Freedmen Descendants’ Lawsuit Against Cherokee Nation Dismissed

D.C. Circuit Court of Appeals unanimously rules that Cherokee Nation has sovereign immunity, Rejects Freedmen descendants’ theory
 
Opinion says tribal sovereign immunity existed since founding of U.S. and continues today

 WASHINGTON, DC. — The U.S. Court of Appeals for the District of Columbia Circuit unanimously dismissed a lawsuit against the Cherokee Nation brought by a handful of non-Indian Freedmen descendants.
            Judge Thomas Griffith, in his written opinion for the three members of the court, stated: “The Freedmen argue that our search for intent to abrogate is misguided because the Thirteenth Amendment and the 1866 Treaty predate the doctrine of tribal sovereign immunity, such that the drafters of those texts could not have foreseen the interpretive rule requiring express and unequivocal abrogation … This argument misapprehends the nature of tribal sovereign immunity, which is not the product of any enactment but an inherent attribute of a tribe’s sovereignty.  Tribal sovereign immunity existed at the Founding, as surely as did tribal sovereignty, and our only concern is whether the Thirteenth Amendment or the 1866 Treaty later abrogated that immunity.  The unequivocal-abrogation rule reflects the belief, as true in the nineteenth century as it is today, that lawmakers do not lightly discard sovereign immunity.  We see no reason to depart from the established interpretive rule based on the vintage of the texts.  Because nothing in the Thirteenth Amendment or the 1866 Treaty amounts to an express and unequivocal abrogation of tribal sovereign immunity, the Cherokee Nation cannot be joined in the Freedmen’s federal court suit without the tribe’s consent.  We reverse the District Court’s determination to the contrary.”
“In the 1830s, the Cherokee Nation won court cases, but Congress and the President ignored the rulings and instead forcibly removed the Cherokee Nation from our eastern homelands on the Trail of Tears, killing more than a quarter of our tribe’s population,” said Chad Smith, Principal Chief of the Cherokee Nation.  “It remains to be seen whether Congress will treat the Cherokee Nation any differently 170 years later.   Today, the court held that the 1866 Treaty preserves the Nation’s sovereign immunity from these claims.  What Congress and the Nation agreed to in 1866, the Congress should not violate now.  The court has sent the case back to the District Court, and Congress should continue to let the courts decide.”
The appeals court remanded the case against tribal officials back to the District of Columbia District Court.  Griffith wrote: “The District Court must determine whether ‘in equity and good conscience’ the suit can proceed with the Cherokee Nation’s officers but without the Cherokee Nation itself.”
 “This decision is a strong affirmation for tribes across the country, who rely upon federal courts to uphold tribal sovereignty when it comes under attack,” said Chief Smith.  “The court once again acknowledged that tribes have inherent sovereignty that predates the founding of the United States, and that tribal sovereign immunity still exists today.”
            The full opinion is available at www.cherokeenationfacts.org and www.cherokee.org.

Black Cherokees–Still Part of the Tribe Before and After March 2007 Vote

UNITY
http://unitynews.org/2008/07/25/emotions-flare-during-naja-panel/#comment-112
What gathers people, nations, and cultures together-shared views, blended life experiences, or the desire to have an understanding of the other, insight…
Each of us could bring elements and ideas, adding definition of what unity means to them.
As the grandmother and mother of Afro-American and Cherokee by blood children, and citizens of Cherokee Nation, our families are defined by those relationships we build into our lives and communities. Tribal citizenship starts with blood-ties, then you build the culture.
The media and public has neglected to see and hear from those of us who are Black-Cherokee by blood citizens in Cherokee Nation. Thereby failing to recognize that we exhisted before and will continue to long after this ‘issue’ has settled.
Some will walk away and find another task to attach themselves to and wage war, again. But many of us will walk throughout our life time and our descendents’ in the footsteps of being a blended family of both Afro and Cherokee by blood.
I am not aware of our journalists of color seeking out the diverse communities within Cherokee Nation beyond a PR spin, yet are quick to proclaim what is happening within our neighborhoods, homes, governments, and thinking in regards to how we live. I’d like to see and acknowledge how the Black politicians (CBC), representatives, and speakers have come into our nation and homes, to spend time with our familes to see the exchange of relationships that better represent those portrayed as being “kicked out and purged” from the rolls and nation, in the mis-informed words of Congresswoman Diane Watson, who has refused multiples invitations to come visit our homelands and people.
We are still here as Black-Cherokee citizens before and after the March 3, 2007 vote, which defined and further embraced our rich cultures, diversity, and acknowledged the unity which can exist between people.
My children, and theirs, can return to the communtites of their ancestors in eastern Oklahoma and still be at home with their relatives. That’s unity! tp
Twila Pennington
Cherokee Nation citizen, Blue Clan

