Here are the updated materials in Vann v. Salazar (D. D.C.):
Cherokee Nation Response to Vann Motion
The Vann motion is here.
Cherokee Freedmen
Interior Warns Cherokee Nation that Principal Chief Election May Be Invalid
The text:
United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
SEP 0 9 2011
The Honorable S. Joe Crittenden
Acting Principal Chief, The Cherokee Nation
P.O. Box 948
Tahlequah, Oklahoma 74465-0948
Dear Chief Crittenden:
We have followed the news of the upcoming election for Principal Chief with interest and growing concern. I write to advise you that the Department of the Interior (Department) has serious concerns about the legality of the Cherokee Nation’s actions with respect to the Cherokee Freedmen, as well as the planned September 24, 2011, election.
On August 22, 2011, the Supreme Court of the Cherokee Nation issued its decision in the matter of the Cherokee Nation Registrar v. Nash, Case No. SC-2011-02. In this decision, the Court vacated and reversed the earlier decision of the Cherokee District Court, as well as the temporary injunction that maintained the citizenship of the Freedmen. We have carefully reviewed this most recent decision. I am compelled to advise you that the Department respectfully disagrees with the Court’s observations regarding the meaning of the Treaty of 1866, between the United States of America and the Cherokee Nation (Nation), 14 Stat. 799, as well as the status of the March 3, 2007, amendment to the Cherokee Constitution.
The Cherokee Constitution ratified by the voters in June 1976 expressly provides that “[n]o amendment or new Constitution shall become effective without the approval of the President of the United States or his authorized representative,” which is the Secretary of the Interior. The Department declined to approve the 2003 amendments of the 1976 Constitution, as evidenced by the August 30, 2006, letter from Associate Deputy Secretary James Cason to Principal Chief Chad Smith and the March 28, 2007, letter from Assistant Secretary -Indian Affairs (AS-IA) Carl Artman to Principal Chief Smith, copies of which are enclosed. Although on August 8, 2007, AS-lA Artman approved a June 23, 2007, amendment to the 1976 Constitution that removes the requirement for Secretarial approval of amendments, that decision is not retroactive. Thus, the decision of the Cherokee Nation Supreme Court appears to be premlsed on the misunderstanding that both the unapproved Constitution adopted in 2003, and the March 3, 2007, amendment that would make Freedmen ineligible for citizenship, are valid. The Department has never approved these amendments to the Cherokee Constitution as required by the Cherokee Constitution itself.
Furthermore, we understand that in 2010 the Nation adopted new election procedures which will govern the upcoming election for Principal Chief. Those procedures were never submitted to, nor approved by, the Secretary of the Interior or any designated Department of the Interior official as required by the Principal Chiefs Act, (Pub. L. 91-495, 84 Stat. 1091). Pursuant to the Principal Chiefs Act enacted by Congress in 1970, the Secretary is required to approve procedures for the selection of the Principal Chief of the Cherokee Nation.
We are concerned that the recent decision from the Cherokee Nation Supreme Court together with 2010 election procedures that have not been approved by the Secretary of the Interior as required by the Principal Chiefs Act, will be the basis for denying Cherokee Freedmen citizenship and the right to vote in the upcoming election. The Department’s position is, and has been, that the 1866 Treaty between the United States and the Cherokee Nation vested Cherokee Freedmen with rights of citizenship in the Nation, including the right of suffrage.
I urge you to consider carefully the Nation’s next steps in proceeding with an election that does not comply with Federal law. The Department will not recognize any action taken by the Nation that is inconsistent with these principles and does not accord its Freedmen members full rights of citizenship. We stand ready to work with you to explore ways to honor and implement the Treaty.
Sincerely,
Larry Echo Hawk
Assistant Secretary -Indian Affairs
Enclosures
Cherokee Freedmen Supporters Protest BIA Office in Muscogee
HuffPo on the Cherokee Freedmen
Here.
Treaty Rights and the Cherokee Freedmen Decision
This isn’t a post on the merits of the Freedmen case, but instead a rumination about the import of U.S.–tribal treaty rights in tribal courts. Generally, do treaty rights have legal import in tribal court?
My reading of the Nash case (here) is that anyone claiming to assert treaty rights against an Indian tribe who was a party to the treaty may be foreclosed from bringing those claims without the presence of the United States (the other party to the treaty) as a party to the litigation. If that reading has broad implications for Indian treaties, then no treaty right could effectively be litigated in tribal court without the presence of the United States. An odd result, to be sure.
This isn’t a purely academic question. A few years back, the Ninth Circuit wondered why it was still deciding treaty rights subproceedings in United States v. Washington that don’t involve either the United States or Washington, or really any of the underlying issues about the treaty right. Many of the cases are intertribal conflicts. There may be an intertribal court for the Puget Sound treaty tribes someday, all without the presence of the United States. And properly so.
