Politics

Cherokee Freedmen dispute threatens NAHASDA

Thursday, April 24, 2008

The Cherokee Freedmen dispute could derail the Native American Housing and Self-Determination Act, the nation's largest Indian housing organization warns.

NAHASDA, first passed in 1996, is set to expire unless it is reauthorized. The House has already passed its version of the bill and the Senate is set to take action within the coming weeks.

But unless the status of the Freedmen within the Cherokee Nation of Oklahoma comes to a "creative, equitable resolution," the bill won't become law this year, the National American Indian Housing Council fears. An April 18 letter urges tribal leaders to lobby Congress to address the controversy.

"The NAIHC is very concerned that the Freedmen matter might upend not only the pending NAHASDA reauthorization but the passage of all Indian tribal legislation in this and possibly future congresses," Chairman Marty Shuravloff wrote. "This would be an unfortunate outcome for the hundreds of thousands of American Indian and Alaska Native low income families that would be unwitting victims in a controversy involving one Indian Tribe."

Last September, the House included a provision in H.R.2786 that bars the Cherokees from receiving housing funds unless the Freedmen, who are the descendants of former African slaves, are restored to citizenship. A compromise negotiated by Rep. Dan Boren (D-Oklahoma), whose district includes the tribe, delays the cut while the tribal court system considers the issue.

If the Freedmen prevail in tribal court, the funding cut won't take effect, Boren said at the time. An injunction currently protects approximately 2,800 Freedmen from losing citizenship and other benefits as the case is being considered.

Meanwhile, the D.C. Circuit Court of Appeals is set to hear another Freedmen case on May 6. The tribe is trying to protect its sovereign immunity from a lawsuit that was originally brought against the Interior Department.

Final decisions in the tribal and federal courts could be months away. Rather than wait, members of the Congressional Black Caucus on the House side have been attaching provisions to Indian bills in order to punish the tribe for removing the Freedmen.

"They will attach it to every single Indian proposal," Cherokee Chief Chad Smith said at an Indian law conference earlier this month.

According to Smith, the Freedmen at one point were citizens of the tribe. "We were truly a republic," Smith said at the 33rd annual Indian law conference hosted by the Federal Bar Association.

But he said acts of Congress in the early 1900s terminated the Freedmen's rights under an 1866 treaty that is commonly cited by CBC members in their push to restore the Freedmen to citizenship. Now that the tribe has reorganized itself following federal policies of assimilation and termination, Smith argues the tribe has a right to determine its membership.

The Bureau of Indian Affairs has taken a different view. In a letter last May, assistant secretary Carl Artman said the treaty requires the tribe to "recognize the rights of individual Freedmen in exchange for amnesty and the continued government-to-government relationship between the United States and the Nation."

Unlike the House, the Senate has not included a provision addressing the dispute in S.2062, the NAHASDA reauthorization. The bill was approved by the Senate Indian Affairs Indian Committee and the Senate Banking, Housing, and Urban Affairs Committee last December.

The measure is now on the Senate's calendar, meaning a floor vote could come at any time. But some Senators have placed "holds" on it, though for reasons unrelated to the Freedmen, according to The Hill newspaper.

The Senate didn't include Freedmen provisions in the S.1200, the Indian Health Care Improvement Act, either. But the top Democratic staffer on the Indian Affairs Committee said members of the House plan to address the issue now that the bill is in their chamber.

Allison Binney, the staff director on the committee, said past congresses have usually moved quickly on Indian legislation. "That is not the case today," Binney said at the FedBar conference. "It's incredibly difficult to get a bill on the floor of the U.S. Senate."

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)