Ousted Cherokee Freedmen seek DOI action against tribe

Thursday, May 10, 2007

The Cherokee Freedmen went back to court this week to prevent the Cherokee Nation from ousting them from the tribe.

In a brief filed on Wednesday, the Freedmen asked a federal judge for a preliminary injunction. They want the Bush administration to halt federal funds to the tribe, to invalidate the election that ousted the Freedmen and to sever the government-to-government relationship with the tribe.

The brief cited a recent letter from assistant secretary Carl Artman in which he questioned the tribe's March 3 vote to deny citizenship to the descendants of African slaves. But the Freedmen say the Interior Department isn't taking action to protect the Freedmen.

"The federal defendants, for their part, have done nothing," attorneys for the Freedmen wrote.

The plaintiffs, led by Marilyn Vann, also asked the court to stop the tribe from denying the Freedmen their "full citizenship rights." They are hoping for action before an election scheduled for June 23.

"The Cherokee Nation has taken the audacious step of disenfranchising its most vulnerable citizens by enacting a constitutional amendment n blatant violation of the Thirteenth Amendment and its treaty obligations," the brief stated.

The Bureau of Indian Affairs has declined to comment on the dispute, citing the ongoing litigation. A spokesperson for the agency said the election is still being reviewed, the stance taken in Artman's March 28 letter.

Meanwhile, the Cherokee Nation's enrollment department has begun to inform Freedmen descendants that they no longer eligible for citizenship based on the results of the election. The Cherokee Nation's health department also has told Freedmen they won't be able to access services at tribal facilities in the future.

"The Cherokee Nation will continue to provide health care services to you for a period of 90 days," the tribe said in a March 28 letter.

Separately, the tribe has asked for the case, known as Vann v. Kempthorne, to be dismissed. Alternatively, the tribe wants the lawsuit to be heard in Oklahoma rather than Washington, D.C.

Judge Henry H. Kennedy in Washington added the Cherokee Nation to the suit over the tribe's objections. In a ruling last December, he said the tribe's sovereign immunity was abrogated by an 1866 treaty in which the tribe accepted the Freedmen as citizens and by the 13th Amendment of the U.S. Constitution, which outlawed slavery.

Kennedy, however, refused to halt the March 3 election out of respect for tribal sovereignty and the democratic process. He said the Freedmen failed to show how they would be harmed because it wasn't certain that Cherokee voters would approve the citizenship referendum.

At the same time, he left open the possibility that he would act if the Freedmen were ousted. He retained jurisdiction over the Cherokee Nation, which the tribe can dispute now that it is a party to the case.

The dispute has generated controversy in Indian Country and in Washington. Members of the Congressional Black Caucus, some who have been supportive of sovereignty, have blasted the Cherokee Nation for holding the election and have asked Interior Secretary Dirk Kempthorne to cut federal funding.

At the Federal Bar Association's Indian law conference last month, Vann defended her lawsuit amid accusations that it will negatively impact tribal rights. She said Kennedy's ruling at most applies to three tribes who signed treaties that required them to end slavery after the Civil War.

"For 99 percent of the tribes, anything the federal court does on this case is not going to affect your situation at all," she said, referring to tribal enrollment disputes that have cropped up across the nation, particularly in California.

"This is the tribe of our ancestors, this is our bloodline, these are our legal rights," she added.

Court Briefs:
Motion for Preliminary Injunction (May 8, 2007) | Memorandum in Support (May 8, 2007)

BIA Letter:
Carl Artman to Cherokee Chief Chad Smith (March 28, 2007)

Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19, 2006)

Jim Cason Letter:
Cherokee Nation Constitution (August 30, 2006)

Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen Case:
Allen v. Cherokee Nation (March 7, 2006)