with Cherokee Indians than with blacks from the United States. The influx of African Americans from nearby states led some Cherokee Freedmen to attempt to accentuate differences between themselves and other freedmen. These Cherokee

106

Chapter 5

citizens described themselves as “native” freedmen and referred to those blacks who moved into the Indian Territory as “state Negroes.”52 Cultural differences between Cherokee Freedmen and African Americans also influenced how they ordered racial hierarchies in their respective societies. In the American South, whites constantly affirmed and reinforced their position at the top of the social order. During slavery, whites owned blacks, bought and sold black bodies, served as overseers and patrollers, and compelled blacks to labor for profit. After the abolition of slavery, whites resorted to lynchings and the organized terrorization of African Americans through Klan activity to assert that although slavery no longer existed, blacks would remain on the bottom rung of the social ladder. Blacks, both enslaved and free, who lived in the Southern states understood that whites expected blacks to behave in particular ways toward whites, and nonconformity could lead to violence. The experience of Cherokee slaves was very different. Cherokee slaves had seen their owners demoralized by the forced removal of the Southeastern Indians to the Indian Territory. These blacks had no illusions about the infallibility of their Cherokee owners.53 Further, within the Cherokee Nation, whites were not the most powerful racial group. Cherokee slaves watched white men pay permit fees and seek Cherokee wives to remain in Indian Territory or face ejection from it as intruders. Within the Cherokee Nation, native members of the Nation, not whites, had the greatest access to land and civil rights. The Cherokee Freedmen did not feel pressured to treat whites with deference. Some “native” freedmen even disparaged “state Negroes” for being too subservient to whites.54 Cherokee Freedmen enjoyed rights and privileges denied to their counterparts who lived in the United States. As citizens of the Cherokee Nation, the freedmen had access to tax-free land and civil rights.55 The Cherokee Freedmen greatly valued their rights to improve as much of the public domain as they desired and to vote in Cherokee elections and serve on juries. The Indian Territory also experienced fewer instances of racialized mob violence. Many freedmen from the surrounding states were drawn to the Cherokee Nation and the Indian Territory in hopes of gaining access to land and rights, as well as an existence without the constant threat of brutality at the hands of marauding whites. Several black newspapers even exhorted blacks to move to the Indian Territory, touting the area’s economic opportunity and the chance for fair treatment.56 Members of the Democratic Party would later push for the introduction of Jim Crow segregation laws among the “Five Civilized Tribes” in order to discourage the mass migration of Southern blacks to Oklahoma.57 Even politicians shared the perception that the Indian Territory, and later state of

The Cherokee Freedmen’s Story

107

Oklahoma, held the promise of a better life for the ex-slaves. Yet Cherokee Freedmen recognized the reluctance with which the Cherokee government had accepted the ex-slaves as citizens and the limited resources of the Nation to be shared by the Nation’s members. And, like many native Cherokees, some Cherokee Freedmen were reluctant to swell the rolls of the Cherokee Nation by adding American ex-slaves to the citizenry. Cherokee lawmakers promoted intraracial tensions between “native” freedmen and “state Negroes” by seeking to prevent marriages between Cherokee Freedmen and African Americans through the use of social and legal sanctions, by denying intermarried blacks citizenship rights, and by subjecting them to removal as intruders.58 Cherokee legal opinion labeled African Americans as unacceptable marriage partners for Cherokee Freedmen, tainting African Americans with the intimation of inferiority. Fearing that intermarried African Americans would claim access to civil rights and annuities just as intermarried whites had, Cherokee lawmakers argued that Cherokee Freedmen did not have the legal right to confer Cherokee citizenship upon their mates as native Cherokee citizens did. The Cherokee Freedmen were certainly aware of the discrepancy between the rights and privileges they enjoyed and those enjoyed by native Cherokees. In the minds of the Cherokee Freedmen, surely it was no great leap to see themselves as the victims of legislative prejudice, stripped of all of their political and economic rights. In order to preserve their own access to Cherokee lands and citizenship, some Cherokee Freedmen were willing to sacrifice the rights of intermarried African Americans and accept the inferior class of citizenship offered by the Cherokee government. George Vann’s willingness to question Lemuel Boles’s citizenship by denying Susan Boles’s right to extend Cherokee citizenship to her African American husband demonstrates Vann’s acceptance of the status of a subordinate citizen.59 George Vann bought into the official stance taken by Cherokee lawmakers: Cherokee Freedmen were not entitled to all of the rights of Cherokee citizenship. Cherokees must have seen the right to confer citizenship on a noncitizen spouse as a fundamental right. Despite fears about the growing number of people, mostly white, claiming access to Cherokee land and allotment money, the Cherokee Council did not abridge the right of native Cherokees to extend membership in the Nation to outsiders. Other options were available: the Council could have issued noncitizen spouses permits to reside in the Nation without extending citizenship rights. Further, although Cherokee officials tried to use anti-amalgamation statutes to limit the rights of native Cherokees to marry “colored” persons, district judges and clerks apparently recognized such interracial unions. Cherokee lawmakers were willing to circumscribe the marital choice of native Cherokees in word

108

Chapter 5

but not in deed. Cherokee Freedmen, however, were another matter. Legislators were more than willing to place limits on the citizenship rights of Cherokee Freedmen, and some freedmen were willing to accept those limits and colluded in perpetuating them. In the minds of some Cherokee Freedmen, the Cherokee government had tied the ability of the freedmen to exercise civil rights to the exclusion of other blacks from the citizenry. Forced to choose between their own civil rights and those of African Americans, some Cherokee Freedmen, quite understandably, acted in their own self-interest. How could the freedmen fight for the rights of African Americans when the Cherokee Freedmen themselves did not possess all of the rights of Cherokee citizenship and when pressing for the rights of intermarried African Americans had the potential to lead to the elimination of all rights for all people of African descent residing within the Nation? The Cherokee Freedmen constantly struggled and complained to authorities, both federal and Cherokee, about poor treatment and the lack of full citizenship for themselves. Many Cherokee Freedmen chose to settle in districts near the federal authorities in neighboring Arkansas to maintain access to federal officials such as Major General John B. Sanborn. The freedmen sought redress of grievances and protection from U.S. authorities, particularly during and just after the Civil War.60 Cherokee Freedmen even testified in the U.S. Congress that they were denied access to privileges enjoyed by intermarried whites.61 Comparing their situation to that of intermarried whites, Cherokee Freedmen recognized that not only was the Cherokee government denying them full citizenship, it was not even offering “colored citizens” the reduced status of intermarried whites. Cherokee authorities relegated freedmen with legitimate claims to Cherokee citizenship to a third class of citizenship with minimal rights. The Cherokee government had only reluctantly allowed the freedmen into the citizenry in 1866 and seemed willing to tolerate the freedmen’s limited exercise of property and voting rights only if they did not try to add more blacks to the Nation. The issue of the citizenship status of intermarried African Americans had the potential to polarize the “colored” Cherokee community. Within the population of Cherokee Freedmen, opinions could differ widely on just how intermarried African Americans should be regarded legally. Some Cherokee Freedmen felt entitled to a status equivalent to that of native Cherokees and so demanded full, intermarried status for their African American spouses. According to this claim, any right enjoyed by native Cherokees would have applied to freedmen citizens as well. Other Cherokee Freedmen understood their insecure legal position in the Nation and were unwilling to draw the attention of Cherokee lawmakers. These freedmen citizens wanted to live quietly, perhaps farming their

The Cherokee Freedmen’s Story

109

own land, voting in elections and serving on juries, building a life for themselves and their families without the interference of the government. The conflict, then, could arise between those Cherokee Freedmen who wanted full recognition of their rights and those who zealously guarded the few rights they possessed. At issue was not an abstract conception of rights but real lives. Cherokee authorities could remove spouses who were freedmen and their children as intruders because they were not considered citizens of the Nation. Cherokee Freedmen who insisted on official recognition of the equality of the citizenship status of native Cherokees and freedmen were protecting their families. Likewise, Cherokee Freedmen willing to accept a lesser status in the Nation thought they were protecting themselves, preserving what little ground they had. The legal battles of Susan and Lemuel Bowles provide a window into the uncertain place of blacks within Cherokee society and the delicate balancing act performed by some Cherokee Freedmen to protect their rights. The federal government had forced the Cherokee government to admit the ex-slaves into the citizenry, and the Cherokee Nation only begrudgingly had accorded the ex-slaves any civil rights. Cherokee legislators restricted the rights of the freedmen, particularly the right to confer Cherokee citizenship upon noncitizen spouses. Formerly property without rights that anyone was bound to respect, the newly emancipated freedmen gladly embraced whatever political and economic rights the Cherokee government was willing to extend to them. The Cherokee Freedmen were caught between being grateful for possessing a few rights, rights that American ex-slaves lacked, and wanting full Cherokee citizenship in recognition of the labor they had performed for their Indian masters and in recognition of their cultural ties, and sometimes ancestral ties, to the community. The Cherokee Freedmen recognized that the colored population was not entirely welcome in the Nation and that Cherokee authorities might seize on any pretense to eject the freedmen from the territory. Hence, some Cherokee Freedmen would ignore their lower status within the Cherokee Nation in order to preserve their few rights. George Vann even sought to deny fellow Cherokee Freedmen full citizenship rights in order to preserve his own interests. The accusation and response of George Vann and Lemuel Boles in their civil suit reveal the confusion that emerged at the intersection of the laws governing intermarriage and court proceedings. The applicability of intermarriage laws to the colored citizens of the Cherokee Nation was unclear. By the 1880s Cherokee jurists had determined that the intermarriage laws referred only to unions between whites and native Cherokees and that the African American spouses of freedmen citizens

110

Chapter 5

were subject to removal as intruders in the Indian Territory. The status of marriages between Cherokee Freedmen and blacks from the surrounding states solemnized before the 1880s was left open to interpretation, and it remained unclear who the Cherokee Freedmen were able to marry legally besides other Cherokee Freedmen. After all, the freedmen could not marry other native Cherokee citizens: the anti-amalgamation laws prohibited marriages between people of color and Indians or whites. Court proceedings could expose the failure of the Cherokee government’s intermarriage laws to acknowledge the presence of “colored” citizens within the Cherokee Nation. Cherokee lawmakers neglected to reexamine the laws regulating intermarriage after the introduction of a sizable population of colored people into the citizenry. Court action could reveal the inadequacies of marriage laws regarding “colored” people because of the conflicts between the United States and the Cherokee Nation concerning legal jurisdiction. Cherokee courts had to establish the citizenship of the parties involved before trying a case. Thus, individuals of questionable citizenship who operated outside the purview of Cherokee authorities, especially those who claimed Cherokee citizenship through a Cherokee citizen spouse, faced legal scrutiny when called into court as witnesses, as defendants, or when they initiated legal action themselves. The courtroom, then, became a site that magnified the weaknesses of the intermarriage laws in dealing with the black population. The Boles vs. Vann court case laid bare the tangled relationship among citizenship, marriage, and the judicial system, as well as inter- and intraracial tensions within the Cherokee Nation. Courtrooms in the Cherokee Nation served as stages for human dramas that also had national ramifications. The Cherokee legislature had not adequately addressed the question of the freedmen’s rights. Further, Cherokees had not created a social space for the new colored members of their citizenry. Instead, the Cherokees continued to operate with a social hierarchy based on slavery in an environment in which slavery no longer existed. In order to regulate what it meant to be Cherokee, Cherokee lawmakers created a graduated scale of legal citizenship in which different people possessed different rights. The Cherokee Nation’s inability to adjust to the realities of their post-Emancipation society would lead to controversies over the criteria for membership in the Cherokee Nation that persist until the present time. The Cherokees were not the only population forced to reconsider the legal rights and place of blacks in their society in the wake of Emancipation; the American South faced a similar dilemma. The Civil War and Emancipation obliged Southerners, both Indian and white, to address the terms for inclusion of the newly emancipated black population.

The Cherokee Freedmen’s Story

111

What legal rights should be accorded to the ex-slaves? Should they be citizens? Should they be enfranchised? Slave or free status, which had formerly been closely tied to race, could no longer organize society. White Southerners and Cherokees began to rethink the meanings of race in light of the sizable population of newly freed blacks in their midst.62 The federal government set the terms for the readmission of the Southern states to the Union and, similarly, dictated the conditions for the continued existence of the Confederate Indian nations. Federal authorities compelled white Southerners and Indian governments to recognize the citizenship rights of the ex-slaves. Freedpeople in the Cherokee Nation and Southern states could now vote, hold office, and own property, rights to be respected by fellow citizens. Both societies responded to the political and social uncertainties wrought by Emancipation by firming racial divisions through legislative action. The Cherokee Nation and the American South followed a similar trajectory in their treatment of blacks in the post-Emancipation era. The turmoil and upheaval of the Civil War and its resolution prompted a period of uncertainty during which the racial and social order was unclear. Without a system of racially based slavery to configure the place of blacks, Southern and Cherokee legislatures turned to writing laws to clearly delineate the boundaries of acceptable black behavior and limit the citizenship rights of blacks. Southern states enacted Jim Crow laws that carefully divided public spaces racially, prohibited interracial marriage, and disenfranchised black voters. Likewise, Cherokee lawmakers continued to outlaw interracial marriages and meticulously circumscribed the citizenship rights of freedmen. As the 1880 Boles vs. Vann civil case demonstrates, Cherokee Freedmen lacked the full rights of Cherokee citizenship and, from the perspective of most Cherokees, were unwelcome additions to the Nation. The developments in Cherokee attitudes about blacks after the Civil War, then, paralleled changes taking place in the minds of many Southerners.

Chapter 6

Indian Slavery and Memory Interracial Sex from the Slaves’ Perspective

Ironically, in spite of Cherokee efforts, and those of other indigenous groups, to create greater social distance between themselves and blacks and to limit sexual contact between the two populations throughout the nineteenth century, by the twentieth century blacks were frequently claiming American Indian ancestry. The narratives of ex-slaves collected by the Works Progress Administration in the 1930s contain many references to mixed racial personal and familial histories that include American Indians. The narratives also contain candid observations about interracial unions in general and about how people of African descent understood relationships that crossed social, legal, and racial boundaries. The former slaves described various combinations of racial unions and their ramifications for the participants, families, fellow slaves, and offspring. The words of ex-slaves, gleaned through the WPA collection and a selection of biographies and autobiographies of slaves, reveal the attitudes of people of African descent toward interracial sex during the nineteenth century.1 These accounts indicate that their views on interracial sex varied according to the race of the participants because power with regard to sexual consent also varied according to race. Many of the ex-slaves spoke quite passionately about the pain of racial amalgamation in the antebellum South.2 In autobiographies and biographies, former slaves recounted their own histories as the progeny of interracial liaisons and gave their opinions of such relationships. Moreover, former slaves did not talk about interracial sex only in terms of black and white participants; they also described American Indian relatives and ancestors—in other words, progeny of and participants in another category of interracial sex. Here I draw upon narratives, autobiographies, and biographies from informants who resided outside of Indian Territory as well as those who lived among American Indians because informants often did not indicate if they had been slaves in their current state of residence. The WPA narratives were organized by the state in which the former slave was interviewed, which was not necessarily the state in which the interviewee experienced slavery. Emancipation led to increased mobility

Indian Slavery and Memory

113

for former slaves as they sought family members or a fresh start. I do, however, attempt to emphasize the accounts of the former slaves of Indian masters. Though the historical literature based on the evidence of the WPA slave narratives has focused on one type of relationship, that between blacks and whites, and particularly between white men and black women, the former slaves described a variety of relationships. Their reminiscences reveal that they had been quite aware of the interracial relationships around them and their heritage as the progeny of these relationships.3 Though both types of possible relationships—between black slaves and whites and between black slaves and American Indians—crossed racial boundaries, the ex-slaves interpreted the power dynamics within these unions differently. The slave narratives illustrate that within the slave community interracial sex provoked a range of emotions from anger and fear of racial degradation to acceptance and pride, depending on how slaves perceived the context of such unions. In the eyes of many ex-slaves, relationships between blacks and whites were usually matters of forced sex between the powerful and the powerless: “Immoral white men have, by force, injected their blood into our veins.”4 Ex-slaves were clear in their negative opinion of unions between blacks and whites because they understood the vulnerable position of the black sexual partners of whites. Former slaves mentioned relationships with American Indians less frequently than they did relationships with whites because most slaves did not come into daily contact with American Indians as they did with their white owners and overseers. White communities usually surrounded most slave communities; thus more interracial relationships occurred between slaves and whites, and slaves said more about these liaisons. However, slaves who were owned by Cherokees, Choctaws, and other slave- owning American Indians or who lived in Indian country frequently reported interracial relationships in their narratives. Such relationships between blacks and American Indians were apparently understood as more equal than those between slaves and whites because both groups were stigmatized by the dominant white culture. Thus, while the ex-slaves understood sexual relationships between blacks and whites as coercive, they saw unions between blacks and American Indians as consensual and often described them as matters of choice. Some of these accounts also discuss the thoughts and feelings of the offspring of interracial unions and the slave community’s response to mixed-race progeny. Many ex-slaves proudly claimed American Indian ancestry and detailed the physical beauty of mixed-race relatives. The comments made by former slaves about the mixed-race offspring of interracial unions demonstrate the meaning and importance of physical appearance

114

Chapter 6

as evidence of ancestry and suggest that slaves held complex and complicated notions of racial hierarchy going beyond black and white. Some historians suggest that the relationships between blacks and whites were frequently consensual and often based on mutual affection between the master and slave, undermining the image of the rapacious white planter attacking the helpless female slave.5 Affectionate relationships between masters and slaves most assuredly existed; however, the stress on harmony rather than violence implies that the cases of forced sexual relations between masters and slave women were anomalies and relegates these stories to the margins of slave experience. Given Darlene Clark Hine’s contention that “virtually every known nineteenth-century female slave narrative contains a reference to, at some juncture, the ever present threat and reality of rape,” an emphasis on consensual interracial unions seems historically unsound.6 The dynamics and differentials of power between masters and slaves complicate the notions of consent and choice. The subtext for interaction of this sort is the threat of violence: both slaves and masters recognized that masters could force their will upon slaves by means of physical punishment. The prospect of violent reprisals impinged on decisions by slaves to comply with or resist the sexual demands of masters. From the perspective of many former slaves, all relationships between white masters and black slaves were coercive. White masters controlled material provisions, punishment, and work routines. The ex-slaves were all too aware that in theory their masters’ authority knew no bounds. Ellen Sinclair recounted the incestuous tangle of relationships on the plantation where she grew up: “Ol’ man Anderson he hab a daughter by one of he slaves and he son hab a chile by dat daughter [his half-sister]. Dey mek de wimmen do what dey want and cose, dey slaves and coultn’ help deyself.”7 Given the taboos among slaves against sexual relationships with consanguineous kin, this young woman must have found the relationship with her half-brother repugnant.8 However, refusing him might have caused violent retribution. Another ex-slave remembered the punishment that a slave woman endured for refusing the sexual advances of her master: “Old Bufford—his darkies had chillen by him, and Mammy wouldn’t do it; and I’ve seen him take a paddle with holes in it and beat her, and everywhere it hit it raised a blister; then he would take a switch and break them blisters.” Slave women had little power to refuse their masters, and there were often benefits from acquiescing to them. Anthony Christopher’s family avoided punishment and received better treatment because of his sister Deenie’s relationship with the master, a Mr. Patton.9 Though not overtly stated, undoubtedly Deenie understood that her family faced negative repercussions if she denied the master sexual access to her body.

Indian Slavery and Memory

115

Slaves’ comments regarding interracial sex with American Indians were quite different. Mandy Jones recalled, “Her mother, she say, my great gran’mother was almost pure Injun.” And Jones was not alone in her claims to an American Indian heritage. The narratives of ex-slaves collected by the WPA contain many references to American Indian grandmothers and interracial sex between Indians and blacks that occurred during the era of slavery. As C. Vann Woodward noted, the slave narratives “invite attention to a relatively unexplored field of race relations— those between Negroes and Indians.” Though Woodward’s comment is thirty years old, further exploration of the antebellum interactions between indigenous populations and African Americans remains to be done. The frequency of the ex-slaves’ claims of American Indian lineage prompted interviewer Bernice Bowden to remark, “I have never talked to a Negro who did not claim to be part Indian.” Further, the ex-slaves described unions between Indians and blacks in much more positive terms than they described relationships between blacks and whites. Again, this opinion hinged on the ex-slaves’ evaluation of the choice the black participants exercised in sexual relationships between blacks and American Indians.10 Many Indian-black unions resulted from contacts between slaves during the colonial period.11 The practice in colonial South Carolina of enslaving Indians and putting them to work beside African slaves created a population of slaves with mixed Indian and African ancestry.12 Peter H. Wood found that by 1708 South Carolina’s population totaled 9,580 and included 4,100 African slaves and 1,400 Indian slaves. Indian women composed 15 percent of the population of adult slaves in colonial South Carolina, and African slave men composed 45 percent. Moreover, within this population of slaves, Indian women outnumbered Indian men while African men greatly outnumbered African women.13 Unions between enslaved African men and enslaved American Indian women were the result of the imbalance in genders within each racial group. Some former slaves referred to relationships between enslaved indigenous and African ancestors one or two generations removed from the informant. For instance, one ex-slave claimed descent from an African grandmother who married an American Indian slave man in Nashville. Former slaves also described relationships between enslaved Africans and Indians that occurred even after the colonial period. White men captured and forced Julia Woodberry’s Indian mother into slavery. She later formed a relationship with a slave man of African descent, and Julia was their child. Della Harris, a former slave of mixed African and American Indian lineage, commented, “My muma was a genuine Indian. Some people say you can’t own Indians. I don’t know how cum, but I do know she was owned by these people, but she surely was an Indian.”14 White owners and

116

Chapter 6

observers often applied the concept of hypodescent during the colonial period and beyond; American Indians or people of mixed American Indian and African descent often disappeared into the larger category of “black” because they participated in these interracial relationships or were the progeny of such relationships. Having adopted the practice of African slavery during the late eighteenth century, the Five Tribes of the Indian Territory encompassed a considerable number of slaves: 15 percent of the Cherokee population, 18 percent of the Chickasaw population, 14 perccent of the Choctaw population, and 10 percent of the Creek population. The slave population of the Seminole Nation is harder to determine because of the ambiguous status of people of African descent in that society. Some Seminole Indians clearly regarded slaves as property to be bought, sold, and used for labor, while others purchased or stole husbands, wives, and children to reconstitute families and regarded such slaves as kin.15 American Indian slaveholders differed little from other Southerners in their treatment of slaves and in the practice of the institution of slavery.16 Like the Cherokee Indians, several indigenous groups passed laws to circumscribe the behavior and activities of their slaves and prohibited legal marriage between themselves and people of African descent.17 And as in the rest of the antebellum South, such laws did not prevent intimacy between masters and slaves, between the indigenous population and their black bondpeople.18 Despite slave ownership among some American Indian groups, many slaves believed that Indians and blacks were potential allies. The experiences of the Hensons, a family of fugitive slaves, affirmed this thinking. In 1830, the Henson family resolved to leave their home in Kentucky and relocate to Canada. After the Hensons had been on the run for several days and were starving, they wandered deep into a forest and happened upon an Indian camp. The Indians received them warmly and offered them food and shelter for the night. Upon hearing the family’s plans, the Indian chief offered further assistance. According to the chief, the Hensons were only twenty-five or thirty miles from Lake Erie and thus very near reaching their goal of freedom in Canada.19 Free blacks also thought Indians would help runaway slaves. Martin Delany, a free black entrepreneur, wrote a serialized novel entitled Blake; or, the Huts of America (1859) that features Henry Blake, a fugitive slave who becomes a revolutionary after a sojourn with the Choctaw Indians.20 The Choctaw chief apparently “accepts Blake as a friend and brother, offering him the ‘pipe of peace’ and ‘olive-branch of hope’ to symbolize the union between the two races.”21 Delany’s message was clear: blacks and Indians shared a common foe in whites and should work together to defeat them. Some indigenous tribes also refused to return their African-Indian kin to slavery,

Indian Slavery and Memory

117

which provided more evidence that slaves might find friends among the Indians.22 Former slaves took note of the precarious position of American Indians in the United States and the parallels between the condition of blacks and Indians. James Roberts, who admitted to killing many Indians during the American Revolution while fighting with his master, Francis De Shields, in George Washington’s army, regretted killing and scalping “innocent and defenceless [sic]” Indians who “were fast tending to a condition not much better than my own.”23 Roberts recognized that as a slave he had more in common with American Indians than with his white master. Likewise, Douglas Wilson, a former slave who fought in the Civil War, insisted that blacks should not accept a separate space for settlement: “That’s the way they got the Indians, you remember, and we know too well what became of them. My plan is for us to stay right in this country with the white people, and to be so scattered among them that they can’t hurt one of us without hurting some of their own number.”24 Wilson drew connections between the inability of the Indians to exist as separate nations surrounded by the United States and the impossibility for blacks to create such a society. The comments of former slaves—the Hensons, Roberts, and Wilson—along with Martin Delany’s novel suggest that the black population, both free and enslaved, were not only aware of the condition of the Indian population but also saw similarities between themselves and Indians.25 Some slaves reported that Indian slaveholders were kinder masters than white Southerners were. Henry Bibb described his Cherokee master as “the most reasonable, and humane slaveholder that I have ever belonged to.” Bibb elaborated on this assessment by comparing Indian slaveholders to white slaveholders in the South: Indians gave their slaves adequate food and clothing, did not employ overseers, offered equal religious instruction to slaves and free people, and did not separate slave families through sale. Bibb concluded, “All things considered, if I must be a slave, I had by far, rather be a slave to an Indian, than to a white man, from the experience I have had with both.”26 Likewise, Mary Grayson remembered her days as a slave in the Creek Nation as fairly benevolent: “We slaves didn’t have a hard time at all before the war.” Grayson heard from slaves owned by whites about cruel masters and back-breaking work. Grayson stated that Creek slaves “always had plenty of clothes and lots to eat, and we all lived in good log cabins we built.” The slaves worked independently with little supervision by their Creek owners. In 1850 Frederick Douglass declared, “‘The slave finds more of the milk of human kindness in the bosom of the savage Indian, than in the heart of his Christian master.’”27 Despite accounts of benign Indian slaveholders, there are also records of cruelty and inhumanity toward slaves owned by Indians. For instance,

