WASHINGTON — A federal lawsuit filed here against the Cherokee Nation by the descendants of freedmen can continue even without the tribe's consent, a U.S. appeals court ruled Friday.
The U.S. Court of Appeals for the District Columbia reversed a district court judge, who concluded last year that the suit couldn't go forward because the tribe had invoked its sovereign immunity to exclude itself as a party. The appeals court on Friday reinstated the suit, ruling that the principal chief is still a defendant and is, in effect, “one and the same” as the Cherokee Nation.
“As a result, the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning that the Cherokee Nation itself is not a required party,” the court ruled, citing court precedents involving similar circumstances.
The decision on Friday means the issue of whether freedmen descendants are entitled to tribal citizenship is alive in two separate federal courts — one here and another in Tulsa.
While the tribe was fighting the case here under former Principal Chief Chad Smith, it filed its own lawsuit in Tulsa against the freedmen.
The Obama administration has intervened in the Tulsa case on the side of the freedmen, saying an 1866 treaty that allowed the freed slaves of individual Cherokees to be members of the tribe is still in effect for the descendants of those freed slaves.
The administration is asking the judge in Tulsa for a declaratory judgment that the 1866 treaty “provided Cherokee Freedmen and their descendants with ‘all the rights of native Cherokees,' including the right to citizenship in the Cherokee Nation.”
The Cherokee Nation approved a constitutional amendment in 2007 requiring tribal blood for citizenship and effectively barring non-Indian freedmen. The tribe's highest court upheld the tribe's right to set the rules for its membership.
Jon Velie, a Norman attorney who has represented the freedmen in both cases, said Friday that he and Marilyn Vann, the lead plaintiff in the case against the Cherokee Nation, were “extremely happy” with the appeals court decision.
Velie said he would likely ask for a delay in the Oklahoma case and pursue the case in Washington, where it has been for several years, since the district court judge and the appeals court are familiar with the issues.
Though the only issue before the appeals court here was whether the lawsuit could go forward without the tribe as a party, the court on Friday seemed to indicate some sympathy with the freedmen position about their rights to membership.
In a statement about the background of the case, the court wrote that the 1866 treaty “guaranteed the former Cherokee slaves and their descendants — known as the Freedmen — ‘all the rights of native Cherokees' in perpetuity …' Those rights included the right to tribal membership and the right to vote in tribal elections.
“At some point, the Cherokee Nation decided that the Freedmen were no longer members of the tribe and could no longer vote in tribal elections.”
Tribal officials, the freedmen and Obama administration attorneys reached an agreement last fall that allowed about 2,800 freedmen to vote in an election for chief. There are an estimated 25,000 Cherokee freedmen in the United States, Velie said.
The Cherokee Nation did not respond to a request for comment.