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Freedmen are confident following Cherokee appeal

WASHINGTON - The Cherokee Nation and its freedmen met in court May 6 in a case over tribal sovereignty and minority rights.

A three-judge panel of U.S. Appeals Court raised questions about the tribe's sovereign authority to determine its citizenship, in the case of the freedmen at least. ''The United States has carved up sovereign rights in [Cherokee] elections,'' said Judge Thomas B. Griffith. That led Judge Merrick B. Garland to remark that if a Cherokee constitution violated freedmen rights, ''The secretary [of Interior] could vacate the constitution.''

''There is no question that these statutes limit the tribe's ... sovereign immunity [from lawsuit],'' said Judge David S. Tatel, in an exchange with freedmen attorney Jon Velie.

Velie countered the publicly touted Cherokee position that the freedmen lawsuit threatens the sovereign immunity of tribes generally. ''This case presents a very narrow issue,'' he told the court. ''... The Cherokee Nation has lots of rights, but it does not have the right to expel former slaves.'' The nation ''treatied away'' that right by signing an 1866 treaty with the United States, he said.

The freedmen, descendants of slaves and free blacks who lived among the Cherokee before, during and after the Civil War, are suing the secretary of the Interior Department for recognizing the results of a 2003 election in which the nation prevented the freedmen from participating, and for failing to protect their voting rights. The freedmen want the results of the election invalidated and their voting rights restored. The Cherokee Nation contends that its sovereign immunity, as a federally recognized tribal government, protects it from any lawsuit lodged without its consent.

Federal district court has already denied the nation's motion to dismiss the case, while affirming that it is a necessary party to the litigation against Interior.

''The Freedmen assert that the Thirteenth Amendment's prohibition of 'badges and incidents of slavery,' along with the Treaty of 1866, abrogates the tribe's immunity,'' U.S. District Judge Henry H. Kennedy Jr. wrote in a Dec. 19, 2006, decision. The court agreed on grounds that the 13th Amendment, abolishing slavery, is an ''absolute declaration'' of Congress that slavery or involuntary servitude, including its ''badges and incidents'' or relics, is outlawed. ''And there is no dispute that the broad sweep of the Thirteenth Amendment applies to Indian tribes.'' Inability to vote would be considered a ''badge incident to slavery'' under Kennedy's interpretation.

Kennedy also found that the 1866 treaty, renewing Union relations with the Cherokee after the tribe had sided with the Confederacy during the Civil War, expressed ''Congress's unequivocal intent to limit the Nation's sovereignty as a condition of recognition by the United States.'' After reviewing further statutes of Congress passed to protect freedmen interests, Kennedy concludes: ''By repeatedly imposing such limitations on the sovereignty of the Cherokee Nation in order to protect the Freedmen, Congress has unequivocally indicated its intent to abrogate the tribe's immunity with regard to racial oppression prohibited by the Thirteenth Amendment. Although the right to vote is not explicitly mentioned by the Thirteenth Amendment, there can be no doubt that the right to vote is fundamental and cannot be denied on account of race.''

On appeal May 6, attorney for the nation Garret G. Rasmussen said the case has nothing to do with the skin color or race of the freedmen plaintiffs. The main burden of his argument was that the tribe did not waive its sovereign immunity from lawsuit in 1866 or after. ''What the relief [sought by the freedmen] would do is paralyze the nation,'' he said, in response to a question from the bench.

Cherokee Nation Principal Chief Chad Smith has stated publicly all along that the 2003 elections took place pursuant to the tribe's authority to determine its own membership; freedmen were excluded not for their race, but because they cannot trace their ancestry to century-old citizen rolls.

Smith maintains that Indian tribes should be made up of Indians; and for the Cherokee, the original citizenship rolls are the proof of Indian ancestry. In response, freedmen advocates produce copies of documents that purport to prove Indian blood quantum for persons enrolled as freedmen - a category that did not document blood quantum in the administrative record. Their point is that many freedmen can indeed prove Indian blood. But under the 1866 treaty, they contend they are citizens in any case.

In an interview after the hearing, Velie said, ''The court definitely seemed to get our issue. ... This does not rock the foundations of sovereign immunity. ... It's a special situation. You can't foreclose the rights of this group of people. ... This is a unique case.''

As threats against the Cherokee multiply in Congress, where a majority of the Congressional Black Caucus has taken up the freedmen cause, Velie said the Cherokee Nation is risking its federal relationship.

Mike Miller, communications director for the Cherokee and an occasional spokesman for Smith, said the tribe is not counting the cost of following its own constitution on citizenship. ''There's no point at which any nation says, 'Our constitution doesn't matter.'''

Prominent political figures have joined Smith in urging Congress to refrain from penalizing the Cherokee, at least until courts have sorted out the freedmen issue. A contingent of freedmen at the hearing May 6 - Vera Vann Jones, Waynetta Lawrie, Ron Graham and lead plaintiff Marilynn Vann - said the hearing went well for their case and called on Congress to weigh in against the Cherokee.

''We want Congress to solve it now,'' Vann said. ''It's time for Congress to step in and protect our rights. It's past time.''