118

Chapter 6

in 1819 Reuben Lewis, an agent among the Cherokees in Arkansas, wrote to the Secretary of War describing an incident involving a Cherokee woman and her male “Negro” slave. The slave had displeased her husband in some way, so she demanded that her husband kill the slave. When he refused, the Cherokee woman directed him to tie up the slave. He did so, and then she chopped off the slave’s head and threw the body into the river. Reuben Lewis inferred that the Cherokees had no laws or customs to protect slaves.28 Sarah Wilson, formerly a slave owned by a Cherokee family and part Cherokee herself, described young Master Ned, her father and master, as a “devil” and the Old Mistress, who was also her grandmother, as someone who “took most of her wrath out hitting us children all the time.”29 Wilson’s story is particularly sad given the family ties between herself and her abusers. Slaves sometimes ran away from Indian owners, and, as in the rest of the slave South, these owners often placed advertisements for their runaway slaves in newspapers.30 In 1842 a large group of slaves from the Cherokee and Creek Nations were so dissatisfied with their condition that they attempted to escape to the far west. Both nations sent posses to capture the slaves. In the end, Indian authorities hanged several of the ringleaders and whipped other participants.31 The treatment of slaves owned by Indians and whites varied widely, and slaves owned by American Indians were susceptible to the same abuses as slaves owned by whites. Indian slaveholders had much in common with their white counterparts. Therefore, some interracial relationships between blacks and American Indians occurred under coercive conditions. R. C. Smith’s American Indian grandmother, in a reversal of the general Southern pattern, purchased a black slave man and “took him for her husband.” Smith’s father was the offspring of this relationship.32 One wonders what Smith’s grandfather thought of this arrangement. He may have willingly entered the relationship, or perhaps he felt pressured to submit to the desires of his owner. Relationships between masters and slaves, regardless of the races and genders of the individuals involved, always contained an element of coercion. What slaves refused masters could demand. Dennis Grant’s parents are another example of coercion, and their relationship illustrates how little distinction whites made between black slaves and American Indians. Sometime in the late 1850s, Grant’s mother and father met near Beaumont, Texas, when she, a free Indian girl, caught his, a slave man’s, eye. He abducted her, at the instigation of his owner, and made her his wife.33 The Indian girl was forced to be not only a wife but also a slave. Grant does not report any protest or punishment for his Indian mother’s arbitrary enslavement. Yet ex-slaves frequently claimed descent from Indian women. By the late eighteenth century, Southerners no longer enslaved Indians and,

Indian Slavery and Memory

119

because the status of children followed that of the mother, Indian women gave birth to free children. Perhaps this connection to free status led ex-slaves, such as Charlie Richardson, Ann Matthews, John Moore, and Della Harris, to claim American Indian ancestry through women.34 Lulu Wilson asserted that her paternal grandmother was a “full-blood Creek Indian.” Wilson’s father, then, was a free person of color prior to Emancipation by virtue of his free mother. Wilson described her mother as part Indian as well and attributed her mother’s strong rebellious streak to that Indian ancestry. Wilson’s mother fought back when her master tried to whip her: “she’d knock him down and bloody him up.” Similarly, Charlie Davenport reported that no one meddled with his partIndian mother.35 The comments reflect a general perception of Indians and especially Indian women as defiant and unruly. As formerly subjugated and enslaved people, ex-slaves probably found kinship to this tradition and heritage attractive.36 Though they did so less frequently, former slaves also mentioned American Indian fathers and grandfathers in their WPA interviews, sometimes but not always in the context of coercive circumstances. For instance, a man of Choctaw Indian and white ancestry owned and parented Charley Moore Brown’s father. Similarly, another part-Choctaw slaveholder fathered Charley’s mother. George Ward’s father was a Chickasaw Indian, and Eugenia Weatherall’s paternal grandfather was a Choctaw Indian. Charley Stewart’s and George Ward’s accounts of their families point to unions between free Indian men and enslaved women of African descent. Della Mun Bibles said her father was “a full blooded Indian.” Fannie McCullough Driver, on the other hand, remarked, “Pappy had some Injun blood in him, but he wasn’t no full-blood one.” Mollie Moss, too, stated that her father was a Cherokee Indian. At least one Indian man, Anna Baker’s grandfather, made the difficult choice to become a slave in order to remain with his African slave lover: “When he took up wid my grandmammy de white man what owned her tells him iffen he want to stay wid her dat he’d give him a home iffen he’d work for him lak de niggers on de place. He ‘greed case he thought a heap of his black woman, dat was what he called her.” Clearly this relationship involved genuine affection and consent, and Anna Baker’s grandfather sacrificed his freedom to be with the woman he loved.37 Ex-slaves often related such genealogical information proudly. Apparently they valued these family memories and oral traditions because they had little information about their forebears. Memories of family and oral accounts of lineage were especially significant to these people who lacked access to written records and were separated from family members by distance and time. These accounts often provide information about lineage but very little detail of how such relationships began.

120

Chapter 6

Many of the former slaves who claimed Indian ancestry made geographical references concerning their ancestors that correspond with the historical movement and location of native groups. For instance, Chaney Mack stated that her mother was a “pureblood Indian” born near Lookout Mountain in Tennessee. She described her maternal grandfather as a Choctaw chief. Susan McIntosh’s “part Injun” grandmother had been purchased in Virginia. Likewise, Mattie Logan’s “halfblood Cherokee Indian” grandmother was also from Virginia.38 Several ex-slaves residing in Oklahoma at the time of their interviews offered family histories that included Indian ancestry. Richard Franklin was very specific about the particulars of his lineage: “I was born in the Creek Nation, March 1, 1856. My mother was named Thamore Franklin, she was one-fourth Creek Indian and was married to a negro slave, Fred Franklin, who was a slave of James Yargee of the Creek Nation. I am oneeighth Creek Indian and seven-eighths negro.” In their accounts of slavery, Sam Jordan, C. G. Samuel, and Lucinda Vann each referred to black-American Indian relationships or mixed-race children.39 As slaves who had lived in the Indian Territory, these informants either knew of sexual activity between blacks and American Indians or claimed to be the children of such relationships. The African-descended slave community did not disparage unions between American Indians and blacks or their offspring as they did unions between whites and blacks. In fact, the ex-slaves had little to say about sex between Indians and blacks. Many of them merely fondly mentioned a mixed-race relative or stated that they themselves had some “Injun blood.” A few expressed resentment, not of this type of amalgamation but of African Americans who identified more with Indians than with other people of African descent. Patsy Perryman’s brother, who had married a “full-blood Indian woman” and had many children, became “just like an Indian, been with them so much, talks the Cherokee language and don’t notice us negroes any more.” Patsy did not speak poorly of her American Indian sister-in-law or her mixed-race nieces and nephews, but of her brother’s lack of association with and acknowledgment of his own African American relatives and heritage. Sylvester Sostan Wickliffe’s testimony hints at his jealousy over the close relationship that his “half Injun” father had with Sylvester’s Indian half siblings. Sylvester’s half brothers and sisters visited their father and stayed up late speaking in an Indian language that Sylvester found indecipherable.40 Perhaps Sylvester also envied the time his father spent with the other children. The reactions of Sylvester Wickliffe and Patsy Perryman had less to do with their feelings about interracial sex than with being ignored or left out because they could not share their relations’ American Indian ties.

Indian Slavery and Memory

121

Many offspring of black–American Indian unions were proud of their physical appearance and the beauty of their relatives. Mandy Jones said, “When my granny walked along de road, all dem Africans say, ‘What a fine lookin’ woman.’ She had hair down to her shoulders, an’ was a yaller woman, dey say she was kin to de Injuns.” Mandy’s statement implies that the grandmother’s mixed heritage made her very attractive physically. Charlie Davenport announced, “I’s part Injun. I aint got no Nigger nose an’ my hair is so long I has to keep it wropped.”41 Charlie was proud that his appearance did not conform to the stereotypical image of an African. Many other ex-slaves mentioned mothers or grandmothers with long, straight hair and light skin.42 In light of the lack of documentation and the lack of personal contact between the slave informant and the Indian relative in question, physical appearance was often the most important evidence of ancestry. As Eugenia Weatherall commented, “My mother was part Indian too, way back some of her folks was an Indian. My grandmammy’s nose was hooked down just like the pictures you see of Indians in the georgraphy [sic].” The former slave offered her grandmother’s resemblance to pictures of Indians as proof of Indian ancestry. Mary Davis’s maternal great-grandmother was a “full-blooded Injun,” which, according to Davis, explained why “even [her] mothaw had high cheek bones and yaller skin.” Davis’s mother’s appearance confirmed the Indian identity of their ancestor. Similarly, Allen Carthan’s “Papa was black all right, but he had long, straight hair and dey do say his mammy had some Injun blood in her.”43 Carthan’s father’s hair texture and length both reflected his “Injun blood” and validated the family’s claim to Indian ancestry. An individual’s features and a family’s claim of Indian ancestry could be mutually reinforcing. The physical appearance of people of mixed ancestry often defied classification. For instance, Solomon Northup described Lethe, one of the slaves he encountered in a slave trading pen, in this way: “She had long, straight hair, and bore more the appearance of an Indian than a negro woman.”44 Lethe may have been of Indian ancestry or of mixed European and African ancestry. Northup did not offer any information about Lethe’s ancestry, perhaps because Lethe herself did not know the particulars. George Fleming’s wife Elizabeth McKantz “look[ed] jes’ like a Indian” though her father was white.45 Ex-slaves offered physical descriptions of Indian relatives that mirrored descriptions of individuals of mixed European and African descent. Perhaps claiming Indian ancestry, with its connection to fierce, independent people and its implication of consensual unions, was more palatable to ex-slaves than was alluding in their personal accounts to coercive, possibly violent relationships between slaves and whites.

122

Chapter 6

Slaves also clearly claimed distinct physical attributes as markers of American Indian heritage. Will Parker, for instance, described his father as a “mixed blood–Indian nigger.” Louisa Davis’s father “look just like a Indian, hair and all, bushy head, straight and young lookin’ wid no beard.” Drucilla Martin said of herself, “I’se half Indian and I look it too, and if I wo’ gold rings in my ears and nose I would look just like my mammy did ’cause she was full blooded Indian.” John Williams detailed the appearance of several of his family members and even included an ethnic slur, “She [great grandmother] was bright. All my folks were bright but me. My mother had hair way down her shoulders and you couldn’t tell my uncle from a dago. My grandmother was a regular Indian color. She spoke Indian too. You couldn’t understand nothing she said.”46 Former slaves claimed black–American Indian heritage and described it as distinct from African and African-European heritage. In the minds of former slaves, people were not solely black or white but could also be variations and combinations of black and white and Indian. The ex-slaves’ attitudes toward interracial sexual relationships depended on the race of the participants because the former slaves saw a link between race and consent. They recognized the inherently coercive nature of sex between blacks and whites, regardless of the gender of each partner. Power differentials between slaves and white people, particularly elite members of the planter class, constrained choice and consent by slaves in these relationships. For slaves, the freedom to choose a mate offered a moment of some agency. The slaves developed rituals to recognize marriages in their communities and did not force couples to remain “married” if they chose to separate.47 Their marriages lacked legal sanction, but many ex-slaves legalized their marriages after Emancipation, illustrating the strength of their choices.48 Of course, white slave owners had the power to approve or deny a slave couple’s desire to marry and could separate a couple through sale. White masters and their wives and daughters also exercised enormous power over the well-being of slaves; they controlled food, material provisions, and punishment. These factors affected the decisions slave men and women made about entering into sexual relationships with whites. Some sexual relationships between Indian owners and black slaves were also coercive, but from the perspective of many slaves, the social distance separating slaves and American Indians involved in interracial liaisons was less than the one that separated slaves and whites. In instances of relationships between slaves and Indians, ex-slaves thought there was a greater possibility for each partner to exercise choice in forming unions. When both partners were slaves, as in the colonial period, neither person possessed a great deal of authority over the other, and both were subject to the control of whites. Further, by the antebellum period, African slaves

Indian Slavery and Memory

123

recognized that whites often treated American Indians poorly, as people of color without power in a society that privileged whiteness. The exslaves described relationships between blacks and American Indians as less fraught with violence and emotional turmoil. Some black family members might have resented a relative’s immersion in American Indian culture, but the overall picture created through the ex-slaves’ narratives about black–American Indian relationships is one based on consent. The slave informants often criticized white men who took advantage of slave women but remained silent about the possibility of coercion with respect to American Indians involved in interracial relationships with blacks. The ex-slaves most likely saw many similarities in their own experiences and those of Indians. Some relationships between Indians and blacks occurred under more coercive conditions, such as between a master and a slave, but the ex-slaves rarely commented negatively on the circumstances of these unions. Slaves’ emotional perceptions of interracial sex and mixed-race progeny ran the gamut from feelings of pride to indifference to degradation and humiliation to anger, depending on the slaves’ understanding of their personal freedom to choose such unions. The slaves studied here generally approved of interracial unions in which both partners chose to participate. Unions between individuals that the slaves perceived as equal in status, such as Indians and blacks, provoked few negative comments, while every relationship between whites and blacks implied an oblique threat of force and coercion for slaves. The nature of sexual relationships between masters and slaves redefined the interwoven concepts of choice, coercion, and resistance; as legal human property, these words had limited meaning for bondpeople. The comments of former slaves about the children produced by interracial sexual relationships uncover a complicated understanding of race and racial difference, and reveal an array of racial categories among slaves beyond the simple dichotomy of black and white.

Chapter 7

The Fight for Recognition Continues Lucy Allen

The stories of Molley, Shoe Boots, and Lemuel Boles form a timeline that illustrates changes in Cherokee thinking about race and racial difference during the nineteenth century. Cherokees’ acceptance of Molley and her sons as citizens and vigorous defense of their right to full and continued citizenship represent a moment when Cherokee notions of race and identity were still fluid. Given her adoption by the Deer clan, neither Molley’s African ancestry nor her lack of Cherokee ancestry barred her from legitimate citizenship. Further, clan adoption apparently made Molley a Cherokee by nationality—that is, she became a Cherokee woman capable of bearing Cherokee children. Shoe Boots’s petition and the ensuing treatment of his African-Cherokee descendants mark a moment of transition. Authorities disapproved of the relationship that produced the African-Cherokee children but recognized a father’s desire to protect his children; having granted full citizenship to Elizabeth, Polly, and John, the Nation honored commitments to these new citizens and their offspring. However, authorities promptly wrote new legislation to prevent a recurrence of Shoe Boots’s situation. By the time Lemuel Boles’s civil suit reached the Cherokee court system, racial lines had hardened, and the Nation had firmly established a policy of excluding people of African descent from full citizenship. The manner in which Cherokee courts and legislators dealt with questions of citizenship for people of African descent reveals how lawmakers saw Cherokee society in racialized terms. Judicial and legislative action throughout the nineteenth century reflects a changing social plan or vision of the kind of society Cherokee lawmakers were hoping to shape. During this period, Cherokees developed and adjusted official policy to determine the place of people of African descent in Cherokee society. At the beginning of the century, Cherokees could admit a person of African descent to full citizenship; clan considerations could supersede racial ones. People of African descent, even those initially without clan ties to the Nation, could and did become full and

The Fight for Recognition Continues

125

equal members of the Nation. By the end of the nineteenth century, however, Cherokees clearly found colored people to be unacceptable as full citizens and refused to allow any more blacks than necessary into the citizenry. Moreover, the Cherokee legislature refused to allow those black citizens equal rights with Cherokee citizens by birth or even with intermarried white citizens. Whites, however, were acceptable—and even desirable—as Cherokee citizens. The Cherokee government established a clear and specific plan for the inclusion of whites in the Nation. Of course, intermarried whites did not have all of the rights and privileges of native Cherokees; Cherokee authorities were careful to circumscribe the citizenship rights of white people entering the Nation. Thus the Cherokee Nation established a hierarchy configured in terms of social power: it placed Cherokees on top, gave whites a nod for their ability to uproot the Nation by allotting them intermediary status in the social order, and firmly consigned blacks to the bottom. By the end of the century, there was little space for individuals of African descent in the Cherokee Nation. Throughout the nineteenth century, the Nation aligned itself ever more closely with whites by adopting a racial ideology that distinguished black from nonblack rather than white from nonwhite. This hierarchy did not mirror the racial thinking of whites themselves, as reflected in mainstream American society and law, which defined whites in opposition to all nonwhite people, including Indians; rather, Cherokees sought to redefine “Indian” as more “white” than “black.” Obviously they must have hoped that this strategy would eventually elevate their position in the racial hierarchy that structured their relations with the white society around them. In Indian Territory, at least, by the turn of the century they had succeeded. On November 16, 1907, Oklahoma entered the Union as the forty-sixth state with a constitution that defined its citizens in a new way, probably reflecting the importance of the large Indian population, approximately 7 percent of the state’s population, to the local economy as well as long-established personal relations between Oklahoma citizens and the native people within their borders.1 The 1907 Constitution in effect defined Indians as “white” and placed blacks in a separate class: “Wherever in this Constitution and laws of this state, the word or words ‘colored’ or ‘colored race,’ ‘negro’ or ‘negro race,’ are used, the same shall be construed to mean or apply to all persons of African descent. The term ‘white race’ shall include all other persons.’”2 To symbolize the new state, a mock wedding ceremony was performed, uniting the Indian and Oklahoma territories, represented by an Indian woman and a young white man, respectively, in the then-state capital of Guthrie.3

126

Chapter 7

Interracial marriage was the metaphor for the creation of the new state, and people of African descent were not included. Ironically, just as the Cherokee Nation was erecting walls between Cherokees and people of African descent, and as whites, at least in Oklahoma, were beginning to identify common ground with Cherokees against blacks, blacks themselves were embracing their historical connections with Cherokees and invoking a history of affinity between the two populations. While many WPA informants proudly claimed descent from Indian, and especially Cherokee, ancestors, the antebellum writings of ex-slaves and free people of color such as Frederick Douglass and Martin Delany served to confirm blacks’ understanding of Indians as potential allies.4 The relationships that produced African-Native children, according to the ex-slaves, were consensual unions, unlike the relationships based on intimidation and violence between slaves and whites. The ex-slaves often vilified the white men who compelled slave women to participate in intimate relationships, but they spoke of Indian ancestors quite fondly. Thus, while nineteenth-century Cherokees had embraced white spouses and rejected intermingling with people of African descent, twentieth-century recollections by former slaves disparaged white sexual partners and proudly proclaimed unions with Indians. Many blacks thought of Indians, as nonwhite peoples who had also been enslaved in the past and continued to face poor treatment from whites throughout the nineteenth century, as friends, collaborators, and equals. Developments and adjustments in nineteenth-century Cherokee laws regulating marriage, then, reveal the dialectics of creating a racial ideology through legal action. Legal activity both shaped and reflected what Cherokee society thought about race and racial mixing.5 Members of the Cherokee Council modified legislation to establish a kind of racial eligibility for inclusion in the Nation: whites were candidates for Cherokee citizenship, and people of African descent were not. Marriage laws also reveal how Cherokee Indians were conceiving of themselves as a race. By the nineteenth century, the Cherokees had begun to think in terms of a more pan-Indian identity as opposed to a more fragmented, tribal identity. For instance, as early as 1824 the marriage laws referred to Indians more generally, not just Cherokees.6 Cherokees realized that all indigenous populations shared not only a desire to preserve their claims to land and sovereignty but also some common cultural characteristics. Moreover, Cherokees conceived of Indians as distinct from whites and, especially, blacks. Cherokees sought equality with whites but also continued to emphasize a separate identity. And to avoid being stripped of all land and political rights and enslaved, Cherokees continually widened the gap between themselves and blacks.

The Fight for Recognition Continues

127

The Cherokee Nation represents one site for the exploration of how one raced group suspended within a web of power responded to the precariousness of its own position by racializing another group. Northeastern Indians in the eighteenth century and other Indian nations in the nineteenth century confronted similar threats to their cultural survival and political sovereignty and were also racialized by larger white society.7 The trajectory each group followed in reaction to these challenges varied: some indigenous peoples assimilated into white society; others were absorbed into the African American population by their own choice or because of the propensity of white Americans to confuse them with people of African descent; and still others sought ways to preserve their cultural identity and autonomy. The Cherokee Nation chose this final option and developed a racialized social hierarchy to press for the viability of their continued existence as a sovereign nation. Cherokee marriage laws not only articulated conceptions of race, however; the laws also expose a society reimagining gender relationships. Matrilineally determined clan affiliations had traditionally organized Cherokee society.8 As the producers of legitimate members of the Nation, Cherokee women had enormous power: clan memberships obtained by birth through a Cherokee woman were undeniable. Adoption was the only means by which outsiders could become members of the Nation.9 Older practices of adoption generally admitted war captives, most frequently women and children, to clan membership.10 By the nineteenth century, older patterns of adoption had changed; the nonCherokee spouses of Cherokee women had become the largest population of adopted citizens in the Nation. Marrying Cherokee women became a means by which “foreign” men, largely white, became citizens of the Cherokee Nation and accessed rights to Cherokee land. Many Cherokee lawmakers began to interpret the marital behavior of Cherokee women as having potentially national consequences. An analysis of Cherokee Nation marriage records discloses that Cherokee women legally married white men with greater frequency during the nineteenth century, more frequently than Cherokee men married white women. This trend had dramatic repercussions for the Nation. The inclusion of a growing population of white men fundamentally altered basic principles in Cherokee society. For instance, white husbands wanted to leave property to their offspring, and the federal government pushed Cherokee lawmakers to adjust traditional practices of matrilineal inheritance to permit patrilineal inheritance.11 Cherokee courts also began to accept patrilineal descent in legal claims of Cherokee citizenship in response to Cherokee fathers who wanted to confer citizenship upon their children by white women.12 Final evidence that the importance of matrilineal descent was on the decline in conjunction with the hardening of

128

Chapter 7

racial ideology is the place of children of Cherokee women by men of African descent in Cherokee society. While Cherokees formerly would have considered these African-Cherokee children full members of the Nation, by 1827 Cherokee legislators were abridging the rights of such children.13 Cherokee marriages to whites were giving rise to a growing population of “mixed-race” individuals, a population that was forcing a reconsideration of what it meant to be Cherokee. Nineteenth-century Cherokee conceptions of race, identity, and gender are not dead and forgotten in the twenty-first century, and Cherokee marriage legislation in that era continues to resonate today. Many black descendants of Cherokees and Cherokee Freedmen remain unable to access political rights and economic benefits in a continuation of nineteenth-century efforts to exclude people of African descent from the Nation. Cherokee women never fully regained their pre-contact place of prominence within Cherokee society. Earlier patterns of marriage between Cherokee women and white men seem only to have intensified, creating a growing population of “white” Cherokees and “mixed-race” individuals and continuing legal controversy. A recent legal case illustrates the contemporary relevance of questions raised by the history of Cherokee marriage law and traditional conceptions of race, gender, and social rights.14 In Lucy Allen vs. Cherokee Nation Tribal Council et al., Lucy Allen asked the Cherokee Nation to grant her full citizenship rights. Allen is a descendant of a Cherokee freedperson, someone who was listed on the “Freedmen Roll” when the Dawes Commission enumerated all legal members of the Cherokee Nation, as well as several other indigenous groups, in 1898. The “Freedmen Roll” included any free colored Cherokee citizens and the emancipated slaves, and their descendants, of Cherokee Nation members; however, some of these emancipated slaves and free colored Cherokee citizens also had Cherokee ancestry but were barred from enrolling on the “By Blood” rolls. From 1898 to 1983, Cherokee Freedmen and their descendants had voting rights in the Cherokee Nation; subsequently, the tribal council required tribal members to demonstrate a degree of Indian blood. Only the descendants of those Cherokees listed on the “By Blood” roll of the Dawes Commission enumeration are able to obtain a Certificate of Degree of Indian Blood or CDIB card, because only this roll includes information about Cherokee blood quantum. A judicial ruling in Allen’s favor that the Cherokee Freedmen’s descendants had illegally been denied the right to vote by the tribal authorities would invalidate the new Cherokee Constitution and the 2003 election of officeholders. Allen’s supporters also approached Gail Norton, Secretary of the Department of Interior, which oversees the Bureau of Indian Affairs, to dispute the results of the 2003 election because the bureau had recognized

The Fight for Recognition Continues

129

the election results. The Cherokee Nation interpreted this move as “a direct attack on the sovereignty and internal affairs of the Cherokee Nation” in its motion to dismiss the case.15 A group of descendants of Cherokee Freedmen and their supporters then proposed an amicus brief accusing the Cherokee Nation of fraudulently claiming sovereign immunity because the Nation could not establish continuity with the federally recognized Cherokee Nation of 1839.16 Cherokee Nation attorneys responded by arguing that the Treaty of 1866 was invalid and freedmen had never been legally adopted into the Cherokee Nation as citizens, and that the Cherokee Nation of Oklahoma was a new organization, not continuous with the old Cherokee Nation. The issue of freedmen’s rights had expanded to put the sovereignty and continued existence of the Cherokee Nation in jeopardy. Allen’s efforts and the Cherokee Nation’s negative response to granting the freedmen’s descendants the full rights of Cherokee citizenship hark back to nineteenth-century attempts to deny people of African and Cherokee ancestry legal rights in the Nation. Each side in this case called on nineteenth-century law to buttress its respective position. Those who wished to include the descendants of Cherokee-owned slaves and free colored Cherokee citizens pointed to the provisions of the Treaty of 1866 granting Cherokee citizenship to the African-descended former slaves of Cherokee owners, as well as older Cherokee traditions of clan and adoption, to justify their stance. Those who wished to limit Cherokee citizenship stressed the importance of blood, of a physical connection to a people, to claiming Cherokee identity, while steadfastly ignoring that some Cherokee Freedmen and free colored Cherokee citizens did in fact have Cherokee ancestry but were often prevented from claiming it by the time of enrollment. In March 2006, the Cherokee Nation’s court did rule in favor of Lucy Allen and freedmen’s descendants. The court determined that the Cherokee Nation had denied the descendants of the Cherokee Freedmen their voting rights. This favorable decision resulted partly from the fact that the Bureau of Indian Affairs had withheld approval of the 1999 Cherokee Constitution on the grounds that the freedmen were not allowed to vote on its adoption. The question now remains just what rights the Nation’s legislature will grant the freedmen’s descendants. Perhaps, following the nineteenth-century example, the Nation will bestow limited political rights on the descendants of their former slaves but refuse to recognize them as full citizens and continue to deny the possibility of their Cherokee ancestry. Or the Cherokee Nation might include these descendants as full and equal members of society and continue to contemplate the meaning of Cherokee identity when a segment of the Nation may not have blood connections to the tribe and

130

Chapter 7

is considered black, a racial identity from which the Nation has historically distanced itself. The larger Cherokee population, however, may not allow the legislature to act at all. Some Cherokee citizens successfully circulated a petition to force a referendum among registered tribal voters on whether to require Cherokee blood for membership in the tribe.17 As a part of the campaign to expel the freedmen descendants, Darren Buzzard circulated an electronic message that warned in part, “for our daughter[s] . . . fight against the infiltration,” a message that invoked the old fear of interracial sex.18 By March 3, 2007, Cherokee Nation members voted to revoke the tribal citizenship of approximately 2,800 descendants of the Cherokee Freedmen by stipulating that individuals be able to trace ancestry to the “By Blood” rolls in order to claim Cherokee citizenship, in effect instituting a blood requirement for citizenship.19 The freedmen’s descendants have already begun the process to appeal the vote in federal court and have staged public demonstrations to publicize their position. The national attention that the case and the Cherokee Nation’s response have garnered places nineteenthcentury Cherokee law and practice at center stage. The implications of Allen’s case are particularly significant today as the population of “full-blood” Cherokee Indians continues to decrease, provoking questions about how to define Cherokee identity.20 Is it a matter of blood, culture, self-identification, or a legal status? Moreover, will Cherokee identity cease to have meaning with the inclusion of so many people with few cultural attachments and remote blood ties to the Nation? The larger idea of “American Indian” as a racial category also begins to lose relevance in light of recent changes in the Indian population. For instance, Russell Thornton finds that the majority of American Indians are married to non-Indians and cites demographic projections that in the twenty-first century “the percentage of American Indians of one-half or more blood will decline to only 8 percent of the American Indian population, while the percentage with less than one-fourth blood quantum will increase to around 60 percent.”21 The Cherokee Nation, along with every other indigenous group, must grapple with these questions of identity and inclusion that threaten its survival as a political unit, a culture, and, ultimately, a people.

