A meeting of the Descendants of the Freedmen of the Five Civilized Tribes Association. Photo: Freedmen Association

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Freedmen win landmark ruling confirming right to Cherokee Nation citizenship

Wednesday, August 30, 2017

The descendants of former slaves held within the Cherokee Nation are entitled to tribal citizenship, a federal judge ruled in a long-running controversy that has stretched through three U.S. presidential administrations.

In the landmark decision, Judge Thomas F. Hogan settled the biggest issue in the dispute. He said a treaty signed in 1866 guarantees citizenship to the former slaves -- more commonly known as Freedmen -- and, by extension, to their descendants.

"The history, negotiations, and practical construction of the 1866 treaty suggest no other result," Hogan wrote in the 78-page ruling on Wednesday.

"Consequently, the Cherokee Freedmen’s right to citizenship in the Cherokee Nation is directly proportional to native Cherokees’ right to citizenship," he concluded.

The decision isn't the first time a court ruled on the treaty. In 2006, the Cherokee Nation's highest court arrived at the same interpretation and the tribe started processing citizenship applications for Freedmen, eventually enrolling about 2,800 descendants.

But tribal citizens -- motivated by the chief at the time -- went to the polls and amended their constitution in a way that prevented more Freedmen from enrolling. They also cleared the way for those already enrolled to be ousted.

The new ruling should settle the debate, provided that the tribe's current leader accepts it. Chief Bill John Baker, who defeated his anti-Freedmen predecessor in 2011, has been less vocal about the Freedmen despite taking a different view on the treaty in court filings.

Freedmen descendants protest outside a Bureau of Indian Affairs office in Muskogee, Oklahoma, in 2008. Photo courtesy Marilyn Vann

As for the federal government, the Obama administration formally backed the Freedmen in the lawsuit, known as Cherokee Nation v. Nash. But it was the Bush administration that repeatedly attempted to hold the tribe accountable to the treaty.

In 2003, after the tribe amended its constitution in a way to eliminate federal oversight, the Bureau of Indian Affairs refused to accept the changes. The agency questioned whether the Freedmen were denied the ability to participate in the referendum at the time, a move that enraged then-chief Chad Smith, who mounted a major lobbying campaign in hopes of getting his way.

He never did and the constitution has remained in limbo ever since. But that didn't stop Smith from pushing the tribe to schedule another referendum to explicitly deny citizenship to the Freedmen. The overwhelming majority of Cherokee citizens supported the purge.

The dispute soon became of national significance when sympathetic lawmakers from the Congressional Black Caucus got involved. They repeatedly inserted provisions in bills in order to punish the tribe and the controversy threatened to derail major pieces of legislation that benefit Indian Country as a whole.

At one point, the tribe even lost access to federal housing funds because the Obama administration said it wasn't complying with a 2008 agreement that required the Freedmen to remain as citizens until the courts -- both tribal and federal -- could resolve the citizenship issue.

But with Hogan's ruling in hand, Freedmen leaders and their allies are taking it as a sign that their long fight is finally over.

”I am filled with joy that my people, the Freedmen, will continue to be citizens, as our ancestors have, in the Cherokee Nation," Marilyn Vann, the president of the Descendants of the Freedmen of the Five Civilized Tribes Association, said in response to the decision.

"I look forward to the healing within our proud and amazing people,” said Vann, who is one of the parties in the lawsuit.

“This is a wonderful victory for the Freedmen who regained their identities as equal citizens in their nation. It is a victory against racial oppression and division," added attorney Jon Velie, who represented Vann. "It is a win for Native Americans as the federal courts have enforced both treaty rights of citizenship while maintaining Tribes and elected officials rights to determine citizenship and self-determination pursuant law. "

District Court Decision:
Cherokee Nation v. Nash (August 30, 2017)