Monday, February 3, 2014

Dept. of Interior SIDES WITH Cherokee Freedmen in Summary Judgement Request

The U.S. Department of the Interior has requested a summary judgment in a long-standing lawsuit over the tribal citizenship eligibility of the Cherokee Freedmen descendants.
In a motion filed late Friday, the department argued the Treaty of 1866, which guarantees "all the rights of native Cherokees" to Cherokee Freedmen and their descendants, extends to tribal citizenship, despite a vote to the contrary by the tribe.
"The Cherokee Nation should be enjoined from denying tribal membership rights to descendants of those individuals listed on the Freedmen portion of the Cherokee Dawes Rolls," wrote acting assistant attorney general Robert Dreher.
About 3,000 Freedmen descendants are currently enrolled in the tribe after a 2007 vote amending the Cherokee constitution restricting Cherokee Nation citizenship to direct descendants of individuals of the Dawes Rolls.
"Interior agrees that Cherokee Nation is a sovereign entity that retains powers of self-government," Dreher wrote.

"These retained powers include, as a general matter, the power to define its own membership. However, tribal authority, including the right to define tribal membership, can be constrained by treaties or other laws. In this case, through Article 9 of the Treaty of 1866, Congress has constrained the nation's authority to determine tribal membership."


Anonymous said...

Does this also mean a tribes constitution and by laws. so tribes like Pechanga and Pala and others can be taken to the Dept of interior and their disenrollment's will be look on by their tribal constitution and by laws under Commissioner of Indian Affairs Delegation of Authority Regarding Tribal Enactments Section 18 Paragraph (3) states Tribal enactments disenrolling persons found not to meet the established enrollment criteria. The Commissioner’s approval of such action shall be subject to appeal to the Secretary of the Interior.
Paragraph (4) The Commissioner shall forward to the Secretary, with a recommendation, ordinances, resolution, or contracts which, in the opinion of the Commissioner are: Inconsistent with an act of Congress or with a treaty or with tribal constitution or charter under which the ordinance, resolution, or contract was adopted, enacted, or negotiated; or should be disapproved or rescinded for any other reason.
Paragraph (5) Notwithstanding the provision of section 25 of this order, the Commissioner shall not redelegate the authority granted in this paragraph to any officer or employee who pursuant to a tribal constitution or charter passes upon ordinance, resolution, or contracts.

Anonymous said...

To 1:54pm:

We do not know that this motion for summary judgment will be granted, nor do we know if Mr. Dreher's interpretation of constraint on the authority to determine tribal membership will find favor with the court.

However, if the motion is granted and judgment awarded, it would be a great victory in the battle against disenrollment. Especially for those tribes like Pala who had previous intercessions on membership disputes from the DOI. It would not be a stretch to view a decision from the DOI to enroll specific persons as a constraint on the disenrollment of said persons.