Race and the Cherokee Nation: Sovereignty in the Nineteenth Century

Race and the Cherokee Nation

Race and the Cherokee Nation

Sovereignty in the Nineteenth Century

FAY A. YARBROUGH

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

1. A Moment of Inclusion: Molley

2. Racial Ideology in Transition: Shoe Boots

3. The 1855 Marriage Law: Racial Lines Harden

4. The Civil War: A Missed Opportunity

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

6. Indian Slavery and Memory: Interracial Sex from the Slaves’ Perspective

7. The Fight for Recognition Continues: Lucy Allen

Appendix

Notes

Index

Acknowledgments

Maps and Tables

Map 1.  Cherokee Land Cessions

Map 2.  Southeastern Indian Territories

Map 3.  Indian Territories in Georgia

Map 4.  Removal Routes of Southeastern Indians to Indian Territory

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

Map 6.  Indian Territory (1866–1889)

Map 7.  Districts of the Cherokee Nation

Table 1.  Cherokee Nation Marriages Recorded by Year

Table 2.  Cherokee Nation Marriages Recorded by Marriage Type

Table 3.  Interracial Cherokee Nation Marriages by Year

Table 4.  Racial Identification of Men Married to Cherokee Brides

Table 5.  Noncitizen Population by Race

Table 6.  Racial Identification of Women Married to Cherokee Grooms

Table 7.  Permitted Persons by District and Sex

Table 8.  Population of the Cherokee Nation by Race and District, 1880

Table A.1.  Marriage License Fees by District

Table A.2.  Petitions for Marriage Licenses by District

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

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

Table A.5.  Distribution of Marriages for Cherokee Women

Table A.6.  Distribution of Marriages for Cherokee Men

Table A.7.  Interracial Cherokee Nation Marriages by District

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 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 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; 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 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 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 ex-slaves, 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.

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 non-Cherokee 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 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 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