January 23, 2017

DOI requests summary judgement in Cherokee Freedmen case

Oral arguments are scheduled for April 28 before United States District Court Senior Judge Thomas Hogan.

WASHINGTON – The Department of the Interior is requesting a summary judgment in a long-standing lawsuit over the tribal citizenship eligibility of the Cherokee Freedmen descendants.

Filed late Friday night, the department’s 72-page motion argues that the Treaty of 1866, which guarantees “all the rights of native Cherokees” to Cherokee Freedmen and their descendants, extends to tribal citizenship, despite a vote to the contrary by the tribe.

“The Cherokee Nation should be enjoined from denying tribal membership rights to descendants of those individuals listed on the Freedmen portion of the Cherokee Dawes Rolls,” wrote acting assistant attorney general Robert Dreher.

About 2,800 Freedmen descendants are currently enrolled in the tribe but no new applications have been processed since a 2007 referendum that restricted Cherokee Nation citizenship to direct descendants of individuals on the Delaware, Shawnee and Cherokee lists of the Dawes Rolls, which were compiled in the late 19th and early 20th century.

“Interior agrees that Cherokee Nation is a sovereign entity that retains powers of self-government,” Dreher wrote. “These retained powers include, as a general matter, the power to define its own membership. However, tribal authority, including the right to define tribal membership, can be constrained by treaties or other laws. In this case, through Article 9 of the Treaty of 1866, Congress has constrained the nation’s authority to determine tribal membership.”

Transferred back to the District of Columbia late last year from the Northern District of Oklahoma, the lawsuit has been pending for several years and has bounced between two district courts.  Oral arguments are scheduled for April 28 before United States District Court Senior Judge Thomas Hogan. Friday’s motion comes in just under the deadline for opening motions for partial or summary judgments.

Marilyn Vann and a small group of protestors gather to protest outside the hotel where then Cherokee Chief Chad Smith was to be honored in Oklahoma City, Thursday, June 4, 2009.