October 23, 2014

Court denies Cherokee appeal on Freedmen ruling

WASHINGTON – The District of Columbia circuit of the United States Court of Appeals denied a request Tuesday from the Cherokee Nation to rehear a decision to overturn the dismissal of a long-running federal lawsuit.

Part of the 2003 Vann v. Salazar case, the Cherokee Nation’s appeal stems from a December 2012 ruling by the Court of Appeals that the freedmen could sue Principal Chief Bill John Baker in his official capacity without the tribe specifically listed as a party to the lawsuit.

“As a practical matter…the Cherokee Nation and the Principal Chief in his official capacity are one and the same,” Judge Brett Kavanaugh wrote in the December decision. “As a result, the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning the Cherokee Nation is not a required party.”

The Cherokee Nation had argued that Baker could not sufficiently represent the tribe’s interest and that the lawsuit could not continue without the tribe’s involvement. However, since the tribe would not waive its sovereign immunity, the lawsuit would have to be dismissed.

“The chief has no power to change the nation’s constitution…and the District Court cannot bind the nation if the nation is not a party to the suit,” wrote Cherokee Nation counsel Jonathan Guy.

Tuesday’s decision allows the lawsuit to proceed. No timeline has been offered for oral arguments.

“The Cherokee freedmen are grateful for the decision made by the honorable judges of the D.C. appeals court,” lead plaintiff Marilyn Vann said. “We hope and pray that we and our children will be able to serve our nation as citizens of the tribe as did our fathers and grandfathers based on our rights guaranteed by both the tribe and the U.S. government in the 1866 treaty.”

About 2,800 Freedmen descendants are currently enrolled 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.  A separate lawsuit, Cherokee Nation vs. Nash, is pending in the Northern District of Oklahoma.

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