The dispute over the legal status of the Cherokee Freedmen
will be heard by a federal appeals court in May amid efforts by
Congress to resolve the controversy.
are the descendants of former slaves. They say
a treaty signed after the end of the Civil War
guarantees them citizenship in the Cherokee Nation
Tribal leaders and members disagree. In March 2007,
Cherokee voters amended their constitution
to deny citizenship to people who can't trace their ancestry
to the Indian portion of the
that were created by the federal
government after the 1866 treaty
A tribal court has reinstated about 2,800 Freedmen
to citizenship pending a challenge to the referendum.
But that hasn't stopped litigation over the dispute
and it hasn't stopped members of Congress from threatening
to cut federal funding to the Cherokee Nation.
The Bureau of Indian Affairs
has said it will protect
the rights of the Freedmen.
Assistant secretary Carl Artman told
Cherokee Chief Chad Smith that the tribe
agreed to enroll the Freedmen "in exchange for
amnesty and the continuation of the government-to-government
relationship" in a May 2007
But the Bush administration says the litigation filed
by Marilyn Vann, a Freedmen leader, should end since
one of the main issues in the case -- the status of the Cherokee
constitution -- has been resolved. In August, Artman
approved changes to the tribe's constitution -- including
a provision that eliminates future federal review of
The Department of Justice
filed a motion to dismiss
Vann's case but
Judge Henry H. Kennedy
in Washington, D.C., declined
in a short decision on February 7.
Kennedy, however, agreed to stay proceedings pending
an appeal to the
D.C. Circuit Court of Appeals
On May 6
, a three-judge panel of the appeals court will consider
another big issue in the case -- whether the
Freedmen can sue the Cherokee Nation.
Kennedy ruled that the tribe's sovereign immunity was waived
by the 1866 treaty and the
the U.S. Constitution, which outlawed slavery.
The tribe is disputing the idea that it can be sued without its
consent. Cherokee leaders say Kennedy's decision sets
a bad precedent for Indian County, though only a small number
-- most notably the
of Oklahoma -- signed treaties
regarding their former slaves.
In addition to the lawsuit, the tribe is fighting legislation
that could cut off its federal funds unless the Freedmen
are permanently restored to citizenship.
Last September, the House added a provision to the
Native American Housing Assistance and Self-Determination Act that
would eliminate housing funds.
Chief Smith has appealed to other tribes in the U.S.
and Canada -- and
even to the United Nations
-- to protect what he says is
the Cherokee Nation's inherent right to decide who is entitled
The tribe also has mounted an extensive lobbying and public
to protest the legislation.
"The legislation would, in effect, either allow Congress to determine membership in the Cherokee
nation or sever federal financial obligations to the nation, close Cherokee businesses, and
legitimize unfounded lawsuits against the nation," Smith told
the United Nation's High Commissioner for Human Rights
According to the tribe, it will lose out on $300 million in direct federal
funding under the various pieces of legislation.
Under one bill, the tribe will be forced to close its
gaming facilities, which are a significant source of revenue.
The May 6 oral arguments will be heard by
Judge David S. Tatel
a Clinton nominee,
Judge Merrick B. Garland
a Clinton nominee,
Judge Thomas B. Griffith
, a Bush nominee.
Tatel has heard a number of Indian law cases, including the Cobell
trust fund case. Garland also has heard the Cobell case. Griffith is relatively
new to the court and used to work for the Senate as its legal counsel.
| May 21, 2007
| March 28, 2007
| August 30, 2006
Sovereign Immunity Court Decision:Vann v. Kempthorne
Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen
v. Cherokee Nation
(March 7, 2006)
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