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Cherokee Freedmen back in court over citizenship

Tuesday, June 12, 2007

The Cherokee Freedmen were back in court on Monday to halt an upcoming Cherokee Nation election though a federal judge seemed skeptical of the effort.

The Freedmen were voted out of the tribe, the second-largest in the country, in March. Amid national controversy, they were reinstated to citizenship in time for a June 23 election.

Despite the move, attorney Jon Velie said the Freedmen lack the same rights as other Cherokee citizens, including the ability to run for public office. He invoked the late civil rights leader Martin Luther King Jr. as he sought to block the upcoming vote.

"You can't partly be a citizen," he told the court. "The Freedmen have been exiled to the island of the terminated Indian."

But Raymond Mullady, an attorney for the Cherokee Nation, said halting the election would infringe on tribal sovereignty. Since the nearly 2,900 Freedmen citizens can vote, there is no reason to stop them from doing so, he argued.

"Nothing this court just heard warrants the drastic remedy to enjoin the national election of a sovereign government," Mullady said.

Caroline Blanco, a Department of Justice attorney, also urged the court to stay out of the dispute. She cited two recent actions by assistant secretary Carl Artman, the head of the Bureau of Indian Affairs, that affirmed the rights of the Freedmen to participate in the vote.

Artman, in a letter last month, disapproved an amendment to the tribe's constitution that would have taken the BIA out of the process because he said the Freedmen weren't allowed to vote on it. More recently, he approved procedures for the upcoming election.

At the same time, Blanco argued that the federal government can't be forced to take action. "There is no specific fiduciary duty or trust duty to protect voting rights," she said.

Unlike the last time he heard from the Freedmen -- a couple of weeks before their March ouster -- Judge Henry H. Kennedy was in no rush to issue a ruling. He appeared to be concerned about the impact of potentially halting the election.

"What will happen as a practical matter to the governance of the Cherokee Nation?" he asked.

Kennedy also wondered how he could force the BIA to sever the government-to-government relationship with the tribe, as the Freedmen have requested. "That would require an act of Congress," said Blanco, who compared it to termination.

Also at stake is an estimated $28 million in federal funding to the Cherokee Nation. The Freedmen want the money cut until they are restored to citizenship, an effort that is being considered by Rep. Maxine Waters (D-California).

Given the urgency of the matter, Cherokee Principal Chief Chad Smith attended yesterday's hearing. He is up for his third term in office and faces a challenge from Stacy Leeds, a former tribal judge.

Smith has repeatedly defended the tribe's right to define its own citizenship. He advocated for the election to determine whether the Freedmen should remain in Cherokee Nation.

Leeds wrote the tribal court decision that said the Freedmen were entitled to citizenship. She said the tribe's constitution does not contain an Indian blood requirement and that anyone who can trace an ancestor to the Dawes Roll is eligible for membership.

In March, Cherokee voters amended the constitution to add an Indian blood component. So Freedmen whose ancestors appeared on the Dawes Roll must also show they have a Cherokee, Delaware or Shawnee ancestor to remain part of the tribe.

The Freedmen descend from former slaves of the Cherokee Nation. In 1866, the tribe signed a treaty to include them as citizens.

BIA Letters:
May 21, 2007 | March 28, 2007 | August 30, 2006

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)