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Freedmen gain a partial victory in appeals court

WASHINGTON - The District of Columbia Circuit Court of Appeals on July 29 delivered a partial victory for the voting rights of Cherokee freedmen, as well as unvarnished triumphs for tribal sovereignty and sovereign immunity from lawsuits.

At the same time, the plain language of the decision placed Cherokee Nation of Oklahoma officials, among them Principal Chief Chad Smith, in legal jeopardy.

The appellate court overturned a lower court decision to the effect that the nation could be sued for making the disenfranchisement of freedmen voters a ''badge or incident of slavery,'' in violation of the U.S. Constitution's 13th Amendment, abolishing slavery in America.

But it interpreted an 1866 treaty between the Cherokee and the United States, re-establishing relations with the Union after the tribe had sided with the Confederacy during the Civil War, to promise ''all the rights of native Cherokees'' to the former slaves - and their descendants, ''who came to be known as freedmen.'' And it held that individual officers of the Cherokee Nation of Oklahoma ''cannot seek shelter'' from freedmen legal action within the tribe's sovereign immunity.

A lawsuit had been filed by Marilyn Vann and other freedmen, descendants of slaves and free blacks who lived among the Cherokee before, during and after the Civil War. They sued the Interior Department for recognizing the results of two 2003 elections in which the nation prevented the freedmen from participating and for failing to protect their voting rights, the nation arguing that its sovereignty to determine citizenship even of the freedmen is intact despite an 1866 treaty extending ''all the rights of Native Cherokees'' (including citizenship, the courts have found) to them.

The freedmen want the results of the election invalidated and their voting rights restored. The Cherokee Nation intervened to challenge the lawsuit, contending that its sovereign immunity, as a federally recognized tribal government, protects it from any lawsuit lodged without its consent.

Based on the narrow facts in the freedmen case, district court disagreed. But on appeal, the three-judge panel of July 29 opined that sovereignty is an inherent tribal attribute, predating the founding of ''the republic on the North American continent'' and unrelinquished then, subject to the will of a Congress that may ''whittle away ... as it sees fit,'' but not to be discarded lightly by common consent of the courts and so extinguishable only by ''explicit and unequivocal statement to that effect'' by Congress.

Sovereign immunity from lawsuit is an attribute of tribal sovereignty, not the thing itself, the appellate opinion maintains, concurring with the lower court. But the opinion found that Cherokee sovereign immunity from lawsuit has not been abrogated by the undoubted historical reduction of its tribal sovereignty over the freedmen.

''The district court is mistaken to treat every imposition upon tribal sovereignty as an abrogation of tribal sovereign immunity. ... Absent explicit and unequivocal language to the contrary, the imposition of substantive constraints upon a tribe's sovereignty cannot be interpreted as an abrogation of its sovereign immunity.''

Therefore, the freedmen lawsuit cannot continue against the tribe.

On the other hand, ''we hold that the suit may proceed against the tribe's officers.''

In statements issued to various media outlets after the decision, Smith seemed to repose confidence in the appellate court's remand order, directing the original district court to ''determine whether ... the suit can proceed with the Cherokee Nation's officers but without the Cherokee Nation itself.'' But the appellate court holding, ''that the suit may proceed against the tribe's officers,'' appeared to lighten the district court's burden.

Vann and Jon Velie, attorney for the freedmen, welcomed the decision in their own public statements, calling it an affirmation of tribal sovereignty and of individual civil rights.

''... The Cherokee Nation has lots of rights, but it does not have the right to expel former slaves,'' Velie had argued in court.

In response to the July 29 ruling, Vann added, as quoted in the Tulsa (Okla.) World and other outlets, that it means ''freedmen's treaty rights trump the right of our elected officials to oppress us.''

In Congress, where the Congressional Black Caucus has taken up the freedmen cause to the extent of threatening to withhold funding for Cherokee Nation of Oklahoma housing and health programs, Rep. Diane Watson, D-Calif., characterized the ruling as ''decisive and powerful.''

''It gives the Cherokee Nation's leadership the opportunity to reverse its past discriminatory practices. But it also remains the right and responsibility of Congress to ensure the enforcement of and compliance to our nation's laws and treaties.''

Watson renewed her call to ''the appropriate committees of Congress'' to monitor the situation, even with the Aug. 3 congressional recess close at hand, the Democratic and Republican presidential nominating conventions on the horizon, and the most intense months of the presidential campaign season sure to consume the legislative calendar after that. ''The schedule of Congress should not become a vehicle to allow discrimination to take root.''

Members of the Oklahoma congressional delegation, some of whom have urged Congress not to act against the Cherokee until the courts have had a chance to settle the freedmen issue, could not be reached before press time.