Cherokee Freedmen Ask Federal Court to Ensure VOTING RIGHTS Under Treaty of 1866

September 2, 2011

CHEROKEE FREEDMEN ASK FEDERAL COURT TO ENSURE VOTING RIGHTS IN CHEROKEE ELECTION UNDER TREATY OF 1866

Cherokee Freedmen Plaintiffs in Vann v. Salazar and Defendants in Cherokee Nation v. Nash, two cases addressing the issues of the Cherokee Freedmen citizenship rights in the Cherokee Nation pending in Washington DC since 2003, have filed a Preliminary Injunction today asking the Federal Court for relief against the Secretary of Interior of the United States, the Interim Cherokee Chief, the former Cherokee Chief Chad Smith and the Cherokee Nation of Oklahoma. The case is set for hearing on September 20th in front of Judge Kennedy.

The Motion requests that the Court enjoin the Cherokee Defendants from denying Plaintiffs and the other Freedmen their full citizenship rights and from holding any election as to which Plaintiffs and other Freedmen are denied the right to vote based solely upon their status as Cherokee Freedmen; and that requests that the Federal Defendants are hereby enjoined from taking the following actions until the Cherokee Nation restores full citizenship rights to the Freedmen Plaintiffs and the other Freedmen and complies with the Principal Chiefs Act of 1970, which requires that the Federal Defendants review the Cherokee Nation’s election procedures and ensure that they comply with all legal requirements, including the Cherokee Freedmen’s right to vote: (1) distributing funds to the Cherokee Nation; (2) recognizing any Cherokee Nation election; and (3) recognizing the government-to-government relationship with the Cherokee Nation.

The request for relief follows a recent Cherokee Supreme Court decision that terminated the Freedmen’s citizenship. The timing of the decision has raised questions because it falls just prior to a controversial re-do of the election for Principal Chief. In the previous election Chad Smith lost to Bill John Baker. The same Cherokee Supreme Court invalidated the election and now has removed a segment of the voters. The removed voters were the target of Chad Smith for expulsion since 2006, when the Chief disbanded the Judicial Appeals Tribunal, the Cherokee’s highest Court after it ruled the Cherokee Freedmen were entitled to citizenship.

Freedmen lead attorney Jon Velie of Norman, Oklahoma states: “The Cherokee Nation’s decision to oust its Freedmen citizens on the eve of the election for its Principal Chief was a bad decision made for political gain at the expense of all of Indian Country.”
Federal Courts have held consistently from 1895 through 2010 in the Vann decision in the DC Court of Appeals that the Freedmen were granted citizenship under the Treaty of 1866.”

The Cherokee Nation Supreme Court stated the Treaty of 1866 did not confer citizenship for the Freedmen and that the Tribe could expel the Freedmen. It sited no legal precedent for its conclusion. The decision flies in the face of the 2010 DC Court of Appeals language, “the Thirteenth Amendment and the 1866 Treaty whittled away the tribe’s sovereignty with regard to slavery and left it powerless to discriminate against the Freedmen on their basis as former slaves. The tribe does not just lack a “special sovereign interest” in discriminatory elections – it lacks any sovereign interest in such behavior.”

The Cherokee Nation filed a lawsuit against five Freedmen in Cherokee Nation v. Nash, In Nash, the Cherokee Nation claims the Treaty of 1866 was abrogated by turn of the century laws that do not specifically state abrogation of the Treaty. The Cherokee Nation contends this allows it the right to no longer be bound by the Treaty and terminate its citizens who derived their citizenship from their ancestors status as slaves.

“The concept of implicit abrogation of a treaty is very dangerous, says Jon Velie. “If the Cherokee Nation wins on this argument it will lose its and all Tribe’s strongest affirmation of sovereignty. All treaties will be indefensible. Tribes will have no more ability to exert their treaty rights in Federal Court as all will be able to be found invalid if any law that may have been passed addresses a similar claim to the Tribes rights. Treaties are the supreme law of the land, if devalued in this manner become worthless.”

The impact of terminating the Freedmen will not only be felt by those that desire to vote in the Chief’s election on September 24th. The Freedmen’s Motion contained a number of affidavits from Freedmen that will lose medical treatment, such as Charlene White, a Plaintiff, who receives treatment for glaucoma and cataracts, Melissa Chaplin, whose kids receive school supplies and Courtney Gaston who is on an academic scholarship. If the Freedmen are not successful the Freedmen will lose these and all other rights in their Nation.

Lead Plaintiff Marilyn Vann says, “The right to vote for your elected leaders is the most fundamental right you have in any democracy. Ours was stolen, our identities were stolen and we will not sit back and allow someone to say we are not a Cherokees. I am Cherokee and I am proud of it. It is ludicrous to think our birth rights as Cherokee citizens can be voted out by in violation of a Treaty between the US and our Nation. I am standing up for my treaty rights and the treaty rights for all Indians.”