Ousted Cherokee Freedmen seek DOI action against tribe
Thursday, May 10, 2007
Filed Under:
Law
The Cherokee Freedmen went back to court this week to prevent
the Cherokee Nation from ousting them from the tribe.
In a brief filed on Wednesday, the Freedmen asked a federal
judge for a preliminary injunction. They want the Bush administration
to halt federal funds to the tribe, to invalidate the election
that ousted the Freedmen and to sever the government-to-government
relationship with the tribe.
The brief cited a recent letter from assistant secretary Carl Artman
in which he questioned the tribe's March 3 vote to deny citizenship
to the descendants of African slaves.
But the Freedmen say the Interior Department isn't taking
action to protect the Freedmen.
"The federal defendants, for their part, have done nothing,"
attorneys for the Freedmen wrote.
The plaintiffs, led by Marilyn Vann, also asked the court
to stop the tribe from denying the Freedmen their
"full citizenship rights." They are hoping for action
before an election scheduled for June 23.
"The Cherokee Nation has taken the audacious step of disenfranchising
its most vulnerable citizens by enacting a constitutional amendment
n blatant violation of the Thirteenth Amendment and its treaty obligations,"
the brief stated.
The Bureau of Indian Affairs has declined to comment on
the dispute, citing the ongoing litigation.
A spokesperson for the agency said the election is still being
reviewed, the stance taken in Artman's March 28 letter.
Meanwhile, the Cherokee Nation's enrollment department
has begun to inform Freedmen descendants
that they no longer eligible for citizenship based on the results
of the election.
The Cherokee Nation's health department also has told
Freedmen they won't be able to access services at tribal facilities
in the future.
"The Cherokee Nation will continue to provide health care
services to you for a period of 90 days," the tribe said
in a March 28 letter.
Separately, the tribe has asked for the case, known as
Vann v. Kempthorne, to be dismissed. Alternatively,
the tribe wants the lawsuit to be heard in Oklahoma rather
than Washington, D.C.
Judge Henry H. Kennedy in Washington
added the Cherokee Nation to the suit over the tribe's objections.
In a ruling last December, he said the tribe's sovereign immunity
was abrogated by an 1866 treaty in which the tribe accepted
the Freedmen as citizens and by the 13th Amendment of the U.S. Constitution,
which outlawed
slavery.
Kennedy, however, refused to halt the March 3 election
out of respect for tribal sovereignty and the democratic process.
He said the Freedmen failed to show how they would be harmed
because it wasn't certain that Cherokee voters would approve
the citizenship referendum.
At the same time, he left open the possibility that he would
act if the Freedmen were ousted. He retained jurisdiction over
the Cherokee Nation, which the tribe can dispute now that it
is a party to the case.
The dispute has generated controversy in Indian Country and
in Washington.
Members of the Congressional Black Caucus, some who have
been supportive of sovereignty, have blasted the Cherokee
Nation for holding the election and have asked Interior
Secretary Dirk Kempthorne to cut federal funding.
At the Federal Bar Association's Indian law conference
last month, Vann defended her lawsuit amid accusations
that it will negatively impact tribal rights.
She said Kennedy's ruling at most applies to three
tribes who signed treaties that required them to end
slavery after the Civil War.
"For 99 percent of the tribes, anything the federal court does on this case is
not going to affect your situation at all," she said,
referring to tribal enrollment disputes that have cropped
up across the nation, particularly in California.
"This is the tribe of our ancestors, this is our bloodline,
these are our legal rights," she added.
Court Briefs:
Motion for Preliminary Injunction (May 8, 2007) |
Memorandum in Support (May 8, 2007)
BIA Letter:
Carl Artman to
Cherokee Chief Chad Smith (March 28, 2007)
Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19,
2006)
Jim Cason Letter:
Cherokee Nation
Constitution (August 30, 2006)
Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen
Case:
Allen
v. Cherokee Nation (March 7, 2006)
Relevant Links:
Cherokee Nation -
http://www.cherokee.orgFreedmen
Of The Five Civilized Tribes -
http://www.freedmen5tribes.comFreedmen
Conference -
http://www.freedmenconference.com
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