The term "badge of slavery" was used in John Marshall Harlan's famous 
dissent in Plessey v. Ferguson (1896) over racial segregation.  Since it was 
used in a dissent, it is barely a term of art in constitutional law, let 
alone a title for a doctrine.  One might as well argue, as some on the far 
right have, that citizenship acquired under the 14th Amendment is a badge of 
slavery.  Moreover, the Cherokee were not required to sign the treaty, they 
could have taken the consequences of not signing it.  American Indians will 
probably never take the 'coercion' legal argument to court for fear that 
whites will make similar claims to disallow Native American treaty claims.

In any case, a treaty that is over 140 years old will almost certainly 
stand.  The legal issue will be about what the treaty means.

I remember reading in John Rembar's The Law of the Land, that equity does 
not favor those who sleep on their rights.  A major question that will 
undoubtedly come up in court is why the Cherokees in 2007 are voting to 
remove people from the tribal structure who have been free men and women 
within the Cherokee Nation since Cherokee self-emancipation (that you refer 
to.)

Harold S. Forsythe
----- Original Message ----- 
From: "Coats Family History" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Saturday, March 03, 2007 10:59 AM
Subject: Re: Cherokee Election March 3rd Q&A


Yes, very true...and I suspect the treaty will trump ...however, that
1866 treaty is really a badge of slavery, which concept has been used
to force the state of South Carolina to remove their Union Jack flags
from their capital building...so is a Nation that is *forced* into a
treaty one that is binding one party to a 3rd party, did the Freedmen
agree to the Treaty, lots of unresolved issues, here can a treaty be
used to bind one party for the sole benefit of another...the
Cherokee's had emancipated their slaves prior to this treaty and the
US declared that null and void and then forced the 1866 treaty upon
the Cherokee Nation as a result of their position on the confederate
site of the Civil War...thus that treaty is a badge of slavery to both
the Freedmen and the Cherokees...