Appendix Note on Sources and Methodology

I applied the SPSS statistical package to create summaries of the data contained in the approximately 2,300 existing pre-1890 marriage licenses and announcements. My unending gratitude goes to Curtis Meek of the Technology Center at Emory University’s Woodruff Library. Curtis was my resident SPSS expert and was a tremendous help in walking me through the use of the program and solving technical problems. Social scientists in fields such as sociology, criminal justice, psychology, and political science often utilize SPSS to analyze data, plot trends, and create visual representations of data. This program also offers the option of performing higher-level statistical functions such as regression analysis and determining relationships between variables. For this study, I was less concerned with the statistical functions of prediction of SPSS and more interested in generating visual material that summarizes the data more clearly for readers. I also frequently used the program’s ability to isolate specific cases for study. In presenting this data, I endeavor to be as clear as possible about what the various tables represent. The district clerk records for the Cherokee Nation and the newspaper marriage announcements collected by Dixie Bogle and Dorothy Nix yielded 2,339 cases for examination. Not all of the cases contained the same data, but I coded variables that incorporated all of the possible information included in the marriage licenses and announcements. The variables represent information about the date of the issuance of the marriage license or announcement; the district records that contained the license or announcement; the names of the bride and groom; the races of the bride and groom; the occupation of the groom; and data about fees, the inclusion of petitions, and the solemnization of unions.

132

Appendix

The following is a list of the original variables I created using the SPSS statistical package to code the data included in the marriage licenses and announcements: Date variables: Month, Day, and Year of the creation of the case District Groom’s Last Name Groom’s First Name Groom’s Race Groom’s Occupation Bride’s Last Name Bride’s First Name Bride’s Race Lady Document Petition Confirmation of the Union Location of the Marriage Fee Amount of Fee Remarriage Source of the Record

Curtis Meek also created a new variable with the existing data that specifically counted interracial unions. I divided the date and the first and last names of the couples into separate variables in order to maximize the ease with which I could isolate specific variables for study. The Lady variable refers to the propensity of some clerks to refer to the prospective bride as a “lady” in the license. I included the variable in hopes of finding some pattern for the use of the term. The document variable indicates the type of record the document was: a license, an announcement, a canceled license, or neither a license nor an announcement. Very rarely the district court recorded only the petition for a noncitizen to marry in the Cherokee Nation without the accompanying issuance of a license. The Petition variable indicated if a petition was included with the marriage license. The Confirmation variable noted if the proposed marriage had in fact been solemnized. The issuance of the marriage license included the stipulation that the officiant who performed the ceremony sign and date the license and return it to the district clerk to confirm that the union had taken place. I viewed marriage announcements as confirmed unions because they declared that a couple had been united in marriage. In uncommon instances district court records included marriages of Cherokee Nation members that took place

Appendix

133

outside of the Nation. The Location variable addressed this occurrence. The fee and fee amount variables specified if a fee had been charged and its amount. A few marriages were documented as remarriages—that is, a Cherokee woman and white man had been married outside of the Cherokee Nation and remarried within the Nation to ensure the citizenship status of the husband. Finally, the Source code indicates if the case was found in court records or the newspaper announcements assembled by Bogle and Nix. I included only those Bogle and Nix records for marriages that occurred prior to 1890 and within the Cherokee Nation. If the location of the union was not listed, or if I could not determine if the location listed was within the Cherokee Nation, I omitted the record.

Table A.1. Marriage License Fees by District

Cooweescoowee Flint Sequoyah Total

Numbers

Percentage

26 20 5 51

51.0 39.2 9.8 100.0

Note: This table obviously does not document all of the fees collected by district clerks for marriage licenses. The law required a fee to obtain a marriage license. The recollections of contemporary residents of the Cherokee Nation indicate widespread knowledge of these fees. Clerks most likely failed to record all of the fees paid by those individuals seeking marriage licenses.

Table A.2. Petitions for Marriage Licenses by District

Cooweescoowee Delaware Flint Going Snake Illinois Saline Sequoyah Tahlequah Total District Not Listed Total

Number

Percentage

225 49 13 1 4 56 59 3 410 5 415

54.2 11.8 3.1 .2 1.0 13.5 14.2 .7 98.8 1.2 100.0

Note: This table most likely does not document all of the petitions for marriage licenses recorded by district clerks. The law required a petition signed by Cherokees to obtain a marriage license. The recollections of contemporary residents of the Cherokee Nation indicate widespread knowledge of these petitions. Clerks most likely failed to record all of the petitions presented by those individuals seeking marriage licenses.

134

Appendix Table A.3. Racial Identification of Men Included in Cherokee Nation Marriage Records

Cherokee White Colored Other Indian U.S. Citizen Other White Adopted White Colored CN Citizen Mulatto Race Illegible Race Not Listed Total

Number

Percentage

345 1385 32 6 126 1 4 2 2 2 434 2339

14.7 59.2 1.4 .3 5.4 .0 .2 .1 .1 .1 18.6 100.0

Table A.4. Racial Identification of Women Included in Cherokee Nation Marriage Records

Cherokee White Other Indian U.S. Citizen Adopted White Colored CN Citizen Race Illegible Race Not Listed Total

Number

Percentage

1672 30 11 123 2 21 2 478 2339

71.5 1.3 .5 5.3 .1 .9 .1 20.4 100.0

Table A.5. Distribution of Marriages for Cherokee Women

Race Not Listed Interracial Marriage Same Race Marriage Total

Number

Percentage

7 1426 239 1672

.4 85.3 14.3 100.0

Note: In this table Cherokee women refers only to Cherokee women by blood and excludes colored female Cherokee Nation citizens.

Appendix Table A.6. Distribution of Marriages for Cherokee Men

Race Not Listed Interracial Marriage Same Race marriage Total

Number

Percentage

16 90 239 345

4.6 26.1 69.3 100.0

Note: In this table Cherokee men refers only to Cherokee men by blood and excludes colored male Cherokee Nation citizens.

Table A.7. Interracial Cherokee Nation Marriages by District

Canadian Cooweescoowee Delaware Flint Going Snake Illinois Saline Sequoyah Tahlequah Total District Not Listed Total

Number

Percentage

207 363 387 91 113 108 67 138 45 1519 30 1549

13.4 23.4 25.0 5.9 7.3 7.0 4.3 8.9 2.9 98.1 1.9 100.0

Note: Marriages in which the race of one of the partners was not determined were excluded from categorization as interracial or same-race marriages.

135

Notes

Introduction Note to epigraph: George P. Rawick has compiled and indexed these narratives in The American Slave (Westport, Conn.: Greenwood, 1972); hereafter American Slave. See Mandy Jones interview, American Slave, supp., ser. 1, vol. VIII (Miss.), pt. 3, 1240. 1. See Drucilla Martin interview, American Slave, vol. XI (Mo.), 243. 2. Rumors swirled around another more famous ex-slave, Frederick Douglass, and his Indian ancestry. His family claimed to be descended from an American Indian grandmother, although Douglass himself never publicly made such claims. See John Stauffer, The Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, Mass.: Harvard University Press, 2002), 188–89. 3. The positive image of American Indians held by blacks extended beyond the sphere of intimate relations. Stauffer discusses a novel written by Martin Delany, Blake; or, the Huts of America (1859), in which the chief of the Choctaw Nation accepts the protagonist, a fugitive slave, “as a friend and brother.” The chief calls for unity between the two races and teaches the protagonist effective means to fight white oppression. Martin Delany, a black man, invoked an egalitarian relationship between blacks and American Indians. See Stauffer, The Black Hearts of Men, 182–83. 4. Russell Thornton, The Cherokees: A Population History (Lincoln: University of Nebraska Press, 1990), 172–74. 5. Some works on Southern slavery that touch on interracial sex (almost entirely in terms of sexual relationships between blacks and whites) include William Dusinberre, Them Dark Days: Slavery in the American Rice Swamps (New York: Oxford University Press, 1996); George Rawick, From Sundown to Sunup: The Making of the Black Community (Westport, Conn.: Greenwood, 1972); John Blassingame, The Slave Community: Plantation Life in the Antebellum South (New York: Oxford University Press, 1972); Ann Patton Malone, Sweet Chariot: Slave Family and Household Structure in Nineteenth-Century Louisiana (Chapel Hill: University of North Carolina, 1992); Paul D. Escott, Slavery Remembered: A Record of Twentieth-Century Slave Narratives (Chapel Hill: University of North Carolina Press, 1979); and Herbert Gutman, The Black Family in Slavery and Freedom, 1750–1925 (New York: Vintage Books, 1976).

138

Notes to Page 2

6. Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1972), 414. He contends that the incidence of interracial sex between blacks and whites in the slave South was quite low by extrapolating from the census reports that 13 percent of the African American population in 1860 had white ancestry. There are several problems with this assertion: first, individuals had to be visibly mulatto to be listed as such by the census taker, and ideas of what a mulatto looked like could vary from census official to census official; and second, not all interracial sexual liaisons resulted in children. Thus, the story does not lay solely in the census data. Some older works gloss over sex between white masters and slave women but instead discuss interracial sex in terms of black men and white women and the problem of rape. See U. B. Phillips, American Negro Slavery (Baton Rouge: Louisiana State University Press, 1966), or Kenneth Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Alfred A. Knopf, 1956). A more recent work on free black women in the antebellum period also argues for a greater frequency of consensual relationships between slave women and white masters. Virginia Meacham Gould, in Chained to the Rock of Adversity: To Be Free, Black, and Female in the Old South (Athens: University of Georgia Press, 1998), treats interracial sex between blacks and whites as a conduit for creating a population of free blacks. White masters would set their concubines and their children free, contributing to the population of free women of color. 7. Genovese, Roll, Jordan, Roll, 415. Genovese upends the image of the rapacious white planter attacking the female slave victim with some generalizations about slavery-era interracial sex between blacks and whites: white men violated a “discernible minority” of slave women on plantations; “much of the plantation miscegenation occurred with single girls under circumstances that varied from seduction to rape and typically fell between the two”; married slave women and their husbands resisted white sexual aggression often enough to keep it to a minimum; and most Southern miscegenation took place in towns and cities, not farms or plantations. See Brenda Stevenson, Life in Black and White: Family and Community in the Slave South (New York: Oxford University Press, 1996), and Deborah Gray White, Ar’n’t I a Woman: Female Slaves in the Plantation South (New York: W. W. Norton, 1985). Stevenson’s treatment of interracial sex is brief and, interestingly, appears in her section on whites. She implicitly ignores the effects of interracial sex in the slave community. White focuses on the image of slave women as Jezebels. See also Escott, Slavery Remembered, 36, or Rawick, From Sundown to Sunup, 55, for more on the coerced nature of antebellum interracial relationships. 8. See Mary Boykin Chesnut, The Private Mary Chesnut: The Unpublished Civil War Diaries, C. Vann Woodward and Elisabeth Muhlenfeld, eds. (New York: Oxford University Press, 1984); and her Mary Chesnut’s Civil War, C. Vann Woodward, ed. (New Haven: Yale University Press, 1981); Marli Weiner, Mistresses and Slaves: Plantation Women in South Carolina, 1830–1880 (Urbana: University of Illinois Press, 1998); Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Thomas Jefferson, Notes on the State of Virginia: with Related Documents, David Waldstreicher, ed. (Boston: Bedford/St. Martin’s, 2002); Fawn Brodie, Thomas Jefferson: An Intimate History (New York: Norton, 1974); Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University of Virginia Press, 1997); Drew Gilpin Faust, James Henry Hammond and the Old South: A Design for Mastery (Baton Rouge: Louisiana State University Press, 1982); and Dusinberre, Them Dark Days.

Notes to Page 3

139

9. Martha Hodes, in White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997), focuses tightly on relationships between white women and black men and the lack of white violence directed toward black men in such relationships in the antebellum period. 10. Joel Williamson, in New People: Miscegenation and Mulattoes in the United States (Baton Rouge: Louisiana State University Press, 1995), is really interested in mulattoes and their contested place in society. James Hugo Johnston, in Race Relations in Virginia and Miscegenation in the South, 1776–1860 (Amherst: University of Massachusetts Press, 1970), spends much more time discussing sexual relationships between blacks and whites and offers little on relationships between American Indians and slaves except to paint a fairly positive picture of these unions. Jack D. Forbes, in Black Africans and Native Americans: Color, Race and Caste in the Evolution of Red-Black Peoples (Oxford: Basil Blackwell, 1988), addresses the changing language of race rather than the lived experiences of American Indians and blacks in interracial relationships. 11. See Kirsten Fischer, Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina (Ithaca, N.Y.: Cornell University Press, 2002); Elise Lemire, “Miscegenation”: Making Race in America (Philadelphia: University of Pennsylvania Press, 2002); or Audrey Smedley, Race in North America: Origin and Evolution of a Worldview, 2nd ed., (Boulder, Colo.: Westview Press, 1999), for some examples. 12. Few historians study both sexual relationships between blacks and whites and such relationships between blacks and American Indians. For examples of the coercive nature of sexual relationships between slaves and whites, see Melton A. McLaurin, Celia, a Slave (Athens: University of Georgia Press, 1991); Harriet Jacob’s autobiographical Incidents in the Life of a Slave Girl in Henry Louis Gates, Jr., ed., The Classic Slave Narratives (New York: Penguin Books, 1987); Kent Anderson Leslie, Woman of Color, Daughter of Privilege: Amanda America Dickson, 1849–1893 (Athens: University of Georgia Press, 1995); or Stevenson, Life in Black and White, 138. Leslie, Woman of Color, contains the story of the rape surrounding Dickson’s conception (37). William Loren Katz describes relationships between American Indians and blacks as egalitarian, loving, and consensual in Black Indians: A Hidden Heritage (New York: Atheneum, 1986). Katz also published a juvenile reader on this topic with Paula A. Franklin, Proudly Red and Black: Stories of African and Native Americans (New York: Atheneum, 1993). Forbes’s Color, Race and Caste and Africans and Native Americans: The Language of Race and the Evolution of Red-Black Peoples (Urbana: University of Illinois Press, 1993), as well as Johnston’s Race Relations in Virginia, paint fairly positive pictures of these relationships as well. 13. Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge, Mass.: Harvard University Press, 1998), 41, posits that before 1840 whites defined their race in opposition to nonwhiteness. Forbes, Color, Race and Caste, 66–71 and ch. 7, traces the history of such terms as “negro” and “mulatto” in his study of African and indigenous American peoples and finds that some Europeans referred to anyone not white, including non-Africans, as “negro” and referred to indigenous Americans and their descendants with no African blood as “mulatto.” Ruth Wallis Herndon and Ella Wilcox Sekatau, in “The Right to a Name: The Narragansett People and Rhode Island Officials in the Revolutionary Era,” Ethnohistory 44 (Summer 1997): 433–62, esp. 444–47, contend that in Rhode Island, officials increasingly designated indigenous peoples as “Negro” or “black” in written records in order to dispossess the Narragansett tribe of its land. See also Winthrop D. Jordan, “American Chiaroscuro: The Status

140

Notes to Pages 3–4

and Definition of Mulattoes in the British Colonies,” William and Mary Quarterly 19 (April 1962): 183–200. 14. See Ariela Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108 (October 1998): 109–88. On pages 141–47, Gross discusses the distinctions that whites made between blacks and Indians. 15. Of course, there were free black slaveholders as well, which further complicated race relations in the antebellum South. See Michael P. Johnson and James L. Roark, Black Masters: A Free Family of Color in the Old South (New York: W. W. Norton, 1984), for more on free black slaveholders. Cherokee census records did not list any free black slaveholders. 16. Theda Perdue offers a nice summary of the similarities between Native and African cultures in her Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 42–44, without assuming that the similarities led to ideas of racial equality. 17. Katz, Black Indians, 135. 18. Daniel F. Littlefield, Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 9. 19. See Johnston’s Race Relations in Virginia or Forbes’s Color, Race and Caste and Africans and Native Americans. 20. Johnston, Race Relations in Virginia, 284–85. Johnston specifically mentions Cherokees as being guilty of adopting white racial prejudices toward blacks. 21. Perdue, Slavery and Cherokee Society, 49. 22. William G. McLoughlin argues that the Cherokee Indians accept the institution of slavery, in part, to create more social distance between themselves and people of African descent in After the Trail of Tears: The Cherokees’ Struggle for Sovereignty, 1839–1880 (Chapel Hill: University of North Carolina Press, 1993), 127. For other examples of native populations and native individuals seeking to separate themselves from an identity of being of African descent, see Karen I. Blu, The Lumbee Problem: The Making of an American Indian People (Lincoln: University of Nebraska Press, 1980); Ann Marie Plane and Gregory Button, “The Massachusetts Indian Enfranchisement Act: Ethnic Contest in Historical Context, 1849–1869,” Ethnohistory 40 (Autumn 1993): 587–618; and Claudio Saunt, Black, White, and Indian: Race and the Unmaking of an American Family (Oxford: Oxford University Press, 2005). 23. As Kirsten Fischer notes in her study of North Carolina, “Sexual relationships and their social repercussions in colonial North Carolina can tell us much about eighteenth-century constructions of race. In the intimate interactions of ordinary people, we can see ideas about race and social hierarchy based on racial distinctions taking shape.” See Fischer, Suspect Relations, 1. Similarly, Ann Marie Plane also finds connections between the regulation of marriage, and especially interracial marriage, and the creation of ideas about “otherness” in Colonial Intimacies: Indian Marriage in Early New England (Ithaca, N.Y.: Cornell University Press, 2000). Peter Wallenstein also traces how marriage law often reflected racial attitudes in his Tell the Court I Love My Wife: Race, Marriage, and Law—An American History (New York: Palgrave Macmillan, 2002). 24. Pun intended. It is no accident that the term “legitimacy” also refers to children who are born to parents who are legally married and that rightful heirs to the throne must be legitimate children. In order to hold office in the National Council you had to have free parents, one of whom must have been Cherokee, none of whom could have been of the African race, who “may have

Notes to Pages 4–7

141

been living together as man and wife, according to the customs and laws of this Nation”; Constitution and Laws of the Cherokee Nation, Published by an Act of the National Council 1892, The Constitutions and Laws of the American Indian Tribes, vol. X (Foley R’y Printing Company, 1893), art. III, sec. 5, 14. There is a dual meaning to this term (as opposed to bastardy or denoting lawfulness) that fits well with discussions of the reproduction of a society. 25. Jacobson, Whiteness of a Different Color, 3. 26. William G. McLoughlin, Cherokee Renascence in the New Republic (Princeton, N.J.: Princeton University Press, 1986), 347–48. Chapter 16 discusses the developing concepts of gender, class, and race in the Cherokee Nation in the early nineteenth century. 27. Gross, “Litigating Whiteness,” 151–57. Gross demonstrates that in court cases to determine a person’s racial identity, juries and judges not only examined the physical appearance of the person and medical testimony from “experts” on race and ancestry but also considered the “performance of race” and community reputation. Also embedded within the notion of the “performance of race” and community perception are considerations of class. James Kinney, Amalgamation! Race, Sex, and Rhetoric in the Nineteenth-Century American Novel (Westport, Conn.: Greenwood Press, 1985), 22–27, offers a similar formulation of race regarding mulattoes in particular. For more on the social construction of race, see Barbara J. Fields, “Slavery, Race, and Ideology in the United States of America,” New Left Review 181 (May/June 1990): 95–118. See also Evelyn Brooks Higginbotham, “African American Women’s History and the Metalanguage of Race,” Signs: Journal of Women in Culture and Society 17 (1992): 251–74; Vania Penha-Lopes, “What Next? On Race and Assimilation in the United States and Brazil,” Journal of Black Studies 26 (July 1996): 809–26; and Maria P. P. Root, ed., Racially Mixed People in America (Newbury Park, Calif.: Sage Publications, 1992). Emmanuel Chukwudi Eze explores the topic of race in the writing of several prominent Enlightenment thinkers and traces the development of ideas about the characteristics of people of African descent in Race and the Enlightenment: A Reader (Cambridge, Mass.: Blackwell, 1997). 28. For discussions of matrilineal descent in Cherokee Society, see Theda Perdue, Cherokee Women: Gender and Culture Change, 1700–1835 (Lincoln: University of Nebraska Press, 1998), esp. pp. 81–83 and chs. 1–3; Perdue, Slavery and Cherokee Society, 9; John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York: New York University Press, 1970), 113–22; J. Leitch Wright, Jr., The Only Land They Knew: The Tragic Story of the American Indians in the Old South (New York: Free Press, 1981), 235; Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956), 17; Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002), 28; and Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), 49–50. 29. Reid, A Law of Blood, 193–95. Reid’s entire book discusses the importance and strength of clan ties in the Cherokee Nation. 30. Perdue, Slavery and Cherokee Society, 12–16. 31. Sturm, Blood Politics, 31. 32. It is difficult to determine if the Cherokees were borrowing this terminology from Americans or developed it on their own. Theda Perdue argues against the use of the term “mixed blood” prior to Removal, claiming that Cherokees saw people of mixed European and Cherokee citizenry not as part white but

142

Notes to Pages 7–9

instead fully Cherokee. Perdue also thinks historians too often link behavior to biology when using the term “mixed blood.” See her “Mixed Blood Indians”: Racial Construction in the Early South (Athens: University of Georgia Press, 2003), 98–102. I think, however, that Cherokees were aware of the mixed-race background of individuals and sometimes noted it even prior to Removal. For some examples, see Cherokee Phoenix, May 21, 1828, May 22, 1830, June 12, 1830. I use the term “mixed blood” only when quoting a source and make no arguments about political orientation or behavior. 33. Sarah Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: University of North Carolina Press, 1997), 94. Hill states that intermarriage with European or African women produced children with no clan identity. 34. The Cherokee Council extended citizenship to “‘the children of Cherokee men and white women living in the Cherokee Nation as man and wife’ and made them ‘entitled to all the immunities and privileges enjoyed by citizens descending from the Cherokee race, by the mother’s side’” in November of 1825, Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 57, hereafter referred to as LCN 1852. The law makes no explicit provision for the adoption of these children into a clan—for instance, the father’s clan—prior to or in addition to obtaining Cherokee citizenship. Before the passage of this act, these children’s legal status in the Cherokee Nation remained unclear. No such legal action was required to recognize the rights of the children of Cherokee women and white men. 35. LCN 1852, 120: art. III, sec. 4, of the July 1827 Constitution reads in part: “The descendants of Cherokee men by all free women, except the African race, whose parents my have been living together as man and wife, according to the customs and laws of this Nation, shall be entitled to all the rights and privileges of this Nation, as wells as the posterity of Cherokee women by all free men.” 36. See Reid, A Law of Blood, ch. 18. For more on early adoption practices among various tribes, see Gary B. Nash, Red, White, and Black: The Peoples of Early America, 4th ed. (Upper Saddle River, N.J.: Prentice Hall, 2000), 302–3; James Axtell, The European and the Indian: Essays in the Ethnohistory of Colonial North America (Oxford: Oxford University Press, 1981), ch. 7; J. B. Davis, “Slavery in the Cherokee Nation,” Chronicles of Oklahoma 11 (December 1933): 1056–72; and David T. Haberly, “Women and Indians: The Last of the Mohicans and the Captivity Tradition,” American Quarterly 28 (Autumn 1976): 431–44. 37. Reid, A Law of Blood, 195. See also Theda Perdue, “Mixed Blood” Indians, 7–11. 38. Reid, A Law of Blood, 197. Reid terms the adoption of a group or an entire tribe by the Cherokees “national adoption.” 39. Perdue, “Mixed Blood” Indians, 9. 40. Johnston, Race Relations in Virginia, 284–85. 41. Katz, Black Indians, 13. 42. Some authors provide greater discussion of the sources and development of white racial ideology: Grace Elizabeth Hale argues that white Americans created a racial identity for themselves because of the racial ambiguities revealed by the Civil War in Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998); Matthew Frye Jacobson posits that this consciousness of whiteness occurs much sooner in Whiteness of a Different Color; Winthrop Jordan posits in White over Black: American Attitudes Toward the Negro, 1550–1812 (Chapel Hill: University of North Carolina Press, 1968) that ideas about whiteness and racial difference emerged with the first encounters between

Notes to Pages 11–14

143

Europeans and Africans. See also Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996), chs. 2, 4, and 6; Alden T. Vaughan, Roots of American Racism: Essays on the Colonial Experience (New York: Oxford University Press, 1995), esp. chs. 1, 6, and 7; and Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975). For further discussion of the debate over which arrived on the American scene first, slavery or racism, see Vaughan’s chapter 7 in particular; Oscar Handlin and Mary F. Handlin, “Origins of the Southern Labor System,” William and Mary Quarterly 7 (1950): 199–222; Carl N. Degler, “Slavery and the Genesis of American Race Prejudice,” Comparative Studies in Society and History 2 (1959): 49–66; and Fields, “Slavery, Race and Ideology.” 43. Other Southern Indian nations also passed legislation prohibiting marriages with slaves and free people of African descent. All of the Southern Indians also passed laws restricting the behavior of slaves. See McLoughlin, After the Trail of Tears, 127–28. 44. Sturm, Blood Politics, 145–46. Sturm states, “As a result, racial hierarchies and their relationship to Cherokee identity formation can be deduced from Cherokee marriage preferences.” 45. The two major newspapers produced by the Cherokee Nation were the Cherokee Advocate and the Cherokee Phoenix and Indian’s Advocate. 46. William M. Wiecek, “The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America,” William and Mary Quarterly 34 (April 1977): 258–80, esp. 280. Wiecek discusses colonial law as it legitimized and applied to slavery, but I think his observations about the usefulness of this type of evidence suits other studies of legal statutes as well. Similarly, Alan Watson recognizes that the legislation legal bodies pass may say something different about a society than what the people themselves say, but he still finds the legal statutes a fruitful avenue of study; Slave Law in the Americas (Athens: University of Georgia Press, 1989), xi–xiv. 47. Strickland, Fire and the Spirits, 152, argues for the responsiveness of judicial officials, of elites, to the concerns and realities of their constituencies. Further, Strickland contends that ordinary Cherokee citizens were very knowledgeable about their legal rights and the passage of legislation, 158 and ch. 6. Thus, it would be incorrect to presume that legal statutes reflect only elite thinking. Other scholars have turned to legal documents to gain access to a larger society’s ideas about race: Peggy Pascoe posits that “the legal system does more than just reflect social or scientific ideas about race; it also produces and reproduces”; “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Unequal Sisters: A Multicultural Reader in U. S. Women’s History, Vicki L. Ruiz and Ellen Carol DuBois, eds., 3rd ed. (New York: Routledge, 2000), 163. Statutes then not only reflect elite thinking on race but also can shape general societal perceptions. Mary Frances Berry offers more support for the use of legal records such as statutes and court cases, which are what this study employs, to get at the attitudes of ordinary people in “Judging Morality: Sexual Behavior and Legal Consequences in the Late NineteenthCentury South,” Journal of American History 78 (December 1991): 835–56, esp. 835–38. 48. See A. Gwynn Henderson, “Dispelling the Myth: Seventeenth- and Eighteenth-Century Indian Life in Kentucky,” Register of the Kentucky Historical Society 90 (1992): 1–25, for more on the presence of American Indians in the Ohio Valley.

