"the People's Paths!" Cherokee News Path - Three Courts Considering Freedmen Claims

TAHLEQUAH, Oklahoma – As the Freedmen issue is discussed in the halls of Congress, attorneys for Freedmen descendents and the Cherokee Nation are preparing for more hearings in three different courts.

The U.S. District Court in Washington, D.C., the District of Columbia Circuit Court of Appeals and the Cherokee Nation District Court have Freedmen cases pending.

Six Freedmen descendents are waiting for their case, Vann v. Kempthorne (Department of Interior), to be heard in U.S. District Court regarding their citizenship and voting rights in the CN. The plaintiffs contend the CN, with approval from the DOI secretary Dirk Kempthorne, prevented them from participating in the 2003 tribal election and seek a court order declaring the 2003 election invalid. They also want DOI to not recognize the results of the elections until Freedmen are permitted to vote.

In December 2006, a federal judge denied the CN’s motion to dismiss Vann v. Kempthorne and issued an opinion that the CN’s sovereign immunity did not prevent the tribe from being sued.

“That is the kind of order that can immediately be appealed,” said CN Attorney General Diane Hammons. “We did that. So now that part of the case is in the Federal (D.C.) Circuit Court of Appeals.”

Hammons said she and Principal Chief Chad Smith plan to attend a meeting about the appeal in Washington, D.C., in late October.

In the meantime, Hammons said the CN has filed another motion asking the court to dismiss Vann v. Kempthorne. The CN’s appeals have slowed down the case and Hammons said she expects there won’t be another hearing on the case until early 2008.

In the CN District Court case, the plaintiffs in Raymond Nash v. Cherokee Nation Registrar have submitted their petitions or appeals, and the CN has responded to those, Hammons said.

There are 339 Freedmen descendents appealing the constitutional amendment approved by Cherokee voters last March in a special election. The amendment states all tribal citizens must have an Indian ancestor – Cherokee, Shawnee or Delaware – on the Dawes Roll.

In the election’s aftermath, nearly 2,800 Freedmen descendants and about 10 intermarried white descendants lost tribal citizenship. Freedmen had 90 days following the election in which to appeal in tribal court. During that time other Freedman descendents joined Nash is his case against the registrar.

Last May, CN District Court Judge John T. Cripps approved an application for a temporary injunction against the new constitutional amendment and ordered the tribe’s registrar to reinstate Cherokee citizenship to Freedmen affected by the outcome of the special election. The injunction also restored full economic benefits and the right to vote to Freedmen descendents until the federal and tribal litigations are decided.

“(The) Plaintiffs’ underlying claims assert that (the) defendant has wrongfully removed their status as Cherokee citizens and that the March 3 Constitutional Amendment changing citizenship requirements for the Cherokee Nation was flawed and cannot be enforced,” Cripps wrote. “Upon weighing the positions of each side and finding agreement of the parties the court finds, orders and decrees that defendant Lela Ummerteskee (CN Registrar) should immediately reinstate to full citizenship, within the Cherokee Nation, the plaintiffs.”

Hammons said the next step in the CN District Court case would likely be a motion for summary judgment filed by either party in the case. She said the CN’s summary judgment would argue that because there are not any real factual questions the matter should be decided as a matter of law.

“Both sides would then present legal arguments and let the judge decide it,” she said.