On 3/3/07, Debra Jackson/Harold Forsythe <[log in to unmask]> wrote:
> The treaty constrains the Cherokee Nation.  See Article VI of the US
> Constitution.
> Contemporary Cherokee are citizens of the US, but they may retain certain
> reserved rights gained by treaty when their ancestors were subordinate
> nations.
>
> Were I a lawyer, this is the course I would take to defend freedmen's 
> rights
> within the Nation.  I would also question whether the Dawes Rolls are the
> magna carta of tribal membership.
>
> Harold S. Forsythe
> ----- Original Message -----
> From: "Coats Family History" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Saturday, March 03, 2007 10:10 AM
> Subject: Re: Cherokee Election March 3rd Q&A
>
>
> Not sure about inherited treaty rights, treaties were entered into
> government to government...but Indian Tribes at least via the Nations
> consider themselves sovereign nations, us Courts have treated them as
> corporations but the modern political view is that they can determine
> their own membership...thus the conflict between this 1866 treaty and
> their right to determine their own citizenship.  And for other tribes
> without this treaty cloud, those members that are disenrolled, there
> is no remedy...
>
> On 3/3/07, Debra Jackson/Harold Forsythe <[log in to unmask]> wrote:
> > It should be remembered that members of recognized American Indian
> > nations,
> > and only members of recognized American Indian nations, retain treaty
> > rights
> > by inheritance from that time that Native Americans belonged to
> > subordinate
> > nations in a treaty relationship with the United States (see Worchester 
> > v.
> > Georgia).  Substantial benefits may be at stake in these proceedings and
> > the
> > Cherokee Nation as a sort of corporation still functions under the rules
> > of
> > the U.S. Constitution as interpreted by the U.S. Supreme Court.
> >
> > Harold S. Forsythe
> > ----- Original Message -----
> > From: "Coats Family History" <[log in to unmask]>
> > To: <[log in to unmask]>
> > Sent: Friday, March 02, 2007 11:22 PM
> > Subject: Fwd: Cherokee Election March 3rd Q&A
> >
> >
> > ---------- Forwarded message ----------
> >
> >  *Special Election 2007
> > Questions and Answers
> > *
> > **
> >
> > *1. Who is eligible to be a citizen of the Cherokee Nation? * A. To be
> > eligible for tribal citizenship in the Cherokee Nation, you must be able
> > to
> > prove direct descent from an enrolled ancestor who is listed on the 
> > Dawes
> > Roll – Final Rolls of Citizens and Freedmen of the Five Civilized 
> > Tribes,
> > Cherokee Nation. This roll was taken from 1899-1906 and was a census of
> > Cherokee Nation citizens and freedmen residing in the portion of Indian
> > Territory that is now northeastern Oklahoma.
> > Many applicants do not qualify for Cherokee Nation citizenship because
> > their
> > ancestors did not meet the enrollment requirements of the Dawes Roll and
> > therefore were not enrolled.
> > Cherokee Nation citizenship is issued through natural (biological)
> > parents.
> > In adoption cases, citizenship eligibility must be proven through the
> > biological parent's direct line to the enrolled ancestor.
> > *2. Why does Cherokee Nation use the Dawes Final Rolls to determine its
> > citizenship?*
> > A. Article IV. Of the Cherokee Nation Constitution sets forth the
> > requirements for citizenship within the Cherokee Nation. Section 1 of
> > Article IV states:
> > "All citizens of the Cherokee Nation must be original enrollees or
> > descendents of original enrollees listed on the Dawes Commission Rolls,
> > including the Delaware Cherokees of Article II of the Delaware Agreement
> > dated the 8th day of May, 1867, and the Shawnee Cherokees of Article III
> > of
> > the Shawnee Agreement dated the 9th day of June, 1869, and/or their
> > descendants.
> > "The Cherokee Nation recognizes the basic rights retained by all 
> > distinct
> > People and groups affiliated with the Cherokee Nation, retained from 
> > time
> > immemorial to remain a separate and distinct people. Nothing in this
> > Constitution shall be construed to prohibit the Cherokee-Shawnee or
> > Cherokee-Delaware from pursuing their inherent right to govern 
> > themselves,
> > provided that it does not diminish the boundaries or jurisdiction of the
> > Cherokee Nation or conflict with Cherokee law."
> > *3. Who are the freedmen descendents?*
> > A. They are the descendents of both freed persons of Indian Territory 
> > (now
> > part of the state of Oklahoma), who were the former slaves of American
> > Indians who settled in the area, and non-Indian free persons of color 
> > who
> > were not slaves, but resided in the territory.
> > *4. When did the citizenship rights of the freedmen descendents change?*
> > A. The 1975 Constitution provided citizenship to descendants of the
> > Cherokee, Shawnee and Delaware Dawes Rolls, which was interpreted to
> > exclude
> > the freedmen and their descendents. In a March 7, 2006, decision the
> > Cherokee Nation Judicial Appeals Tribunal ruled that the 1975 
> > Constitution
> > citizenship provision was not clear enough to exclude descendants of
> > non-Indian rolls, but also ruled that the people could vote again on the
> > issue. The decision also meant that citizenship in the Cherokee Nation 
> > was
> > now opened to descendents of freedmen who were included in the Dawes 
> > Final
> > Rolls, until such a vote takes place. Freedmen descendents who are
> > enrolled
> > tribal citizens are eligible to vote in the March 3, 2007, special
> > election.
> > *5. Who sponsored the initiative petition that requested the March 3,
> > 2007,
> > special election?*
> > A. The petition was sponsored by citizens of the Cherokee Nation. It was
> > not
> > sponsored by the Cherokee Nation.
> > In accordance with the Cherokee Nation Constitution, Article XV, Section
> > 3,
> > the people of the Cherokee Nation have the right to propose legislation
> > and
> > amendments, including those that set citizenship requirements, to the
> > Constitution through a petition process. The Principal Chief is required
> > by
> > law to submit the question to the People when a valid petition with a