144

Notes to Pages 15–19

49. Ronald B. Flowers, Criminal Jurisdiction Allocation in Indian Country (Port Washington, N.Y.: Associated Faculty Press, 1983), 25. All of ch. 3 concerns the intercourse laws. See also Francis Paul Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790–1834 (Cambridge, Mass.: Harvard University Press, 1962), 261–69. 50. Cherokees did not unanimously support this move toward adopting white legal and political institutions. A strong opposition movement led by White Path and consisting mostly of “full-blood” conservative Cherokees proposed a threepoint plan: rejecting the new Constitution, discarding Christian religion as well as European economic and social structures, and returning to a tribal existence, Malone, Cherokees of the Old South, 87. 51. The Cherokee Phoenix is peppered with references to the efforts of Georgian politicians to push Indians out of the state in the late 1820s and early 1830s. For some examples, see the following issues of the Cherokee Phoenix: November 26, 1828; December 3, 1828; December 29, 1828; January 7, 1829; each weekly issue from January 28, 1829, to July 8, 1829; each weekly issue from December 30, 1829, to April 18, 1831. These articles often contain discussions of state as well as federal legislation passed concerning the relocation of Indians and Cherokee response to such efforts. 52. See Cherokee Editor: The Writings of Elias Boudinot, Theda Perdue, ed., (Knoxville: University of Tennessee Press, 1983), 114–17. 53. See Cherokee Phoenix, March 20, 1828. 54. Robert Sparks Walker, Torchlights to the Cherokees (New York: Macmillan, 1931), 38. Two missionaries were jailed under this provision. 55. Cherokee Phoenix, July 8, 1829, and December 16, 1829. 56. Thornton, The Cherokees, 76. 57. For a few examples, see Cherokee Phoenix, February 21, 1828; March 13, 1828; April 3, 1828; May 28, 1828; July 2, 1828; August 27, 1828; December 3, 1828; by 1829 almost every issue contains some comment on the possibility of Indian removal. 58. Again, after the signing of the 1835 treaty, many wealthier Cherokees, often slaveholders, left before the forced removal of the Nation on the “Trail of Tears.” 59. R. Halliburton, Jr., Red over Black: Black Slavery Among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), 63. 60. Thurman Wilkins, Cherokee Tragedy: The Ridge Family and the Decimation of a People, 2nd ed. (Norman: University of Oklahoma Press, 1986); see esp. chs. 8–14. Editor Elias Boudinot’s opinion on the possibility of moving the Nation west differed from Chief John Ross’s stiff no-removal stance and led to the editor’s resignation; Cherokee Phoenix, August 11, 1832. Boudinot was more willing to negotiate a favorable treaty for removal west because he thought it inevitable that whites would continue to push Cherokees out of the states of Georgia, Alabama, and Tennessee. Boudinot presented both options to the newspaper’s readership. 61. The Cherokee Phoenix, the official newspaper of the Nation, also ceased publication during this time because of the civil and political unrest that persisted during this period. The Cherokee Phoenix also faced financial problems and received threatening letters from angry Georgians about printed reports of their behavior. See Henry T. Malone, “The Cherokee Phoenix: Supreme Expression of Cherokee Nationalism,” Georgia Historical Quarterly 34 (September 1950): 163–88, esp. 184–88. Malone also gives an overview of the history of the newspaper, types

Notes to Pages 22–26

145

of issues the newspaper addressed, and the difficulties encountered by the editors of the Cherokee Phoenix. 62. William G. McLoughlin, “Experiment in Cherokee Citizenship, 1817–1829,” American Quarterly 33 (Spring 1981): 3–25. 63. See Annie Heloise Abel, The American Indian as Slaveholder and Secessionist: An Omitted Chapter in the Diplomatic History of the Southern Confederacy (Cleveland: Arthur H. Clark, 1915), 13–14, 17, and 18. 64. Abel, The American Indian as Slaveholder and Secessionist, 59–60. 65. Littlefield, Cherokee Freedmen, 15, and Perdue, Slavery and Cherokee Society, 128–37. See also Thornton, The Cherokees, 90–93, for more on factional strife between Cherokees loyal to the Union and the Confederacy. 66. Littlefield, Cherokee Freedmen, 15 67. Thornton, The Cherokees, 94. 68. Treaty of 1866, in Treaties and Agreements of the Five Civilized Tribes, American Indian Treaties Series (Washington, D.C.: Institute for the Development of Indian Law, 1974), 62. The Cherokee Nation denied citizenship to those freedmen who returned to the Nation after the six-month deadline. Many ex-slaves missed the deadline because they were unaware of treaty stipulations or lacked the means to return to the Nation in the allotted time. Many Cherokees had transported their slaves outside of the Indian Territory to Texas and Mexico during the war to preserve their slave property. Some ex-slaves claimed to have been detained by Cherokees as they tried to return to the Nation. Thus, many freedmen who had lived in the Cherokee Nation before the war as slaves and had legitimate ties to the community failed to obtain Cherokee citizenship. Littlefield, Cherokee Freedmen, 29. 69. Treaty of 1866, 60–61. Chapter 1. A Moment of Inclusion 1. Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 43–44, hereafter referred to as LCN 1852. 2. William G. McLoughlin and Walter H. Conser, Jr., “The Cherokees in Transition: A Statistical Analysis of the Federal Cherokee Census of 1835,” Journal of American History 64 (December 1977): 678–703; see 681. The authors include data from the 1809, 1825, and 1835 censuses. The 1809 and 1825 censuses appear to have been conducted by Cherokee authorities. 3. Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002), 30–33, goes further by arguing that “in the first half of the eighteenth century, Cherokees distinguished themselves from Europeans, Africans, and other Native Americans not by skin color, race, or even language, but by membership in a Cherokee clan, which was theirs by right of birth or adoption.” Sturm is stressing the importance and meaning of clan affiliations in the Cherokee Nation. 4. Record Book of the Proceedings of the Supreme Court of the Cherokee Nation, Cherokee Collection, reel 1, box 3, folder 10: 0984–0987. Available at the Tennessee State Library and Archives. This book is hereafter referred to as RBPSCCN. For a brief summary of the case, see Sturm, Blood Politics, 57–58. Sturm stresses that the case upholds the tradition of matrilineal descent and its connection to legitimate membership in the Cherokee Nation. Shoe Boots’s story can also be found in Marion L. Starkey, The Cherokee Nation (New York: Alfred A. Knopf, 1946), 18–19.

146

Notes to Pages 26–29

5. John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York: New York University Press, 1970), addresses the meaning of clan in the Cherokee Nation. See also Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), for more discussion of the importance of clans to governance in the Cherokee Nation. 6. RBPSCCN, Cherokee Collection, reel 1, box 3, folder 10: 0985 and 0986. In Sturm’s account in Blood Politics, Molley’s new Cherokee name is Chickaune. I read the evidence as listing Molley as Chickau nee Molley. 7. RBPSCCN, Cherokee Collection, reel 1, box 3, folder 10: 0985. 8. RBPSCCN, Cherokee Collection, reel 1, box 3, folder 10: 0986. 9. Interestingly, the documents contain no mention of a spouse for Molley nor do they name the father of her children. One might presume that the children’s father was a Cherokee, but we cannot be sure. Further, Molley’s children would not have gained membership in the Nation through a Cherokee father because of the matrilineal nature of descent and matrilineally determined clan affiliations. 10. Grace Steel Woodward, The Cherokees (Norman: University of Oklahoma Press, 1963), 40. Woodward describes the exchange of gifts that sometimes marked eighteenth-century Cherokee marriages as well as the frequency with which Cherokees married. Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956), also comments on the temporary nature of Cherokee unions and the use of gifts to indicate a marriage had taken place, 16. Cephas Washburn remembered very little ceremony surrounding Cherokee marriages in his Reminiscences of the Indians (Richmond: Presbyterian Committee of Publication, 1869; reprint, New York: Johnson Reprint Corporation, 1971), 206. 11. LCN 1852, 57. 12. Reid, A Law of Blood, ch. 12, entitled “A Social Permissiveness—the Law of Marriage.” 13. Reid, A Law of Blood, 113. 14. Reid, A Law of Blood, 115. See also Malone, Cherokees of the Old South, 17. 15. Reid, A Law of Blood, 117. 16. Reid, A Law of Blood, 118–19. Walter O’Meara, Daughters of the Country: The Women of the Fur Traders and Mountain Men (New York: Harcourt, Brace and World, 1968), 18–19, also states that polygamy was legal among native populations in general. 17. Reid, A Law of Blood, 118–19, argues that the practice of polygamy was probably not widespread because divorce was so easy. If a man wanted a new wife, he could easily divorce his current wife. Reid suggests that polygamy is only widespread when divorce is difficult; one has multiple spouses because one cannot separate from any one of them. 18. For two examples of Cherokee laws regulating intermarriage, see LCN 1852, 10, or see Laws of the Cherokee Nation, Passed During the Years 1839–1867, Compiled by Authority of the National Council, The Constitutions and Laws of the American Indian Tribes, vol. VI (St. Louis: Missouri Democrat Print, 1868), 104–5. 19. Constitution and Laws of the Cherokee Nation, Published by an Act of the National Council 1892, The Constitutions and Laws of the American Indian Tribes, vol. X (Foley R’y Printing Company, 1893), 370–71. Pages 371–73 contain the entire act. I believe that this law establishes a practice that was already customary in the Nation regarding adopted white citizens and annuity rights. LCN 1852, art. III, sec. 4:120, and art. IV, sec. 2:123.

Notes to Pages 29–31

147

20. J. Leitch Wright, Jr., The Only Land They Knew: The Tragic Story of the American Indians in the Old South (New York: Free Press, 1981), 236–37. 21. LCN 1852, 10. In 1829 the Cherokee government reiterates the importance and tradition of female citizens maintaining property rights during marriage by passing a similar law again, LCN 1852, 142–43. 22. Reid, A Law of Blood, 113. An 1829 law acknowledged the history of the tradition of married women’s property rights: “Whereas, It has long been established custom in this Nation and admitted by the courts as law, yet never committed to writing, that the property of Cherokee women after their marriage cannot be disposed of by their husbands, or levied upon by an officer to satisfy a debt of the husband’s contracting, contrary to her will and consent, and disposable only at her option,” LCN 1852, 142–43. 23. July 3, 1817, Hugh Montgomery to Governor William Rabun, Telamon Cuyler Collection, Hargrett Rare Book and Manuscript Library, The University of Georgia Libraries, box 47, folder 11, document 2:4–5. Contemporary references to the frequency of relationships between whites and Indians include Winfield Scott, Autobiography of Lieut.-General Scott, Written by Himself (New York, 1864), 1:318, and an August 3, 1817, note to Mr. Trott from Colonel R. J. Meigs, Cherokee Agency in the Southeastern Native American Documents, 1730–1842, GALILEO Digital Library of Georgia Database, document PA0001:4. 24. Excerpt from Hugh Montgomery’s letter to the Secretary of War reprinted in Cherokee Phoenix, May 1, 1830, p. 2. 25. LCN 1852, art. III, sec. 7:121. 26. LCN 1852, art. III, sec. 4:120; and art. IV, sec. 2:123. Similarly, article II of the U.S. Constitution limits the presidency to natural-born citizens of the United States. 27. LCN 1852, art. V, sec. 5:126. 28. Cherokee men already had a long-standing tradition of not interfering with their wives’ property, and this extended to white women. Later acts dealing with rape differentiate only between free women and women of “negro” descent. Again, these protections would be reiterated in the 1839 constitution as well. 29. LCN 1852, 10. The Cherokee Phoenix printed the laws and constitution of the Cherokee Nation in both English and Cherokee in a running series. This act was printed on page 1 of the March 27, 1828, issue. Though literacy rates varied, statistics indicate that in 1835 more than half of all Cherokee households contained one Cherokee or English reader; see McLoughlin and Conser, “The Cherokees in Transition,” 694, table 13. Thus, it is not as though the general public was unaware of this statute. One of the Cherokee Phoenix’s main goals, according to its prospectus, was to inform the public of the laws and public documents of the Nation; Cherokee Phoenix, February 28, 1828, p. 3. 30. Several authors discuss this early pattern of informal connections between fur traders and Indian women: Theda Perdue, Cherokee Women: Gender and Culture Change, 1700–1835 (Lincoln: University of Nebraska Press, 1998), 81–82; Reid, A Law of Blood, 116; Wright, Only Land They Knew, 234–35; and Sarah Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: University of North Carolina Press, 1997), 94. Theda Perdue, in Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 33, quotes a white 1763 observer who comments on the frequency of sexual relationships between white traders/factors and Indian women. W. I. Worley commented that even in the late antebellum and early postbellum period many Indian-white unions remained informal: “Of course a lot of them [whites and

148

Notes to Pages 31–34

Indians] never so married, but lived together and these Indian women were known as common wives”; vol. 11, p. 576, of the Indian Pioneer History records collected by the Works Progress Administration, available at the Oklahoma Historical Society. 31. O’Meara, Daughters of the Country, 8–9, and especially 190 and 240. See also Theda Perdue, “Mixed Blood Indians”: Racial Construction in the Early South (Athens: University of Georgia Press, 2003), 14–15, 21, 25, and 58, for more on early patterns of interracial relationships between Indians and Europeans or Americans during the colonial period. 32. LCN 1852, 131–32. The Cherokee Phoenix noted the passage of this revised law on intermarriage on p. 3 of the October 21, 1829, issue. The newspaper often included important legislative action that the editors thought was of public concern. 33. Reid, A Law of Blood, 113–22. 34. LCN 1852, 38. 35. R. Halliburton, Jr., Red over Black: Black Slavery among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), 4, offers a summary of some of the prevailing myths about slavery among the Cherokees. He states his purpose in his work: “to show that black slavery existed as an institution in the Cherokee Nation East and West, for more than 150 years. Furthermore, I hope to show that fullbloods, half-breeds, near-whites, and whites—but Cherokees all—possessed slaves and that slavery in the Cherokee Nation was a microcosm of the ‘peculiar institution’ that existed in the Southern United States,” x. 36. McLoughlin and Conser, “The Cherokees in Transition,” 680–82. 37. McLoughlin and Conser, “The Cherokees in Transition,” 681–82, tables 1 and 3, list “Mixed Negro” with the other native Cherokees: “half-bloods,” “quarter-bloods,” “full-bloods,” those of mixed Cherokee and Catawba ancestry, and those of mixed Cherokee and Spanish ancestry. Mixed Negroes, as free people, likely claimed a matrilineal clan connection to the Nation, which, in turn, conferred some political rights and citizenship. As written, the law would not prevent marriages between “mixed negroes” and Indians or whites. Later anti-amalgamation statutes would prohibit unions between people of color (whether free or enslaved) and Indians or whites. 38. James Hugo Johnston, Race Relations in Virginia and Miscegenation in the South, 1776–1860 (Amherst: University of Massachusetts Press, 1970), 172; and Joel Williamson, New People: Miscegenation and Mulattoes in the United States (Baton Rouge: Louisiana State University Press, 1995), 8. 39. See Mark V. Tushnet, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, N.J.: Princeton University Press, 1981), especially 158–69, for a discussion of slaves’ peculiar status as property and human beings with free will and rights based in humanity. Arthur F. Howington also discusses this duality for slaves in “‘Not in the Condition of a Horse or an Ox’: Ford v. Ford, the Law of Testamentary Manumission and the Tennessee Courts’ Recognition of Slave Humanity,” Tennessee Historical Quarterly 34 (Fall 1975): 249–63. 40. Howington, “‘Not in the Condition of a Horse or an Ox,’” 251. 41. Wilbert E. More, “Slave Law and the Social Structure,” Journal of Negro History 26 (April 1941): 171–202, especially 194–95. 42. LCN 1852, 120 and 38. Page 38 contains the 1824 act preventing intermarriage with “negro slaves.” 43. Sturm, Blood Politics, 58. 44. Carolyn Ross Johnston, Cherokee Women in Crisis: Trail of Tears, Civil War, and Allotment, 1838–1907 (Tuscaloosa: University of Alabama Press, 2003), 20. 45. Johnston, Cherokee Women in Crisis, 55.

Notes to Pages 34–39

149

46. Peter H. Wood, “The Changing Population of the Colonial South: An Overview by Race and Region, 1685–1790,” Powhatan’s Mantle: Indians in the Colonial Southeast, Peter H. Wood, Gregory A. Waselkov, and M. Thomas Hatley, eds. (Lincoln: University of Nebraska Press, 1989), 35–103, see 65. Wright, Only Land They Knew, 280. 47. LCN 1852, 79. 48. Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–1851 (Tahlequah, Cherokee Nation, 1852), sec. 4 of the “Act for the punishment of Criminal Offences,” 18, hereafter referred to as CLCN 1839–1851. 49. LCN 1852, 57. 50. LCN 1852, 120: art. III, sec. 4, of the July 1827 Constitution reads in part: “The descendants of Cherokee men by all free women, except the African race, whose parents my have been living together as man and wife, according to the customs and laws of this Nation, shall be entitled to all the rights and privileges of this Nation, as well as the posterity of Cherokee women by all free men.” Those of Negro parentage were prohibited from holding public office. 51. LCN 1852, 57. See also Cherokee National Records Microfilm Series, roll CHN 73, vol. 1878, 15, available at the Oklahoma Historical Society, for the court case that established that both patrilineal and matrilineal descent from a native Cherokee entitled one to citizenship. Pages 12–28 contain the whole court case. Today, exhibiting a blood connection to the tribe, paternal or maternal, entitles one to membership in the Cherokee Nation. Blood is now the most important factor in being enrolled as a member of the Nation. 52. This and the preceding quotation from Socrates, “Intermarriages,” Cherokee Phoenix, April 3, 1828, p. 4. 53. Cherokee Phoenix, January 14, 1829, p. 3. 54. Cherokee Phoenix, February 4, 1829, p. 2. 55. Cherokee Phoenix, November 4, 1829, p. 3. 56. See McLoughlin and Conser, “The Cherokees in Transition,” 681–82, tables 1 and 3, for 1835 census materials. 57. I refer to Socrates as a male because of the name choice and the lack of female authors as contributors to the Cherokee Phoenix in the nineteenth century. 58. Galileo database of Southeastern Native American Documents, 1730–1842, John Smith letter from April 4, 1834, Tennessee State Library and Archives, Cherokee Collection, Box 4, Folder 7, document CH087, p. 1; hereafter referred to as “John Smith letter.” 59. John Smith letter, p. 1. 60. McLoughlin and Conser, “The Cherokees in Transition,” 682, table 3. Though the John Smith letter refers to Cherokees living in the vicinity of Arkansas (Old Settlers), given the time frame of the letter, 1834, impending removal, and the explicit reference to migration to Arkansas, I think it is fair to assume that the Cherokee populations situated primarily in Georgia and Arkansas shared some similarities. 61. John Smith letter, p. 1. 62. LCN 1852, 38, and CLCN 1839–1851, 19. Chapter 2. Racial Ideology in Transition 1. Cherokee Nation Papers, roll 46, folder 6508, available at the Tennessee State Library and Archives in Nashville. This collection is hereafter referred to as CNP.

150

Notes to Pages 39–42

2. Other authors have referred to this slave woman as Lucy: Marion L. Starkey, The Cherokee Nation (New York: Alfred A. Knopf, 1946), 18–19; and Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), 99–100. The original letter written by Shoe Boots refers to a woman named Danell or possibly Daull. Anthropologist Circe Sturm, in Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002), also interprets the slave woman’s name as starting with a D and uses the name Daull. In other documents, individuals testify that the slave woman’s name was Dolly. See M1650, 1896 Citizen Application 4422, available at the Oklahoma Historical Society. I obtained a hard copy of this application from volunteer archivist Tressie Nealy. Tiya Miles refers to this woman as Doll in her extended study of this relationship between Shoe Boots and his slave property; see her Ties That Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom (Berkeley: University of California Press, 2005); especially appendix C for the issue of names. 3. CNP, roll 46, folder 6508. 4. The details of Shoe Boots’s relationship with Clarinda Ellington are in the 1896 petition of William Stephens for Cherokee citizenship. He was the grandson of Shoe Boots and Clarinda Ellington and gave a detailed account of the circumstances for the marriage between Ellington and Shoe Boots and her subsequent return to Kentucky. Stephens filed his petition on August 1, 1896, with the U.S. Commissioner to the Five Civilized Tribes and included testimony from several individuals. Copies of the petition are available from the Oklahoma Historical Society; I thank Tressie Nealy, volunteer archivist, for bringing this to my attention. Other scholars have also summarized Shoe Boots’s situation based on these documents. See especially Sturm, Blood Politics, 58–61. Briefer accounts that confirm the situation but differ in some of the details can be found in Strickland, Fire and the Spirits, 99–100; and Katja May, African Americans and Native Americans in the Creek and Cherokee Nations, 1830s to 1920s: Collision and Collusion (New York: Garland, 1996), 45. 5. The word slave is underlined in the original response, which is found with the request. CNP, roll 46, folder 6508. 6. CNP, roll 46, folder 6508. Emphasis from the original document. 7. See James Mooney, Myths of the Cherokee (Washington, D.C.: Government Printing Office, 1902), 394; and Starkey, The Cherokee Nation, 24–25 and 57. 8. See especially Miles, Ties That Bind, 183–85; May, Collision and Collusion, 63; and Sturm, Blood Politics, 60. 9. See the testimony from William Shoeboots’s application for Cherokee citizenship, M1650, roll 51, 1896 Citizenship Application 4422. William was a descendant of Shoe Boots and the slave woman Danell. The informants relied on behavior to determine the nature of the relationship between Shoe Boots and his slave. For instance, Nathaniel Fish stated, “What (caused) me to know that it was his wife while were at the table eating Shoeboots and his wife eat on one side of the table I eat on the other side.” 10. Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 38; hereafter referred to as LCN 1852. 11. LCN 1852, 120, art. III, sec. 4. 12. May, Collision and Collusion, 63. See also Sturm, Blood Politics, 60–61. One cannot help but consider the implications of Half Breed’s last name and what an interesting convergence of race his name represents. 13. William G. McLoughlin and Walter H. Conser, Jr., “The Cherokees in Transition: A Statistical Analysis of the Federal Cherokee Census of 1835,” Jour-

Notes to Pages 43–45

151

nal of American History 64 (December 1977): 678–703, see 686. McLoughlin and Conser find in the 1835 census that there were 16,000 Cherokees and 1,600 slaves in the Cherokee Nation. 14. Theda Perdue, “Mixed Blood Indians”: Racial Construction in the Early South (Athens: University of Georgia Press, 2003), 25, discusses how many of the southeastern Indians, not just Cherokees, regarded children of Indian-white unions as Indians, not whites or “mixed bloods.” Summary of the census of the Cherokee Nation taken by the authority of the National Council, and in conformity to the constitution, in the year of 1880 (Washington, D.C.: Gibson Brothers, 1881). I discuss the census further below. 15. Cherokee Phoenix, May 22, 1830, and May 29, 1830. 16. John Ridge to Albert Gallatin, February 27, 1826, contained in Theda Perdue and Michael D. Green, eds., The Cherokee Removal: A Brief History with Documents (Boston: Bedford/St. Martin’s, 1995), 34–43; quotes on p. 35. 17. Sturm, Blood Politics, 86. Sturm’s entire work looks at the meaning of blood in the Cherokee Nation and its connection to Cherokee identity in the twentieth century. 18. Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–1851 (Tahlequah, Cherokee Nation, 1852), 19; hereafter referred to as CLCN 1839–1851. 19. According to R. Halliburton, Jr., Red over Black: Black Slavery among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), 36, “Miscegenation and intermarriage had been repugnant to the Indians from their earliest contacts with negroes.” Theda Perdue, Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 36, points out that Cherokees encountered Europeans and Africans together as masters and slaves. Later, some Indians also had contact with Africans while both were slaves. It became obvious to Indians rather quickly which powerful partner they needed to align with and from which powerless group to distance themselves. 20. The fear of black men’s unrestrained sexuality was not limited to the Cherokees or the nineteenth century. British colonial legislators “devised a uniquely American criminal penalty, castration, as a means” of deterring black men from raping white women early in the eighteenth century; John D’Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper & Row, 1988), 35–37. In both the Southern colonies (and later states) and the Cherokee Nation, black men’s, and particularly slave men’s, access to women of the ruling class—women who are the means for reproducing society—disrupted the racial, sexual, and social order. 21. Sarah Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: University of North Carolina Press, 1997), argues that the Wolf Town Cherokee Council “restricted the longstanding sexual freedom of Cherokee women” when the council created new regulations for marriage requiring the issuance of certificates and then denied black men the right to obtain “a paper,” 162–63. Glenda Gilmore, particularly in Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 (Chapel Hill: University of North Carolina Press, 1996), ch. 4, was the first author I read who suggested that white men’s efforts to control the behavior, sexual and political, of black men was not just about black men. She argues that in the post-Reconstruction era, the lynching of black bodies and the invocation of the threat of black men’s uncontrollable sexual desire for white women limited white women’s ability to participate in public life as workers and as political activists and white women’s sexuality: white men used such tactics to “put both black men and white women in their places,” 96.

