By By SEAN MURPHY Associated Press
OKLAHOMA CITY December 14, 2012 (AP)
Descendants of slaves owned by members of the Cherokee Nation can sue the current chief in an attempt to restore their tribal memberships, a federal appeals court ruled Friday.
The U.S. Court of Appeals for the District of Columbia overturned a lower court’s ruling that the case could not proceed because the tribe was not a defendant in the case and couldn’t be compelled to abide by the court’s ruling.
“Applying the precedents that permit suits against government officials in their capacities, we conclude that this suit may proceed against the principal chief in his official capacity, without the Cherokee Nation itself as a party,” the court wrote.
The court noted that an 1866 treaty granted the former slaves known as Cherokee Freedmen all tribal rights, including the right to vote. But in 2007, the tribe approved an amendment to its constitution requiring all tribal citizens to have a Native American ancestor listed on the Dawes Roll, thus rescinding the tribal membership of about 2,800 Freedman descendants.
The Freedmen claim the chief — and through him the sovereign tribe — broke federal law by not honoring the treaty.
Marilyn Vann, a Freedman and the plaintiff in the case, said she was pleased with the court’s ruling and looked forward to having the merits of the case determined in court.
“We look forward to continuing on until we have final vindication of the enforcement of our rights,” Vann said.
Vann said slaves owned by Cherokees played an integral role in the survival of the tribe along the Trail of Tears during the forced relocation of its members from their ancestral homelands in the southeast to Oklahoma. And she likened the Freedmen’s plight today to the struggle for civil rights by blacks in the deep South during the 1950s.
“This is no different than the sort of thing that was going on 50 or 60 years ago, when states said they had the right to keep black folks from using the library in Mississippi and Alabama,” Vann said. “We have our rights, and we are willing to fight to the end.”
Cherokee Nation Attorney General Todd Hembree said the tribe is pleased that the appellate court reaffirmed in its ruling that the nation is a sovereign government.
“However, the court of appeals also ruled that the interests of the tribe can adequately be represented through its elected officers,” Hembree said. “Although our principal chief stands ready, willing and able to protect and defend the Cherokee Nation constitution and the will of its people, we believe that the entity that should be tasked with that responsibility is the nation itself.”
Removing the Freedmen from the tribe was not a racially motivated decision, but one of a tribe’s sovereign ability to determine who is a citizen, Hembree said.
“It’s not a race-based situation. It is an identity,” he said. “It’s not asking too much that in order to be a citizen of an Indian tribe, that you be Indian.
“We believe that’s very important, and so did the Cherokee people, and we intend on representing their will in this case.”