Commentary: Cherokee Nation SCT Quashes Injunction Issued by Federal Court in Cherokee Freedmen Case

Here is a link to the Cherokee court order, via Indianz, and a news article from an informer reader on the issue.

The real question becomes, then, will the vote tally seeming to favor Bill John Baker be sufficient to make irrelevant the votes of the descendants of the Cherokee Freedmen, hopefully mooting this inter-judicial showdown.

I have advocated that tribal courts, in narrow circumstances, should resist federal court orders where the federal court appears to have no other source of jurisdiction but for pure federal common law, such as National Farmers Union. I was thinking, and continue to think, that certain questions of tribal court authority should not concern federal interests — subject areas like tort claims by tribal members against nonmembers who have burned down the entire reservation or tortiously damaged tribal government property and vital materials. But I’d hate to see tribal sovereignty go to the wall to defend the decision of one tribe to clumsily racialize its membership criteria. [I say clumsy because the Dawes rolls are so obviously flawed as to make membership decisions involving the Freedmen with them is negligent at best, and racist at worst.]

The Cherokee Nation Supreme Court could have done what the U.S. Supreme Court has done in circumstances involving international law — defer to the policymaking branches and invoke a form of the political question doctrine. The Court could have simply sat on the case until the dust settled. In fact, it appears both the Nation and the Freedmen descendants asked them to do so. Cherokee already lost millions in HUD money. The tribal court isn’t doing much to alleviate this dispute, and appears to be inflaming it even more.

3 thoughts on “Commentary: Cherokee Nation SCT Quashes Injunction Issued by Federal Court in Cherokee Freedmen Case

  1. Anonymous October 13, 2011 / 10:20 am

    “to defend the decision of one tribe to clumsily racialize its membership criteria.”

    Although I appreciate the sentiment, the argument is problematic. While the Dawes Rolls may be flawed, they are no more so than the 1866 treaties imposed (is that too strong a word?) on the Five Tribes after the Civil War. Both represent pragmatic responses to particular political situations; both emerged in contexts of political inequality. And both now form institutionalized parts of the contemporary legal and political landscapes. Hence the history that justifies condemnation of the Freedmen disenrollment also justifies support for the CNO in doing so. Which to choose? The answer depends on the moral framework through which each is viewed, a framework, however, that is grounded in the inequities of American history.

  2. Allen L. Lee October 14, 2011 / 1:28 am

    I think the moral framework view finder is in the corrective acts and measures meant to restore indigenous sovereignty from the Termination Era. Both the treaties and portions of treaties and the Dawes Era acts must conform to the most current superceding acts. The old racial frameworks, even the legal definition of “Indian” by U.S. standards has been superceded since the treaties and the Dawes Era. The C.N.O. can use the Dawes Rolls as a base roll, they just can’t use the racial components of the Rolls as a criteria and expect the U.S. to recognize it. The treaties were terms of surrender. Those tribes that signed them gained their recognition as sovereigns back quicker than many of the states in rebellion, that continued as military districts after the tribal treaties were signed. Force is a fair term.

  3. Allen L. Lee October 14, 2011 / 2:39 pm

    In summation, no entity, individual, or sovereign collective under federal jurisdiction, including tribes, can resurrect U.S.laws or portions of U.S.laws that are illegal today and use them while existing under federal jurisdiction. Example: Some radical school districts attempted to segregate boys from girls because of gang activity or progressive ideas regarding female public education in the 1980’s and 90’s. Can’t do it in public schools, it’s illegal now, wasn’t illegal in the 1950’s.

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