Turtle Talk

From the Cherokee Phoenix (via Pechanga):

TAHLEQUAH, Okla. – The Cherokee Nation District Court held a July 17 hearing for the case of Raymond Nash v. CN Registrar as attorneys for both parties presented arguments for their motions for summary judgment.

A summary judgment is a decision based on statements and evidence presented for the record without a trial. It is used when there is no dispute regarding facts and one party is entitled to judgment as a matter of law.

The Nash case is a class action lawsuit involving 386 Freedmen descendents claiming they were illegally removed from the CN citizenship rolls by a voter-approved constitutional amendment in March 2007.

It’s estimated approximately 2,800 Freedmen lost citizenship after the vote. They regained citizenship via a temporary injunction ordered by a CN district judge in May 2007.

In his argument, Freedmen attorney Ralph Keen II said there are “undisputed facts” in the case and provided an overview of court cases and CN legislation involving Freedmen, beginning with the Treaty of 1866 between the United States and CN following the Civil War.

Article 9 of the treaty states Freedmen “shall have all the rights of native Cherokees.” Keen said the treaty was “unambiguous” of the rights it provided Freedmen and the treaty remains “in full force and effect” because no government has repealed it.

The CN is subject to the “supremacy” of federal law, he said, which would make the 2007 CN constitutional amendment a violation of federal law. Keen also argued the amendment was racist and based on Freedmen segregation on the Dawes Roll because they had been slaves.

He said Freedmen segregation and their denial of citizenship was a badge of slavery prohibited by the 13th Amendment of the U.S. Constitution.

Arguing for the tribe, Attorney General Diane Hammons said the 13th Amendment does not cover tribes and slavery and that the case is not about Freedmen who were living in the CN in 1866 but about a tribe’s right to determine citizenship.

She said the treaty did not make Freedmen citizens, but an amendment to the CN Constitution four months later did.

Hammons said the treaty was “punitive,” made to punish the CN after the Civil War because the tribe had allied with the Confederacy. She said Article 9 giving the rights of Cherokee citizens to Freedmen is “ambiguous” and must be looked at in the context of the times.

She said Article 9 only meant Freedmen living in the CN boundary at that time were afforded protection under CN law. CN leaders were resistant to more people settling in the CN after the war, Hammons said, which is why they agreed to protect those Freedmen and their descendents living within the CN at the start of the war and who were still residents, as well as those who returned and established CN residence within six months after the treaty’s ratification.

Hammons said a tribe is a political affiliation, not a racial one, and therefore it could not be said the CN discriminates because the tribe has no blood quantum for citizenship.

She said CN citizens need “some” Cherokee blood but “it doesn’t matter what you look like.”

Hammons also said the Five Tribes Act of 1906 revised Article 9’s meaning and that some Freedmen were not entitled to rights or citizenship because “neither they nor their ancestors had been bona fide residents of the Nation within the required time frame.”

She said no Cherokee has the right to “eternal citizenship.” The U.S. Supreme Court in 1912 held in Gritts v. Fisher that rights and property depended on tribal citizenship, and “when that was terminated by death or otherwise the right was at an end.”

Keen said the CN cannot claim observance of the treaty because the Five Tribes Act changed it and that Freedmen citizenship began with the treaty under federal law, not tribal law.

The Dawes Commission, he said, did not intend to remove Freedmen citizenship rights, while Hammons argued the commission did not decide CN citizenship, the 1976 and 2003 CN constitutions did.

She said at issue is whether Cherokee people can decide citizenship requirements.

“Regardless if people agreed with the result, the Cherokee Nation was allowed to amend its constitution,” Hammons said.

Keens said CN does have a right to determine its citizenship, but under federal guidelines. He said for the first time the CN judiciary must decide whether to void a treaty with the U.S.

“The world is watching this case. They’re watching the Cherokee judiciary and watching us as a whole. If the answer is no, it will further diminish the tribe’s relationship with the federal government. If yes, it enhances Cherokee Nation sovereignty,” he said.

District Court Judge John T. Cripps said he would only consider Keen and Hammons’ arguments. He said the attorneys had 10 days to file supplemental briefs and that he would rule “as quickly as possible.”