Freedmen Descendants’ Lawsuit Against Cherokee Nation Dismissed, D.C. Circuit Court of Appeals unanimously rules that Cherokee Nation has sovereign immunity, Rejects Freedmen descendants’ theory, Opinion says tribal sovereign immunity existed since founding of U.S. and continues today
The CNO (Cherokee Nation of Oklahoma) is putting a definite spin on this case. The Court of Appeals ruled that the tribe has sovereign immunity, but NOT the tribal officials, meaning that the Freedmen’s case will still proceed against Chief Chad Smith and other officials. And, the decision opens the door for the Freedmen to take the case to the US Supreme Court.
But this is only one side of this case. The tribe might have the right to break its treaty obligations to the Freedmen (and in the end the individual officials might share those rights), but it doesn’t make it right to do so.
In the past, I’ve focused on punitive ways to force the CNO to change it’s current policies (and I’ll restate for new readers who haven’t followed past posts on this controversy, that while I’m not a CNO citizen but I do have Cherokee ancestry and care a lot about the outcome of this decision), but I think now that it is better to focus on ideas for a positive outcome to this dispute that doesn’t involve coercion.
Here are my suggestions:
1. The CNO leadership could put the issue of the Freedmen up for another vote. Voter turnout was horribly bad before, and I think many Cherokees didn’t understand the critical significance of this vote and would turn out to vote to reinstate the Freedmen if given the chance again. This vote would be of historic proportions and would be significant not only in Cherokee history but in US history too.
2. If such a vote is not possible, then I would suggest that the US Federal government sit down with the CNO to engage in state-to-state level treaty negotiations. If the CNO continues to exclude the Freedmen, this is a breach of the Federal government’s (and also the Freedmen’s) treaty rights*, and it would seem reasonable that the matter be resolved on the diplomatic level. I’m not sure what this settlement might look like (i.e. a financial settlement, or possibly a separate co-existent sovereign status for the Freedmen, in exchange for increased financial or other assistance for the tribe from the Federal government), but I think it could be workable.
I know this would be a major change in US Indian policy (the Federal government quit signing treaties with the tribes around the turn of the century), but it would be far better than the alternatives, either ignoring the treaty violation or Congress using its plenary powers under the US constitution to mandate a solution.
3. However, whatever option is used (# 1 or 2 above), I think the other alternatives are horribly negative and harmful to all parties involved. A SCOTUS ruling on appeal of the current decision or action by the US Congress would result in a horrible, horrible precedent against future tribal rights (and would result in years and years of animosity between CNO citizens, both Freedmen and non-freedmen). This is why I no longer support punitive measures to force the CNO to do the right thing.
In conclusion, I think that the CNO has a tremendous opportunity here. It can once and for all stand up for the rights of all Cherokee people (including the Freedmen) and make right the wrongs of past generations who enslaved the Freedmen. And I think in doing this, it would gain significant political and moral power that could be used in the continued struggle justice for all Native peoples.
 * I know that some readers may find it ironic that I’m complaining about an Indian tribe violating its treaty obligations with the US federal government, when the US government has broken countless treaties with the tribes.
I would argue however, that two wrongs don’t make a right, and more pertinently that the Freedmen were an indirect party to the treaty. In other words, the US government was serving as a protector and trustee of the rights of the Freedmen in this treaty, and as such while the US government sign the treaty, the real folks who were once protected by the treaty, and who are now hurt when it is broken, are the Freedmen.