Vann v. Kempthorne
| Decision Date | 19 December 2006 |
| Docket Number | Civil Action No. 03-01711 (HHK). |
| Citation | 467 F.Supp.2d 56 |
| Parties | Marilyn VANN, et al., Plaintiffs, v. Dirk KEMPTHORNE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Alvin Bertram Dunn, Jonathan W. Gannon, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, for Plaintiffs.
Caroline M. Blanco, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.
Marilyn Vann, Ronald Moon, Hattie Cullers, Charlene White, and Ralph Threat bring this action against the United States Department of the Interior and its Secretary ("DOI" or "Secretary"),1 seeking declaratory and injunctive relief. Plaintiffs allege that they are direct descendants of former slaves of the Cherokees, or free Blacks who intermarried with Cherokees, who were made citizens of the Cherokee Nation in the nineteenth century and are known as Cherokee Freedmen (the "Freedmen"). The Freedmen contend that the Cherokee Nation, with the approval of the Secretary, prevented them from participating in certain tribal elections in 2003 (the "2003 Elections") and seek a court order declaring the 2003 Elections invalid and enjoining the Secretary from recognizing the results of such elections until the Freedmen are permitted to participate in voting. The Cherokee Nation has been granted limited intervention for the purpose of challenging this court's jurisdiction.
Before the court is the Cherokee Nation's motion to dismiss [# 23] and the Freedmen's motion for leave to file a second amended complaint [# 38] to add the Cherokee Nation and certain of its officials as defendants. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that the Cherokee Nation is a necessary party that must be joined. Accordingly, the motion to amend the complaint is granted, and the motion to dismiss is denied.
In the 1830s, the Cherokee Indians were removed from their lands in southeastern United States and were forced to migrate to Oklahoma along a route that became known as the Trail of Tears. Compl. ¶ 20.2 Among those persons forced to migrate were the Black slaves of Cherokees, free Blacks who were married to Cherokees, and the children of mixed race families, known as the "Black Cherokees." Id. ¶¶ 20-21. Following emancipation, the Black Cherokees became known as the Freedmen and were made citizens of the Cherokee Nation by the Treaty of 1866 as a condition of the Nation's continued sovereignty within the United States. Id. ¶¶ 21-22.
The Treaty of 1866 provides that the Cherokee Nation "hereby covenant[s] agree[s] that never hereafter shall either slavery or involuntary servitude exist in [the Cherokee Nation]" and that "all freedmen who have been liberated . . . as well as all free colored persons . . . and their descendants, shall have all the rights of native Cherokees." Treaty with the Cherokee, 1866, art. IX, July 19, 1866, 14 Stat. 799 ("Treaty of 1866"). The Freedmen are given the right to elect officials and to representation "according to numbers" on the national council. Id. arts. V-VI. They are also given the right to sue in federal court if an action arose between a Freedman and another member of the Cherokee Nation. Id. art. VII. The Treaty of 1866 guarantees the Freedmen that laws "shall be uniform throughout said nation" and provides that if "any law, either in its provisions or in the manner of its enforcein the opinion of the President of the United States, operate unjustly in [the Freedmen] district, he is hereby authorized and empowered to correct such evil." Id. art. VI. Finally, the Treaty provides that "[n]o law shall be enacted inconsistent with the Constitution of the United States, or laws of Congress, or existing treaty stipulations with the United States." Id. art. XII.
Almost immediately after the emancipation of the Freedmen, the Cherokee Nation began marginalizing them. In 1883, the Cherokee Tribal Council passed legislation excluding the Freedmen and other tribal citizens without Cherokee blood (such as a Shawnees, Delawares, and intermarried whites) from sharing in tribal assets. Compl. ¶ 23. In response, Congress enacted a law requiring the Cherokee Nation to share its assets with the Freedmen and other tribal members. See An Act to secure to the Cherokee freedmen and others their proportion of certain proceeds of lands, Oct. 19, 1888, 25 Stat. 608. In 1890, the Congress further authorized the U.S. Court of Claims to hear suits by the Freedmen against the Cherokee Nation for recovery of proceeds denied them. See An act to refer to the U.S. Court of Claims certain claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee Nation, Oct. 1, 1890, 26 Stat. 636. A trustee was appointed to assist the Freedmen in securing their claims and, in 1895, the Court of Claims held that the Freedmen were entitled to share in the tribe's proceeds and that the Cherokee Nation's sovereignty could not be exercised in a manner that breached the Nation's treaty obligations to the United States. Whitmire v. Cherokee Nation, 1895 WL 708, 30 Ct.Cl. 138, 140 (Ct.Cl. 1895).
