CN Supreme Court hears Freedmen ruling case
Several Cherokee Freedmen gather for the Dec. 11 Rules Committee meeting in Tahlequah. In the meeting the Tribal Council indefinitely tabled legislation by Tribal Councilor David Walkingstick that called for an appeal of a federal ruling that gives Freedmen tribal citizenship rights. Walkingstick and fellow legislator Harley Buzzard later filed suit against Attorney General Todd Hembree alleging he did not consult with the Tribal Council before deciding not to appeal the case of Cherokee Nation v. Nash and Vann v. Zinke, which grants Freedmen CN citizenship. The CN Supreme Court heard the case on April 20. BRANDON SCOTT/CHEROKEE PHOENIX
In the April 23 story “CN Supreme Court hears Freedmen ruling case” that we published on www.cherokeephoenix.org, as well as our Facebook and Twitter pages, we erroneously named Tribal Councilor Dick Lay as one of the two Tribal Councilors mentioned as a party to the ongoing Freedmen case, when in fact it was meant to state Tribal Councilor Harley Buzzard. After the error came to our attention, we pulled the story from any and all social media, as well as the Cherokee Phoenix website. We apologize on behalf of the Cherokee Phoenix and the Cherokee Phoenix Editorial Board to all parties affected, especially Tribal Councilor Lay. We regret the error.
TAHLEQUAH – The Cherokee Nation’s Supreme Court on April 20 heard arguments regarding Attorney General Todd Hembree’s decision not to appeal the federal case of Cherokee Nation v. Nash and Vann v. Zinke, which allows Freedmen tribal citizenship and rights.
CN citizens represented by attorney Stephen Gray objected to Hembree not appealing the Aug. 30, 2017, ruling by Senior U.S. District Judge Thomas Hogan, saying it’s an “attack on the Nation’s sovereignty” comparable to the Five Civilized Tribes Act of 1906, which removed land and assets from the CN.
“Citizens’ motions and petition have become necessary because Hembree argues that he has the sole authority to appeal or not appeal the (Washington) D.C. case in his position as attorney general, without consultation with the council and is protected by sovereign immunity from citizens. His argument puts him not only above the law, but now he is the law,” states Gray’s submitted petition.
In August, Hogan ruled, “the Cherokee Nation can continue to define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and the descendants of Cherokee Freedmen.”
“In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of Native Cherokees,” Hogan states.
On Aug. 31, Hembree stated he wouldn’t appeal Hogan’s decision. “The issues in this case first arose nearly 40 years ago, and I am grateful to finally have a ruling on the core legal issues that we presented to Judge Hogan in 2014. It was always my goal to present these arguments before the Court and get a final decision that was binding on all parties. I do not intend to file an appeal.”
He said the CN “respects the rule of law” and has begun processing Freedmen citizenship applications.
Gray’s petition states that without Tribal Council consent Hembree is “negotiating away the Nation’s sovereignty and obligating the Nation to tens of millions of dollars in liability.”
Some of that liability, Gray states, would be in the form of tribal services that would be provided to Freedmen, who are descendants of slaves once held by CN citizens.
Assistant Attorney General Chrissi Nimmo argued in court that the Council doesn’t have a right to question Hembree’s decision. She said Tribal Councilors Harley Buzzard and David Walkingstick filed the case as citizens but changed their standing to their official capacity as legislators. In the original petition it states they filed as citizens. In an amended petition it states they filed as citizens and Tribal Councilors.
She said legislators don’t have the right to sue Hembree to force an appeal of Hogan’s decision. She also told the court that on Dec. 11, 2017, the Tribal Council indefinitely tabled Walkingstick’s legislation to appeal the ruling. Nimmo said that vote, in effect, “killed” the issue of appealing Hogan’s decision.
Gray argued legislators have a right to be involved in all “settlements” involving the CN. However, Nimmo said the federal court’s ruling isn’t a settlement.
“This is an order of the court after years of litigation that the AG (attorney general) chose not to appeal,” she said. “The Council is not a client of the AG. The Cherokee Nation is his client.”
In his petition, Gray asserts a 2007 constitutional amendment requiring CN citizens to have Indian blood and that it binds the principal chief and attorney general to the people’s wishes.
Hogan’s ruling addresses the 2007 amendment.
“The Cherokee Nation is mistaken to treat freedmen’s right to citizenship as being tethered to the Cherokee Nation Constitution when, in fact, that right is tethered to the rights of native Cherokees. Furthermore, the freedmen’s right to citizenship does not exist solely under the Cherokee Nation Constitution and therefore cannot be extinguished solely by amending that Constitution,” states Hogan’s ruling.
Nimmo informed the court that the last day for the CN to appeal Hogan’s ruling was April 23. Supreme Court Chief Justice John Garrett said the court would “expedite” a decision.