Brown Fleming files federal lawsuit over principal chief disqualification

BY D. SEAN ROWLEY
Senior Reporter
05/16/2019 11:00 AM
WASHINGTON – Having exhausted her appeals in tribal courts, disqualified candidate for principal chief Rhonda Brown Fleming has filed suit in the U.S. District Court for the District of Columbia seeking to have her name placed on the June 1 ballot or the election postponed to allow her an opportunity to comply with residency laws.

The Cherokee Nation Supreme Court on March 12 affirmed the CN Election Commission’s finding that Brown Fleming, a Freedman descendant, was ineligible to run for principal chief after two CN citizens protested her candidacy.

Brown Fleming’s candidacy was challenged under the constitutional clause requiring principal chief candidates to be residents of the CN jurisdiction for at least 270 days prior to the election.

“The Cherokee Nation Supreme Court and the Election Commission have both ruled that Cherokee citizens who are descendants of Freedmen are eligible to run for office, including chief, so long as they meet other legal requirements,” Chrissi Nimmo, CN deputy attorney general, said. “This is the same question Ms. Brown Fleming is asking a federal court to decide. The issue is settled, and we believe it likely that the federal suit will be dismissed again.”

A similar suit, filed by the same plaintiffs of Brown Fleming and the Harvest Institute Freedman Federation LLC of Potomac, Maryland, was thrown out of federal court on May 13 when the complainants did not respond to dismissal motions by the defense.
In the latest federal suit, the residency requirement is not attacked as unconstitutional, but as possibly discriminatory. It claims language in the CN Constitution requiring a candidate to be a “blood Cherokee” to hold the chief’s office runs counter to a federal ruling on Freedmen.

The lawsuit filed on May 14 reads: “In 2018 Senior Judge Hogan determined that the citizenship and voting rights of Cherokee Freedmen are coextensive with those of blood Cherokees. The Cherokee Defendants have not revised or otherwise amended the Cherokee Constitutional provisions that limits eligibility for election as principal chief to blood Cherokees.”

It also calls for an injunction barring any enforcement of the questioned clauses within the CN Constitution, a court order suspending the general election until all Freedmen are registered and the questionable election language is removed, including the “blood Cherokee” requirement.

The named defendants in the latest lawsuit include the CN, EC, Principal Chief Bill John Baker, U.S. Interior Secretary David Bernhardt and Indian Affairs assistant Secretary Tara MacLean Sweeney.

There is recent precedent in tribal court of a CN citizen being disqualified from an administrative office election due to residency questions.

In 2015, the CN Supreme Court ruled that former At-Large Tribal Councilor Julia Coates was not eligible to run for deputy chief. At issue was whether Coates’ “domicile” was in Tahlequah or Los Angeles.

In a split decision, the court upheld the EC’s finding that Coates was not domiciled within the CN boundaries for at least 270 days preceding the election, thereby nullifying her candidacy.

In the latest federal lawsuit, the plaintiffs argue that part of their injury is due to violations of the U.S. Constitution.

“The Defendants have the duty to vindicate and protect the voting rights of the Freedmen so that as citizens they can participate in the fundamental rights to run for elective office, elect their leaders and determine whether their Constitution should be amended to remove all discriminatory limitations of voting rights to blood Cherokees,” the suit reads. “Plaintiffs’ rights have been infringed upon on the basis of their race. The defendant’s actions have the result that the Cherokee Nation will be ruled by officials who exercised unlawful means, racial discrimination, to retain electoral control of the Cherokee Nation.”

It also states the plaintiffs are entitled to a declaratory and injunctive relief to preserve their rights as CN citizens by requiring defendants to suspend or otherwise not enforce the restriction on eligibility to serve as principal chief to blood Cherokees and to permit Fleming to be a candidate.
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