CN Supreme Court dismisses Freedmen case
Descendants of Freedmen Association President Marilyn Vann, left, speaks with other Cherokee Freedmen following a 2011 meeting in Muskogee. Throughout their fight with the Cherokee Nation for citizenship rights, Freedmen descendants and their supporters met in Muskogee, Tulsa and Oklahoma City to stay updated on court proceedings and support each other. WILL CHAVEZ/CHEROKEE PHOENIX
Freedmen descendants Willadine Johnson, of Kansas City, Missouri, center, discusses family genealogy with her cousins Earnestine Allen, of Springfield, Illinois, left, and Olive Anderson, of Kansas City, before a 2011 Cherokee Nation District Court hearing in Tahlequah. WILL CHAVEZ/CHEROKEE PHOENIX
TAHLEQUAH – The Cherokee Nation’s Supreme Court on May 16 dismissed a case by eight CN citizens asking the court to compel Attorney General Todd Hembree to appeal a federal ruling that gave Cherokee Freedmen tribal citizenship rights.
“The (eight) movants are individual Cherokee citizens who disagree with the outcome of the federal case and disagree with the way the Nation and the attorney general’s office handled the case,” the ruling states. “The ruling of the federal court has no effect on the citizenship of the movants. They have failed to demonstrate any concrete injury in fact sufficient to establish standing to bring this suit.”
On Aug. 30, in the case of Cherokee Nation v. Nash and Vann v. Zinke, Senior U.S. District Judge Thomas Hogan ruled the CN could define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and Freedmen descendants.
“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.
The following day, Hembree stated he would not appeal Hogan’s decision. On Sept. 1, the Supreme Court ordered the CN government and its offices, including Registration, to begin processing CN citizenship applications of eligible Freedmen descendants.
In its May 16 ruling, the Supreme Court wrote that Hembree petitioned “this court to enter a preliminary order declaring that the memorandum opinion issued by the District Court for the District of Columbia…on August 30, 2017, to be valid and binding against the Cherokee Nation, its governmental branches, and its offices, including the Cherokee Nation Registrar until further order of the court.”
Prior to Hembree’s petition, on March 16, 2009, the Tribal Council passed a resolution ratifying the litigation in Cherokee Nation v. Nash and acknowledged that it was “desired” that the federal court determine rights of the Freedmen and that the Cherokee Nation “would be bound by the decision of the federal court.”
“Cherokee Nation voluntarily entered this litigation and agreed to be bound by the decision, therefore, this court granted the request of Attorney General and entered a preliminary order granted declaratory action and petition for write of mandamus,” the May 16 ruling states.
A writ of mandamus is an order from a higher court to a lower court or to a government official, office or corporation commanding that a specified thing be done.
On Dec. 11, the eight movants filed a motion to intervene and asked the Supreme Court to withdraw the order and direct Hembree to appeal Hogan’s ruling. On Dec. 29, the CN and Hembree filed a special limited entry of appearance and objection to the Dec. 11 motion to intervene. The Supreme Court heard oral arguments on April 19.
The eight movants were represented by Broken Arrow attorney Stephen Gray who called Hembree’s decision not to appeal an “attack on the Nation’s sovereignty.”
“Citizens’ motions and petition have become necessary because Hembree argues that he has the sole authority to appeal or not appeal the 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 court petition.
In his petition Gray also argued that Hembree, without Tribal Council consent, “is negotiating away the Nation’s sovereignty and obligating the Nation to tens of millions of dollars in liability.”
Some of that liability, Gray’s petition asserts, 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 responded that the Tribal Council doesn’t have a right to question Hembree’s decisions.
Two legislators, Harley Buzzard and David Walkingstick, were among the eight movants. In court, Nimmo said Buzzard and Walkingstick filed the case against the CN and Hembree as citizens but then changed their standing to their official capacity as legislators.
She said Tribal Councilors don’t have the right to sue Hembree and force him to appeal the Freedmen decision. Also, Nimmo reminded the court that on Dec. 11, the Tribal Council indefinitely tabled Walkingstick’s legislation to appeal the federal court ruling on Freedmen receiving tribal citizenship. Nimmo said that vote “killed” the issue of appealing Hogan’s decision.
Gray argued that the Tribal Council has a right to be involved in all “settlements” involving the CN. However, Nimmo disagreed with calling the federal ruling a settlement.
“This is an order of the court after years of litigation that the AG chose not to appeal,” she said. “The Council is not a client of the AG. The Cherokee Nation is his client.”