When Tribal Nations Expel Their Black Members


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In 1979, an Oklahoma woman named Johnnie Mae Austin stopped getting mail from the Muscogee Nation. There were no more announcements of meetings, notices of elections, or news of monetary settlements. The problem wasn’t postal. Austin’s Muscogee citizenship had been erased by a new Muscogee constitution in which citizenship was defined “by blood,” words that named a fraught crossroads in Native and African American histories. The Muscogee people, also referred to as Creeks, were among the tribes that once enslaved people of African descent and that were required, in the wake of the Civil War, to accept them as tribal citizens. A tribal-enrollment census around the start of the twentieth century split the Muscogee citizenry into groups that were separate but by no means equal. One roll—the “by blood” roster—listed people of Creek heritage, while a second, “freedmen,” roll named Black Creek citizens, the formerly enslaved and their descendants. Austin’s ancestors appeared on the second roll. With the new constitution, Muscogee citizenship was reserved for those on the first roll, or their lineal descendants. And so Austin, after forty-seven years of being Creek, found her tribal identity legally and politically erased.

As the journalist Caleb Gayle recounts in “We Refuse to Forget: A True Story of Black Creeks, American Identity, and Power” (Riverhead), Austin had filled the walls of her home with pictures of Black Creek aunties and uncles, interspersed with the teaching licenses of family members who had once led Black Creek schools. Her people, she recalled, grew up on Creek land, sang Creek songs, picked up curse words and jokes in the Muscogee language, and felt that they were “Creek to the bone.” You’d hear similar stories from other people of African descent who had grown up among the so-called Five Civilized Tribes—Muscogee, Cherokee, Choctaw, Chickasaw, and Seminole. Yet the Muscogee “by blood” decision was followed by similar restrictions issued by other tribes. Here were people whose ancestors had been enslaved by, married to, and emancipated from Native Americans. Many of them settled among Native communities and shared language, culture, and children across multiple generations. They had been accepted as members of those communities, even recognized as such by the federal government. How could their expulsion possibly be justified?

The nineteenth-century white Americans who designated the Five Tribes as “civilized” cited, in support of the honorific, the fact that the groups maintained long-standing trade relations, had an interest in education and Christianity, adopted formal constitutions—and enslaved African people. The tribes, which came from the Southeast, had long occupied a realm of warfare and captivity, exacerbated by English settlers’ encouragement of an intertribal raid-and-trade slave economy that hurled Indigenous bodies into the world of Atlantic slavery. When Africans were dragged into the picture, the English paid Indians to hunt those who escaped. Sometimes Black fugitives sought to go Native, with varying results: tribes incorporated some, killed or enslaved others. Born out of existing practice and new Colonial impositions, slaveholding among the Five Tribes developed hybrid forms. Though the familiar Southern plantation was surely part of the picture, enslavement typically operated at a smaller and more intimate scale. In the terse summary of Buddy Cox, a twenty-first-century Creek (and the nephew of an influential chief), “We owned some, we were some, and we slept with some.” Black people could be chattel, socially integrated kin, marriage partners, or participants in emerging Native groups such as the Seminole.

Being deemed “civilized” didn’t protect the Five Tribes from forced displacement. As American planters sought to expand their empire of unfreedom across the South, the Five Tribes stood in the way, and the United States embarked on a devastating series of land clearances. The tribes were forced to swap extensive areas in the Southeast for newer and smaller parcels in what was later called Indian Territory, today’s Oklahoma. With the passage of the Indian Removal Act of 1830, tribes were driven west to Indian Territory on the deadly journeys now commonly referred to as the Trail of Tears. As the historian Alaina E. Roberts recounts in “I’ve Been Here All the While: Black Freedom on Native Land” (University of Pennsylvania), the Five Tribes were effectively compelled to become settler colonists themselves, displacing Native groups in the West. They also brought with them enslaved Black people, thus further extending the reach of American chattel slavery beyond the Mississippi. In Indian Territory, what had been a set of highly varied, sometimes kin-adjacent forms of enslavement began to harden, and Indian attitudes and practices edged closer to those of white Americans.

