GM 11-102

Cherokee Nation Supreme Court Upholds 2007 Referendum Excluding Freedmen

On August 22, 2011, the Supreme Court of the Cherokee Nation of Oklahoma overturned a lower court decision and held that the Tribe has the right to strip the membership of the Cherokee Freedmen, descendents of slaves of some Cherokee members before the Civil War. In Cherokee Nation Registrar v. Nash, Case No. SC-2011-02, the Court ruled that a 2007 Cherokee constitutional amendment requiring Cherokee, Delaware, or Shawnee blood in order to be a member of the Nation was proper. As a result, some 2,800 Freedmen may lose their tribal citizenship.

The Court ruled 4-1 that it had no authority to order what Cherokee Nation members decided to include in their Constitution, and thus the Cherokee District Court – which held the 2007 amendment void – acted outside its scope of authority. Additionally, the Court wrote that the Freedmen were granted citizenship by an 1866 amendment to the Cherokee Constitution, not by the provisions of a treaty signed the same year. Therefore, if the Cherokee people could lawfully change the definition of citizenship in 1866, they could do so again in 2007.

It is unclear if or when the Nation intends to resume disenrollment, or what effect, if any, the decision will have on this month’s special election for Cherokee Nation Principal Chief.

There are two lawsuits pending in federal court and we expect that the Freedmen will continue to pursue their case in that venue. In addition, members of Congress have involved themselves in the matter previously and there is a possibility that they could do so again. In 2007, former Representative Diane Watson (D-CA) introduced legislation that would terminate the federal relationship with the Cherokee Nation unless the Nation reinstates equal membership to the Freedmen. The bill, which also would have required a study of whether the Chickasaw, Choctaw, Creek, and Seminole tribes were “fulfilling treaty obligations” to Freedmen, did not make it out of the House Committee on Resources. In 2009, six U.S. Representatives wrote Attorney General Eric Holder asking him to investigate whether the Nation was violating the civil rights of the Freedmen.

We will continue to report to you on any new developments regarding this issue.