WASHINGTON, D.C. " A U.S. Circuit Court of Appeals hearing marked the next step in a fight between the descendants of freed slaves and the Cherokee Nation over tribal citizenship.
During the May 6 hearing, a three-member panel of judges fired questions involving tribal sovereign immunity to both sides. Federal judges Merrick B. Garland, Thomas B. Griffith and David S. Tatel first focused on the Cherokee Nation's integrality to the case. Then the appeals court justices shifted gears to sovereign immunity: whether it was removed from the tribe, and what form it took in defining the freedmen issue.
Cherokee Nation attorney Garret Rasmussen told the panel the treaty of 1866, under which freedmen became members, did not change the tribe's sovereign immunity. But Garland, a Clinton nominee, said the 250,000-member tribe had limitations defined in the treaty of 1866 to which it was bound.
Judges asked the freedmen descendants' counsel, Norman attorney Jon Velie, whether he could prove the Cherokees ever waived their sovereign immunity in the treaty or otherwise. Velie said while sovereign immunity was intact in theory, the actual phrase was not coined until years later. Therefore, the express use of sovereign immunity was not covered in the treaty language.
Velie, who previously represented the Seminole freedmen, asked the court for a declaratory judgment in the case.
"The issue is narrow. "¦ 'Can the Cherokee Nation ban citizenship to descendants of freed slaves?'" he said. "It (Cherokee Nation) lost its right to determine what would happen with the freedmen when it ceded to the United States in the treaty of 1866."
Velie added that sovereign immunity was a recognition of retained rights, but not exclusivity of rights.
Judges mused over possible Bureau of Indian Affairs intervention or judicial interpretation as a solution. Garland hypothesized a possible court order forcing the BIA to act in the matter.
The case came before the appeals court after metro resident Marilyn Vann filed suit against Dirk Kempthorne, U.S. Department of the Interior secretary. Vann's suit asserts that historical treaty provisions assured freedmen tribal citizenship, and that the BIA violated its oversight responsibility regarding freedmen's rights. Supporters on both sides crowded into the appeals courtroom. Later, Cherokee Nation spokesman Mike Miller said the nation regarded the hearing as positive for it. "S.E. Ruckman