Court: Cherokee leaders can be sued over Freedmen

By Murray Evans
Oklahoma City, Oklahoma (AP) 8-08

A federal appeals court ruled July 29 that descendants of former slaves owned by the Cherokee Nation can sue officers of the tribe, but not the tribe itself.

The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia is the latest development in a case that dates to 2003, when freedmen, as they’re known, filed a lawsuit after they said they had been prevented from voting in two tribal elections that year.

After a lower court allowed the tribe to be included as a defendant in that lawsuit, the tribe appealed, citing the doctrine of sovereign immunity and saying it couldn’t be sued. The appeals court agreed, saying the tribe “cannot be joined in the Freedmen’s federal court suit without the tribe’s consent.”

But the court also said the tribe’s officers do not share in that sovereign immunity.

“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,” Judge Thomas Griffith wrote in the ruling.

The appeals court sent the case back to district court in Washington, D.C.

Both sides claimed victory after the July 29 ruling. Cherokee Nation spokesman Mike Miller called it “a very important ruling for tribal sovereign immunity.”

Marilyn Vann, the president of the Oklahoma City-based Descendants of Freedmen of Five Civilized Tribes and the lead plaintiff in the case, said it was “a victory for the Freedmen people and our birthright as Cherokees” and that the decision affirms the rights of the freedmen descendants “trump the right of our elected officials to oppress us.”

Joshua Galper, an attorney representing the tribe in the Washington circuit case said the next issue to be decided in the federal court “is if the case can go forward against tribal officials without the Cherokee Nation as a party.”

“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,” Cherokee Nation Principal Chief Chad Smith said in a statement. “The court once again acknowledged that tribes have inherent sovereignty that predates the founding of the United States.”

Alvin Dunn, a Washington-based attorney for the freedmen, said the decision recognized the principle that if a government official is about to “take an action to violate a federal law, constitution or treaty” that the official can be sued.

“We’re quite pleased with the decision even though the tribe’s sovereign immunity was upheld,” Dunn said. “We can get the relief we need by moving against the tribal officials.

“Ultimately, we’re seeking justice for the freedmen and if we can get it this way, by going against the Cherokee Nation officials, that is not a problem.”

Miller said the tribe has not decided whether to appeal the ruling or simply to allow the case to proceed at the district-court level.

The Tahlequah-based Cherokee Nation one of the largest Indian tribes in the United States, with about 250,000 members.

The freedmen descendants and Cherokee Nation have been at odds in recent years over efforts to remove them from tribal citizenship rolls.

In March 2007, by a 3-to-1 margin, more than 8,700 Cherokee voters approved a constitutional amendment March 3 that would remove about 2,800 freedmen descendants from the tribe’s rolls – and therefore eliminate their eligibility for medical and other services provided by the tribe.

Two months later, the tribe’s attorney general agreed to a temporary injunction in tribal court that allows descendants of the tribe’s slaves to maintain their citizenship while they appeal the constitutionality of an election that rescinded their tribal membership. Miller said that injunction remains in place.

Under the constitutional amendment, tribal citizenship would be limited to descendants of “by blood” tribe members as listed on the federal Dawes Commission’s rolls from more than 100 years ago.

The commission, set up by a Congress bent on breaking up Indians’ collective lands and parceling them out to tribal citizens, drew up two rolls, one listing Cherokees by blood and the other listing freedmen, a roll of blacks regardless of whether they had Indian blood.