This all suggests the United States doesn’t need to be a party to treaty rights litigation in every case.
News From Indian Country Op-Ed on Cherokee Freedmen
Here.
Cherokees flee the moral high ground over Freedmen
by Robert Warrior
Cherokee Chief Chad Smith is wrong and Representative Melvin Watt (D-North Carolina) is right. As those who follow the American Indian political world know, earlier this year an overwhelming majority of Cherokee voters decided to deny descendants of the Cherokee Freedmen, freed slaves who trod the Trail of Tears with their Native American owners, rights to political enfranchisement guaranteed to them in an 1866 treaty the Cherokees signed with the United States in the aftermath of the Civil War.
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The politics of this issue are certainly interesting—the embarrassingly low number of Cherokees, for instance, who participate in their nation’s electoral process (less than 8000 in a group of well over 150,000), the predictable way that this decision by one group exposes all American Indian nations to alienating people who have been important, reliable friends (the Congressional Black Caucus most visibly). Morality, however, has been the missing topic in the wrangling thus far, and I would argue is the basis for why it is important for everyone, especially American Indian people who have been silent thus far, to support efforts like those of Representative Watt.
The moral case against the Cherokees is straightforward. As a duly constituted nation in the nineteenth century, they legally embraced and promoted African slavery, a position they maintained after Removal to Indian Territory in the 1830s. The vast majority of Cherokees could not afford slaves, as was also the case throughout the American South, and historians of Cherokee slavery have demonstrated that some aspects of the Cherokee social world gave a different, less negative character to being enslaved by wealthy Cherokees rather than wealthy whites. Make no mistake, though. No one is on record as having volunteered to become a Cherokee slave. History records plenty of Cherokee slaves attempting to escape to freedom, as well as Cherokee slave revolts.
The institution of slavery was for Cherokees, as it has been for all people who practice it, morally and politically corruptive, and many citizens of this Native slaving nation knew it. Stories like that of the children of Shoeboots and Doll, a Cherokee slaveowner and his black concubine/wife, whose father risked his reputation as a war hero in petitioning for their recognition as Cherokees provides a picture of this ambiguity, but the cruelty, sexual violence, and physical degradation of modern slavery under Cherokees like James Vann is just as unambiguous (both are captured magnificently by University of Michigan scholar Tiya Miles in her 2005 book Ties that Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom).
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In spite of being egged on and provoked by the legislated racism of the Cherokee Nation, the vast majority of Freedmen descendants have reacted with impressive dignity befitting their proud history. Melvin Watt and other black members of Congress have likewise responded in a measured, but active way. It remains for more people, including Native American writers, scholars, and artists, not to mention elected leaders, presidents, and chiefs, to stand up and be counted on the right moral side of this question. Better yet, Chad Smith could save us all the trouble by following some of the best examples of Cherokee history rather than the morally corrupting and exclusionary ones he and his supporters have chosen thus far.
Cherokee Supreme Court Dismisses Challenge to Cherokee Freedmen Disenfranchisement
Here is the opinion in Cherokee Nation Registrar v. Nash (h/t Indianz):
SC-11-02 15-Opinion CN Registrar v Nash
And the relevant briefs:
Briefing in Cherokee Nation Appeal of Nash Decision in Freedmen Case
Thanks for Marilyn Vann for the head’s up.
The briefs are here, and hopefully links will work below as well:
| 1- Petition in Error 1-25-11 |
| 2- Designation of Record 2-7-11 |
| 3- Entry of Appearance 2-23-11 |
| 4- Response to Petition in Error 2-23-11 |
| 5- Counter-Designation of Record 2-23-11 |
| 6-Certification of Court Clerk |
| 7-Brief 4-25-11 |
| 8-Appellees’ Answer Brief 6-3-11 part 1 |
| 8-Appellees’ Answer Brief 6-3-11 part 2 |
| 8-Appellees’ Answer Brief 6-3-11 part 3 |
| 8-Appellees’ Answer Brief 6-3-11 part 4 |
Cherokee District Court Holds 2007 Tribal Constitutional Amendment Disenrolling Freedmen VOID
Here is the order:
Nash v Cherokee Nation Registrar
The Cherokee Nation’s entry into the hereinbefore mentioned Treaty of 1866 was an agreement which, to this date, has not been modified or abrogated by any action heretofore taken either through Constitutional change or Amendment thereto and the Nation is still bound by such provisions. The Cherokee Constitutional Amendment of March 3, 2007, by virtue of the provisions of the Treaty of 1866 and subsequent actions taken in furtherance thereof, are hereby determined to be void as a matter of law.
Update on Cherokee Freedmen Case in D.C. District Court
According to Marilyn Vann, the Cherokee Nation has filed a motion either to dismiss the Cherokee Nation v. Nash case, or transfer it back to the Northern District of Oklahoma:
Turtle Talk 
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