In 1906, the Supreme Court confirmed that the Freedmen are citizens of the Cherokee Nation entitled to the same property rights as other members of the Nation under the Treaty of 1866. Red Bird v. United States, 203 U.S. 76, 84, 27 S.Ct. 29, 51 L.Ed. 96 (1906). A year later, the federally-appointed Dawes Commission finished compiling authoritative membership rolls for the so-called "Five Civilized Tribes" in Oklahoma. Compl. ¶¶ 28, 32. The Dawes Commission created two separate categories of Cherokee citizens: the "Freedmen Roll" for the Black Cherokee, and the "Blood Roll" for the other Cherokees. Id. ¶ 28. An individual possessing any African blood was placed on the Freedmen Roll, whereas an individual possessing any Indian blood was placed on the Blood Roll, as long as that individual did not possess any African blood. For example, an individual who was half Black and half Cherokee was placed on the Freedmen Roll, whereas an individual who was one-quarter Indian but three-quarters White was designated Cherokee by blood. No record of the quantum of Indian "blood" of the Freedmen was kept. Id. ¶ 32. Although the Dawes Commission created the separate rolls, it declared that those on the Freedmen Roll were on "equal footing" with those on the Blood Roll. Id.
In 1970, Congress passed the Principal Chiefs Act of 1970, which provides that the leaders of the Five Civilized Tribes must be popularly elected by members of their respective tribes in accordance with procedures established by those tribes (the "Act of 1970"). Pub.L. 91-495, 84 Stat. 1091. Under the Act, "such established procedures shall be subject to approval by the Secretary of the Interior." Ibid.
In 1976, the Cherokee Nation adopted a new constitution, in an election in which the Cherokee Freedmen were permitted to participate (the "1976 Constitution"). Compl. ¶ 35. The 1976 Constitution provides that the U.S. Constitution is the supreme law of the land and that the Cherokee Nation will never enact a law that is in conflict with any federal law. Cherokee Const. art. I. The 1976 Constitution also provides that citizenship in the Cherokee Nation must be "proven by reference to the Dawes Commission Rolls." Id. art. III § 1. Regarding elections, Article IX limits election to the Tribal Council to members with Cherokee blood, but does not limit membership in the tribe or voting rights to Cherokees by blood. Id. art. IX § 2. The 1976 Constitution also provides that "[n]o amendment or new Constitution shall become effective without the approval of the President of the United States or his authorized representative." Id. art. XV § 10.
At the time of the disputed 2003 Elections, the Code of the Cherokee Nation provided that "[t]ribal membership is derived only through proof of Cherokee blood based on the Final Rolls" of the Dawes Commission. 11 C.N.C.A. § 12; see also Allen v. Cherokee Nation Tribal Council, JAT 04-09, at 4,12 (Cherokee Nation Jud.App. Trib., Mar. 7, 2006) ( that the Cherokee Nation asserts that the Freedmen are not "Cherokees by blood" and thus are not "eligible for membership").3
At issue in this action are the 2003 Elections that took place on May 24, 2003, and July 26, 2003, to select a tribal chief and other members of the governing council, and to amend the Cherokee Constitution to remove the requirement that all amendments be approved by the Secretary, and the recognition by the Secretary and the Bureau of Indian Affairs ("BIA")4 of the results of those elections. The events surrounding those elections, as alleged by the Freedmen, are as follows:
1. Seeking Secretarial Approval
In November 2001, Cherokee Chief Chadwick Smith wrote to the BIA, indicating the tribe's intent to amend its 1976 Constitution to strike the provision requiring Secretarial approval of constitutional amendments. Neal McCaleb, assistant secretary of Indian Affairs, purportedly responded, indicating that the BIA did not oppose removing the provision requiring approval of amendments, subject to certain conditions: (1) "[A]ll members of the Cherokee Nation, including the Freedmen descendants who are otherwise qualified, must be provided an equal opportunity to vote in the election;" (2) "[U]nder current law, no amendment of the Nation's Constitution can eliminate the Freedmen from membership in the Nation absent Congressional authorization;" and (3) ...
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