Federal judge dismisses one of two Cherokee Freedmen citizenship cases

BY WILL CHAVEZ
Assistant Editor – @cp_wchavez
10/03/2011 11:21 AM
TAHLEQUAH, Okla. – On Friday, a federal judge dismissed one of two lawsuits over whether descendants of black slaves once owned by Cherokee Nation citizens have rights to CN citizenship.

The eight-year-old case, titled Vann et al v. Salazar, was pending in the District Court for the District of Columbia along with a second Cherokee Freedmen case titled Cherokee Nation v. Nash. On Sept. 30, U.S. District Judge Henry Kennedy Jr. also transferred the Nash case back to U.S. District Court for the Northern District of Oklahoma in Tulsa where it originated in February 2009.

In his ruling on the Vann case, Kennedy said the sovereign rights of the tribe gave it immunity from being sued. The CN never waived its sovereignty in the lawsuit, which left him no option but to dismiss it because sovereign Indian nations cannot be sued without their consent, Kennedy wrote.

Jon Velie, the Freedmen descendants’ attorney for the federal court proceedings, said he was disappointed with the ruling, but added the fight isn’t over for Freedmen descendants.

“It’s a technical ruling. It didn’t determine whether the (1866) treaty was valid or whether the Freedmen were or were not citizens,” said Velie in an Associated Press story.

He added the decision to dismiss the lawsuit does not change the status of the 2,800 Freedmen descendants whose citizenship was restored on Sept. 21. He said the Sept. 21 agreement would remain in place while the other lawsuit in the Northern District of Oklahoma court is pending and that votes cast Freedmen descendant voters in the Sept. 24 special election for principal chief would still count.

CN Attorney General Diane Hammons said Kennedy’s ruling upheld arguments the tribe has been making all along.

“The order from Judge Kennedy was exactly what the Cherokee Nation had asked for: a full dismissal of the Vann case and a transfer of the Nash case, brought by the Cherokee Nation, back to Oklahoma where it was filed and where it should be heard,” she said.

The decades-long legal battle over Cherokee Freedmen citizenship remains alive in court because of the lawsuit initiated by the CN in the Northern District of Oklahoma court.

In its 2009 suit, the CN named five of the 386 Freedmen involved in Nash vs. Cherokee Nation Registrar, former U.S. Department of Interior head Ken Salazar and the DOI as defendants. The Nash case was a class-action suit filed in CN District Court in 2007 after Cherokee citizens voted to amend the tribe’s Constitution to restrict tribal citizenship to descendants of Indians listed by blood on the Dawes Rolls.

The CN asked the court in 2009 to confirm that Congress unilaterally modified the Treaty of 1866 and, as a result, the descendants of Freedmen living within the CN in 1866 had no federal rights to CN citizenship. However, in July 2010 lawsuit was transferred by U.S. District Judge Terence C. Kern to the District Court for the District of Columbia where Vann et al v. Salazar was also pending.

Kern cited a similarity of parties and issues for the two cases and the “first-to-file rule,” meaning the Vann case was filed first in federal court and took precedence over the CN lawsuit.

In his Sept. 30 ruling, Kennedy wrote Cherokee Nation v. Nash offers Freedmen descendants an alternative forum for the legal issues underlying the case to be addressed.

“Unlike a potential judgment in this (Vann) case, which would not bind the Cherokee Nation, the Cherokee Nation is the plaintiff in Nash and would be bound by any judgment rendered in that suit,” Kennedy wrote.

Velie said Kennedy also ruled that the Vann case contained a technical deficiency that does not exist in the Nash case.

“The Nash case possesses an order that the Cherokee Nation agreed that the Freedmen are full citizens entitled to equal rights. We believe the nearly 120 years of federal law precedent affirming the Freedmen between 1895 and 2010 will ensure those rights continue. We look forward to continuing this important case to uphold treaty and civil rights,” Velie said.

Velie added because the CN is the plaintiff in this lawsuit, it effectively waived the sovereign immunity claim that was used to stop the Vann lawsuit.

The Vann lawsuit was filed in 2003 by President of the Descendants of Freedmen Association Marilyn Vann as Vann v. Kempthorne. At that time Vann and six other Freedmen contended the CN, with approval from the Department of Interior Secretary Dirk Kempthorne, prevented them from participating in the 2003 CN elections and sought a court order declaring the 2003 elections invalid. They also wanted the DOI secretary to not recognize the results of the elections until Freedmen were permitted to vote.

“The Freedmen people, whose ancestors suffered slavery and the horrors of the trail of Tears in the past, in modern times have suffered discrimination in voting rights, tribal services and uncertainty as to our tribal status,” Vann said. “We want to be treated as other tribal members, free from uncertainty and harassment. Tribal politicians have used the Freedmen as a political football calling the Freedmen ‘non-Indians’ playing to people’s racism and ignorance about the tribal rolls to gain and hold onto power.”

will-chavez@cherokee.org • 918-207-3961

About the Author
Will Chavez is a Cherokee/San Felipe Pueblo Indian who has worked in the newspaper and public relations field for 25 years. During that time he has performed public relations work for the Cherokee Nation and has been a writer, reporter and photographer for the Cherokee Advocate and Cherokee Phoenix newspapers. 

For many years h ...
WILL-CHAVEZ@cherokee.org • 918-207-3961
Will Chavez is a Cherokee/San Felipe Pueblo Indian who has worked in the newspaper and public relations field for 25 years. During that time he has performed public relations work for the Cherokee Nation and has been a writer, reporter and photographer for the Cherokee Advocate and Cherokee Phoenix newspapers. For many years h ...

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