> > legal
> > number of signatures of eligible Cherokee citizens so orders it. To be
> > eligible to sign the petition, a person must be a legal voter of the
> > Cherokee Nation.
> > *6. What is the wording of the measure that will be voted on in the 
> > March
> > 3,
> > 2007, special election? *
> > A. The measure will appear on the ballot as follows:
> > "This measure amends the Cherokee Nation Constitution section which 
> > deals
> > with who can be a citizen of the Cherokee Nation.
> > A vote "yes" for this amendment would mean that citizenship would be
> > limited
> > to those who are original enrollees or descendants of Cherokees by 
> > blood,
> > Delawares by blood, or Shawnees by blood as listed on the Final Rolls of
> > the
> > Cherokee Nation commonly referred to as the Dawes Commission Rolls 
> > closed
> > in
> > 1906. This amendment would take away citizenship of current citizens and
> > deny citizenship to future applicants who are solely descendants of 
> > those
> > on
> > either the Dawes Commission Intermarried Whites or Freedmen Rolls.
> > A vote "no" would mean that Intermarried Whites and Freedmen original
> > enrollees and their descendants would continue to be eligible for
> > citizenship.
> > Neither a "yes" nor a "no" vote will affect the citizenship rights of
> > those
> > individuals who are original enrollees or descendants of Cherokees by
> > blood,
> > Delawares by blood, or Shawnees by blood as listed on the Final Rolls of
> > the
> > Dawes Commission Rolls closed in 1906.
> > SHALL THE MEASURE BE APPROVED?
> > FOR THE MEASURE – YES
> > AGAINST THE MEASURE – NO"
> >
> > *7. Are African-Americans with Cherokee blood verifiable through the 
> > Dawes
> > Final Rolls allowed to become Cherokee Nation citizens? *
> > A. Yes, as they always have been. Their eligibility has never been at
> > issue.
> > The Cherokee Nation has citizens of many different ethnicities.
> > *8. Will African-Americans with Cherokee blood verifiable through the
> > Dawes
> > Final Rolls lose their tribal citizenship if the special election 
> > measure
> > passes?*
> > A. No.
> > *9. If the measure passes will all freedmen descendents be disenrolled
> > from
> > the Cherokee Nation?*
> > A. No. Freedmen descendents with Cherokee blood verifiable through the
> > Dawes
> > Final Rolls will still be citizens.
> > *10. Are other people with no verifiable Cherokee blood allowed to 
> > become
> > Cherokee citizens?*
> > A. Yes, two Indian tribes were adopted into the Cherokee Nation. Under 
> > the
> > Delaware Agreement of 1867 and the Shawnee Agreement of 1869, Delawares
> > and
> > Shawnees who can show direct descent from an ancestor listed on the 
> > Final
> > rolls of the Cherokee Nation, commonly called the Dawes Rolls, are
> > eligible
> > to become citizens of the Cherokee Nation. This election will not affect
> > citizens of Delaware and Shawnee descent in any way.
> >
> >
> > ------------------------------
> >
> > --
> > Cherokee Basketweaving Books:
> > http://stores.lulu.com/cherokeebasketweaver
> >
> > See more of my Baskets:
> > http://www.flickr.com/photos/cherokeebasketweaver/
> >
> > Visit the Family History Store at LuLu:
> > http://www.lulu.com/allfamilyhistory
> >
> > Can't find the records you need and you're a male surnamed Coats or
> > varitation, order a DNA kit to join our DNA project:
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> >
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> >
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> >
> > Need Original Records?
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> >
> > Becoming a grandmother is wonderful. One moment you're just a mother.
> > The next you are all-wise and prehistoric.
> > ~Pam Brown
> >
> > Grandchildren don't stay young forever, which is good because
> > Grandaddies have only so many horsey rides in them.
> > ~Gene Perret
> >
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>
>
> --
> Cherokee Basketweaving Books:
> http://stores.lulu.com/cherokeebasketweaver
>
> See more of my Baskets:
> http://www.flickr.com/photos/cherokeebasketweaver/
>
> Visit the Family History Store at LuLu:
> http://www.lulu.com/allfamilyhistory
>
> Can't find the records you need and you're a male surnamed Coats or
> varitation, order a DNA kit to join our DNA project:
> http://www.familytreedna.com/surname_join.asp?code=A59642&special=True
>
> Coats Archive
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>
> Baker DNA Project
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>
> Need Original Records?
> Pages through Time
> http://www.pagesthroughtime.us
>
> Becoming a grandmother is wonderful. One moment you're just a mother.
> The next you are all-wise and prehistoric.
> ~Pam Brown
>
> Grandchildren don't stay young forever, which is good because
> Grandaddies have only so many horsey rides in them.
> ~Gene Perret
>
> To subscribe, change options, or unsubscribe, please see the instructions
> at http://listlva.lib.va.us/archives/va-hist.html
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-- 
Cherokee Basketweaving Books:
http://stores.lulu.com/cherokeebasketweaver

See more of my Baskets:
http://www.flickr.com/photos/cherokeebasketweaver/

Visit the Family History Store at LuLu:
http://www.lulu.com/allfamilyhistory

Can't find the records you need and you're a male surnamed Coats or
varitation, order a DNA kit to join our DNA project:
http://www.familytreedna.com/surname_join.asp?code=A59642&special=True

Coats Archive
http://www.coatsarchive.us

Baker DNA Project
http://www.bakerdna.net/

Need Original Records?
Pages through Time
http://www.pagesthroughtime.us

Becoming a grandmother is wonderful. One moment you're just a mother.
The next you are all-wise and prehistoric.
~Pam Brown

Grandchildren don't stay young forever, which is good because
Grandaddies have only so many horsey rides in them.
~Gene Perret

To subscribe, change options, or unsubscribe, please see the instructions
at http://listlva.lib.va.us/archives/va-hist.html 

To subscribe, change options, or unsubscribe, please see the instructions
at http://listlva.lib.va.us/archives/va-hist.html