Tribal attorneys argue Freedmen case before federal judge
WASHINGTON – Attorneys for the Cherokee Nation presented oral arguments May 5 in front of U.S. District Judge Thomas F. Hogan regarding the longstanding Cherokee Freedmen lawsuit “Cherokee Nation v. Raymond Nash.”
Hogan said he would decide soon on whether the Treaty of 1866 between the United States and the CN granted citizenship rights to former slaves, once held by CN citizens, and their descendants.
In January, the Department of Interior filed a 72-page motion for summary judgment in the case, hoping to end 11 years of litigation. In the motion, DOI attorneys ask the U.S. District Court to “declare that the Treaty of 1866 between the Cherokee Nation and the U.S. guaranteed certain Cherokee Freedmen and their descendants ‘all the rights of native Cherokees,’” including the right to CN citizenship, and that the treaty provision “continues to guarantee descendants of eligible Freedmen with citizenship and all other rights of ‘native’ Cherokees.”
“As a result, the Cherokee Nation’s March 3, 2007, constitutional amendment making the descendants of Freedmen ineligible for citizenship is inconsistent with the treaty,” states the motion.
During the May 5 hearing, Hogan said he was skeptical the treaty allows the tribe to change its constitution to require Indian blood for CN citizenship.
Attorney Diane Hammons argued that the CN has a right to define its citizenship, saying a previous U.S. Supreme Court decision allows tribes to establish citizenship requirements. She said the 1866 treaty was approved at a time when freed slaves lived among CN citizens and neither group had U.S. citizenship.
She added that Freedmen no longer need the protection CN citizenship afforded them.
Freedmen attorney Jon Velie said individual Cherokees owned slaves and fought the U.S. in the Civil War to protect slavery. He said following the war Cherokee leaders believed the treaty would always guarantee tribal citizenship for Freedmen and their descendants.
“I have been representing Cherokee and Seminole Freedmen for over 20 years, one month after I passed the bar. The (May 5) argument was the first one on the merits and it was a true honor and incredible experience. Judge Hogan was really engaged firing questions at us,” Velie said. “We now await the decision. It is a great day to stand up against racism.”
CN Attorney General Todd Hembree said for the Cherokee people the issue has never been about race.
“As a sovereign nation, it’s always been about Cherokees determining who our citizens ought to be,” he said.
Hembree said he’s happy that Hogan is to make his decision soon and that “after 11 long years of litigation” the CN looks forward to having a judge decide what rights Freedmen were granted under the treaty.
“The Cherokee Nation believes strongly in treaty rights and believes the correct interpretation of the treaty would allow the Cherokee people to determine who is a Cherokee citizen,” Hembree said.
Descendants of Freedmen Association President Marilyn Vann said Freedmen descendants only want to continue the tribal citizenship that was promised to their ancestors in 1866.
“The Cherokee Freedmen people who include doctors, nurses, teachers, engineers, lawyers and computer specialists have much to give to the nation,” she said.
The Interior’s motion states the treaty restored relations between the CN and federal government, and the U.S. addressed concerns it had for “the rights and welfare of the Cherokee Nation’s former slaves and other free blacks who were residing in what was then Indian Territory” after the Civil War.
“Thus, an important provision of this treaty was an agreement that the Cherokee Nation would grant certain of its former slaves and free blacks living in Cherokee territory, and their descendants, ‘all the rights of native Cherokees,’” states the motion. “Consistent with the expansive language of the treaty itself, the historical record clearly demonstrates that the negotiators of the treaty, subsequent Cherokee leadership, and federal officials all understood that the treaty granted these Freedmen and their descendants full citizenship rights in the tribe, including voting rights, civil rights, access to courts, and other benefits.”