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Law
Judge rules Freedmen can sue Cherokee Nation


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.com
Freedmen Conference - http://www.freedmenconference.com