Law | Politics

Cherokee Freedmen issue affects debate on Hill

Monday, April 14, 2008

A slide from Cherokee Nation Chief Chad Smith's presentation at Federal Bar Association's 33rd annual Indian law conference in Albuquerque, New Mexico. April 11, 2008.

A slide from Cherokee Nation Chief Chad Smith's presentation at Indian law conference. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Provisions addressing the Cherokee Freedmen will be added to a bill to reauthorize the Indian Health Care Improvement Act, a key Senate staffer said on Friday.

After a year-long effort, the Senate passed S.1200 on February 26. But as the House considers its version of the bill, H.R.1328, the citizenship status of the Freedmen, who are the descendants of African slaves, within the Cherokee Nation is affecting debate.

"We have been told it will have a Cherokee provision added to it," Allison Binney, the staff director for the Democratic majority of the Senate Indian Affairs Indian Committee, said at the 33rd annual Indian law conference hosted by the Federal Bar Association.

Last fall, the House included a Cherokee provision to H.R.2786, a bill to reauthorize the Native American Housing and Self-Determination Act. The measure cuts federal funds to the Cherokee Nation unless the Freedmen are restored to citizenship.

"It's a great bill otherwise," Binney said of the legislation, which has not passed the Senate.

Senate leaders are now facing pressure to act. Members of the Congressional Black Caucus recently told Majority Leader Harry Reid (D-Nevada) they will block NAHASDA until the Freedmen issue is addressed.

Cherokee Chief Chad Smith called such efforts an affront to tribal sovereignty. He also spoke at the Indian law conference, which was held in Albuquerque, New Mexico, last week.

"They will attach it to every single Indian proposal," Smith said of efforts by the CBC, which represents over 40 lawmakers in the House and the Senate, including Sen. Barack Obama (D-Illinois), a presidential candidate.

Smith said he met with CBC members a year ago as the controversy was developing on Capitol Hill. He said they refused his pleas to hold off their legislation until the federal and tribal courts resolve the matter.

"We should let the courts decide," said Smith, who is an attorney.

At the same time, Smith said his own tribe's Supreme Court made a "questionable" decision when it ruled the Freedmen were eligible for citizenship. The ruling led to March 2007 referendum in which the majority of tribal members voted to oust African-Americans who are unable to trace their Indian ancestry to the federal government's Dawes Rolls.

On the federal level, the tribe awaits a May 6 hearing before the D.C. Circuit Court of Appeals. The tribe is challenging its inclusion in a lawsuit brought by Cherokee Freedmen descendants, led by Marilyn Vann, who spoke at the law conference last year.

Vann initially sued the Interior Department but Judge Henry H. Kennedy said the tribe lost its sovereign immunity through a post-Civil War treaty and the Thirteenth Amendment to the U.S. Constitution, which outlawed slavery. The tribe contends it can't be sued without its consent.

The Bureau of Indian Affairs has warned the tribe that the 1866 treaty protects the Freedmen. In a May 2007 letter, assistant secretary Carl Artman said the tribe agreed to recognize the Freedmen's citizenship rights in exchange for ongoing recognition from the U.S.

Back on Capitol Hill, staffer Binney said her boss, Sen. Byron Dorgan (D-North Dakota), the chairman of the Indian Affairs Committee, and others will face a tough challenge in the next couple of months as NAHASDA moves forward. "Do they push a bill that has [potential] to do great for Indian Country to the detriment of one tribe?" Binney said.

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)