Judge won't stop Cherokee election on Freedmen

Thursday, February 22, 2007

Citing respect for tribal sovereignty and the democratic process, a federal judge on Wednesday refused to halt a Cherokee Nation election that could deny citizenship to the descendants of former slaves.

But Judge Henry H. Kennedy in Washington, D.C., expressed concerns that the outcome of the vote -- the disenfranchisement of thousands of Cherokee Freedmen -- might draw him into an area normally considered off-limits by the courts. Tribal elections are rarely the subject of federal lawsuits.

"The crux of this court's decision is to respect the sovereignty ... of the Cherokee Nation," Kennedy said from the bench. Yet he wondered why the tribe would proceed with an election and "invite this court, or some other court, to intervene."

That's exactly what six Freedmen wanted Kennedy to do. Earlier this month, they filed a motion for preliminary injunction to block the March 3 election, saying it violates the Treaty of 1866, which ended slavery on the Cherokee Nation, and the Thirteenth Amendment of the U.S. Constitution, which outlawed slavery.

"That is the badge of slavery that having this election will place over the Cherokee Freedmen," argued Alvin Dunn, an attorney for the plaintiffs.

Speaking in opposition was Diane Hammonds, the attorney general for the Cherokee Nation. Although she plans to vote against the disenfranchisement of the Freedmen, she said court intervention would trample on tribal rights.

"This is strictly an intra-tribal matter," she told the judge. "Everyone here is Cherokee." Melanie Fourkiller Knight, the tribe's secretary of state, attended the hearing.

Taking an unusual position was Interior Secretary Dirk Kempthorne, the named defendant in the case. Government attorneys did not oppose the Freedmen's motion for the preliminary injunction but they didn't support it either.

"The United States does not inject itself into elections, in intra-tribal matters," said Catherine Blanco of the Department of Justice.

The stance drew a curious response from Kennedy. "I've read your papers," he told Blanco, "but I don't know that I understand the position of the United States."

In a closely-related case, the Interior Department did take a position when the Seminole Nation voted to deny citizenship to its Freedmen. The Bureau of Indian Affairs refused to recognize the leadership of the tribe and cut off all federal funding until the Freedmen were restored.

Why the Bush administration isn't doing the same -- or threatening to -- in the Cherokee case puzzled the attorneys for the Freedmen. In the past, a regional BIA official in Oklahoma questioned the tribe's moves and Jim Cason, the top Interior official in charge of Indian affairs, had warned the tribe about potential consequences.

But by taking the odd position in court, Dunn said the federal government is failing to abide by the treaty. "In the middle of the deal, they flip-flop," he argued.

"Here we have two governments that are turning their back on that treaty," he added.

Despite the court's refusal to halt the election, Kennedy has previously ruled against the tribe. In December, he joined the tribe as a party, citing a history of marginalization of the Freedmen by the Cherokees.

In that ruling, he said the 1866 treaty and the Thirteenth Amendment waived the tribe's immunity from suit. As a preliminary matter in yesterday's ruling, he reaffirmed that the court has jurisdiction over the tribe.

The Freedmen also won a critical ruling before the Cherokee Nation's top court. In a 2-1 decision in March 2006, the Judicial Appeals Tribunal said tribal citizenship is open to anyone who can show his or her ancestor appeared on the Dawes Roll.

The roll includes Cherokees, Delawares, Shawnees and Freedmen. But the upcoming election would only deny citizenship to the Freedmen because it would require them to prove they have Indian blood.