Summary Judgment Briefs in Cherokee Freedmen Matter

Here are the filings (so far) in Cherokee Nation v. Nash (D.D.C.):

233 Cherokee Nation Brief

234 Federal Defendants – Expert Report in Support of Partial Summary Judgment

Exhibit 3 Federal Defendants Motion and Memo In Support – Cross Motion for Partial Summary Judgment and Opposition to Cherokee Motion

235-1 Cherokee Freedmen Brief

235-3 Exhibits


Judge Hogan Sets Cherokee Freedmen Oral Argument for April 29, 2014


2013-09-17 Order Granting Joint Motion for Order Setting Briefing Schedule for Summary Judgment on Core Issue


Briefing Schedule in Cherokee Freedmen Case (Now in D.C. Federal District Court)


2013-09-13 Joint Motion for Order Setting Briefing Schedule for Summary Judgment on Core Issue and Staying Case on All Other Matters

California COA Decides ICWA-Related Appeal Involving Cherokee/Choctaw Freedmen Descendants

The opinion in In re D.N. is here.

An excerpt:

The “by blood” requirement in the Choctaw Nation‟s Constitution, as well as others, has been interpreted as excluding the descendants of freedmen. (Allen v. Tribal Council (2006) 9 Okla. Trib. 255.) The exclusion of the descendants of former slaves of the Five Civilized Tribes is a matter of ongoing controversy. (See, e.g., Cherokee Nation v. Nash (N.D.Okla. 2010) 724 F.Supp.2d 1159.) It cannot be addressed in this dependency proceeding since membership criteria are the tribe‟s prerogative, and its determination of a child‟s eligibility for membership is conclusive for purposes of ICWA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); § 224.3, subd. (e)(1); In re Jack C., III (2011) 192 Cal.App.4th 967, 978.)

NYTs “Disunion” Series Profiles Cherokee Nation after the Civil War


Fascinating. My favorite part:

By 1862, Ross had become disillusioned with the Confederate government. The first major military engagements in Indian Territory proved disastrous for both the Confederacy and the Cherokees. Retreating from Indian Territory, the Confederacy left the Cherokees open to Union advances and without supplies for Cherokee troops and destitute civilians. Although Ross believed the Confederacy was shirking its treaty promises, the Confederate colonel Douglas H. Cooper called upon Ross to fulfill his obligations by ordering all Cherokee men of fighting age to “take up arms to repel invasion.”

Union Capt. Harris S. Greeno was aware of Ross’s dissatisfaction with the Confederacy, and he ordered the arrest of Ross and his family at their plantation home, Rose Cottage, in present-day eastern Oklahoma. They were quickly paroled and escorted to Union territory, and they retreated to his wife’s family home in Philadelphia. Ross would spend the remainder of the war attempting to convince the Lincoln administration of the Cherokee’s loyalty and commitment to the Union cause.

Cherokee Nation En Banc Petition in Vann v. Salazar


2013-01-28 Appellee Cherokee Nation Petition for Rehearing (without attachments)

Panel materials here.

The D.C. Circuit has had few, if any, en banc hearings in the last few years because the court is severely understaffed. There have been, however, a rash of dissents from denial of en banc petitions which serve as a sort of marker for later review. Worth it to see if anything happens here.

D.C. Circuit Reverses Dismissal of Cherokee Freedmen Suit against Cherokee Officials

Here is today’s opinion in Vann v. Dept. of Interior: CADC Opinion

An excerpt:

Applying the precedents that permit suits against government officials in their official 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 Freedmen have sued the Principal Chief in his official capacity under the doctrine of Ex parte Young, 209 U.S. 123. The Ex parte Young doctrine allows suits for declaratory and injunctive relief against government officials in their official capacities – notwithstanding the sovereign immunity possessed by the government itself. The Ex parte Young doctrine applies to Indian tribes as well. Cf. Oklahoma Tax Commission, 498 U.S. at 514; see generally Larson, 337 U.S. at 689-92; RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 958-60 (5th ed. 2003).

Briefs are here.

Update in Vann v. Interior & Cherokee Nation v. Nash

The Cherokee Nation has voluntarily dismissed their claims against the feds in Cherokee Nation v. Nash:

Cherokee nation vs nash order 8 21 2012 feds

The feds have an outstanding counterclaim against the Nation and so they remain parties.

In the D.C. Circuit appeal, Vann v. Interior, here is Vann’s reply brief:

2012-08-30 Reply Brief of Appellants Marilyn Vann et al

Prior briefs are here.