Law | Politics

Appeals court to hear Cherokee Freedmen case

Thursday, March 27, 2008

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.

The Freedmen 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 of Oklahoma.

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 Dawes Rolls 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 letter.

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 document.

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 Thirteenth Amendment to 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 Seminole Nation 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 to citizenship. The tribe also has mounted an extensive lobbying and public relations campaign 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 last month.

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, and 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.

Cherokee-Related Legislation:
H.R.2786 | H.R.2895 | H.R.2824 | H.R.3002

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

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