152

Notes to Pages 45–49

22. In contemporary writings in the Cherokee Phoenix, public addresses, and letters, Elias Boudinot reiterated the similarities between whites and Cherokees and emphasized Cherokee efforts at improvement; Cherokee Editor: The Writings of Elias Boudinot, Theda Perdue, ed. (Knoxville: University of Tennessee Press, 1983), 72, 96, 114–17, and 166–69. Missionary Samuel Worcester, a champion for the Cherokee Nation who opposed Removal and combated public prejudice toward Indians, argued for steady improvement in the Nation in his New Echota Letters: Contributions of Samuel A. Worcester to the Cherokee Phoenix, Jack Frederick and Anna Gritts Kilpatrick, eds. (Dallas, Tex.: Southern Methodist University Press, 1968), 85. 23. D’Emilio and Freedman, Intimate Matters, 35–36. The authors state, “Between 1705 and 1750, all of the southern colonies, as well as Pennsylvania and Massachusetts, passed laws prohibiting interracial marriages and any other ‘unnatural and inordinate Copulations’ between whites and blacks.” 24. CLCN 1839–1851, 19. 25. Perdue, Slavery and Cherokee Society, 85. 26. Hill, Weaving New Worlds, 155. Though many African Americans and whites were moving into this part of North Carolina in the mid-nineteenth century, enclaves of Cherokee Indians continued to reside in the area after Removal. 27. McLoughlin and Conser, “The Cherokees in Transition,” 694. 28. See George P. Rawick, The American Slave (Westport, Conn.: Greenwood, 1972), supp. 1, vol. 12, no. 1, 281. 29. Perdue, Slavery and Cherokee Society, 52. 30. Halliburton, Red over Black, 56, points out that the Cherokee Phoenix often printed news of laws passed by the United States, including those to control the behavior of blacks. This most likely had some influence on the laws passed by the Council. As slaveholding societies, both the Cherokee Nation and the United States faced similar problems regarding their slave property, making it logical that one might look to the other for guidance in managing slaves. 31. CLCN 1839–1851, 44. 32. CLCN 1839–1851, 55–56. 33. CLCN 1839–1851, 71. 34. CLCN 1839–1851, 55. 35. See Daniel F. Littlefield, Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 3–9; Perdue, Slavery and Cherokee Society, 68–72; and Russell Thornton, The Cherokees: A Population History (Lincoln: University of Nebraska Press, 1990), 74–76, for discussions of Removal’s effects on Cherokee society. 36. Perdue, Slavery and Cherokee Society, 57. 37. John Hope Franklin and Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans, 8th ed. (Boston: McGraw-Hill, 2000), 140–43. 38. CLCN 1839–1851, section 3 of “An Act for the punishment of Criminal Offences,” 17–18. The 1866 reprint of the compilation of the laws of the Cherokee Nation, Laws of the Cherokee Nation, Passed During the Years 1839–1867, Compiled by the Authority of the National Council (St. Louis: Missouri Democrat Print, 1868), 16, contains this same law without reference to the different penalties for rape for “Negro” men. 39. LCN 1852, 53–54. 40. See D’Emilio and Freedman, Intimate Matters, 36–37, for some discussion of the fear of black men raping white women in the American colonies. 41. One estimate is that in the southeastern states, marriages between Cherokee women and white men accounted for one-fourth of all Cherokee marriages

Notes to Pages 50–53

153

during the first half of the nineteenth century; D’Emilio and Freedman, Intimate Matters, 91. Carolyn Ross Johnston argues that the trend increased after the Civil War; see her Cherokee Women in Crisis: Trail of Tears, Civil War, and Allotment, 1838–1907 (Tuscaloosa: University of Alabama Press, 2003), 113–17. My own research in marriage records for the second half of the nineteenth century also indicates an upward trend in marriages between Cherokee women and white men. 42. Socrates, “Intermarriage,” Cherokee Phoenix, April 3, 1828, 4. His comments also indicate that Cherokee women were the most likely to intermarry with whites. See also Elias Boudinot, Cherokee Editor, 72. 43. Art. III, sec. 4, of the 1827 Constitution limited governmental offices to male citizens of the Cherokee Nation, LCN 1852, 120. 44. CLCN 1839–1851, 32–33. 45. Entry for December 7 in Ethan Allen Hitchcock, A Traveler in Indian Territory: The Journal of Ethan Allen Hitchcock, Late Major-General in the United States Army, Grant Foreman, ed. (Cedar Rapids, Mich., 1930), 52–54. Ms. Wolfe is the daughter of a Mr. Wolfe who hosts Hitchcock for dinner. Hitchcock describes Mr. Wolfe as a “half-breed” with a Dutch wife, making Ms. Wolfe one-quarter Cherokee; see entry for November 30, p. 37. Their status as individuals of European and Cherokee ancestry certainly must have influenced their opinions of intermarriage with whites. 46. Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956), 53–56, discusses Ross’s lineage as well as the positive influence of whites and individuals of European and Cherokee ancestry as members of an economic and political elite, in the process of “civilizing” the Nation. Thurman Wilkins, Cherokee Tragedy: The Ridge Family and the Decimation of a People, 2nd ed. (Norman: University of Oklahoma Press, 1986), discusses the European and Cherokee lineage of Major Ridge on pp. 7 and 99, and John Ross on pp. 73 and 205. William G. McLoughlin also mentions Major Ridge’s mixed-race heritage in his Cherokee Renascence in the New Republic (Princeton, N.J.: Princeton University Press, 1986); see illustrations following p. 266. Hill, Weaving New Worlds, states, “From 1791 until the removal, descendents of mixed marriages increasingly assumed positions of leadership and influence,” 94. Listings of members of the Cherokee Council, Committee, and Judiciary were also available in each issue of the Cherokee Almanac as well as in compilations of the constitution and laws passed by the Cherokee Nation; LCN 1852. Similarly, Don L. Shadburn’s close examination of land-owning patterns and census materials of the Cherokee planters in Georgia in his Cherokee Planters in Georgia, 1832–1838: Historical Essays on Eleven Counties in the Cherokee Nation of Georgia (Roswell, Ga.: W. H. Wolfe Associates, 1990) “reveals that Cherokee mixed bloods and intermarried white men made up the larger class of fashionable nineteenth-century planters and slaveholders,” 11. 47. Strickland, Fire and the Spirits, 73. 48. The Oklahoma state constitution continued to prohibit marriages between Indians or whites and people of African descent in the twentieth century. See Peter Wallenstein, “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–1967,” Journal of the West 39 (January 2000): 57. The provisions, of course, did not prevent all such unions between blacks and Cherokees from taking place. 49. CLCN 1839–1851, 56–57. The act defining the duties of census takers is repealed in 1843 with no explanation; CLCN 1839–1851, 86. The racial terms the legislature adopted, however, are the most relevant parts of the act.

154

Notes to Pages 53–59

50. CLCN 1839–1851, 92–94. 51. CLCN 1839–1851, sec. 5:94. 52. CLCN 1839–1851, sec. 1:92–93. 53. CLCN 1839–1851, 142. 54. Cherokee National Records Microfilm Series, roll CHN 35, vol. 52:28, available at the Oklahoma Historical Society. 55. CLCN 1839–1851, 71. 56. CNP, roll 46, folder 6508. Emphasis from the original document. Chapter 3. The 1855 Marriage Law 1. Cherokee National Records Microfilm Series, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1878, 12–28, available at the Oklahoma Historical Society. Page numbering restarts in each year, though there are no actual volume titles. Interestingly, the defendant and the victim were related in some way because the wives claimed Choctaw citizenship through a common ancestor. Hereafter the Cherokee National Records Microfilm Series is referred to as CNRMS. 2. Laws of the Cherokee Nation, Passed during the Years 1839–1867, Compiled by the Authority of the National Council, vol. VI (St. Louis: Missouri Democrat Print, 1868), 104. This collection of laws is hereafter referred to as LCN 1839–1867. 3. LCN 1839–1867, 104–5. The 1843 intermarriage act also included an oath, but the language of the oath was not given. Perhaps the interjection of oaths into the intermarriage process was a remnant of Cherokee experience with the power of oaths in the case of Worcester v. Georgia (1832). 4. Socrates, “Intermarriage,” Cherokee Phoenix, April 3, 1828, 4. 5. The petitions included in the district court records of the Cherokee Nation all contain only male signatories. The petitions also usually specifically state that the Cherokee signers are members of the Nation “by blood.” For examples, see CNRMS, roll CHN 32, vol. 62B. 6. See Chapter 4 for more analysis on the marriage records and breakdowns on the races of the brides and grooms. 7. CNRMS, roll CHN 75, vol. (T) Divorce, 1847–1909, 86–89. Even U.S. authorities acknowledged that white men often sought Cherokee wives to obtain access to Cherokee land. See William G. McLoughlin, “Experiment in Cherokee Citizenship, 1817–1829,” American Quarterly 33 (Spring 1981): 3–25, esp. 13–14. 8. CNRMS, roll CHN 75, vol. (T) Divorce, 1847–1909, 71, 82–85, 102–5. 9. Indian Pioneer History records collected by the Works Progress Administration, available at the Oklahoma Historical Society, vol. 78:238. Ras LeForce’s entire history is included in pages 237–49. The Indian Pioneer History interviews are hereafter referred to as IPH. 10. IPH, 86:55. William James’s complete testimony is included in pp. 53–70. 11. IPH, 81:135. D. W. Moulds’s entire interview is included in pp. 133–45. 12. Other tribes also experienced high rates of intermarriage between white men and Indian women. Some white Indian agents even complained that many low-class white men were choosing Indian wives only for material and financial advantage and degrading progress among the Indians as a result. These Indian agents called for prohibitions on marriages between white men and Indian women. See letters from agents of the Standing Rock and Pine Ridge agencies: Records of the Bureau of Indian Affairs, Record Group 75, Letters Received, 1881–1907, Year 1881, Letter 18062: James McLaughlin to H. Price; Year 1881,

Notes to Pages 60–62

155

Letter 2657: V. T. McGillycuddy to H. Price. Available at the National Archives in Washington, D.C. 13. Ronald B. Flowers, Criminal Jurisdiction Allocation in Indian Country (Port Washington, N.Y.: Associated Faculty Press, 1983), ch. 3 and especially p. 26. 14. CNRMS, roll CHN 73, vol. 1883, 8–9. 15. CNRMS, roll CHN 50, vol. 217, 28; roll CHN 73, vol. Cherokee (Tahlequah) Courts 1878, 56–57; and roll CHN 30, vol. 60, 1–29. In the first example, Cherokee courts dismissed a rape case against Jim Harris for want of jurisdiction because he was an American citizen. In the second example, John Burrell, a prisoner being held in a Cherokee prison, claimed to be an American citizen in order to have his case dismissed in the Cherokee legal system. Burrell found witnesses to swear that he was not a Cherokee citizen. 16. CNRMS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1878, 76–90. 17. CNRMS, roll CHN 30, vol. 59, 14–25. 18. CNRMS, roll CHN 30, vol. 59, 50–92, esp. 88–92; and roll CHN 30, vol. 60, 1–87, especially 3 and 5. 19. CNRMS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1886, 50–65, point 6. 20. CNRMS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1887, 112. 21. June 27, 1889, letter from Frank P. Blair to Joel B. Mayes, Principal Chief of the Cherokee Nation, CNRMS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1889, 53–56. 22. IPH, 32:4–5. 23. IPH, 38:245. 24. CNRMS, roll CHN 22, vol. 1B, 326, 329, 330, 336, 342, 344, 350, 352, 354, 356, 360, 362, 372, 374, 376, 380, 398, and 405. 25. Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), contends that district clerks and judges had some discretionary power to apply the law flexibly according to the composition and attitudes of their respective districts in chapter 7, esp. p. 152. 26. IPH, 2:386–88 in the testimony of William Anthony Cummins. Only three districts left records of the collection of fees for marriage licenses: Cooweescoowee, Flint, and Sequoyah. See Appendix, Table A.1. 27. In CNRMS, roll CHN 85, vol. (T) Marriages, 1834–1879, n.p. There is a copy of “An Act to amend article XV of Chapter XII, New Code regulating intermarriages which calls for white men wishing to marry in the Nation to obtain ten signatures from male Cherokee citizens.” Though no date appears on the act itself, the surrounding documents would suggest that the act was proposed in 1878 or 1879. There is also a stipulation that intermarried whites could have no rights in soil or revenue from the “vested funds of this Nation.” The rest of the conditions basically mirror the 1855 act. The records of petitions collected by district clerks varied widely by district. For examples of the variation in the number of signatures contained in petitions for marriage licenses, see CNRMS, roll CHN 44, vol. 157A: for seven signatures, see 7, 15, 17, 21, 23; for eight signatures, see 13, 25, 27, 30; for nine signatures, see 9, 31, 37; for ten signatures, see 62, 66, 68; for eleven signatures, see 19; for twelve signatures, see 56; and for fourteen signatures, see 87, 89. 28. IPH, 32:4–5. 29. For examples, see CNRMS, roll CHN 32, vol. 97B, 87–88; roll CHN 32, vol. 62B, 38 and 62; roll CHN 44, vol. 157A, 172, 174, 175; roll CHN 75, vol. (T) Divorce, 1847–1909, 112; and roll CHN 85, vol. (T) Marriages, 1880–1889, passim.

156

Notes to Pages 62–65

These are for marriage licenses from the 1870s and 1880s. Examples for the 1850s include the six licenses issued to white men in CNRMS, roll CHN 35, vol. 62, 88. 30. CNRMS, roll CHN 24, vol. 19C, 69 has two examples. Also see the first two cases in the previous citation: roll CHN 32, vol. 97B, 87–88, and roll CHN 32, vol. 62B, 38. 31. Walter O’Meara, Daughters of the Country: The Women of the Fur Traders and Mountain Men (New York: Harcourt, Brace and World, 1968), 18–19, mentions this early Indian practice of offering women to guests. J. Leitch Wright, Jr., mentions the acceptability of premarital sex among native populations as well as the formation of unions, temporary and otherwise, between Indian women and white men for the sake of improving trade relations in his The Only Land They Knew: The Tragic Story of the American Indians in the Old South (New York: Free Press, 1981), 234–35. 32. CNRMS, roll CHN 50, vol. 193B, 19 and 20, two cases on each page, and roll CHN 85, Marriages Section, documents 1319 and 1320. John McMakin remembered that his white father and Cherokee stepmother had married in Georgia but remarried once they reached the Indian Territory to make the union legal there. The McMakins still had to obtain the ten signatures for their petition; IPH, 7:103. Frank M. Car’s parents had a similar story of marrying in Kansas in 1866 and remarrying once they reached the Nation in 1867; IPH, 18:350–51. 33. IPH, 6:432. Alex R. Matheson knew that men could marry without following the procedure, but these men would not be citizens of the Nation. 34. IPH, 46:84. 35. IPH, 53:484–85. Wyss was a white woman born in 1866 who worked as a teacher at Hillside Mission in 1891. 36. There are multiple examples of people mentioning some of the terms of the intermarriage law in IPH interviews: 98:346–49; 28:118; 26:259; 21:83–84; 11:576; 18:350–351; and 19:95–99. 37. See the various district clerk records in CNRMS, roll CHN 22, vol. 1B; roll CHN 24, vol. 19C; roll CHN 32, vol. 62A, 62B, and 62D; or roll CHN 38, vol. 97A. 38. LCN 1839–1867, 107. This particular act was passed in 1859, but earlier versions of this act had always called for the removal of those individuals residing in the Nation without citizenship rights. See Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 83 (hereafter referred to as LCN 1852); and Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–1851 (Tahlequah, Cherokee Nation, 1852), 106 (hereafter referred to as CLCN 1839–1851). This first version of this act was passed in 1826. 39. IPH, 2:386–88. 40. IPH, 6:432. Lafayette Teele also commented on the frequency of commonlaw unions between whites and Indians and the acceptance of these informal arrangements by people. Teele pointed out, however, that the lack of legal documentation would later cause problems during allotment; IPH, 10:365–66. 41. IPH, 2:386–88. 42. For some examples of marriages between Cherokees and between Cherokee men and white women, see CNRMS, roll CHN 46, vol. 192A, 12, 20, 39, 46, 47, 49, 50, and 82. 43. For a record of how many petitions were recorded by district clerks, see Appendix, Table A.2. 44. For some examples of entries with this information, see CNRMS, roll CHN 46, vol. 192A, 5–10, 13, 16, 19; or roll CHN 44, vol. 157A, 7–176B.

Notes to Pages 65–68

157

45. LCN 1852, 57. 46. LCN 1839–1867, 105. 47. IPH, vol. 2, 386–88. William Anthony Cummins had this to say of an intermarried white woman: “She was not recognized as a member of the tribe, as were white men when they took the oath. The white women weren’t allowed to take the oath of allegiance.” 48. In the past, Cherokee women were more active participants in Cherokee political life. During the eighteenth century, Cherokee women took part in council meetings and the elections of chiefs, as well as warfare. See Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956), 16–17. 49. CNMRS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1878, 12–28. 50. CNMRS, roll CHN 73, vol. Cherokee (Tahlequah) Courts 1878, 15. An earlier 1825 law granted citizenship to the children of Cherokee men and white women, LCN 1852, 57. The 1878 case reaffirms and strengthens the earlier law. 51. CNRMS, roll CHN 73, vol. 1885, 56–58, contains a May 11, 1885, letter from J. L. Parker to Dennis W. Bushyhead regarding the French cases. 52. CNRMS, roll CHN 73, vol. 1885, 59–64, contains the entire decision. 53. CNRMS, roll CHN 73, vol. 1885, 62. 54. CLCN 1839–1851, 92–94. The Nation began requiring an oath in 1843 and included the abandoning of American legal protections as a part of the oath in 1855. 55. For more on how Cherokees interpreted the legal and racial identity of blacks, see Chapters 1 and 2 and especially 4 and 5 of this work. In general, the Cherokees (and whites) tended to see black racial identity as fixed and attempted to deny Cherokee citizenship through marriage to African Americans. 56. Ethan Allen Hitchcock, A Traveler in Indian Territory: The Journal of Ethan Allen Hitchcock, late Major-General in the United States Army, Grant Foreman, ed. (Cedar Rapids, Mich., 1930), 38, n. 22. Malone, Cherokees of the Old South, 53–56, discusses Ross’s lineage. Thurman Wilkins, Cherokee Tragedy: The Ridge Family and the Decimation of a People, 2nd ed. (Norman: University of Oklahoma Press, 1986), details the mixed-race ancestry of Major Ridge on pp. 7 and 99 and of John Ross on pp. 73 and 205. William G. McLoughlin also mentions Major Ridge’s mixed-race heritage in Cherokee Renascence in the New Republic (Princeton, N.J.: Princeton University Press, 1986); see illustrations following p. 266. See Sarah Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: University of North Carolina Press, 1997), 94. Listings of members of the Cherokee Council, Committee, and Judiciary were also available in each issue of the Cherokee Almanac as well as in compilations of the constitution and laws passed by the Cherokee Nation; LCN 1852. See also Don L. Shadburn, Cherokee Planters in Georgia, 1832–1838: Historical Essays on Eleven Counties in the Cherokee Nation of Georgia (Roswell, Ga.: W. H. Wolfe Associates, 1990), 11. 57. See Ariela Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108 (October 1998): 109–88, esp. 151–57. Gross’s article discusses antebellum U.S. court cases to determine race and points to the use of scientific as well as behavioral evidence by juries. 58. Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996), 218. The tax-free status of white women, and briefly for any free woman, including those of color, meant that husbands and fathers and employers did not have to pay any taxes on the labor of these women. See pp. 116–128, for an explanation of the importance of the taxes on women’s labor in colonial Virginia.

158

Notes to Pages 69–71

59. Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975), 335–36. Brown, Good Wives, 196–201, also contains some discussion of the penalties for white partners involved in interracial sex in colonial Virginia. 60. Peter Wallenstein, “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–1967,” Journal of the West 39 (January 2000): 55–63, esp. 56–57. 61. LCN 1852, 38. There are two versions of the 1839 anti-amalgamation law contained in two different official compilations of the laws and constitution of the Cherokee Nation: CLCN 1839–1851, 19, and LCN 1839–1867, 22. In the first, the language distinguishes between free male and female citizens and slaves and persons of color “not entitled to the rights of citizenship under the laws of this Nation.” The second compilation came after Emancipation and reflects that in its version by omitting the word “slave” and the reference to citizenship. 62. Morgan, American Slavery, 334–35. 63. Jack D. Forbes, Black Africans and Native Americans: Color, Race and Caste in the Evolution of Red Black Peoples (Oxford: Basil Blackwell, 1988), ch. 7. See ch. 5 for a discussion of the origins of the term “mulatto.” 64. Brown, Good Wives, 215. Brown quotes the legislature. In colonial Louisiana, as well, the varying definitions of terms such as “mulatto” showed the ways in which race and status could be conflated so that all free blacks were listed as “mulatto” regardless of race while all slaves were listed as “blacks”; Gwendolyn Midlo Hall, Africans in Colonial Louisiana: The Development of Afro-Creole Culture in the Eighteenth Century (Baton Rouge: Louisiana State University Press, 1992), 258–60. 65. CLCN 1839–1851, 7, art. 3, sec. 5. 66. CLCN 1839–1851, 7, art. 3, sec. 5. 67. One notable exception to this rule in the white American South is Amanda America Dickson. Dickson’s white father, David, had Amanda and her children legally declared white in court despite it being general knowledge that her mother was a slave owned by David Dickson. The Dicksons used the Louisiana courts instead of their home state courts in Georgia to obtain this change in racial classification, perhaps because too many people at home knew of her parentage. See Kent Anderson Leslie, Woman of Color, Daughter of Privilege: Amanda America Dickson, 1849–1893 (Athens: University of Georgia Press, 1995). 68. IPH, 28:69. Harlan was born in 1829 and claimed to be part Indian. Her longer biographical sketch on pp. 1–98 implies that she was part Choctaw. Harlan was, of course, referring to the Civil War. 69. The presence of federal troops in parts of the Indian Territory during the Civil War most likely accounts for the Harlans’ decision to turn to U.S. authorities as opposed to Indian authorities. For example, both the Cherokee and Choctaw Nations sided with the Confederacy during the Civil War, and fighting took place in Cherokee and Choctaw Territories, subjecting both nations to occupation by federal forces. 70. IPH, 28:69. 71. William Loren Katz, Black Indians: A Hidden Heritage (New York: Atheneum, 1986), 135. 72. The distinction between slaves from the Indian Territory and slaves from Southern states became very apparent in the post-Emancipation era. See Murray R. Wickett, Contested Territory: Whites, Native Americans, and African Americans in Oklahoma, 1865–1907 (Baton Rouge: Louisiana State University Press, 2000), 31.

