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The Rise of Tribes and the Fall of Federal Indian Law
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Seminole Freedmen lose another court appeal
Thursday, September 11, 2003

A federal appeals court on Wednesday handed the Seminole Freedmen another setback in their bid to gain access to all the rights and privileges of tribal membership.

The unanimous decision from the 10th Circuit Court of Appeals affirms a federal judge who determined that the Seminole Nation of Oklahoma should be part of the suit as an "indispensable party." But since the tribe has sovereign immunity, it cannot be joined without consent, the court ruled.

The three-judge panel also refused to order the Bureau of Indian Affairs to issue Certificates of Degree of Indian Blood (CDIBs) to the Freedmen. The court said the plaintiffs failed to exhaust their avenues before the agency.

The decision, written by Judge Harris L Hartz, is the latest in a series of defeats for the Freedmen, descendants of Africans who were made members of the tribe by a post-Civil War treaty. They have been trying to obtain benefits and services accorded to all other Seminoles.

The primary issue in the case is a $56 million judgment fund created by Congress for lands the Seminole Nation lost in Florida. Although Congress placed no limit on who would be eligible to use the money, the tribe excludes Freedmen from educational, social service and elder programs supported by the fund because the Freedmen were not tribal members when the land was lost in the early 1800s.

Freedmen with CDIB cards are eligible for the programs. But some are not able to obtain them even if they have Indian blood due to the way the BIA set up the membership rolls after the 1866 treaty. The roll for Freedmen members does not list blood quantum -- the key criteria for the CDIB -- while the roll for other Seminoles does.

"A member of the tribe can obtain a CDIB card by proving a specified relationship to a person listed on the Seminole Blood Roll," the appeals court wrote yesterday. "A person who proves the same relationship with respect to a person listed on the Seminole Freedmen Roll, however, is not entitled to a CDIB."

Denial of services isn't the only challenge the Freedmen have encountered. In 2000, tribal voters approved changes to the Seminole constitution that denied membership to the Freedmen, who were then denied the right to vote in a subsequent election.

The BIA refused to accept the results of the election, and held back federal funds while two factions, but not the Freedmen, battled for control of the tribe. The dispute ended when a federal judge in Washington, D.C., effectively reinstated the Freedmen's membership.

"Here, the nation has blatantly disregarded its own constitution and sought to exclude long-time members of its own tribe from seeking office, and participating on the general council," U.S. District Judge Reggie B. Walton wrote last September.

The Freedmen of the Cherokee Nation are in a similar situation and cannot vote in elections unless they demonstrate Cherokee blood. They are suing the BIA to reinstate their rights and are represented by the same lawyers in the Seminole case.

Get the Decision:
Davis v. U.S. (September 10, 2003)

Relevant Documents:
Seminole Treaty of 1866

Relevant Links:
Estelusti Foundation - http://www.estelusti.com
African Native Americans - http://www.african-nativeamerican.com

Related Stories:
Cherokee Freedmen caught in high-level dispute (08/20)
Tribes not always following treaties on Freedmen (08/18)
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)
Black Seminole appeal planned (5/1)
Black Seminoles dealt setback (4/30)
Black Seminole issue still divisive (10/29)

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