A Cherokee Nation judge ruled Friday that the descendants of freed Cherokee slaves are protected citizens of the tribe under an 1866 treaty, throwing out a tribal constitutional amendment that required tribal blood for citizenship.
The tribe’s attorney general signaled a possible appeal to the Cherokee Nation Supreme Court, while an attorney for freedmen descendants said he hoped the tribe would now treat all Cherokee citizens equally.
The issue of freedmen citizenry has spawned repercussions far beyond Tahlequah, where the Cherokee Nation of Oklahoma is based. Some Democratic members of Congress, mostly blacks, filed legislation aimed at stripping the tribe of federal funds and called for a Justice Department investigation.
The tribe mounted a multimillion-dollar public relations and lobbying blitz to counter the congressional effort, and the legislation never advanced in a Democrat-controlled House.
In the decision Friday, Cherokee Nation District Court Judge John Cripps wrote that the post-Civil War treaty signed by the Cherokee Nation and the U.S. government specifically addressed the status of freedmen — former slaves who had been owned by tribal members. The treaty provided that freedmen and their descendants “shall have all the rights of native Cherokees,” Cripps wrote.
The nation is still bound by the treaty, Cripps wrote. Though the French, Spanish, English and U.S. governments have violated treaties made with the tribe, Cripps said, “This does not mean that the Cherokee Nation should descend into such manner of action and disregard their pledges and agreements.”
Diane Hammons, attorney general for the Cherokee Nation of Oklahoma, said, “We have received the district court decision, with which we respectfully disagree.
“We believe that the Cherokee people can change our Constitution, and that the Cherokee citizenry clearly and lawfully enunciated their intentions to do so in the 2007 amendment. We are considering all options, including our right to appeal to the Cherokee Nation Supreme Court.”
Cripps’ four-page ruling came in a class-action lawsuit filed by the tribe itself, testing the validity of the amendment in its own court system. The lawsuit was filed without the knowledge of the lead plaintiff, Raymond Nash, a freedman descendant from Nowata who was expelled from the tribal rolls after tribal members overwhelmingly approved an amendment to the Cherokee Constitution in 2007 that based citizenship on tribal blood.
Nash said Friday that he didn’t know anything about the lawsuit when it was filed.
He said he had been hoping to get medical benefits from the tribe and was glad the judge had ruled for the freedmen.
“They should have honored that treaty a long time ago,” Nash said. “There should have been no ifs, ands or buts about it.”
Attorney Jon Velie of Norman, who is representing the freedmen in the federal lawsuit but did not participate in the tribal court case, called Friday’s decision “great.”
In a statement, he said: “The Cherokee District Court affirmed that the Treaty of 1866 granted full citizenship rights to the Cherokee Freedmen. This is in direct opposition to the defenses offered by the Cherokee Nation and Principal Chief Chad Smith in the ongoing federal actions in the Washington, D.C., District Court.”
A separate freedmen suit, actually filed by descendants, has been in federal court in Washington since 2003, when freedmen were barred from voting in a tribal election. An attempt by the tribe to have its arguments heard in federal court in Tulsa failed last year.
In previous statements, Cherokee Nation Principal Chief Chad Smith has said that the 1866 treaty never guaranteed citizenship but was intended to address property rights. The tribe also has countered charges of racism by saying that the question isn’t about race but about tribal membership; many freedmen descendants, including one of the lead plaintiffs in the federal suit against the tribe, have Cherokee blood.
The 2007 constitutional amendment came after a tribal law was struck down in 2006. The decision on Friday is expected to restore citizenship to about 2,800 freedmen descendants.
Cherokee Nation spokesman Mike Miller said the 2,800 were those who had gained citizenship after 2006 but then lost it after the constitutional amendment passed in 2007.
Moreover, the decision requires that the tribe process within 30 days applications for citizenship by freedmen descendants since the amendment was passed.