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Appeals court hears Cherokee Freedmen dispute
Wednesday, May 7, 2008
Filed Under: Law

A federal appeals court on Tuesday pressed the Cherokee Nation of Oklahoma to explain why the tribe hasn't lost the right to determine its own membership.

In March 2007, tribal voters amended their constitution to deny citizenship to the Freedmen, who are the descendants of former African slaves. At least two judges on the D.C. Circuit Court of Appeals said the move appeared to violate an 1866 treaty.

"It's not totally up to the tribe to determine its membership, isn't that right?" observed Judge Merrick B. Garland, a Clinton nominee.

An attorney for the tribe had a hard time refuting that assertion. "That's correct," responded Garret G. Rasmussen, a Washington, D.C., attorney.

Instead, Rasmussen based his argument on sovereign immunity. Nowhere in the treaty, or the Thirteenth Amendment to the U.S. Constitution, which outlawed slavery, was the tribe's immunity abrogated, he said.

"It's an issue of the tribe's understanding of the treaty," Rasmussen told the court.

Jon Velie, an attorney for the Freedmen, had a hard time himself finding the language in the treaty -- or in any other federal law -- that abrogated the tribe's immunity. So he said the totality of the treaty, as well as the historical backdrop of the Civil War and the 13th Amendment, supported the waiver.

"Sovereignty is about retaining rights," Velie, an attorney from Oklahoma, told the court. He said the Cherokee Nation retained the right to define its membership "just not on the Freedmen. That was treated away."

Of the other members of the three-judge panel that heard the case, Judge Thomas B. Griffith, a Bush nominee, appeared to agree with Garland that the tribe lost some of its rights under the treaty. Judge David S. Tatel, a Clinton nominee, didn't ask any questions or make any statements on this particular issue.

But all three judges seemed to be interested in resolving the case by leaving the Cherokee Nation out of the dispute. They suggested it was possible to order Interior Secretary Dirk Kempthorne -- the original defendant -- to uphold the treaty without interfering with the tribe's internal governance.

"The Secretary can vacate the new constitution, can vacate the changes," said Garland. The department was not part of the hearing yesterday as the arguments were limited to the Cherokee Nation's involvement in the suit.

So far, the Bush administration has told the tribe that the treaty protects the rights of the Freedmen. About 2,800 descendants have Cherokee citizenship, which they could lose if a tribal court upholds the legality of the 2007 constitutional amendment.

In a similar case, the Bureau of Indian Affairs cut funds to the Seminole Nation of Oklahoma when tribal voters ousted their Freedmen. No similar action has been taken against the Cherokees which has led some members of Congress to draft legislation to deny funds to the tribe.

Marilyn Vann, a Freedmen leader who is the plaintiff in the lawsuit, defended that tactic in an interview after the hearing yesterday. She said Congress has the final say in Indian matters.

"We believe Congress has the ultimate responsibility to ensure the law is carried out," said Vann, who lives in Oklahoma.

Cherokee Nation Chief Chad Smith and several tribal officials attended the hearing. Smith has criticized members of Congress for intervening in the dispute before the federal and tribal courts have made decision on the status of the Freedmen.

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)