WASHINGTON -- In a case that has been pending for more than three years, a federal judge ruled on Aug. 30 that "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."
Senior U.S. District Judge Thomas Hogan denied the CN and Principal Chief Bill John Baker's motion for partial summary judgment and granted the Cherokee Freedmen cross-motion for partial summary judgment and the Department of Interior's motion for summary judgment in Cherokee Nation v. Nash, Vann and the Department of Interior.
Hogan's ruling states "the paramount question" in the case is whether Article 9 of the 1866 Treaty between the U.S. and the CN allowed qualifying Freedmen "all the rights of native Cherokees" and encompasses a right to CN citizenship.
"If so, then the secondary question is whether Article 9 extends that citizenship right to extant descendants of qualifying freedmen identified in the Final Roll of Cherokee Freedmen compiled by the Dawes Commission. Answers to these questions will foretell whether the 2007 amendment to the Cherokee Nation Constitution violated Article 9 of the 1866 Treaty and therefore is unlawful," states the ruling.
CN v. Nash was last argued in 2014, when the CN contended that Article 9 never offered qualifying Freedmen and their descendants "an enduring right to citizenship, or any right to citizenship." According to the CN, it was the Nation's Constitution, not the 1866 Treaty, that bestowed citizenship rights to Freedmen.
Hogan's ruling, however, states the CN is "mistaken" to treat the 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," the ruling states. "The Cherokee Nation's sovereign right to determine its membership is no less now, as a result of this (Aug. 30) decision, than it was after the Nation executed the 1866 Treaty. The Cherokee Nation concedes that its power to determine tribal membership can be limited by treaty. 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."
Marilyn Vann, the Descendants of Freedmen Association president and intervener defendant in the CN v. Nash, said she's "very happy" and "very excited" and hopes Cherokee Freedmen "can continue to take their place within the tribe and give service to the tribe."
"I think some people have been prejudiced against Freedmen, some because of our appearance, not to say all Freedmen look like me, but Freedmen have much to offer," she said. "There are Freedmen who are electricians, doctors, lawyers, engineers. We are here to serve not to take."
She added that during the years in which Freedmen citizenship cases were litigated, people who spread "false" information that the Freedmen possess no Indian blood hurt the CN.
"Instead of us being able to work to build up our tribe, we have had to fight for our very survival," Vann said.
As of publication, CN Attorney General Todd Hembree had not responded to requests for a comment about the ruling. However, previously he had 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."
In November 2013, the CN filed a partial motion for summary judgment and stated it has the right to determine its citizenship.
In January 2014, the Interior Department filed a 72-page motion for summary judgment in CN v. Nash with hopes of ending 11 years of litigation. In it the DOI asked the U.S. District Court to declare that the 1866 Treaty between the CN 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."
"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 DOI 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."
Cherokee Freedmen are descendants of former Cherokee-owned slaves. Freedmen plaintiffs believe the Treaty of 1866 guarantees them tribal citizenship rights. In 2007, CN voters amended the CN Constitution to limit citizenship to people who were Indian "by blood," which removed eligibility for citizenship from Freedmen and intermarried whites.
Click here to readthe court documents.