Notes to Pages 72–77

159

73. IPH, 10:365. Lafayette Teele, born in 1858, recalled this about marriages between Cherokees: “In the early days, a license was not required, nor was there a court record made of such weddings, as far as I know.” See also IPH, 6:520. 74. As was noted earlier, the bulk of existing marriage records document interracial unions between Cherokee women and white men. Chapter 4. The Civil War 1. Daniel F. Littlefield, Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 16–17. 2. For more on Southern states and the regulation of interracial sex and marriage, see Martha Hodes’s edited volume Sex, Love, Race: Crossing Boundaries in North American History (New York: New York University Press, 1999), especially the essays by Peter Bardaglio, Leslie Dunlap, and Peggy Pascoe. See also Mary Frances Berry, “Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,” Journal of American History 78 (December 1991): 835–56, and Andrew D. Weinberger, “A Reappraisal of the Constitutionality of Miscegenation Statutes,” Journal of Negro Education 26 (Autumn 1957): 435–46. 3. Treaties and Agreements of the Five Civilized Tribes, Institute for the Development of Indian Law (Washington, D.C.: American Indian Treaties Series, 1974), 60–67: article 9. The 1866 Treaty with the Cherokees contains a reference to the abolition of slavery within the Cherokee Nation. Hereafter referred to as Treaty of 1866. See also Theda Perdue, Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 137–38. Perdue points out that many slaves belonged to members of the Stand Watie party, which sided with the Confederacy and many of those who refused to recognize this action of the Council. 4. Laws of the Cherokee Nation, Passed During the Years 1839–1867, Compiled by Authority of the National Council, The Constitutions and Laws of the American Indian Tribes, vol. VI (St. Louis: Missouri Democrat Print, 1868), 22, hereafter referred to as LCN 1839–1867. The tendency for the Cherokee legislature to rewrite history, in effect, by altering the language of earlier statutes in later compilations of the earlier law is interesting. It hints at many things: embarrassment about earlier racialized statutes, changing conceptions of race and the racial order, and real legal changes in the Nation. 5. Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 38, hereafter referred to as LCN 1852; and Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–1851 (Tahlequah, Cherokee Nation, 1852), 19. 6. R. Halliburton, Jr., Red over Black: Black Slavery among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), 37. 7. It is interesting to note that the United States did not force the Cherokee Nation to modify intermarriage laws and continued to permit laws preventing intermarriage between blacks and whites to remain in state statutes. The federal government was also unwilling to push this issue. 8. Two-thirds of the marriage records represented licenses, which were usually used by interracial couples. Cherokee marriage laws did not require same-race couples to obtain a license to marry legally. This figure contrasts with John D’Emilio and Estelle Freedman’s statement that the “intermarriage of white men and Cherokee women accounted for one-fourth of Cherokee marriages” in

160

Notes to Pages 78–83

southeastern states for roughly this same time period. D’Emilio and Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper & Row, 1988), 90–91. The authors are not very specific about the time period in question except in limiting the chapter with this information to the years 1780 to 1900. Nor are the authors more specific about the geographical area they are examining except to describe it as the “southeastern states.” 9. Russell Thornton, The Cherokees: A Population History (Lincoln: University of Nebraska Press, 1990), 104–7; and Brad A. Bays, Townsite Settlement and Dispossession in the Cherokee Nation, 1866–1907 (New York: Garland, 1998), chs. 4 and 5. 10. This would be true particularly if there is some validity to D’Emilio and Freedman’s claims that only one-fourth of all Cherokee marriages were interracial unions between white men and Cherokee women (Intimate Matters, 90–91). Without knowing the authors’ sources I am unwilling to accept their numbers blindly, but I do concede that many same-race marriages did not make it into these records. I discuss the possible explanations for this later in the chapter. 11. Married Cherokee couples had to petition the Cherokee legislature in order to obtain a divorce. The legislature then reviewed the circumstances and chose either to deny the petition or pass an act granting the divorce. This is very similar to the procedure for divorce in many states where couples had to petition the state legislature to pass an act to grant the divorce. For some examples of divorce petitions and acts passed by the Cherokee legislature terminating marriages, see Cherokee National Records Microfilm Series, roll CHN 75, vol. (T) Divorce. Hereafter the Cherokee National Records Microfilm Series is referred to as CNRMS. 12. The actual figures are 1676 (71.7 percent) Cherokee brides and 345 (14.7 percent) Cherokee grooms in 2,339 records. Note that a number of cases lacked the racial designation of one or both of the parties and are not included in this count, though at least one of the parties in these cases was probably Cherokee. See Appendix, Tables A.3 and A.4, for data on the racial designations of all grooms and all brides included in the available marriage records. See also Appendix, Tables A.5 and A.6, for data on how many Cherokee brides and grooms chose interracial versus same-race marriages. 13. Murray R. Wickett, Contested Territory: Whites, Native Americans, and African Americans in Oklahoma, 1865–1907 (Baton Rouge: Louisiana State University Press, 2000), 106. Once Cherokee officials agreed to the terms of the Treaty of 1866, which provided for the inclusion of Cherokee Freedmen into the citizenry and associated rights to land ownership in the Nation, blacks were increasingly unwilling to provide labor for their former masters. Instead, the freedmen worked their own land, and Cherokees turned to landless whites to work as sharecroppers and tenant farmers. See also Littlefield, The Cherokee Freedmen, 39–40. 14. Those individuals designated solely as United States citizens were most likely white. District clerks were clear about recognizing someone as a “colored U.S. citizen” when the situation arose. 15. Richard Godbeer, “Eroticizing the Middle Ground: Anglo-Indian Sexual Relations along the Eighteenth-Century Frontier,” Sex, Love, Race, 91–111; see esp. 102. 16. Wickett, Contested Territory, 37. Though this quote pertains specifically to Arapaho and Cheyenne behavior, I think it would probably resonate in the Cherokee Nation as well. 17. Indian Pioneer History records collected by the Works Progress Administration, available at the Oklahoma Historical Society, vol. 39, 382. The Indian Pioneer History interviews are hereafter referred to as IPH. Pennington claimed to have Cherokee ancestry. Her complete interview is included in pp. 366–82.

Notes to Pages 83–87

161

18. IPH, 78:237–49, esp. p. 238. 19. IPH, 86:53–70, esp. p. 55. 20. IPH, 81:133–45, esp. p. 135. 21. For responses to high rates of Indian/white intermarriage from agents to other Indian tribes, see letters from agents of the Standing Rock and Pine Ridge agencies: Records of the Bureau of Indian Affairs, Record Group 75, Letters Received, 1881–1907, Year 1881, Letter 18062: James McLaughlin to H. Price; Year 1881, Letter 2657: V. T. McGillycuddy to H. Price. Records available at the National Archives in Washington, D.C. 22. Wickett, Contested Territory, 36. Walter O’Meara, Daughters of the Country: The Women of the Fur Traders and Mountain Men (New York: Harcourt, Brace and World, 1968), 18–19, notes the early demographics of single, young white men traveling among native groups and the small population of single white women on the frontier as sources of the high rates of intermarriage between white men and native women. 23. Wickett, Contested Territory, 37. 24. IPH, 107:457. Complete interview included in pp. 450–84. 25. More than 96 percent of the permitted citizens were white. 26. Less than 2 percent of permitted citizens were women. 27. See Appendix, Table A.7, for the number of interracial marriages by district. 28. Further, the imbalance between Cherokee women entering interracial versus intraracial relationships may also have implications for gendered connotations of the acceptability of nonwhite partners in the outside, white community. Whites in the surrounding states may have more willingly accepted a white man marrying into the Cherokee Nation than a white woman who chose an Indian husband. For instance, Ethan Allen Hitchcock, a former soldier in the U.S. Army who traveled extensively throughout the Indian Territory, self-consciously wrote, “I confess I do not like to see white women marrying Indians or halfbreeds, though I have not the least objection to white men marrying halfbreeds.” See Ethan Allen Hitchcock, A Traveler in Indian Territory: The Journal of Ethan Allen Hitchcock, Late Major-General in the United States Army, Grant Foreman, ed. (Cedar Rapids, Mich., 1930), 224. Included in his entry for May 13. 29. LCN 1839–1867, 135–36. 30. 1868–1869 Cherokee Nation Census. Obtained from Jack Baker of the Cherokee Nation in Oklahoma City, Oklahoma. The census did not have a separate category for those of mixed African and Cherokee descent. This population was increasingly classed with the “colored” population throughout the nineteenth century. Cherokees most often considered as Cherokee those individuals of mixed Cherokee and European descent. See Theda Perdue, “Mixed Blood Indians”: Racial Construction in the Early South (Athens: University of Georgia Press, 2003). 31. 1868–1869 Cherokee Nation Census, 1 and 6. Other examples are on pp. 17, 18, 19, 30, 36, 42, 51, 67, and passim. 32. Compiled Laws of the Cherokee Nation, Published by Authority of the National Council, The Constitutions and Laws of the American Indian Tribes, vol. IX (Tahlequah, Indian Territory: National Advocate Print, 1881), 316–18; see section three for the stipulations on who to count. This collection of laws is hereafter referred to as CLCN 1881. 33. Constitution and Laws of the Cherokee Nation, Published by an Act of the National Council 1892, The Constitutions and Laws of the American Indian Tribes, vol. X (Foley R’y Printing Company, 1893), 391–94. Hereafter referred to as CLCN 1892. 34. 1880 Cherokee Nation Census, 6, table A. 35. 1880 Cherokee Nation Census, 7, table B.

162

Notes to Pages 88–94

36. LCN 1852, 40–41. 37. LCN 1852, 118–30, see art. IV, sec. 2, for the limits on office holding. Only a “natural born citizen” may hold the office of Principal Chief, a restriction similar to that placed on seekers of the presidency by the U.S. Constitution. See LCN 1839–1867, 104–5, part 3 on p. 105, for the restriction placed on intermarried whites seeking to prosecute Cherokees. Part 4 discusses the citizenship status of widowed intermarried whites. 38. LCN 1852, 118–30, for the entire constitution. See art. III, sec. 4 and 7, for the provisions regarding office holding and voting by individuals of African descent. 39. CLCN 1892, 370–71. Pages 371–73 contain the entire act. Nancy Hope Sober also mentions this law in her work The Intruders: The Illegal Residents of the Cherokee Nation, 1866–1907 (Ponca City, Okla.: Cherokee Books, 1991), 36. 40. CLCN 1892, 371–72. Cherokee citizens by birth received annuity funds from the sale of lands owned communally by the tribe. Or, stated differently, a citizen by birth had a legal claim to ownership of a portion of communally owned land. Adopted white citizens could improve as much land as they desired but never took part in the communal ownership of land and were therefore not entitled to annuity funds. Again we see the efforts of the Cherokee Nation to preserve resources such as land and money by limiting access. 41. CLCN 1892, 372. 42. Treaty of 1866, 60–61. 43. Reginald Horsman suggests that the seeds for a pan-Indian identity may have existed late in the eighteenth century. Though Cherokee mythology described the Cherokees as “the real people” distinct from even other indigenous tribes, Cherokees recognized that “red people regardless of tribal differences were more favored by the Great Spirit.” See Horsman, “‘The First Man Was Red’: Cherokee Responses to the Debate over Indian Origins, 1760–1860,” American Quarterly 41 (June 1989): 243–64, quote on p. 245. 44. CLCN 1892, 391–406, contains several different treaties between the Cherokee Nation and other tribes. The compact between the several tribes of Indians quoted here is found on pp. 391–97. 45. For instance, the Creeks and Cherokees were not always allies. Nash points out that Indian nations sometimes allied with European powers in opposition to other tribes. See Gary B. Nash, Red, White, and Black: The Peoples of Early America, 4th ed. (Upper Saddle River, N.J.: Prentice Hall, 2000), 237–38 and ch. 10. James Adair also mentions some of the conflicts between various tribes in The History of the American Indians (London: Edward and Charles Dilly, 1775). See especially his accounts of the various nations: “Katahba, Cheerake, Muskohge, Choktah, and Chikkasah,” 223–352. 46. CLCN 1892, 397–406. 47. The Cherokees did refer to other indigenous groups, such as the Creeks, Osages, and Muskogees, as nations. See CLCN 1892, 391–97. 48. Treaties and Agreements of the Five Civilized Tribes, American Indian Treaties Series (Washington, D.C.: Institute for the Development of Indian Law, 1974), 60–67, 131–42, 239–44, and 269–74. Chapter 5. The Cherokee Freedmen’s Story 1. Lemuel Boles also shows up in the records as Lenard Boles and Leonard Bowles. I have chosen to adopt the form of Lemuel Boles because this is how

Notes to Pages 94–96

163

Boles’s name appears in a typed document. In the other cases, Boles’s name is handwritten and so subject to the interpretation of the reader. Susan’s name appears in the same fashion in each case, and other details, such as the defendants in the case and the property in dispute, also remained the same, indicating that the records referred to the same couple. 2. Treaties and Agreements of the Five Civilized Tribes, Institute for the Development of Indian Law (Washington, D.C.: American Indian Treaties Series, 1974), 60–67; article 9, 62. 3. The Cherokee legislature passed the same provisions related to improvements and use of the public domain time and again in 1824, 1839, and 1870: Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 40–41; Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839–1851 (Tahlequah, Cherokee Nation, 1852), 29; and Compiled Laws of the Cherokee Nation, Published by Authority of the National Council, Constitutions and Laws of the American Indian Tribes, vol. IX (Tahlequah, Indian Territory: National Advocate Print, 1881), 309–10. 4. Cherokee National Records Microfilm Series, roll CHN 117, vol. 247, 83–104. Hereafter the Cherokee National Records Microfilm Series is referred to as CNRMS. More details gleaned from the testimony about the specific allegations of the case follow later in this chapter. 5. The suit may have actually continued in the Cherokee courts for more than a decade, because the Boles appealed the 1898 decision as well; CNRMS, roll CHN 117, vol. 247, 104. By this time the federal courts were beginning to usurp the authority of Cherokee courts in all matters, and court dockets for the Cherokee Nation are harder to find. Those records are beyond the scope of this project. 6. CNRMS, roll CHN 29, vol. 49, 226–27. 7. See CNRMS, roll CHN 29, vol. 49, 315; roll CHN 29, vol. 57, 8–16; and roll CHN 29, vol. 34, 105 and 115. 8. CNRMS, roll CHN 117, vol. 247, 83–104. 9. The loser in civil cases was often responsible for paying court costs such as reimbursing witnesses for time spent in court. 10. Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), 158. 11. CNRMS, roll CHN 29, vol. 49, 226–27. 12. CNRMS, roll CHN 44, vol. 157A, 15–16. I feel confident that the slight variation in Boles’s name is due to clerk error and the illiteracy of Lemuel and Susan Boles. Clerks often spelled names they way they sounded, and these differences in spelling lead to the same pronunciation in this case. The consistency with which Susan Vann’s name appears, the confirmation of the location of the marriage in Saline district, and the small number of colored individuals who appear in court documents all support my contention that Lenard Boles, Lemuel Boles, and Leonard Bowles are in fact the same person. There were also few colored Susan Vanns listed on the enrollment records, and only one was of the appropriate age to have married and participated in legal action in the Cherokee courts. 13. Daniel F. Littlefield, Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 17. The volumes that compile the laws of the Cherokee Nation contain no repeal of the anti-amalgamation statute, even after the Civil War. A law prohibiting intermarriage between people of African descent and all other groups gets written into the Oklahoma state constitution in 1907; Peter Wallenstein, “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–1967,” Journal of the West 39 (January 2000): 57.

164

Notes to Pages 97–101

14. See CNRMS, roll CHN 44, vol. 157A, 7–14 and 18–176B. 15. CNRMS, roll CHN 85, vol. (T) Marriages, 1880–1889. This volume contains no page numbers. The decision is included in a March 15, 1884, letter from Illinois district clerk J. Thornton to acting Principal Chief R. Bunch. 16. CNRMS, roll CHN 85, vol. (T) Marriages, 1880–1889. The opinion is included in a September 4, 1885, letter from A. B. Upshaw to U.S. Indian Agent John W. Tufts. 17. Murray R. Wickett, Contested Territory: Whites, Native Americans, and African Americans in Oklahoma, 1865–1907 (Baton Rouge: Louisiana State University Press, 2000), 35, and Littlefield, Cherokee Freedmen, 17. For examples of marriages legally recorded between Cherokee women and colored men, see CNRMS, roll CHN 24, vol. 19C, 16 and 22. 18. Katja May, African Americans and Native Americans in the Creek and Cherokee Nations, 1830s to 1920s: Collision and Collusion (New York: Garland, 1996), 199. 19. Wickett, Contested Territory, 35–36. 20. May, Collision and Collusion, 199–200. 21. CNRMS, roll CHN 44, vol. 157 A, 133. 22. The Cherokee Phoenix often contained legal notices, summaries of court proceedings, and summaries of meetings of the Cherokee Council. Several of the stated goals of editor Elias Boudinot involved informing the general public about the law by publicizing Cherokee laws, court proceedings, and the Cherokee Constitution. Strickland, Fire and the Spirits, 108, and Ann Lackey Landini, The “Cherokee Phoenix”: The Voice of the Cherokee Nation, 1828–1834, Ph.D. diss., University of Tennessee (Ann Arbor: University Microfilms International, 1990), especially 192–93. Cherokee authorities had a ready tool for disseminating legal information. 23. In Rennard Strickland’s study of the evolution of the legal system of the Cherokee Nation, Fire and the Spirits, he praises the flexibility and responsiveness of local officials to the concerns of their constituents. Further, Strickland states on p. 152, “The strict letter of the law was often modified to prevent unreasonable results.” 24. CNRMS, roll CHN 29, vol. 49, 315 and 366. 25. CNRMS, roll CHN 29, vol. 49, 315. 26. See Susan Merrill vs. Ike Rogers in CNRMS, roll CHN 29, vol. 57, 175–96, 223. This dispute is also over an improvement. 27. Wickett, Contested Territory, 35–36. 28. CNRMS, roll CHN 117, vol. 247, 83–104. The preceding is a brief summary of the testimony offered by the parties involved and witnesses. 29. See the detailed enumeration of the 1880 Cherokee Nation Census available at the Oklahoma Historical Society. George Vann is listed as number 3036 in the Cooweescoowee District. 30. CNRMS, roll CHN 117, vol. 247, 87. 31. See the detailed enumeration of the 1880 Cherokee Nation Census: Eli Vann is listed by number 3051, Dank Vann is listed as number 3028, and William Vann, Jr., is listed as number 2128. All were residents of Cooweescoowee district and of the same age cohort. 32. See William G. McLoughlin and Walter H. Conser, Jr., “The Cherokees in Transition: A Statistical Analysis of the Federal Cherokee Census of 1835,” Journal of American History 64 (December 1977): 678–703, esp. 683 and 696. 33. R. Halliburton, Jr., Red over Black: Black Slavery Among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), 59. See also Indian Pioneer History

Notes to Pages 102–106

165

records collected by the Works Progress Administration, available at the Oklahoma Historical Society, vol. 23, 40. 34. CNRMS, roll CHN 44, vol. 157 A, 15–16. 35. Laws of the Cherokee Nation, Passed During the Years 1839–1867, Compiled by the Authority of the National Council, The Constitutions and Laws of the American Indian Tribes, vol. VI (St. Louis: Missouri Democrat Print, 1868), 104–5, hereafter referred to as LCN 1839–1867. 36. The other signers included Charley Rogers, J. Vann, Je? Vann, Dennis Murrell, Jonathon Webber, and David Rowe. J. Vann might have been Joseph Vann, formerly a large slaveholder in the Cherokee Nation. Incidentally, David Rowe was also the district court judge who performed the marriage ceremony. 37. For examples of petitions that include the designation “Cherokee citizens by blood,” see CNRMS, roll CHN 44, vol. 157A, 70, 72, 74, 76, 79, 84, 100, 110b, 118, 127, 134, and 138. For examples of petitions that did not include this qualifying phrase, see CNRMS, roll CHN 44, vol. 157A, 62, 66, 68, 83, 87, 122, 136, and 140. 38. See CNRMS, roll CHN 117, vol. 247, 83–104, Case Number 83: Susan Boles vs. Fox McCaleb and Wm Vann. 39. CNRMS, roll CHN 117, vol. 247, 86–87 and 88–89. 40. CNRMS, roll CHN 117, vol. 247, 94. 41. CNRMS, roll CHN 117, vol. 247, 90. Lemuel Boles stated that Dunk Vann and his daughter Emma acted as witnesses for a transaction between George Vann and Susan Boles. Emma Henderson’s testimony confirms that she was there with Susan Boles when Dunk Vann and George Vann arrived to settle the property in question and wrote a bill of sale, CNRMS, roll CHN 117, vol. 247, 94. Bill Vann also referred to Emma as Susan Boles’s daughter, CNRMS, roll CHN 117, vol. 247, 99. 42. Halliburton, Red over Black, 81. 43. Susan Boles was clear in stating her inability to read during her testimony, CNRMS, roll CHN 117, vol. 247, 84. 44. See CNRMS, roll CHN 117, vol. 247, 97 and 103–4, for summaries of the witnesses who testified in the case. 45. CNRMS, roll CHN 117, vol. 247, 101. 46. CNRMS, roll CHN 117, vol. 247, 87 and 98. 47. See Table 8 in Chapter 4 or the 1880 census conducted by the Cherokee Nation, p. 7, Table B, 1880 Census. 48. Wickett, Contested Territory, 33–34. 49. CNRMS, roll CHN 117, vol. 247, 90. 50. CNRMS, roll CHN 117, vol. 247, 88, 91, and 98. 51. CNRMS, roll CHN 117, vol. 247, 90, 94, 98, 99, and 101. Various defendants testified to the efforts that took place to resolve the dispute over the land and improvement before the Boleses brought suit. 52. Wickett, Contested Territory, 31. 53. Southern blacks, too, had watched the defeat of their owners in the Civil War. White Southerners, however, quickly reasserted their control over blacks through racialized violence and the enactment of Jim Crow laws. Numbers of incidents of violence against the Cherokee Freedmen were very low, and the Cherokee Nation did not legislate the separation of the races in public spaces in the same manner as the white South. 54. Wickett, Contested Territory, 31. 55. See Littlefield, Cherokee Freedmen, ch. 10.

166

Notes to Pages 106–112

56. May, Collision and Collusion, 225. 57. Wickett, Contested Territory, 189. 58. Wickett, Contested Territory, 31 and 35–36. 59. I think I have proven the likelihood of George Vann being a colored citizen of the Cherokee Nation in the preceding pages. 60. Littlefield, Cherokee Freedmen, 18–20 and 50–51. 61. May, Collision and Collusion, 199. 62. For discussions of Reconstruction and its effects on Southern society, see Edward L. Ayers, Southern Crossing: A History of the American South, 1877–1906 (Oxford: Oxford University Press, 1995); Eric Foner, A Short History of Reconstruction (New York: Harper & Row, 1990); C. Vann Woodward, Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press, 1997); C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1957), especially the introduction; Joel Williamson, A Rage for Order: Black-White Relations in the American South Since Emancipation (New York: Oxford University Press, 1986); Edward L. Ayers, The Promise of the New South: Life After Reconstruction (Oxford: Oxford University Press, 1992); Glenda Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 (Chapel Hill: University of North Carolina Press, 1996), and Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998). Chapter 6: Indian Slavery and Memory 1. See George P. Rawick’s compilation of the WPA slave narratives, The American Slave (Westport, Conn.: Greenwood, 1972); hereafter American Slave. During the antebellum period, abolitionist groups aided the publication of several slave biographies and autobiographies. These include Harriet Jacobs, Incidents in the Life of a Slave Girl (1861), in Henry Louis Gates Jr., ed., The Classic Slave Narratives (New York: Signet, 2002), 437–668, which contains the complete text of Jacob’s autobiography; Frederick Douglass, Narrative of the Life of Frederick Douglass, An American Slave, Written by Himself (Boston, 1845), Henry Bibb, Narrative of the Life and Adventures of Henry Bibb, an American Slave (New York, 1849), and William W. Brown, Narrative of William W. Brown, An American Slave (Boston, 1847), in William L. Andrews and Henry Louis Gates Jr., eds., The Civitas Anthology of African American Slave Narratives (Washington, D.C.: Civitas, 1999), 104–93, 286–401, 194–284; Henry Box Brown, Narrative of Henry Box Brown, Who Escaped from Slavery Enclosed in a Box 3 Feet Long and 2 Feet Wide (Manchester, 1851); and William Craft, Running a Thousand Miles for Freedom; or, the Escape of William and Ellen Craft from Slavery (London, 1860). James Mars offers and example of a northern slave narrative in Life of James Mars, A Slave, Born and Sold in Connecticut (Hartford, 1864). In rare instances, those who were not abolitionists aided in the preservation of antebellum slave narratives, as in the case of Solomon Northup and Nat Turner: Solomon Northup, Twelve Years a Slave (Auburn, N.Y., 1853), and Nat Turner, The Confessions of Nat Turner, the Leader of the Late Insurrection in Southampton, Va. as Made to Thomas Gray (Baltimore, 1831). Many former slaves published accounts of their lives in the post-Emancipation era. These include Henry Clay Bruce, The New Man. Twenty-Nine Years a Slave, Twenty-Nine Years a Free Man. Recollections of H. C. Bruce (York, Pa., 1895); Lucy A. Berry Delaney, From Darkness Cometh the Light, or, Struggles for Freedom (St. Louis, 1891);

Notes to Pages 112–115

167

Elizabeth Hobbs Keckley, Behind the Scenes, or, Thirty Years a Slave, and Four Years in the White House (New York, 1868); and Harry Smith, Fifty Years of Slavery in the United States of America (Grand Rapids, Mich., 1891). 2. Leslie M. Harris, “From Abolitionist Amalgamators to ‘Rulers of the Five Points’: The Discourse of Interracial Sex and Reform in Antebellum New York City,” Sex, Love, Race: Crossing Boundaries in North American History, ed. Martha Hodes (New York: New York University Press, 1999), 191–212. Harris argues that prior to 1860, in the entire United States—North and South—the term for interracial social and personal relationships, including sexual ones, was “amalgamation.” 3. There are roughly four hundred references to interracial sex and mixed ancestry in the Rawick collection of ex-slave narratives, which contains two thousand interviews. In some cases a single interview contained multiple references to interracial sex. 4. Bruce, New Man, 130–31 (quotation on p. 130). 5. Joel Williamson, New People: Miscegenation and Mulattoes in the United States (Baton Rouge: Louisiana State University Press, 1995), 42–43, states that relationships between upper-class white masters and mulatto domestics were often long-term and very much like white marriages. See also Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1972), 428, 417. In many cases, Southern white men lived with slave women in long-term familial arrangements resembling those between husbands and wives and willed property to these women and their mixed-race progeny: see Virginia Meacham Gould, Chained to the Rock of Adversity: To Be Free, Black, and Female in the Old South (Athens: University of Georgia Press, 1998); Adele Alexander Logan, Ambiguous Lives: Free Women of Color in Rural Georgia, 1789–1879 (Fayetteville: University of Arkansas Press, 1991); and Mary Frances Berry, “Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,” Journal of American History 78 (December 1991): 835–56. 6. Darlene Clark Hine, “Rape and the Inner Lives of Black Women in the Middle West: Preliminary Thoughts on the Culture of Dissemblance,” Signs 14 (Summer 1989): 912–20 (quotation on p. 913). 7. Ellen Sinclair interview, American Slave, supp., ser. 2, vol. IX (Tex.), pt. 8, 3593–94. See also Julia King interview, American Slave, vol. XVI (Ohio), 61, for another example of the lack of choice for slaves confronted with the sexual desires of their masters. 8. Herbert Gutman, The Black Family in Slavery and Freedom, 1750–1925 (New York: Vintage Books, 1976), 88–91. In his Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia, 1878–1861 (Chapel Hill: University of North Carolina Press, 2003), Joshua D. Rothman recounts the case of a slave woman who murdered her father/master in order to avoid an incestuous sexual relationship with him (149–63). 9. See the following interviews from American Slave: Martha Harrison, vol. XVIII (Unwritten History of Slavery), 118 (quotation); and Anthony Christopher, supp., ser. 2, vol. III (Tex.), pt. 2, 719. 10. Mandy Jones interview, American Slave, supp., ser. 1, vol. VIII (Miss.), pt. 3, 1236; C. Vann Woodward, “History from Slave Sources,” American Historical Review 79 (April 1974): 470–81; Bernice Bowden, interviewer, American Slave, vol. IX (Ark.), pt. 3, 264. On claims of an American Indian heritage, see the following interviews from American Slave: Charlie Richardson, vol. XI (Mo.), 290; Ann Matthews, vol. XVI (Tenn.), 43; John Moore, vol. XVI (Tenn.), 47; Mollie Moss, vol. XVI (Tenn.), 57; Will Shelby, supp., ser. 2, vol. IX (Tex.), pt. 8,

