On November 9, 2007, Marilyn Vann spoke about the history of the Cherokee Freedmen here at MSU law college. As she did during her talk at last April’s Federal Bar Association’s Indian Law Conference, she presented a slide show of numerous materials.
Here are the materials — Marilyn Vann Materials
And here is a description of each page in the materials provided by Marilyn: Continue reading
From NewsOK.com:
Landless the Shawnee Tribe is, and landless it will remain for some time. The tribe faces legal obstacles in its aim to develop land along Interstate 35 as a hotel-casino attraction and tribal headquarters.
Gardner-Tanenbaum Group sold the 104 acres on the west side of I-35 between Britton Road and Wilshire Boulevard to investors who are working with the tribe to get it put into trust, a requirement before the tribe can develop it.
The land is zoned for industrial use, not entertainment or retail. Gardner-Tanenbaum marketed it for several years as a prime Interstate site for warehouses or distribution centers.
Getting the zoning changed shouldn’t be too hard since the tribe has been working with city planners as it looked for land in Oklahoma City, said Greg Pitcher, head of the tribe’s economic development arm.
“In talking to the city and choosing a site, we took all that into consideration,” Pitcher said, in an effort to locate a site that specifically would not be at cross purposes with the city’s goals. “We assume the city would not oppose” a zoning change request, he said.
City planning director John Dugan said Wednesday that his staff had had no discussions with tribal officials — that they knew of. He said city planning staff deal with many planning and zoning inquiries daily.
Dugan said that if the land is put in a trust, it might supersede local zoning. In that case, Pitcher said the tribe still would work closely with the city.
“Our interest in the beginning has been to sign an intergovernmental agreement that would exceed their guidelines,” Pitcher said. “We’re going to exceed any requirement the city has, in doing this.”
Pitcher said he could not outline the argument the Shawnee Tribe will make to the Bureau of Indian Affairs in seeking that the land be put in trust — because it’s confidential.
But, he said, the tribe only appears to be caught by conflicting law.
The federal law that restored the tribe by severing it from the Cherokee Nation in 2000 forbids it from developing land in any other tribes’ jurisdiction, he said. That made Oklahoma City attractive, since the city is within no tribe’s jurisdiction.
BIA rules generally state that to have land put in trust, a tribe must have a historical tie to it, and the Shawnee Tribe appears to have no historical tie to the land on I-35.
But Pitcher said the issues are much more complex than that, partly because the Shawnee Tribe, while restored, is landless, and partly because federal laws in Oklahoma surrounding Indian tribes, trust land and what they can do with it are different from every other part of the country.
Last December, the federal court denied the Cherokee Nation’s motion to dismiss Vann v. Kempthorne. The Nation had argued that it was a necessary and indispensable party under FRCP 19. And, because it hadn’t waived its immunity, the Nation argued that the federal case must be dismissed. The United States argued that the case should be dismissed under the tribal court exhaustion doctrine. The court disagreed.
Tribal Extinction: Enrollment Issues in the 21st Century – featuring Marilyn Vann and Mike Phelan
The Native American Law Students Association and the Center for Diversity Services will welcome two speakers on Friday, November 9 to discuss perspectives of tribal enrollment, a controversial issue at the forefront of Indian Law and Constitutional Law. The event features guest speakers Marilyn Vann, recently disenrolled from the Cherokee Nation and lead plaintiff in the Cherokee Freedmen cases, and Mike Phelan, counsel for the Pokagon Band of Potawatomi Indians. The event begins at 6:30pm in the Castle Board Room on the 3rd floor of the MSU College of Law. Dinner will be served and all are welcome. Please contact Melissa Velky with any questions at velkymel@msu.edu.
Details about the Cherokee Freedmen (and others) are here.
You can download the calendar here: MSU Native Heritage Month Calendar
Highlights include Pat LeBeau’s talk on mascots on the 7th and NALSA’s panel, Tribal Extinction, featuring Marilyn Vann of the Cherokee Freedmen, on the 9th.
The Cherokee Nation brought suit against the United States over the Arkansas River Navigation System, arguing that the government’s actions violated the “fair and honorable dealings” language of the Indian Claims Commission Act, 25 U.S.C. 70a. The Court denied the petition.
The cert pool memo in the case includes some of the most exasperated language from a clerk in any of the Indian law related cert pool memos in the Blackmun Digital Archive:
In providing for ‘claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,’ [25 U.S.C. § 70a] Congress invited litigation on a potentially limitless class of so-called ‘moral’ claims against the govt. … But how’s a ct to tell when the govt has done something that, while permissible under law and equity, is nonetheless ‘unfair,’ ‘dishonorable,’ or ‘immoral?’ Over the years, the cts have tried to give shape to the inquiry by requiring a tribe asserting a moral claim to demonstrate a relevant ‘special relationship’ with the fed govt. Yes, as this case shows, that inquiry can be as amorphous as the one it’s supposed to clarify. Arguably, in the words of one judge, having a ‘special relationship’ w/ the govt means simply ‘that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians…. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court.’ [United States v. Oneida Indian Nation of New York, 576 F.2d 870, 883 (Ct. Cl. 1978) (Nichols, J.).] Given the strangeness of the entire inquiry, one cannot easily evaluate either the merits or the certworthiness of petr’s claim.
Cert Pool Memo at 8-9, Cherokee Nation of Oklahoma v. United States, 504 U.S 910 (1992) (No. 91-1354).
What’s even more interesting is the annotation added to the memo by Justice Blackmun’s clerk, who is identified as “NB”:
I would not want to see the Ct take this case. Because it is not one the Ct would handle well, it would likely declare the provision to be unenforceable. (Imagine the opn of Scalia, J.) I think in the long run your friends are best served by denying cert.
Id. at 11.
H/T to Indianz.com:
Cherokee-Related Legislation:
H.R.2786 | H.R.2895 | H.R.2824 | H.R.3002
BIA Letters:
August 9, 2007 | July 11, 2007 | June 22, 2007 | May 21, 2007 | March 28, 2007 | August 30, 2006
Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19, 2006) Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen Case:
Allen v. Cherokee Nation (March 7, 2006)
Relevant Links:
Cherokee Nation – http://www.cherokee.org
Freedmen Of The Five Civilized Tribes – http://www.freedmen5tribes.com
Freedmen Conference – http://www.freedmenconference.com
Congressional Black Caucus, Annual Leadership Conference – http://www.alc2007.com
On November 9, 2007, MSU’s Native American Law Students Association will be hosting a panel discussion on tribal membership issues in light of the Cherokee Freedmen controversy.
The speakers include Marilyn Vann, the lead plaintiff in Vann v. Kempthorne (D. D.C.), and Mike Phelan, in-house counsel for the Pokagon Band of Potawatomi Indians. Mike’s talk will be a more general discussion of the law of tribal membership.
Materials about the Cherokee Freedmen dispute are available on Indianz.com here. My own take on the question is here and here.
Turtle Talk 