Cherokee Nation votes to deny citizenship to Freedmen

Monday, March 5, 2007

Members of the Cherokee Nation of Oklahoma overwhelmingly voted to deny citizenship to the descendants of former African slaves on Saturday, setting the stage for a legal and political battle.

With all precincts reporting, 77 percent of voters approved an amendment to the tribal constitution. Citizenship will be restricted to descendants of people who are listed on the Dawes Roll, but only those with verifiable Cherokee, Delaware or Shawnee blood.

The amendment means the descendants of the Freedmen, former slaves who were made members of the Cherokee Nation by an 1866 treaty, won't be entitled to citizenship. Over 2,000 people will be kicked out of the tribe as a result.

Cherokee Nation Chief Chad Smith cast the vote as the will of the tribe to make its own decisions. "No one else has the right to make that determination," he said. "It was a right of self-government, affirmed in 23 treaties with Great Britain and the United States and paid dearly with 4,000 lives on the Trail of Tears."

But the legal and political issues at the center of the case draw the tribe, the second-largest in the U.S., into a battle that could undermine its sovereignty. Challenges are being planned at the tribal and federal level.

"We are not going to accept this fraudulent election," said Marilyn Vann, who traces her ancestry to the Dawes Roll. "The outcome of this vote was manufactured by Chad Smith."

Internally, the Freedmen descendants intend to appeal the results of the election. The tribe's highest court had previously ruled that the Freedmen were entitled to citizenship because their ancestors were listed on the Dawes Roll. The decision set the stage for Saturday's controversial vote.

Externally, Vann and five other Freedmen descendants are plaintiffs in a court case against the Interior Department. Although they lost a motion to halt the election, they have a sympathetic judge who had questioned how they have been treated by the Cherokee Nation.

Judge Henry H. Kennedy in Washington, D.C., has already ruled that the Cherokee Nation can be part of the suit. He said the tribe's sovereign immunity was abrogated by the 1866 treaty and the Thirteenth Amendment of the U.S. Constitution, which outlawed slavery.

Regardless of the litigation, the tribe faces potential action by the Bureau of Indian Affairs. The agency could pull federal funding, as it did when the Seminole Nation of Oklahoma voted to deny citizenship to the Seminole Freedmen.

Back in 2003, fresh off the Seminole debacle, the BIA's regional director in Eastern Oklahoma questioned the Cherokee Nation over its failure to recognize the rights of the Freedmen. The tribe held an election to amend its constitution. The Freedmen weren't allowed to vote because they weren't considered citizens.

But after Chief Smith and other top Cherokee officials lobbied former deputy secretary J. Steven Griles in the summer of 2003, the tribe was able to stave off action.

However, those 2003 constitutional amendments still haven't been approved by the BIA. That gives the agency an opening to challenge all subsequent actions taken by the tribe, such as Saturday's election.

Jim Cason, the associate deputy secretary at Interior, has warned the tribe to address its treatment of the Freedmen. But in Vann's court case, the department refused to take a position -- for or against -- the motion to halt the election.

"The United States does not inject itself into elections, in intra-tribal matters," said Catherine Blanco of the Department of Justice at a February 21 hearing.

Kennedy made it clear that he didn't like the administration's stance. He refused to halt the election, though, citing respect for tribal sovereignty and the democratic process.

But he was worried that the Cherokee Nation was essentially inviting the federal courts to intervene. He retained jurisdiction over the tribe, although the tribe is appealing his sovereign immunity decision.

That aspect of the case has the tribe extremely concerned. Although Diane Hammonds, the Cherokee Nation attorney general, presented the oral arguments, the tribe's Washington, D.C., law and lobbying firm is also taking part. The tribe maintains an office in Washington and is active in lobbying Congress and the federal agencies.