168

Notes to Pages 115–116

3503; Daniel Webster Burton, supp., ser. 1, vol. XII (Okla.), pt. 1, 82; Sam Jordan, supp., ser. 1, vol. XII (Okla.), pt. 1, 197; and C. G. Samuel, supp., ser. 1, vol. XII (Okla.), pt. 1, 267. 11. Jack D. Forbes, Africans and Native Americans: The Language of Race and the Evolution of Red-Black Peoples (Urbana: University of Illinois Press, 1993), 189. Recent works on Melungeons posit their origins as the offspring of relations between Africans, Europeans, and indigenous populations during the colonial period. See Wayne Winkler, Walking toward the Sunset: The Melungeons of Appalachia (Macon, Ga.: Mercer University Press, 2004), 3–8; and Joseph M. Scolnick, Jr. and N. Brent Kennedy, From Anatolia to Appalachia: A Turkish-American Dialogue (Macon, Ga.: Mercer University Press, 2003), 1, 9–11. 12. Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion (New York: Norton, 1974), 99, 115–16, and Williamson, New People, 13 and 39. 13. Figures from Wood, Black Majority, 144, table 1. In 1708, the Negro slave population of 4,100 consisted of 1,800 men, 1,100 women, and 1,200 children, and the Indian slave population included 500 men, 600 women, and 300 children. 14. Unidentified slave interview, American Slave, vol. XVIII (Unwritten History of Slavery), 225; Julia Woodberry interview, American Slave, vol. III (S.C.), pt. 4, 229–30, and Della Harris interview, American Slave, vol. XVI (Va.), 24. 15. Claudio Saunt, “The Paradox of Freedom: Tribal Sovereignty and Emancipation during the Reconstruction of Indian Territory,” Journal of Southern History 70 (February 2004): 63–94, esp. 64–65. For more on the Seminole story, see also Claudio Saunt, A New Order of Things: Property, Power, and the Transformation of Creek Indians, 1733–1816 (Cambridge: Cambridge University Press, 1999), 211–12; Saunt, “‘The English Has Now a Mind to Make Slaves of Them All’: Creeks, Seminoles, and the Problem of Slavery,” in James F. Brooks, ed., Confounding the Color Line: The Indian-Black Experience in North America (Lincoln: University of Nebraska Press, 2002), 47–75; and Daniel F. Littlefield, Jr., Africans and Seminoles: From Removal to Emancipation (Westport, Conn.: Greenwood Press, 1977), 4–5, 8–9, 130–32. 16. Saunt, “Paradox of Freedom,” 69–71. See also R. Halliburton, Red over Black: Black Slavery among the Cherokee Indians (Westport, Conn.: Greenwood Press, 1977), x, 43–44, and 141; and Katja May, African Americans and Native Americans in the Creek and Cherokee Nations, 1830s to 1920s: Collision and Collusion (New York: Garland Publishing, 1996), 10. Halliburton’s work considers only Cherokees. As a later illustration of the similarity of attitudes between white Southerners and American Indians, after the Civil War, prohibitions on marriages between Indians and blacks, originally adopted to apply to black slaves, continued in force in the Indian Territory. Murray R. Wickett, Contested Territory: Whites, Native Americans and African Americans in Oklahoma, 1865–1907 (Baton Rouge: Louisiana State University Press, 2000), 35. 17. Halliburton, Red over Black, 68–69, 80–88; Daniel F. Littlefield, Jr., The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978), 8–9; Theda Perdue, Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 84–90; Littlefield, Africans and Seminoles, 199–202; Wickett, Contested Territory, 35. 18. See Perdue, Slavery, 84–85. 19. Henry Bleby, Josiah: The Maimed Fugitive: A True Tale (London: Wesleyan Conference Office, 1873), 113–15. 20. Martin Delany, Blake; or, the Huts of America, with an introduction by Floyd J. Miller (Boston: Beacon Press, 1970).

Notes to Pages 116–120

169

21. John Stauffer, The Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, Mass.: Harvard University Press, 2002), 182–83. 22. James Hugo Johnston, Race Relations in Virginia and Miscegenation in the South, 1776–1860 (Amherst: University of Massachusetts Press, 1970), 287–89. William Loren Katz and Paula A. Franklin, Proudly Red and Black: Stories of African and Native Americans (New York: Atheneum, 1993), 28. 23. James Roberts, The Narrative of James Roberts, Soldier in the Revolutionary War and at the Battle of New Orleans (Chicago, 1858), 9. 24. Octavia V. Rogers Albert, House of Bondage; or, Charlotte Brooks and Other Slaves (New York: Hunt & Eaton, 1890), 146. 25. See also Austin Steward, Twenty-two Years a Slave and Forty Years a Freeman (Reading, Mass.: Addison-Wesley, 1969), 136–40. 26. Bibb, Life and Adventures of Henry Bibb, 372 (first quotation) and 373 (second quotation). 27. James Mellon, ed., Bullwhip Days: The Slaves Remember (New York: Weidenfeld & Nicolson, 1988), 411–12; Frederick Douglass, My Bondage and My Freedom, ed. John David Smith (New York: Penguin, 2003), 334. 28. Halliburton, Red over Black, 42. 29. T. Lindsay Baker and Julie P. Baker, The WPA Oklahoma Slave Narratives (Norman: University of Oklahoma Press, 1996), 492–95. Tiya Miles also discusses the story of Sarah Wilson in “Uncle Tom Was an Indian: Tracing the Red in Black Slavery,” in Brooks, ed., Confounding the Color Line, 137–60 (esp. 152). 30. For an example, see New Echota (Ga.) Cherokee Phoenix, November 12, 1831, p. 3. 31. Document entitled “The Negro Insurrection,” folder “Cherokee Slavery,” box 7, Grant Foreman Collection vertical file 83–229 (Oklahoma Historical Society, Oklahoma City). See also Saunt, “Paradox of Freedom,” 67–69. 32. See these American Slave interviews: Charley Moore Brown, supp., ser. 1, vol. XII (Okla.), pt. 1, 74; and R. C. Smith, supp., ser. 1, vol. XII (Okla.), pt. 1, 281. 33. Dennis Grant interview, American Slave, supp., ser. 2, vol. V (Tex.), pt. 4, 1548. 34. See the following interviews from American Slave: Charlie Richardson, vol. XI (Mo.), 290; Ann Matthews, vol. XVI (Tenn.), 43; John Moore, vol. XVI (Tenn.), 47; and Della Harris, vol. XVI (Va.), 24. 35. See Mellon, Bullwhip Days, 322 and 324–25 for Lulu Wilson’s family history, and p. 372 for Charlie Davenport’s description of his mother. 36. Laura L. Lovett, “‘African and Cherokee by Choice’: Race and Resistance under Legalized Segregation,” in Brooks, ed., Confounding the Color Line, 199–222, esp. 193, 194–203, argues that African Americans invoked American Indian ancestry in the late nineteenth and early twentieth centuries to resist legalized segregation. 37. See the following interviews from American Slave: George Ward, supp., ser. 1, vol. X (Miss.), pt. 5, 2175; Eugenia Weatherall, supp., ser. 1, vol. X (Miss.), pt. 5, 2215; Charley Stewart, supp., ser. 1, vol. X (Miss.), pt. 5, 2041; Della Mun Bibles, supp., ser. 2, vol. II (Tex.), 1, 289; Fannie McCullough Driver, supp., ser. 2, vol. IV (Tex.), pt. 3, 1231; Mollie Moss, vol. XVI (Tenn.), 57; Anna Baker, supp., ser. 1, vol. VI (Miss.), pt. 1, 99. 38. See the following interviews from American Slave: Chaney Mack, supp., ser. 1, vol. IX (Miss.), pt. 4, 1419; Susan McIntosh, vol. XIII (Ga.), pt. 3, 80; and Mattie Logan, vol. VII ( Okla.), 187. 39. See the following interviews from American Slave: Richard Franklin, supp., ser. 1, vol. XII (Okla.), pt. 1, 132 (quotation); Sam Jordan, supp., ser. 1, vol. XII

170

Notes to Pages 120–127

(Okla.), pt. 1, 197; C. G. Samuel, supp., ser. 1, vol. XII (Okla.), pt. 1, 267; and Lucinda Vann, supp., ser. 1, vol. XII (Okla.), pt. 1, 351. 40. See the following interviews from American Slave: Patsy Perryman, supp., ser. 1, vol. XII (Okla.), pt. 1, 250; and Sylvester Sostan Wickliffe, supp., ser. 2, vol. X (Tex.), pt. 9, 4038. 41. See the following interviews from American Slave: Mandy Jones, supp., ser. 1, vol. VIII (Miss.), pt. 3, 1236 (first quotation); and Charlie Davenport, vol. VII (Miss.), pt. 2, 35–36 (second quotation). 42. See, for example, the following interviews from American Slave: Susan McIntosh, vol. XIII (Ga.), pt. 3, 80; Mary Davis, supp., ser. 2, vol. IV (Tex.), pt. 3, 1070; John McDonald, supp., ser. 2, vol. VII (Tex.), pt. 6, 2485; John Williams, vol. XI (Ark.), pt. 7, 173; and Drucilla Martin, vol. XI (Mo.), 243. 43. See the following interviews from American Slave: Eugenia Weatherall, supp., ser. 1, vol. X (Miss.), pt. 5, 2215 (first quotation); Mary Davis, supp., ser. 2, vol. IV (Tex.), pt. 3, 1070 (second and third quotations); Allen Carthan, supp., ser. 2, vol. III (Tex.), 653 (fourth quotation). 44. Northup, Twelve Years a Slave, 62–63. 45. Mellon, Bullwhip Days, 262. 46. See the following interviews from American Slave: Will Parker, supp., ser. 2, vol. VIII (Tex.), pt. 7, 3017 (first quotation); Louisa Davis ,vol. II (S.C.), pt. 1, 301 (second quotation); Drucilla Martin, XI (Mo.), 243 (third quotation); and John Williams, vol. XI (Ark.), pt. 7, 173 (fourth quotation). 47. Gutman, Black Family, 265–84, 157–59. 48. Gutman, Black Family, 19–28, 412–18. Chapter 7: The Fight for Recognition Continues 1. See James A. Henretta, David Brody, Lynn Dumenil, America: A Concise History, 2nd ed. (Boston: Bedford/St. Martin’s, 2002), 474, for this population statistic. 2. Peter Wallenstein, “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–1967,” Journal of the West 39 (January 2000): 55–63, esp. 57. 3. The town of Guthrie, Oklahoma, periodically reenacts this wedding ceremony at celebrations of Oklahoma statehood (see www.guthriecentennial.com). 4. John Stauffer, The Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, Mass.: Harvard University Press, 2002), 182–83, 189. 5. Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Unequal Sisters: A Multicultural Reader in U.S. Women’s History, Vicki L. Ruiz and Ellen Carol DuBois, eds., 3rd ed. (New York: Routledge, 2000), 161–82, esp. 164; Mary Frances Berry, “Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,” Journal of American History 78 (December 1991): 835–56, esp. 835–38; and William M. Wiecek, “The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America,” William and Mary Quarterly 34 (April 1977): 258–80, esp. 280. 6. Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 38, hereafter referred to as LCN 1852. 7. An early twentieth-century survey of Lumbee and Catawba Indians revealed a shared fear of being absorbed by the African American population; see

Notes to Pages 127–130

171

Russell Thornton, “The Demography of Colonialism and ‘Old’ and ‘New’ Native Americans,” in Studying Native America: Problems and Prospects, Russell Thornton, ed. (Madison: University of Wisconsin Press, 1998), 17–39, esp. 25. See also Karen I. Blu, The Lumbee Problem: The Making of an American Indian People (Lincoln: University of Nebraska Press, 1980); Ann Marie Plane and Gregory Button, “The Massachusetts Indian Enfranchisement Act: Ethnic Contest in Historical Context, 1849–1869,” Ethnohistory 40 (Autumn 1993): 587–618; Ruth Wallis Herndon and Ella Wilcox Sekatau, “The Right to a Name: The Narragansett People and Rhode Island Officials in the Revolutionary Era,” Ethnohistory 44 (Summer 1997): 433–62; and Claudio Saunt, Black, White, and Indian: Race and the Unmaking of an American Family (Oxford: Oxford University Press, 2005). 8. For discussions of matrilineal descent in Cherokee Society, see Theda Perdue, Cherokee Women: Gender and Culture Change, 1700–1835 (Lincoln: University of Nebraska Press, 1998), esp. pp. 81–83 and chs. 1–3; Theda Perdue, Slavery and the Evolution of Cherokee Society, 1540–1866 (Knoxville: University of Tennessee Press, 1979), 9; John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York: New York University Press, 1970), 113–22; J. Leitch Wright, Only Land They Knew: The Tragic Story of the American Indians in the Old South (New York: Free Press, 1981), 235; Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956), 17; Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002), 28; Katja May, African Americans and Native Americans in the Creek and Cherokee Nations, 1830s to 1920s: Collision and Collusion (New York: Garland, 1996), 33–34; and Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), 49–50. 9. May, Collision and Collusion, 34, and Theda Perdue, “Mixed Blood” Indians: Racial Construction in the Early South (Athens: University of Georgia Press, 2003), 9. 10. Perdue, “Mixed Blood” Indians, 8. 11. Sarah H. Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill: University of North Carolina Press, 1997), 95–96; and Sturm, Blood Politics, 55. 12. LCN 1852, 57. See also Cherokee National Records Microfilm Series, roll CHN 73, vol. 1878, 15; see 12–28 for the whole court case. Hereafter the Cherokee National Records Microfilm Series is referred to as CNRMS. 13. LCN 1852, 120. 14. I thank David Cornsilk of the Cherokee Nation for providing much of the background information and updates on these cases. 15. Clifton Adcock, “Cherokee Nation Seeks to Scuttle Freedmen Lawsuit,” Muskogee Phoenix, January 26, 2005. 16. Copy of proposed brief by Robin Mayes, Principal Chief of the United Cherokee Nation, and John Cornsilk, Deputy Principal Chief of the United Cherokee Nation, provided to me by David Cornsilk via electronic mail on January 24, 2005. 17. “The Freedmen May Lose Cherokee Membership,” Lawton Constitution, July 31, 2006, 3A. 18. Ellen Knickmeyer, “Cherokee Nation to Vote on Expelling Slaves’ Descendants,” Washington Post, March 3, 2007, A1. www.washingtonpost.com/wp-dyn/ content/article/2007/03/02/AR2007030201647.html.

172

Notes to Page 130

19. Associated Press, “Cherokees Vote to Limit Tribal Membership,” Washington Post, March 4, 2007. www.washingtonpost.com/wp-dyn/content/article/ 2007/03/03/AR2007030301705.html. 20. Scott L. Malcolmson, One Drop of Blood: The American Misadventure of Race (New York: Farrar, Straus and Giroux, 2000), 17. 21. Thornton, “The Demography of Colonialism and ‘Old’ and ‘New’ Native Americans,” 30–32.

Index

abandonment, 30, 51, 58 Abel, Annie Heloise, 23 abolitionists, 166 n.1 abortion, 34–35 adoption, 7–8; and blood connection, 86–87; and clan affiliations, 26–27, 29, 34, 127; and freedmen, 89–90; and intermarried whites, 29–31, 67, 89, 162 n.40; and land, 89, 162 n.40; and marriage laws, 29–31, 67, 127; and mixedrace children, 29; and post–Civil War racial language, 86–87; and Treaty of 1866, 89–90 agricultural labor/farming expertise, 82–83 Allen, Lucy, 128–30 annuity funds, 29, 88, 162 n.40 antebellum South: Cherokee racial ideology and Southern slave codes, 47–49, 152 n.30; myth of Indian-black equality, 3–4; previous research on interracial sex in, 2–3, 138 nn.6–7, 139 nn.9–10; and racial amalgamation, 112, 167 n.2; and slave biographies/autobiographies, 112, 166 n.1; white/nonwhite dichotomy of racial identities, 3, 139 n.13. See also post–Civil War period and Cherokee citizenship anti-amalgamation statutes, 73, 98, 99; (1824), 69, 75; (1839), 44–46, 50–51, 70–71, 75, 158 n.61; and black men, 45, 151 n.20; and Cherokee women, 45; and color line between black slaves and non-Negroes, 69; distinguishing between free citizens and slaves/persons

of color, 158 n.61; and Oklahoma state constitution, 163 n.13; prohibiting intermarriage with slaves/persons of African descent, 44–45, 151 n.19; and racializing of the term “free,” 45–46. See also marriage laws Baker, Anna, 119 Beauchamp, Lula N., 58 Bibb, Henry, 117 Bibles, Della Mun, 119 black men. See men of African descent blacks’ views. See ex-slaves’ perspectives on interracial sex black women. See women of African descent Blake; or, the Huts of America (Delany), 116, 137 n.3 blood: adoption and blood connection, 86–87; census and racial categorizations, 42–43, 86–87; and citizenship laws of 1825 and 1827, 35–36, 149 n.51; freedmen and blood requirement for citizenship, 128–30; “Freedmen Roll” and “By Blood” rolls, 128, 130 Boles, Jennie, 104–5 Boles, Lemuel, 94–110, 124, 162–63 n.1; name of, 162–63 n.1, 163 n.12 Boles, Susan Vann, 94–109; name of, 162–63 n.1, 163 n.12 Boles/Vann legal dispute, 94–110; the Boleses’ daughters, 104–5; the Boleses’ legal marriage, 96–97; contradictory legal attitudes toward intermarried African American men, 98–99; the

174

Index

Boles/Vann legal dispute (cont.) court’s dilemma regarding intermarriage between Freedmen and colored citizens, 97–100, 109–10; freedwoman Susan Vann Boles, 94–109, 162–63 n.1; and George Vann, 94–110; initial proceeding (1889), 95; Lemuel Boles, 94–110, 124, 162–63 n.1; property rights/land issues, 94, 101, 104; and rights to Cherokee citizenship, 95–97; and the Vann family, 101–2, 103–5; and women’s participation in public legal activities, 104–5 Boudinot, Elias, 19, 36, 144 n.60, 152 n.22, 164 n.22 Bowden, Bernice, 115 Brown, Charley Moore, 119 buffalo populations, 82 Bureau of Indian Affairs, 92, 128–29 Bushyhead, Dennis W., 67 Bushyhead family, 52 Buzzard, Darren, 130 Carthan, Allen, 121 Catawba Indians, 38 censuses and racialized categories: (1809), 32; (1824), 25; (1835), 32, 46; (1841), 52–53; (1880), 85–87; (1886), 85; binary system of citizens/noncitizens, 52–53; and “black slaves,” 32; and blood quantum subdivisions, 42–43, 86–87; language of “blood” and “nativity,” 86–87; and people of mixed Cherokee and African descent, 46, 161 n.30; population of the Nation by race and district (1880), 87; triracial divisions, 25, 52–53, 85–87 Cherokee constitution: and citizenship for mixed-race children, 7, 35, 41–42, 70, 142 nn.34–35, 149 n.50; and marriage laws, 27–28; New Echota (1827), 21, 35, 41–42, 44, 149 n.50; prohibitions on office-holding, 30–31, 51, 70; Tahlequah Constitution (1839), 21–22, 43–44; and U.S. Constitution, 15; (1999), 129 Cherokee Freedmen, 11–12, 93–111; and adoption, 89–90; Boles/Vann dispute, 94–110, 124; cultural differences between African Americans and, 106, 165 n.53; disputes regarding legal

status of, 98–99, 108–9; and freedwomen, 94–109; intermarriage with African Americans, 93–111; intraracial tensions between African Americans and, 107; land/property rights disputes, 94, 101, 104; legal dilemmas regarding, 97–100, 109–11; limited citizenship status, 107–9; and other freedmen, 105–7; and women’s participation in public legal activities, 104–5 Cherokee freedwomen, 94–109 Cherokee history, 13–24; Seven Years’ War, 14; and eighteenth-century European settlers, 14; Revolutionary War, 15; post–Revolutionary War negotiations with the new federal government, 15; original Trade and Intercourse Acts, 15; state of Georgia and the Cherokee Nation, 15–17, 19; Southeastern Indian Territories (map), 16; Indian Territories in Georgia (map), 17; Cherokee land cessions, eighteenth-century (map), 14; the Civil War, 23; post–Civil War, 23–24, 74–92, 145 n.68; Intercourse Act (1834), 17–18; the Removal, 18–21; Treaty of New Echota (1835), 18, 19, 43–44; “Old Settlers,” 19–21, 144 n.58, 144 n.60; Indian Territory (1866–1889) (map), 21; Tahlequah Constitution (1839), 21–22, 43–44; Treaty of 1866, 23–24, 88–90 Cherokee Nation: federal treaties with, 15, 23–24, 91; literacy in, 47–48, 74–75, 103; new geographical boundaries within Indian Territory (map), 21; nine districts of (map), 21, 22; slave ownership by, 4, 42, 116, 117, 118; Supreme Court of, 95; territory of (map), 16 Cherokee National Council, 11, 30–31, 35, 51, 75, 95; and Boles/Vann case, 95; and citizenship of mixed-race children, 35, 142 n.34; and political rights of intermarried white men, 30–31; rules for holding office in, 30–31, 51, 140 n.24; and Shoe Boots’s petition, 40–42, 55; vote to emancipate slaves (1863), 75, 159 n.3 Cherokee Phoenix, 15; articles about white Georgia and Cherokee territorial

Index claims, 19, 144 n.51; attempts to reiterate the similarities between whites and Cherokees, 152 n.22; and marriage laws, 36, 147 n.29, 148 n.32; and nascent Cherokee racial ideology, 43, 152 n.22; publication of Cherokee laws, 164 n.22; publication of U.S. laws, 152 n.30; and Removal treaty issues/factions, 144 nn.60–61 Cherokee racial ideology, 4–9, 25–38, 39–55, 125–28; adoption and clan protection, 7–8, 26–27, 34, 127; and American racial thinking, 42–43, 69–70; and anti-amalgamation laws, 44–46, 50–51; binary system of citizens/noncitizens, 52–53, 86; and “blood” quantifications, 42–43; and clan membership, 5, 6–8, 25–27, 34, 127, 145 n.3; complicated notions of race and identity, 8–9; evolution of, 10, 25–38; as historically specific, 5–6; and marriage laws, 4–5, 9, 28–38, 46–47, 53–54, 57, 67–73, 126–28, 140 n.23, 143 n.44, 148 n.37; and mixed-race children, 5, 7, 128, 140 n.24, 141 n.32, 142 nn.33–35; and “mulattoes,” 6, 69–70, 158 n.64; physical appearance and performative aspects of race/identity, 6, 27, 68, 141 n.27; post-Removal law/ jurisprudence, 43–55; racial terms/ categories, 6, 44, 45–46, 69–70, 125, 158 n.64; and Southern antebellum slave codes, 47–49, 152 n.30; and sovereignty, 9, 43–44, 127; Taney opinion and blurring of race and citizenship, 67–68; and the term “free,” 44, 45–46; triracial divisions, 9, 25, 52–53, 85–87; and whiteness/association with whiteness, 4–5, 44, 45, 125, 152 n.22; and whites’ influence, 9, 42–43, 69–70, 142 n.42 Cherokee written language, 15 Chesnut, Mary Boykin, 2 Chickasaw Indians: ex-slaves’ claims of Chickasaw ancestry, 119; federal treaties with, 91; slave ownership/slave population, 4, 116; territory of (map), 16 children, mixed-race: and Cherokee racial ideology, 5, 7, 128, 140 n.24, 141 n.32, 142 nn.33–35; and citizenship, 7, 35, 41–42, 65, 70, 142 nn.34–35, 149 n.50; of interracial marriages, 7, 29, 31–32, 35–36, 128; and matrilineal descent, 7,

175

27–28, 32, 34, 37, 39, 142 nn.33–35; of white women, 7, 35, 65, 142 nn.34–35 Choctaw Indians: alliances with runaway slaves, 116; and Cherokee legal guidance regarding intermarried whites, 56, 66; ex-slaves’ claims of Choctaw ancestry, 119, 120; federal treaties with, 91; and intermarried white men, 56, 66; slave ownership/slave population, 4, 116; territory of (map), 16 Christian missionaries, 80 Christopher, Anthony, 114 Civil War, 23 clan affiliation/clan membership: and adoption, 26–27, 29, 34, 127; and Cherokee marriage practices, 27–28, 146 n.10; and Cherokee sense of identity, 27, 34, 145 n.3; and divorce, 28, 146 n.17; informal, unwritten legal provisions governing, 27–28; and matrilineal descent, 7, 27–28, 32, 34, 37, 39, 127, 142 nn.33–35; and polygamy, 27–28, 146 n.17; and protection, 7–8, 26–27, 34, 127. See also matrilineal descent common-law marriages, 31, 40, 64, 147 n.30, 150 n.9, 156 n.40 Confederacy, 23 Conser, Walter H., Jr., 46 Coody, Rosy, 61 Creek Indians: Cherokee treaties with, 90; and citizenship, 86; ex-slaves’ claims of Creek ancestry, 120; federal treaties with, 91; Indian Territories in Georgia (map), 17; slave ownership/slave population, 4, 116, 117, 118; territory of (map), 16 Crowford, Mark, 99 Cummins, William Anthony, 63–64, 157 n.47 Davenport, Charlie, 119, 121 Davis, Louisa, 122 Davis, Mary, 121 Dawes Commission, 128 death penalty, 18 Deer clan, 26–27, 34 Delany, Martin, 116–17, 126, 137 n.3 Delaware tribe, 90–91 D’Emilio, John, 152 n.23, 159 n.8, 160 n.10 Dent, Sam, 26, 27