The Civil War intensified divisions among the Five Tribes, several of which fought civil wars of their own, imperfectly aligned with the American struggle between North and South. After the war, the United States pointed to a series of Confederate treaties that the tribes had entered into (necessitated, perhaps, by the Union’s early withdrawal from Indian Territory), and declared all previous agreements null and void. In 1866, the federal government demanded that each of the Five Tribes sign new treaties, which reduced Indian lands by half. The treaties also followed the logic of Reconstruction in the South, freeing enslaved people while requiring tribes to establish new political relations with them. The Seminoles proved most open to Black citizenship, the Chickasaws and the Choctaws the least, with the Cherokees and the Creeks somewhere in between.

In this postwar landscape, Roberts suggests, citizenship may not have mattered as much as belonging—affective ties to community, family, and geography. For instance, Chickasaw freedpeople, though never recognized as citizens of the Chickasaw Nation, nonetheless remained committed to living among its members and places; it’s where they felt they belonged. The Five Tribes made room for freedpeople on their lands, while the federal government opened much of the land ceded in the 1866 treaties to the formerly enslaved. As members of tribal nations, freedpeople may not have received a mule, but many acquired much more than forty acres in what amounted to the first and most effective reparations program in American history.

The practice of Native dispossession often proceeded under the theory of Native protection; even the 1830 Indian Removal policy was justified as an effort to safeguard Native people from rapacious whites, distancing and segregating them for their own good. The same went for the General Allotment Act, of 1887. Humanitarians such as its author, Senator Henry Dawes, believed that they could save Indians by making them assimilate into American society as Jeffersonian yeoman farmers working their own patch of ground. In Dawes’s scheme, collectively held reservation lands were divided into parcels ranging from forty to three hundred and twenty acres and distributed to individual Indians and to Indian families; the remainder was sold at cut-rate prices to white settlers who would live among them. Dawes meant both to disaggregate Indian land and to desegregate it, bringing in farmers who would model civilized agrarianism for their Indian neighbors. Although the Five Tribes were initially exempted from the allotment law, Senator Dawes himself showed up in Indian Territory in 1894, leading what was unsurprisingly called the Dawes Commission, which successfully pressured them to accept the policy.

The net result of Dawes’s allotment campaign was that some ninety million acres passed out of Indian control—not in large-scale treaty concessions but in small increments, as private Native parcels ended up in white hands, often through fraud or coercion. It’s no coincidence that the campaign arrived during the era of boarding schools, in which Indian children were forcibly removed to be educated away from their cultural roots. Or that it overlapped with the “Civilization Regulations,” imposed on Indian peoples between 1883 and 1934, which criminalized everything distinctively Native—including dancing, ceremonies, and long hair—and punished infractions with starvation and imprisonment. If some measures of the allotment age were later reversed, others continued to exert an influence generations later. Among them were the separate membership rolls that the Dawes Commission produced—and that, eight decades on, stripped Johnnie Mae Austin of her Creek citizenship.

It might seem perverse that in 1979, with the memory of the civil-rights movement still fresh, Indian tribes began to restrict citizenship on the basis of racial difference. But in 1983 the Choctaw Nation joined the Muscogee in excluding the descendants of freedpeople, and in 2000 the Oklahoma Seminoles imposed racially restrictive rules as well. The Cherokee Nation followed suit in 2007. (The Chickasaws had never recognized freedpeople as members at all.) The exclusions cast a harsh light on anti-Black racism among the Five Tribes, whose members seemed all too ready to formalize racial distinctions in tribal policies, constitutions, and legal decisions.

These striking inequities shape Gayle’s account of the Black Creeks. Where Roberts draws upon a complicated personal heritage—including Chickasaws, Choctaws, freedpeople, African Americans, and whites—to explore a post-Civil War reconstruction situated in Indian Territory rather than in the South, Gayle, drawing on his experience of growing up Black in Oklahoma, offers an account that celebrates African American success. “We Refuse to Forget” narrates a family history, sketching a series of individual stories that will lead to Johnnie Mae Austin.

