Judge rules Freedmen can sue Cherokee Nation
Wednesday, December 20, 2006
Filed Under:
Citing a history of marginalization by the Cherokee Nation, a federal judge on Tuesday allowed Freedmen descendants to challenge their treatment by the Oklahoma tribe.
In a 28-page ruling, Judge Henry H. Kennedy in Washington, D.C., said the descendants of former slaves can sue the tribe and its leaders, including Principal Chief Chad Smith. He said the tribe's sovereign immunity was abrogated by Congress through treaty and by the Thirteenth Amendment of the U.S. Constitution, which
outlawed slavery.
Kennedy, a Clinton appointee, acknowledged the Constitution doesn't apply to tribal governments. But he said the prohibition of slavery covers private parties such as the Cherokee Nation.
"[T]here is no dispute that the broad sweep of the Thirteenth Amendment applies to Indian tribes as well," Kennedy wrote.
The judge also noted that a post-Civil War treaty signed in 1866 requires the tribe to treat the Freedmen fairly. The Cherokee Nation, which had more slaves than any other tribe, had sided with the Confederacy.
Despite the passage of the Thirteenth Amendment and Congressional ratification of the 1866 treaty, Kennedy said the tribe has not lived up to its word. "Almost immediately after the emancipation of the Freedmen, the Cherokee Nation began marginalizing them," the ruling stated.
Congress subsequently passed two laws to ensure the Cherokee Freedmen were protected. The U.S. Supreme Court also confirmed the citizenship and property rights of the former slaves.
"By repeatedly imposing such limitations on the sovereignty of the Cherokee Nation in order to protect the Freedmen, Congress has unequivocally indicated its intent to abrogate the tribe's immunity with regard to racial oppression prohibited by the Thirteenth Amendment," Kennedy wrote.
As a result, the Freedmen can add the Cherokee Nation, Smith and other tribal leaders as defendants in the suit. "I am pleased that the honorable judge had held that the Cherokee Nation, a
federally recognized tribe, is required to follow the laws of the U.S. Constitution and to follow the Treaty of 1866," said Marilyn Vann, the lead plaintiff.
Jon Velie, the attorney handling the case, said the lawsuit enables the Freedmen to challenge a recent tribal election. In 2003, Cherokee voters approved a new constitution and re-elected Smith but the Freedmen say they were denied a right to vote.
Normally, the Interior Department must approve any changes to the tribe's constitution but the new document removed that requirement. That means any future changes, such as denying the Freedmen citizenship or otherwise disenfranchising them, would not be subject to federal review.
Smith in fact called for a referendum to limit citizenship to those with Cherokee, Delaware or Shawnee blood. His move came after the tribe's top court ruled that the Freedmen can't be
denied because the constitution does not restrict membership by blood.
As of August 2006, the Interior Department refused to recognize the new constitution. Associate deputy secretary Jim Cason said that it appears the Freedmen were not able to vote in the election.
Smith responded that the tribe doesn't need federal approval to move forward. The lawsuit places a barrier in his plans to create what he has called an "Indian" nation, rather than one that includes
the Freedmen.
"Many Cherokees, including those who wrote the constitution in 1975, believed that Cherokee voters understood that a vote to approve the 1975 constitution would exclude Freedmen from citizenship," Smith said after the court decision. "Many of those voting to exclude the Freedmen
believe that an Indian nation should be composed of Indians."
Court Decision:
Vann v. Kempthorne (December 19, 2006)
Cason Letter:
Cherokee Nation
Constitution (August 30, 2006)
Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen
Case:
Allen
v. Cherokee Nation (March 7, 2006)
Relevant Links:
Freedmen Of The Five Civilized Tribes -
http://www.freedmen5tribes.comFreedmen
Conference -
http://www.freedmenconference.com
Related Stories:
Cherokee Chief: Tribe to vote on Indian
blood (12/06)
USA Today: Tribes
remove thousands from rolls (11/29)
Cherokee court hears dispute over Freedmen vote
(11/27)
Cherokee court to consider
Freedmen referendum (11/20)
Freedmen
descendant sues over citizenship change (11/03)
Cherokee Freedmen to challenge removal (10/10)
Cherokee chief calls vote on removing
Freedmen (10/9)
Cherokees defend right to
kick Freedmen out of tribe (09/21)
Cherokee chief rejects need to approve
constitution (09/11)
Cherokee Nation
questioned on Freedmen vote (9/7)
Petition to oust Cherokee Freedmen submitted
(08/15)
Petition seeks vote on ousting
Cherokee Freedmen (07/31)
Cherokee
Nation to vote on blood quantum change (6/13)
Cherokee Nation council debates blood quantum
(6/12)
Cherokee Nation's top court
approves constitution (6/9)
Cherokee
committee approves membership proposal (05/16)
About 800 Cherokee Freedmen enrolled since
decision (05/01)
Cherokee chief sued over
vacant legal position (04/13)
Cherokee
chief criticized for stance on Freedmen (4/6)
Two Creek Freedmen apply for citizenship after
ruling (03/22)
Creek Freedmen see
opening in citizenship dispute (3/21)
Cherokee chief calls for an 'Indian' Nation by
blood (3/20)
Cherokee chief criticized
for stance on Freedmen (3/17)
Cherokee
chief wants Freedmen out of tribe (3/15)
Editorial: Victory long overdue for Cherokee
Freedmen (3/10)
Cherokee Nation to
enroll Freedmen descendants (3/9)
Cherokee Freedmen win tribal citizenship lawsuit
(3/8)
Cherokee chief wants to sue BIA
over constitution (02/15)
Freedmen
descendants shut out of Cherokee Nation (11/22)
Trial concludes in Freedmen membership case
(09/15)
DNA tests being used to bolster
Indian heritage claims (08/30)
Ex-Cherokee councilors fined for Freedmen
support (08/23)
Freedmen descendants use
DNA to show Indian blood (06/03)
Column:
Civilized Tribes owe reparations to slaves (03/11)
Cherokee Nation seeks role in Freedmen lawsuit
(02/21)
Cherokee leaders blast Coburn for
'divisive' remarks (9/17)
Cherokee
Freedmen caught in high-level dispute (8/20)
Cherokee Nation chief sworn in for another term
(8/15)
Seminole Freedmen rebuffed by
Supreme Court (06/29)
Cherokee
Freedmen sue BIA for disenfranchisement (8/12)
Court tackles Seminole dispute
(9/24)
The Seminole
Nation's hanging chad (8/8)
Resolution of Seminole dispute
sought in court (5/28)
Court
decision rocks Seminole Nation (5/8)
Seminole's Chief Haney restored to
power (5/7)
Black Seminole
appeal planned (5/1)
Black
Seminoles dealt setback (4/30)
Opinion: Seminole Nation always
black (4/22)
A fight over
funds, race (4/4)
Seminole
Head Start funds OKed (2/6)
Seminole changes sought again
(1/16)
Ousted Seminole leader
sues tribe, BIA (12/14)
Black
Seminole issue still divisive (10/29)
Suspended Seminole Chief to sue
(6/27)
Seminole Chief Haney
suspended (6/26)
Race part of
Seminole dispute (1/29)
Seminole
voters approve changes (7/7)
Seminole vote may affect Freedmen
(7/7)
Copyright © Indianz.Com
Subscribe