BIA Pressed on Freedmen Status

CRITICS OF CHEROKEES
U.S. Reps. Diane Watson: As part of the effort to build a record that could lead to a hearing, they have laid out a series of questions in a letter concerning the status of the freedmen and the tribe.

By JIM MYERS World Washington Bureau
7/6/2008
Last Modified: 7/6/2008 4:34 AM

A congressional hearing is apparently the goal.WASHINGTON — Congressional critics of the Cherokee Nation of Oklahoma continue to press a federal agency concerning the status of the descendants of the tribe’s freedmen.

One of their major goals apparently is to force the controversial issue before a congressional hearing.

The Cherokee Nation believes such a hearing should be viewed as “blatant interference” by lawmakers if it is scheduled before pending litigation is resolved.

As part of their effort to build a record that could lead to a hearing, U.S. Reps. Diane Watson, D-Calif., the most vocal critic of the Cherokee Nation in Congress, and John Conyers Jr., D-Mich., the chairman of the House Judiciary Committee, laid out a series of questions concerning the status of the freedmen and the tribe in a letter to George Skibine. Skibine is the acting head of the Bureau of Indian Affairs.

Their questions range from the legal status of the freedmen and the processing of citizenship applications to the BIA’s actions to protect freedmen’s rights and the federal government’s take on the Cherokee constitution.

Noting a March meeting with Skibine’s predecessor, Carl Artman, the two lawmakers cite complaints they had passed on then that the BIA had failed to take action to protect rights of the freedmen, former slaves of Cherokees.

Watson and Conyers’ letter was dated June 3, but a copy was released several days ago.

It followed a May 22 letter from Artman to them and two other key lawmakers who also were at the meeting.

In his letter, Artman, who has since left office, told the lawmakers the BIA will not take further action on the long-running freedmen controversy until the litigation is resolved.

A group of freedmen filed the lawsuit challenging a vote by the Cherokee Nation to remove freedmen descendants from tribal rolls.

Watson, who believes the Cherokee Nation would be in violation of an 1866 treaty if it expels the freedmen, made it clear she was not satisfied with Artman’s response.

When asked about the letter to Skibine, Watson aide Bert Hammond said the lawmakers wanted more responses from the BIA in writing so a record could be established.

Hammond said that could lead to a congressional hearing.

The BIA did not respond to a request for a comment on the letter from Watson and Conyers.

In a written statement, the Cherokee Nation expressed opposition to scheduling a hearing before the litigation is resolved.

“With all due respect to the prerogatives of members of Congress, it is clear that a hearing would be a blatant interference by politicians in the litigation on these very issues currently in the federal and tribal courts,” tribe spokesman Mike Miller said.

“No matter what your opinion is on the merits, it would be inappropriate to have a hearing before the courts decide.”

Still, the tribe backed the effort to provide additional information to lawmakers.

“We think the more information that members of Congress have, the clearer it will be that the Cherokee Nation’s actions have been consistent with our treaty obligations, our constitution, and federal and tribal laws and court decisions,” Miller said.

He expressed hope that lawmakers also come to realize that Congress already has passed laws in 1902 and 1906 to remove freedmen descendants as citizens of the Cherokee Nation.

Miller said the tribe is now in the position of being forced into giving non-Indian freedmen something that Congress took away more than 100 years ago.

“We also hope they understand that cutting our federal funding will take away health care, housing and education assistance for thousands of low-income Indians and non-Indian freedmen descendants who have temporarily reinstated in the tribe,” he said.

Watson and others have pushed legislation designed to withhold federal funds as a way to force the tribe to drop its efforts on the freedmen.

A potential impasse on that issue may put at risk a housing bill supported by tribes across the country.

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Jim Myers (202) 484-1424
jim.myers@tulsaworld.com