Appeals court to hear Cherokee Freedmen case
The dispute over the legal status of the CherokeeFreedmen will be heard by a federal appeals court inMay amid efforts by Congress to resolve thecontroversy.The Freedmen are the descendants of former slaves.They say a treaty signed after the end of the CivilWar guarantees them citizenship in the Cherokee Nationof Oklahoma. Tribal leaders and members disagree.
In March 2007,Cherokee voters amended their constitution to deny citizenship to people who can't trace their ancestryto the Indian portion of the Dawes Rolls that werecreated by the federal government after the 1866treaty. A tribal court has reinstated about 2,800 Freedmen to citizenship pending a challenge to the referendum.
But that hasn't stopped litigation over the dispute and it hasn't stopped members of Congress from threatening tocut federal funding to the Cherokee Nation.The Bureau of Indian Affairs has said it will protect the rights of the Freedmen.
Assistant secretary Carl Artman told Cherokee Chief Chad Smith that the tribe agreed to enroll the Freedmen "in exchange for amnesty and the continuation of the government-to-governmentrelationship" in a May 2007 letter. But the Bush administration says the litigation filed by Marilyn Vann, a Freedmen leader, should end since one of the main issues in the case -- the status of the Cherokee constitution -- has been resolved.
In August, Artman approved changes to the tribe's constitution -- including a provision that eliminates future federal review of the document. The Department of Justice filed a motion to dismiss Vann's case but Judge Henry H. Kennedy in Washington,D.C., declined in a short decision on February 7. Kennedy, however, agreed to stay proceedings pendingan appeal to the D.C. Circuit Court of Appeals.
On May 6, a three-judge panel of the appeals courtwill consider another big issue in the case -- whetherthe Freedmen can sue the Cherokee Nation. Kennedyruled that the tribe's sovereign immunity was waivedby the 1866 treaty and the Thirteenth Amendment to theU.S. Constitution, which outlawed slavery.
The tribe is disputing the idea that it can be sued without its consent. Cherokee leaders say Kennedy'sdecision sets a bad precedent for Indian County,though only a small number -- most notably the Seminole Nation of Oklahoma -- signed treaties regarding their former slaves.
In addition to the lawsuit, the tribe is fighting legislation that could cut off its federal funds unless the Freedmen are permanently restored tocitizenship. Last September, the House added aprovision to the Native American Housing Assistanceand Self-Determination Act that would eliminate housing funds.
Chief Smith has appealed to other tribes in the U.S.and Canada -- and even to the United Nations -- top rotect what he says is the Cherokee Nation's inherentright to decide who is entitled to citizenship. Thetribe also has mounted an extensive lobbying andpublic relations campaign to protest the legislation."
The legislation would, in effect, either allowCongress to determine membership in the Cherokeenation or sever federal financial obligations to thenation, close Cherokee businesses, and legitimize unfounded lawsuits against the nation," Smith told theUnited Nation's High Commissioner for Human Rightslast month.According to the tribe, it will lose out on $300million in direct federal funding under the variouspieces of legislation.
Under one bill, the tribe willbe forced to close its gaming facilities, which are a significant source of revenue.The May 6 oral arguments will be heard by Judge DavidS. Tatel, a Clinton nominee, Judge Merrick B. Garland,a Clinton nominee, and Judge Thomas B. Griffith, aBush nominee.Tatel has heard a number of Indian law cases,including the Cobell trust fund case. Garland also has heard the Cobell case. Griffith is relatively new tothe court and used to work for the Senate as its legal counsel.