Federal appeals court: Freedmen can sue tribal officials

Journal Record, The (Oklahoma City), Jul 30, 2008 by Marie Price

Marilyn Vann of Oklahoma City has fond memories of her family honoring Cherokee heritage and rituals from the time she was a child.

"This is who we are," Vann said Tuesday following a federal appeals court decision holding that descendants of Cherokee freedmen, formerly slaves owned by the Cherokee Nation, can sue tribal officials for barring them from voting in 2003 tribal elections.

The appellate panel left it up to a lower federal court to decide whether the overall case should proceed.

Vann said she remembers being asked by another child, as a 5- year-old, what kind of Indian she was.

"I didn't know anything about race at that time," she said. "My dad said, 'We are Cherokees, but you do have African blood.'"

The tribe later removed from its rolls freedmen descendants without Cherokee-blood ancestry.

Vann is lead plaintiff in the lawsuit that resulted in Tuesday's ruling.

"This is a victory for the freedmen people and our birthright as Cherokees," she said.

Vann said that the U.S. and other nations have had to take responsibility for and give rights to conquered and oppressed people, such as former slaves.

"We hope the day will come when tribal officials will move away from these kinds of injustices and try to build this tribe and go forward as one nation," Vann said.

The U.S. Court of Appeals for the District of Columbia Circuit upheld sovereign immunity for the tribe itself.

The court found nothing in the 13th Amendment or an 1866 treaty that expressly abrogated the tribe's sovereign immunity, reversing a district court ruling to the contrary.

The amendment, which applies to Indian tribes, eradicated slavery. The 1866 treaty implemented similar principles for the Cherokee Nation.

Freedmen descendants argued that the tribe violated the amendment and treaty.

"Faced with allegations of ongoing constitutional and treaty violations, and a prospective request for injunctive relief, officers of the Cherokee Nation cannot seek shelter in the tribe's sovereign immunity," the appellate judges said.

They said the 13th Amendment and treaty "whittled away the tribe's sovereignty with regard to slavery and left it powerless to discriminate against the freedmen on the basis of their status as former slaves."

"The tribe does not just lack a 'special sovereignty interest' in discriminatory elections - it lacks any sovereign interest in such behavior," the court said.

The Cherokee Nation released a statement addressing the portion of the appeals court ruling that upheld tribal sovereignty.

"What Congress and the nation agreed to in 1866, the Congress should not violate now," said Principal Chief Chad Smith. "The court has sent the case back to the district court, and Congress should continue to let the courts decide."

Some members of Congress who oppose the tribe's action against the freedmen descendants are targeting certain types of funding the Cherokee Nation receives from the federal government.

"This decision is a strong affirmation for tribes across the country, who rely upon federal courts to uphold tribal sovereignty when it comes under attack," said Smith. "The court once again acknowledged that tribes have inherent sovereignty that predates the founding of the United States, and that tribal sovereign immunity still exists today."

Cherokee Nation spokesman Mike Miller acknowledged that the court decision does not extend sovereign immunity to tribal officials, who the tribe had asked be dismissed from the case along with the tribe itself.

"They disagreed with us on that," he said.

Now, said Miller, it is up to the district court to decide whether the case can proceed at all.

"At the beginning of today they were being sued, and at the end of today they're being sued," he said of Cherokee officials. "There's really not a change in that."

It is important that the nation itself is not being sued, Miller said.

"That's what's changed," he said.

Miller said Cherokee officials were still reviewing the opinion and keeping open "any course of action."

Jon Velie, lead counsel for the freedmen descendants, said the court's decision protects both tribal sovereignty and individual Indian civil rights.

"We can now proceed against U.S. and Cherokee officials without toppling the principles of tribal sovereignty," he said.

Velie termed the decision a huge victory.

"What they're saying right now is, that if an official violates the 13th Amendment or treaty of 1866, they can be held liable in their official capacity," he said. "This is a great day for the freedmen and for all individual Indians."

The case now returns to the U.S. District Court for the District of Columbia, to determine whether the case can proceed against Cherokee officials without the nation itself.

The freemen descendants are seeking prohibition of future elections without their participation, including the right to run for office.

Velie said some 23,000 people are locked out of Cherokee citizenship due to the tribe's actions.

"It means that they need to allow them back into the tribe," he said.

Vann said she looks forward to continuing the court case.