OKLAHOMA CITY – Within the legally complex Cherokee freedmen issue is a question of morality, Harvard law professor Charles Ogletree told members of the Federal Bar Association on Thursday.

“Any sovereign group has a right to decide who’s in and who’s out,” he said. “But there’s a difference between having the right to do something, that is be in power when you have the opportunity to do something, and doing the right thing.”

Litigants in at least three court cases argue that their ancestors’ status as freedmen, former slaves of Cherokees who were adopted into the tribe under an 1866 treaty, entitles them to the right of citizenship in the tribe. The Cherokee Nation amended its constitution in 2007 to remove 2,867 freedmen descendants from tribal membership. Those individuals were later reinstated during the pendency of the litigation.

Ogletree outlined legal decisions that at one time held that blacks had no rights whites needed to respect, labeling them property and placing them below Native Americans, who were themselves referred to as savages.

“Does everyone lose, when we start to, in our own community, narrowly define citizenship?” he said.

Ogletree cautioned those in attendance against engaging in a dispute that could eventually harm both sides.

“I see this debate about the Cherokee Nation and the freedmen as a chance to think about a consolidated effort to improve all of our situations,” he said. “We have more in common than we have in difference.”

Cherokee Chief Chad Smith spoke on behalf of the tribe.

“This is probably the perfect emotional storm,” Smith said, pointing out that both sides understand the harmful effects of slavery.

However, he said the tribes fought long and hard to maintain a sense of sovereignty. The courts have determined that one of the rights attendant to sovereignty is the right to determine citizenship, he added.

Smith also contended that congressional actions taken around the turn of the last century abrogated the 1866 treaty and took away the rights of non-Indian freedmen.

Smith said the issue is legal in nature: whether freedmen descendants met the requirements for citizenship in the Cherokee Nation. The chief said that about 1,500 current descendents of freedmen are members of the Cherokee tribe, which requires that an individual have at least one Indian ancestor to qualify for membership.

Ogletree questioned reliance on federal rolls to determine tribal membership, saying some people may have been improperly excluded. He asked whether there may be some more inclusive, less divisive way to address the issue.

Smith said he would like to find some way to address the issue of wrongful exclusion. However, he said some 500,000 people think they have Cherokee ancestors, in addition to the tribe’s 250,000 members.

Norman attorney Jon Velie said freedmen were entitled to Cherokee citizenship under the 1866 treaty.

“As a matter of law, the freedmen are citizens,” he said.

Ogletree said there is some danger in the courts becoming involved in deciding such matters, noting that sovereignty and citizenship are different issues.

Smith asked why some seem to believe it is wrong for the Cherokee Nation to require that its members be Native Americans. He said that if a tribe cannot decide the question of citizenship, there is little left of its sovereignty.