Genealogical histories thrive on founding figures. In Gayle’s story, that founder is Cow Tom, a Black cattle drover and a translator for Creeks who refused to speak English. During the Civil War, as the leader of a group of Black Creek refugees, Cow Tom stepped out of the translator role and into tribal leadership, negotiating with Union Army officers and later travelling to Washington, D.C., to advocate for the rights of Creek freedpeople. Steadily establishing himself as a prosperous farmer, rancher, and mill owner, Cow Tom left behind the kind of accumulated wealth seldom seen among Black families of the nineteenth century. Nor was he alone in his eminence. His relative Legus Perryman, a large landowner, served as a district judge and as a member of the Creek House of Warriors and the National Council. From 1887 until 1895, he was the “principal chief,” taking up the burden of negotiations with the federal government.

Cow Tom’s grandson Jake Simmons prospered as a rancher, and his son Jake Simmons, Jr., used his hundred-and-sixty-acre allotment to establish himself as an oilman and a land broker, leveraging “the benefits of his Creek identity,” in Gayle’s words. Working with Frank Phillips (a founder of what is today ConocoPhillips) and other businessmen, he crafted deals for oil leases, made land acquisitions across the region, and represented American oil interests in Ghana, Nigeria, and Liberia. Jake, Jr., also became a major Black voice in Oklahoma race politics, chairing the state N.A.A.C.P., sponsoring legal challenges to segregation, and eventually suing the local board of education. Because Austin was the granddaughter of Jake Simmons, Sr., Gayle can neatly trace a line back to Cow Tom. At the other end of this two-century-long genealogical chain is Austin’s grandson Damario Solomon-Simmons, an attorney who represented Black Creeks, Austin among them, seeking to restore tribal citizenship.

But how to reconcile citizenship claims with tribal-sovereignty claims? A constitutive element of being a sovereign nation, after all, is having control over citizenship criteria. And, as tribal nations have developed economic resources and political standing in the course of the past several decades, wannabe Indians have appeared on their borders. In Canada, people have claimed to be “Eastern Métis,” on the basis of a single Indigenous ancestor several centuries ago. In the U.S., an African American “tribe” calling itself the Washitaw has invented fantastic genealogies issuing from the lost continent of Mu. Bogus Cherokee tribes have proliferated, asking for state and federal recognition. Meanwhile, individual ethnic impostors seek tribal citizenship by means of vague assertions of ancestry; others brandish results from DNA tests. Tribes have responded with restrictions and occasional purges of membership rolls.

Gayle and Roberts capture the tumultuous sound of two “one-drop rules” clashing. Indians have reason to exclude Americans—both white and Black—who amplify a drop of “Indian blood” to claim Indigenous authenticity and perhaps tribal benefits. But then there’s the troubling “one drop of Black blood” logic of the Dawes Rolls, which defined both Black freedpeople and mixed-blood Black Creeks as unequivocally Black, but allowed mixed Creeks who had white ancestry to remain among the “full-bloods.” And Creeks have clearly played on the difference, wielding the word “Estelusti”—“Black man”—to speculate about who among them did or did not have a drop or two. The result is akin to an optical illusion: look at the situation one way, and you see Native people affirming the significance of their ancestry; look at it another way, and you see anti-Black racism.

There are further complications. Any remedy imposed by the federal government would represent a frontal attack on tribal sovereignty. The recent Supreme Court decision in McGirt v. Oklahoma, which upheld the Muscogee Nation’s criminal jurisdiction over the tribe’s official territory, rests on the same 1866 treaties that insisted tribal nations accept as citizens the Black people they had enslaved. There’s nothing new in the clash between civil rights and tribal rights, but the questions it raises have gained urgency during the past generation. Can sovereignty ever justify race-based exclusion? Have tribes themselves failed to meet their treaty obligations? Does the United States, with its own sketchy record, have the moral authority to pass judgment on tribal decisions?

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