176

Index

De Shields, Francis, 117 Dickson, Amanda America, 158 n.67 Dickson, George, 59 divorces and Cherokee marriage law, 28, 72, 78, 146 n.17, 160 n.11 Douglass, Frederick, 117, 126, 137 n.2 Driver, Fannie McCullough, 119 Eastern Cherokees, 19–21, 144 n.60 Ellington, Clarinda, 39–40, 150 n.4 emancipation of slaves (1863), 75, 159 n.3 ex-slaves’ perspectives on interracial sex, 1, 12, 112–23, 126; antebellum slave biographies/autobiographies, 112, 166 n.1; black-Indian relationships, 113, 115–23; black-white relationships and power relations, 113–14, 122–23, 167 n.5; and claims of Indian ancestry, 1, 118–22, 169 n.36; coercive/consensual relationships, 113–14, 117–18, 122–23; and colonial period Indian slaves, 115–16; and incest taboos, 114; and Indian slaveholders, 117–18, 122–23; and mixedrace children, 113–14; and pride in their mixed-race physical appearance, 1, 121–22, 137 n.3; and racial amalgamation in the antebellum South, 112, 167 n.2; relationships between masters and slave women, 114, 167 n.5; and slave couples’ marriages, 122; and threat of violence, 114; views of Indians as potential allies, 116–17, 126 Fischer, Kirsten, 140 n.23 Fish, Nathaniel, 150 n.9 Five Tribes of the Indian Territory: alliances with runaway slaves, 116–17; and Cherokee legal guidance, 56; slave ownership/slave population, 4, 42, 116, 117, 118; strategies for cultural survival, 9, 127; territory of (map), 16. See also names of individual tribes Fleming, George, 121 Forbes, Jack D., 139 n.10, 139 n.13 Franklin, Richard, 120 “free,” as term, 44, 45–46 Freedman, Estelle, 152 n.23, 159 n.8, 160 n.10 “Freedmen Roll” and “By Blood” rolls, 128, 130 “friendly Indians,” 88–89, 90

Genovese, Eugene D., 138 nn.6–7 Georgia, state of, 15–17, 19, 144 n.51; efforts to limit Cherokee legal rights, 16–17, 19; Indian Territories in (map), 17; responses to Cherokee sovereignty, 15–17, 19 Ghormley, M. O., 60, 61 Gilmore, Glenda, 151 n.21 Gould, Virginia Meacham, 138 n.6 Grant, Dennis, 118 Grayson, Mary, 117 Gross, Ariela, 6, 141 n.27 Hale, Grace Elizabeth, 142 n.42 Half Breed, Pigeon, 42, 150 n.12 Halliburton, R., Jr., 148 n.35, 151 n.19, 152 n.30 Hammond, James Henry, 2 Harlan, Sarah Ann, 71, 158 nn.68–69 Harris, Della, 115, 119 Harris, Leslie M., 167 n.2 Henderson, Emma, 103, 104, 165 n.41 Henson family of fugitive slaves, 116 Herndon, Ruth Wallis, 139 n.13 Hightower, Molley, 26 Hill, Sarah, 46, 142 n.33, 151 n.21, 153 n.46 Hine, Darlene Clark, 114 Hitchcock, Ethan Allen, 51–52, 153 n.45, 161 n.28 Hodes, Martha, 139 n.9 Horsman, Reginald, 162 n.43 incest taboo, 83, 114 Indian Territory: freedmen from surrounding areas drawn to, 106–7; and geographical limits of the study, 13; in Georgia (map), 17; and jurisdictional disputes, 18, 59–61, 155 n.15; map (1866–1889), 21; and Oklahoma statehood, 125–26; Southeastern (map), 16; territory of (map), 16. See also Five Tribes of the Indian Territory; Removal (1838–1839) Intercourse Acts, 59–61, 66; and federal/tribal jurisdictions, 18, 59–61; original, 15; revamped with new prohibitions (1834), 17–18 interracial sex. See ex-slaves’ perspectives on interracial sex

Index Jacobson, Matthew Frye, 139 n.13, 142 n.42 James, William, 59 Jefferson, Thomas, 2 Jim Crow laws, 106, 111, 165 n.53 Johnston, Carolyn Ross, 152–53 n.41 Johnston, James Hugo, 4, 9, 139 n.10, 140 n.20 Jones, Mandy, 1, 115, 121 Jordan, Christopher, 61 Jordan, Sam, 120 Jordan, Winthrop, 142 n.42 Katz, William Loren, 9 Ku Klux Klan, 106 land/property rights: and adopted white citizens, 89, 162 n.40; Cherokee land cessions (map), 14; and Cherokee women, 30, 147 nn.21–22; freedmen and legal disputes over, 94, 101, 104; marriage and inheritance issues, 79–80; and Treaty of 1866, 89–90; and white men’s financial incentives for intermarriage, 30, 58–59, 83 Landrum, Charles, 42 LeForce, Ras, 59 legalities and Cherokee laws: American influences on, 15–16, 28, 30, 144 n.50; annuity funds, 29, 88, 162 n.40; and binary categories of citizenship, 52–53, 86; and Choctaw case regarding intermarriage, 56–57; and citizenship for people of African descent, 41–42, 124–25; and citizenship of intermarried whites, 29, 31–32, 53–54, 88; contradictions regarding intermarried African American men, 98–99; contradictory revisionist language, 75, 159 n.4; and the emancipation of slaves (1863), 75, 159 n.3; freedmen’s marriages and legal dilemmas, 97–100, 109–11; identity and hierarchy of legal citizenship, 52–53, 85–92; incongruities between proclamation and enforcement, 98–99; jurisdictional disputes, 18, 59–61, 155 n.15; legal records and statutes, 12–13; local officials and the functioning of the law, 99, 164 n.23; and the newly emancipated black population, 110–11; and prohibitions on interracial marriages, 74, 75, 159 n.7; rape crime statutes, 49;

177

rights to native Cherokees, 87–88, 162 n.40; and slave literacy, 47–48; and slaves’ property-ownership, 47; and sovereignty, 3, 16–17, 43–44, 72–73, 89; statutes to control behavior of African people, 47–49, 152 n.30; statutory law and elites’ thinking on identity issues, 13, 143 nn.46–47; treaties with other tribes, 90–91; triracial distinctions, 9, 25, 52–53, 85–87; and two social hierarchies, 52–53; and weapons-carrying, 48; and women’s reproduction, 34–35. See also anti-amalgamation statutes; Cherokee constitution; marriage laws; Treaty of 1866 Lewis, Reuben, 118 literacy in the Cherokee Nation, 47–48, 74–75, 103 Logan, Mattie, 120 Louisiana, colonial, 158 n.64 Lovett, Laura L., 169 n.36 Lucy Allen vs. Cherokee Nation Tribal Council et al., 128–30 Mack, Chaney, 120 Malone, Henry Thompson, 146 n.10 Manigault family, 2 marital choice trends (post–Civil War), 81–85; gendered/racialized ideas about acceptable marriage partners, 85, 161 n.28; imbalance in sex ratio of the white population, 83–84, 161 n.22; and the incest taboo, 83; and marriage’s role in production of citizens, 76, 82; sexual composition of the noncitizen population, 84; and white men as source of financial security, 82–83 marriage laws, 4, 10–12, 27–38, 56–73; (1819), 30, 31; (1824), 32–33, 38; (1825), 27, 35–36; (1829), 31–32, 53–54, 147 n.22; (1843), 53, 154 n.3; (1846), 53–54; (1855), 10, 56–73, 93, 102; and abandonment, 30, 51, 58; and adoption, 29–31, 67, 127; American influences, 28, 30, 32–33; and blood relationships/hereditary relationships, 35–36, 149 n.51; and Cherokee constitution, 27–28; and Cherokee families/parental authority, 62; and Cherokee racial ideology, 4–5, 9, 28–38, 46–47, 53–54, 57, 67–73, 126–28, 140

178

Index

marriage laws (cont.) n.23, 143 n.44, 148 n.37; and Cherokee women, 10, 30, 36, 49–54, 56–73, 93, 127; and Cherokee women as gift offerings, 62–63, 156 n.31; and Choctaw case, 56–57; and clan membership, 29, 35–36, 66, 127–28; and colonial Virginia laws, 32–33; conformity with, 63–64; contemporary relevance, 128–30; contradictory revisionist language/interpretations, 67, 75; as demonstration of sovereignty, 72–73; and divorce, 28, 72, 78, 146 n.17, 160 n.11; and informal unions/ common-law marriages, 31, 40, 64, 147 n.30, 156 n.40; and intermarriage of Cherokee Freedmen and U.S. citizens, 96–99; and intermarriage of Cherokees and blacks, 70–72, 73; and intermarriage of freedmen and colored citizens, 93, 97–100, 109–10; and intermarriage with slaves/people of African descent, 4, 32–34, 38, 44–47, 116; and intermarried white men, 10, 29–31, 49–52, 53–54, 57–65, 66–67, 72–73; and jurisdictional disputes about federal/Cherokee authority, 59–61, 155 n.15; licenses and signatures, 4, 31, 51, 53, 57–58, 61–63, 65, 97, 99, 102, 154 n.5, 155 n.27, 159 n.8; and matrilineality, 29–30, 127–28; and mixed-race children, 29, 31–32, 35–36, 128, 149 n.50; and “mulattoes,” 70; oath requirement, 57, 65–66, 72–73, 154 n.3; and patrilineal descent, 127–28; and polygamy, 27–28, 146 n.17; and post–Civil War racial prejudice, 75–76; and provisions of the Intercourse Acts, 59–61, 66; ramifications of noncompliance, 63; and rape, 49, 147 n.28; and reimagined gender relationships, 127–28; and remarriage, 31–32, 53–54, 63, 88, 156 n.32; and same-race marriages between two Cherokees, 72, 159 n.8, 159 n.73; and sexual choice (for Cherokee men), 46, 50, 66; variations by district/district clerks, 61, 155 n.25, 155 n.27; and white women, 29, 31, 35–37, 50, 58, 64–66, 68–69, 147 n.28; widespread knowledge/observance of, 63; and women’s property rights, 29–30, 147 n.22, 147 nn.21–22. See also antiamalgamation statutes

marriage licenses, 4, 31, 51, 53, 57–58, 61–63, 65, 97, 99, 102, 154 n.5, 155 n.27, 159 n.8 marriage records of the Cherokee Nation (1855–1889), 65, 76–82; Cherokee men and formal exogamous marriages, 81; Cherokee women and interracial unions, 65, 80–81, 160 n.12; explaining overrepresentation of interracial marriages, 78–80; imbalance in sex ratio of the white population, 83–84, 161 n.22; increase in number of unions (between 1867–1868), 76–77; interracial marriages as majority of unions recorded, 77–78; interracial marriages by year, 78–79; marital choice trends (post–Civil War), 81–85; and marriage licenses, 159 n.8; marriages recorded by marriage type, 77–78; marriages recorded by year, 76–77; noncitizen population by race (intruders and permitted), 81; racial identification of men married to Cherokee brides, 80–81; racial identification of women married to Cherokee grooms, 82; reasons for reporting/formalizing unions, 78–80; and same-race Cherokee couples, 78–80, 159 n.8, 160 n.10 Martin, Drucilla, 1, 122 Matheson, Alex R., 64, 156 n.33 matrilineal descent: Cherokee racial ideology and identity, 5, 6–7; and children, 7, 28, 32, 34, 39, 142 nn.33–35; and clan membership, 7, 27–28, 32, 34, 37, 39, 127, 142 nn.33–35; and marriage laws, 29–30, 127–28; and marriage’s role in production of citizens, 76, 82; and post–Civil War marital trends, 76, 82; and women as targets of anti-amalgamation legislation, 45; and women’s property rights, 29–30, 147 nn.21–22 Matthews, Ann, 119 McCaleb, Fox, 94, 95, 101 McDaniels, Elizabeth, 63–64 McIntosh, Susan, 120 McKantz, Elizabeth, 121 McLoughlin, William G., 46, 140 n.22 McMakin, John, 156 n.32 Melungeons, 168 n.11 men, Cherokee: and agricultural labor/ farming expertise, 82–83; and citizenship for their children by white women,

Index 65; and citizenship for their children by women of African descent, 41–42; marriage law and marriages to white women, 29, 31, 36–37, 50, 58, 64–66, 68–69, 147 n.28; and marriage to women of African descent, 54–55, 81; choices of sexual partners, 46, 50, 66 men, white (intermarried): adoption of, 29–31, 67, 89, 162 n.40; and agricultural labor/farming expertise, 82–83; citizenship rights, 29–31, 51, 59–60; and clan relationships, 29; death of Cherokee spouse and remarriage, 31–32, 53–54, 88; exclusion from holding political office, 30–31, 51; financial incentives for intermarriage, 29–30, 58–59, 83, 154 n.12; and imbalance in sex ratio of the white population, 83–84, 161 n.22; and jurisdiction over crimes committed in Indian territory, 59–61; as laborers and sharecroppers, 80–81, 160 n.13; and land/property acquisition, 30, 58–59, 83; lawmakers’ efforts to limit intermarriage of, 49–50, 152 n.41; marriage laws and marriage to Cherokee women, 10, 29–31, 49–52, 53–54, 57–65, 66–67, 72–73; political rights, 30–31, 51, 59, 88; soldier population, 83–84; as source of financial security, 82–83 men of African descent: and anti-amalgamation statutes, 45, 151 n.20; citizenship for descendants of Cherokee women and, 35, 149 n.50; contradictory Cherokee legal attitudes toward intermarried, 98–99; white women and sexual association with, 68–69. See also Cherokee Freedmen Merrill, Susan, 100 Merrill vs. Rogers, 100 Miles, Jonathan, 82 Molley (slave woman), 25–27, 33–34, 37, 124; and Cherokee clan identity, 27; and Cherokee marriage practices, 27; children of, 26–27, 34, 124, 146 n.9; circumstances of arrival in Cherokee Nation, 26; Deer clan protection/defense of her legal rights, 26–27, 34 Montgomery, Hugh, 30 Moore, John, 119 Morgan, Hosea, 37–38 Moss, Mollie, 119

179

Moulds, D. W., 59 “mulattoes,” 6, 69–70, 158 n.64 New Echota Constitution (1827), 21, 35, 41–42, 44, 149 n.50 Northrup, Solomon, 121 Norton, Gail, 128–29 oath requirement for marriage, 57, 65–66, 72–73, 154 n.3 Oklahoma, 13, 125–26, 153 n.48, 163 n.13 Old Settlers, 19–21, 144 n.58, 144 n.60 O’Meara, Walter, 156 n.31 Osage Indians, 86, 90 pan-Indian identity, 11, 90–92, 126, 162 n.43 Parker, Judge J. L., 60, 67 Parker, Will, 122 Pascoe, Peggy, 143 n.47 patrilineal descent, 127–28 Payne, Henry Clay, 61 Pennington, Josephine, 83 people of African descent. See ex-slaves’ perspectives on interracial sex; Freedmen; men of African descent; women of African descent Perdue, Theda, 4, 48, 141 n.32, 147 n.30, 151 n.19, 159 n.3 Perryman, Patsy, 120 Petit, Elizabeth, 36 Petit, James, 36 Plane, Ann Marie, 140 n.23 polygamy, 27–28, 146 n.17 post–Civil War period and Cherokee citizenship, 10–11, 23–24, 74–92; and economic benefits of being native Cherokee, 87–88; and emancipation of slaves, 75, 159 n.3; and ex-slaves’ citizenship, 111; and hierarchy of legal citizenship/identity, 74, 76, 85–92, 110–11; marital choice trends, 81–85; marriage laws, 74–76; marriage records, 76–82; pan-Indian identity, 90–92; and prohibitions on interracial marriages, 74, 75, 159 n.7; repealing laws proscribing black literacy and trading, 74–75; and revisionist language in statutes, 75, 159 n.4; Treaty of 1866, 23–24, 88–90. See also antebellum South

180

Index

Proclamation of 1763, 14, 15 property rights. See land/property rights Rabun, William, 30 racial thinking, Cherokee. See Cherokee racial ideology Reid, John Phillip, 27, 28, 146 n.17 remarriage, 31–32, 53–54, 63, 88, 156 n.32 Removal (1838–1839), 13, 18–21, 34–35; Cherokee factions and conflicts, 19–21, 144 n.60; physical trauma and deaths, 19; routes to Indian Territory (map), 18; Trail of Tears, 19, 20; travel routes (map), 20; and Treaty of New Echota, 18, 19, 43–44 Revolutionary War, 15 Reynolds, James E., 56, 66 Richardson, Charlie, 119 Ridge, John, 19–21 Ridge family, 19–21, 52 Roberts, James, 117 Robinson, Ella Coody, 84 Rogers, Ike, 100 Ross, Chief John, 19, 52, 68, 144 n.60 same-race Cherokee couples: and marriage laws, 72, 159 n.8, 159 n.73; and marriage records, 78–80, 159 n.8, 160 n.10 Samuel, C. G., 120 Sanborn, Maj. Gen. John B., 24, 108 Sekatau, Ella Wilcox, 139 n.13 Seminole Indians: federal treaties with, 91; slave ownership/slave population, 116; territory of (map), 16 Seven Years’ War, 14 Shadburn, Don L., 153 n.46 Shawnee tribe, 90–91 Shoe Boots, 10, 39–41, 55, 124; commonlaw marriage of, 40, 150 n.9; and Danell’s legal status, 40–41; granddaughters of, 42; mixed-race children of, 39, 40, 42, 55; and the mother of his children (slave woman), 39, 40, 55, 150 n.2; personal history, 39–40; petition to have his children’s freedom recognized, 10, 39–41, 55, 124 Shoeboots, William, 150 n.9 Sinclair, Ellen, 114 slavery: abolition of (1863), 75, 159 n.3; alliances between Indians and slaves, 116–17, 126; Cherokee slave population

(by 1835), 42; colonial period contact between African/Indian slaves, 75–76, 115–16; cruelty and coercive conditions, 117–18, 122–23; early Cherokee views of African slaves, 75–76; Indian slaveholding, 3–4, 42, 116–18, 122–23; Indians’ treatment of slaves, 116–18, 122–23; and literacy, 47–48; positing the Indian attitude toward, 4, 140 n.20, 140 n.22; prevailing myths regarding, 32, 148 n.35; previous studies’ depictions of interracial sex and, 2, 138 nn.6–7; runaway slaves, 116–17, 118; and sexual relationships of owners and slaves, 117–18, 122–23; slaves’ claims of Indian ancestry, 118–22, 169 n.36; slaves’ property-ownership, 47. See also exslaves’ perspectives on interracial sex Smith, J. W., 60, 61 Smith, R. C., 118 Socrates (Cherokee editorial writer), 36–37, 50, 58 South Carolina, colonial, 115 Southeastern Indian Territories (map), 16 sovereignty, Cherokee: Georgian responses to, 15–17, 19; and how other Indian nations confronted similar threats to, 9, 127; late antebellum whites and treatment of, 3; marriage laws as demonstration of, 72–73; and racial ideology, 9, 43–44, 127; Tahlequah Constitution (1839) and recognition of threats to, 43–44; and Treaty of 1866, 89 Stephens, William, 150 n.4 Stevenson, Brenda, 138 n.7 Stewart, Charlie, 119 Strickland, Rennard, 52, 143 n.47, 155 n.25, 164 n.23 Sturm, Circe, 34, 143 n.44, 145 nn.3–4 Sunday, Ed, 63 Supreme Court of the Cherokee Nation, 95 Tahlequah Constitution (1839), 21–22, 43–44 Taney, Chief Justice Roger B., 67 Teele, Lafayette, 156 n.40, 159 n.73 Thornton, Russell, 19, 130 Trade and Intercourse Acts, 15. See also Intercourse Acts Trail of Tears, 19, 20. See also Removal (1838–1839)

Index Treaty of 1866, 11, 23–24, 88–90, 94, 95; and abolition of slavery, 159 n.3; and adopted freedmen, 89–90; and adopted whites, 89, 162 n.40; Article 4, 24, 90; and citizenship for ex-slaves/freedmen, 23–24, 129, 160 n.13; and clarifying of de facto categories of Cherokee citizenship, 88–90; and friendly Indians, 88–89; and land rights, 89–90; and rights to negotiate treaty agreements, 89–90; and sovereignty, 89 Treaty of New Echota (1835), 18, 19, 43–44 Treaty Party, 19–21 Union army, 23 Upshaw, A. B., 97 U.S. Department of the Interior, 95, 96, 128–29 U.S. government: Cherokee governance structures modeled after, 15–16, 144 n.50; Department of the Interior, 95, 96, 128–29; influences on Cherokee jurisprudence, 28, 30; and pan-Indian identity, 91–92; post–Revolutionary War negotiations with Cherokees, 15; treaties with individual tribal groups, 91; Treaty of 1866 with Cherokee Nation, 23–24 U.S. Supreme Court and Taney opinion (1845), 67 U.S. vs. William S. Rogers, 67 Vann, Dank (Dunk), 101, 103, 165 n.41 Vann, Dave, 103 Vann, Eli, 100, 103 Vann, George, 94–110 Vann, Joseph, 101 Vann, Lucinda, 120 Vann, William, Jr., 101 Vann, William (Bill), 94, 95, 101, 103 Virginia, colonial: statutes prohibiting intermarriage, 32–33; and term “mulatto,” 69–70; and white women’s racial identity and legal status, 68–69 Virginia Assembly, 68 Wallenstein, Peter, 69 Ward, George, 119 Ward, Lena, 99 Washburn, Cephas, 146 n.10 Watson, Alan, 143 n.46

181

Weatherall, Eugenia, 119, 121 white men. See men, white (intermarried) white women. See women, white Wickett, Murray R., 83, 161 n.22 Wickliffe, Sylvester Sostan, 120 Wiecek, William, 13, 143 n.46 Williams, John, 122 Williamson, Joel, 139 n.10, 167 n.5 Wilson, Douglas, 117 Wilson, Lulu, 119 Wilson, Sarah, 118 women, Cherokee: and anti-amalgamation statutes, 45; clan membership and matrilineal descent, 7, 27–28, 32, 34, 37, 39, 127, 142 nn.33–35; as gift offerings to white men, 62–63, 156 n.31; informal unions with white men, 31, 147 n.30; and marriage laws, 10, 30, 36, 49–54, 56–73, 93, 127; marriage records of interracial unions, 65, 80–81, 160 n.12; mixed-race children of, 7, 35, 141 n.32, 149 n.50; and property rights, 29–30, 147 nn.21–22; sexual relationships with men of African descent, 45–47; white men’s financial incentives for marriages with, 30, 58–59, 83, 154 n.12; and white women, 31 women, white: and Cherokee women, 31; and citizenship for mixed-race children born to, 7, 35, 65, 142 nn.34–35; citizenship rights, 29, 31, 65–66, 147 n.28, 157 n.47; and clan interests, 66; in colonial Virginia, 68–69; as undesirable for Cherokee marriage, 85; intermarriage with Cherokee men, 29, 31, 35, 36–37, 50, 65–66; and marriage laws, 29, 31, 35–37, 50, 58, 64–66, 68–69, 147 n.28; and oath of allegiance, 65–66, 157 n.47; and rape laws, 49; and sex ratio of the white population, 83–84, 161 n.22; and sexual association with black men, 68–69; tax-free status, 68, 157 n.58; widowed, 65–66 women of African descent: Cherokee freedwomen, 94–109; informal unions between Cherokee men and, 50; intermarriage with Cherokee men, 54–55, 81; Molley’s story (slave woman), 25–27, 33–34, 37, 124; mother of Shoe Boots’s children, 39–41, 55, 150 n.2; participation in public legal activities, 104–5; and

182

Index

women of African descent: (cont.) rape laws, 49; slave women’s relationships with Indians, 115, 119–20, 122–23; slave women’s relationships with white men, 113–14, 122, 167 n.5 women’s reproduction, 34–35 Wood, Peter H., 115 Woodberry, Julia, 115

Woodward, C. Vann, 115 Woodward, Grace Steel, 146 n.10 Worcester, Samuel, 152 n.22 Worley, W. I., 147 n.30 WPA informants, 1, 13, 112–23, 126. See also ex-slaves’ perspectives on interracial sex Wright, J. Leitch, Jr., 156 n.31 Wyss, Anna Killough, 63

Acknowledgments

I have incurred countless debts in the course of completing this project. Elizabeth Fox-Genovese worked tirelessly on my behalf reading drafts of this book and offering thoughtful criticism. She was also a teacher, a mentor, and a great friend. I regret that Betsey did not see this book finished, and I miss her dearly. John Juricek and James Roark asked tough questions that pushed me to strengthen and clarify my analysis. I also benefited from the comments of participants in the Brown Southern Studies writing group while at Emory University. In particular, I would like to thank Emily Blanck, Chris Curtis, Merle Black, Rob Widell, Sharon McCoy, and Leslie Martin. I would also like to thank Ann Marie Plane and especially Joanne Melish for their careful reading of my work. Joanne’s comments helped me to see the book that my early drafts could be. She is an ideal colleague, generous to a fault. Peter Agree kindly answered questions and guided me through the publication process. Celia Naylor, Tiya Miles, Peter Wallenstein, and Claudio Saunt offered encouraging words and scholarly models. The archivists at the Oklahoma Historical Society, Phyllis Addams, Sharron Ashton, Tressie Nealy, honorary archivist Mr. Jack Baker, and director Bill Welge gladly shared their tremendous knowledge of Cherokee Indian and Oklahoma history. They answered my many questions, generously pointed me to sources, and explained quirks in the documents. Beyond that, the staff at the OHS made my time in the archives fun. The staff at the Tennessee State Library and Archives in Nashville, Emory University libraries, and National Archives in Washington, D.C., also helped me navigate through the sources. Without the financial support of the University of Kentucky, Emory University, the Organization of American Historians, the Mellon Foundation, the Woodrow Wilson Foundation, and the Earhart Foundation,

184

Acknowledgments

I would not have completed this project. These entities funded my trips to the archives and, perhaps more important, gave me the time to write. The University of Oklahoma also provided important funding for the completion of this project. I am grateful to the publishers for granting permission to reprint portions of Chapter 1, which appeared in a slightly different form in “Legislating Women’s Sexuality: Cherokee Marriage Laws in the Nineteenth Century,” Journal of Social History (Winter 2004): 385–406, and portions of Chapter 6, which appeared in “Power, Perception, and Interracial Sex: Former Slaves Recall a Multiracial South,” Journal of Southern History (August 2005): 559–88. Finally, I must thank my husband, Arthur Terry, Jr., for making my life more than this book. There are not enough words to express my gratitude and appreciation to him. Thanks to Wilson, who gave me the incentive to finish this project. And I would also like to thank my parents, James and Okie Yarbrough, and my brother Roy for their continued support.