Court keeps Freedmen suit alive
Judicial panel rules Cherokee leaders can't hide behind immunity.
Court keeps Freedmen lawsuit alive

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By Chris Casteel
Published: July 30, 2008

WASHINGTON — A federal appeals court on Tuesday kept alive a lawsuit filed by Cherokee Freedmen, ruling that Cherokee Nation officials don't have immunity from allegations that they denied tribal rights to descendants of former slaves.

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The court's decision means the Freedmen descendants will go back to district court here to pursue their case, which stems from a dispute over being banned from voting in tribal elections in 2003 and being denied membership in the tribe if they don't have Cherokee blood.

Overturning a district court decision, the appeals court ruled that the Cherokee Nation has sovereign immunity that shields it from the lawsuit. But the court rejected arguments that tribal officials also have that immunity.

"Faced with allegations of ongoing constitutional and treaty violations ... officers of the Cherokee Nation cannot seek shelter in the tribe's sovereign immunity,” the court's opinion says.

The appeals court said the district judge must now determine whether, "in equity and good conscience,” the suit can go forward without the tribe itself as a party.

The ruling was issued by a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit.

What's the reaction?
Attorney Jon Velie of Norman, who represents the Freedmen, said Tuesday the case before the appeals court was a jurisdictional one. Now that the court has said tribal officials don't enjoy immunity, the case can continue in the lower court on the question of whether the officials — and U.S. government officials — are violating the U.S. Constitution and an 1866 treaty by denying full membership rights to descendants of former slaves once owned by Cherokees, Velie said.

"Hopefully, this will come to an end and the Freedmen will be reintegrated into the tribe,” Velie said. "That's the goal.”

Josh Galper, an outside attorney for the Cherokee Nation, said the appeals court had unanimously rejected every argument the Freedmen descendants made against the tribe and called the opinion "a major vindication of sovereignty for the Cherokee Nation and all of Indian country.”

"The next issue to be decided in the district court is if the case can go forward against tribal officials without the Cherokee Nation as a party,” Galper said.

Marilyn Vann, the lead plaintiff in the case, said, "This is a victory for the Freedmen people and our birthright as Cherokees. This decision answers the question again that the Freedmen's treaty rights trump the right of our elected officials to oppress us.”

Cherokee Nation Principal Chief Chad Smith, who is one of the officials being sued by the Freedmen, hailed the decision's reaffirmation of sovereign immunity, and he said Congress should stay out of the dispute and let the courts decide.

Some members of Congress want to cut off funding to the Cherokee Nation because of the vote by tribal members last year to change the constitution to deny membership of Freedmen who aren't part Cherokee.

Members of Oklahoma's congressional delegation, including Reps. Dan Boren, D-Muskogee, and Tom Cole, R-Moore, have argued that Congress should stay out of the dispute while the Cherokee Nation and federal courts are considering lawsuits. They have so far headed off some efforts to deny tribal funding.


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Related Topics: Political Policy, Special Interest Groups, Politics, Diplomacy, Civil Trials, Trials, Native American Issues, Appellate Trials, International Relations, Treaties


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Perhaps the decendants of the Freedmen can sue the federal government to become white or Mexican or Chinese or anyone else who might have some money that they would like to have. The Treaty of 1866 was forced upon the Tribe(s) at the end of the Civil War as a punitive measure even though many members of the Tribe(s) had fought for the Union. The federal government forced the Tribe(s) to accept the Freedmen because it did not want to accept responsibility for the Freedmen and their welfare. The Tribe(s) signed the treaty at the point or threat of a gun. It was much like the Japanese signing a peace treaty at the end of WWII facing the threat of another nuclear bomb.
Gary, Oklahoma City - Aug 5, 2008 9:10 AM
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again, my question is what is the reason for kicking the Freedmen out? They've been Cherokee for 150 years, and for the tribe to just up and say "actually you're not" looks like bullying. The question of do the Cherokee have the right to do this in my opinion isn't very interesting... its how can the Cherokee behave so disgracefully on this issue when they've been such a positive force on many others
Tim, Norman - Jul 30, 2008 5:32 PM
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You say the Cherokees "chose" to include the Freemen back in 1866 in a Treaty that the Cherokees were forced to sign after siding with the Confederates. Am I correct so far? What else was in this treaty? If I'm correct, the Treaty we're talking about was a punitive treaty, not one that was mutually beneficial to the tribe and the U.S. Government. That the freemen have enjoyed the status of tribal membership for almost 150 years is great, but if they are not blood-related to the tribe, then why can't the tribe say, 'well, we've let you enjoy tribe membership for 150 years, perhaps now it is time for you to stand on your own two feet.' We, as Cherokees, feel we've honored the terms of the treaty for 150 years, now we choose to do as we wish on this matter. Why are they forced to honor the terms of an 1866 treaty, and all the treaties that the U.S. made with the Native Americans are not likely to be honored anytime soon?
Mike, Oklahoma City - Jul 30, 2008 1:53 PM
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The Cherokees chose to include the Freemen, way back. Other tribes did not choose to include them. They shouldn't be able to kick them out now. This is not a birthright of the Cherokees, this was a treaty, one they had no choice to make, but that is why they should understand how wrong it is to kick out freedmen.
B., Tishomingo - Jul 30, 2008 12:24 PM
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I think you're opening up an ugly can of worms when you try to force the Cherokees to do what the American federal gov. does not want to do - make reparations for past crimes. Will the American taxpayers have to pay out for all descendants of slaves, all Indian massacres descendants, all Mormon persecution descendants, all atomic bomb descendants, all broken treaties we blatantly abused? Do you really want to go there with the Treaties issue? Do you really want to continue to burden the Cherokee tribe for something that happened over 100 years ago? Just think about it.
Mike, Oklahoma City - Jul 30, 2008 11:39 AM
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what saddens me about all this is that the question has changed to "do the Cherokees have the right to do this?" and "do outsiders have a right to challenge it?" i think the question still needs to be "how on earth could the Cherokees do such a thing?" and "what reason do they have for this?" the Cherokees have a rich and proud history, but unfortunately holding slaves was part of that history. for the tribe to absolve itself of that legacy and responsibility is reprehensible. It makes one cringe all the more at the Confederate monuments on the capitol lawn at Talequah. The only good outcome I can think of for this case is for the Cherokee to accept their mistake in stripping rights from the decedents of their former slaves and to end this debacle
Tim, Norman - Jul 30, 2008 10:48 AM
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Does this mean that illegal immigrants can also sue US officials but not our government? Let's be fair here...
Kevin, Oklahoma City - Jul 30, 2008 9:35 AM
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There is an ill wind blowing.
burt, edmond - Jul 30, 2008 7:40 AM
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