Yesterday, the federal district court in Washington, D.C., issued its long-awaited opinion in the Cherokee Freedmen case, Cherokee Nation v. Nash, et al. (No. 13-01313). It’s a highly contentious case about whether the tribe violated an 1866 treaty when it decided that descendants of slaves owned by the Cherokees could not be full citizens of the Cherokee Nation.
This dispute has been going on for well over a decade—actually, well over a century—and it involves a lot of complicated back-and-forth, including the tribe’s decision to rewrite its Constitution in 1999. That decision required approval from the Bureau of Indian Affairs, which refused, so the tribe then revised its constitution so that it wouldn’t have to get BIA approval, and then there was a question of whether that required BIA approval…and so forth. That, plus the 100+ years of conflict over whether descendants of Cherokee slaves were entitled to tribal membership, is all explained precisely, clearly and—most remarkable—readably in yesterday’s opinion. But here’s what it boils down to:
During the Civil War, the Cherokees sided, at least initially, with the Confederacy. No doubt they were pressured to do so in many ways, and especially because the Cherokees were native to the region of the Confederacy. Also, Cherokees had owned slaves for decades before the war broke out. About halfway through the war, the Cherokees backed away from supporting the Confederacy, but that alliance, added to the political conflicts within the tribe, meant that when the war ended, the Andrew Johnson Administration was faced a difficult task in its dealings with the tribe. In 1866, after complicated negotiations with several factions in the tribe, the Administration and the Cherokees made a treaty which declared that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”
In accord with that treaty, the tribe then amended its constitution to provide that “all native born Cherokees, all Indians, and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months…and their descendants, who reside within the limits of the Cherokee nation, shall be taken, and deemed to be, citizens of the Cherokee Nation.”
Later on, however, the tribe began distinguishing between those who were citizens “by Cherokee blood” and those who were descendants of the “Cherokee freedmen.” That distinction led to several lawsuits over who was entitled to the proceeds of sales of Cherokee land, and Congress several times intervened in the dispute, even setting aside money to give to descendants of the freedmen, which it deducted from money owed to the Cherokee tribe. There were then many other federal laws in the early 20th century and in the 1930s, which changed various aspects of Indian policy that are relevant in one way or another.
When disputes arose about 20 years ago about whether the descendants of the freedmen were entitled to vote in Cherokee Nation elections, the tribe sought to revise its constitution to make clear that they were not. As I said, there was back and forth between the tribe and the BIA, followed by complicated and slow litigation in the federal courts, over the question of whether the tribe is allowed to block the freedmen descendants from tribal membership, but the question boils down to this: First, does the 1866 treaty guarantee the freedmen and their descendants equal citizenship, and second, if so, does any later law change that? The tribe says that the treaty did not give the freedmen citizenship, but instead the tribe's constitution did that, and what was given by the tribe's constitution can be taken away by a constitutional amendment, such as that which excludes the freedmen.
The court answers that the treaty doesn’t purport to guarantee citizenship, so the tribe is right that citizenship does not flow directly from the treaty. But the treaty does guarantee equal rights with native Cherokees, and since native Cherokees are entitled to citizenship automatically, then the freedmen must be accorded the same right. Simply put, “the only ways to extinguish the freedmen’s right to citizenship are by (1) extinguishing native Cherokees’ rights to citizenship or (2) amending the 1866 Treaty.”
The court then answers the second question by saying no, no subsequent law changes what the 1866 treaty requires. A treaty is regarded as a statute, so that Congress can repeal a treaty by a later statute if it chooses to. So in examining the later statutes, the court goes into a great deal of detail, all which strikes me as more or less unnecessary, given the long-standing rule that Congress does not repeal treaties by implication, but only by clear language to that effect, or when a new law unavoidably conflicts with the old one; neither of those are even close to being present in this case. Still, this judge is crossing every “t” and dotting every “i.”
The judge examines a subtle change in language in the 1906 Five Tribes Act, as opposed to the language in the 1866 treaty—the Act appears to have altered the treaty's residency requirement, but the court finally decides that it actually does not. The main question here is whether federal law put a time limit on the guarantee accorded to the freedmen in the 1866 treaty. The court says there’s no evidence of that—the Act was just meant to “wind down the Dawes Roll enrollment process by curtailing the filing of new applications,” in order to “establish a snapshot in time of the Cherokee freedmen and their living descendants who were entitled to participate in the allotment process” that was going on at that time—and was not meant to terminate the equality guarantee in the treaty. That means that the rights accorded the freedmen were not just given to them, but also to their descendants.
One critical question in all of this, of course, is whether the Cherokee have the right to determine the conditions of citizenship as they see fit. A true sovereign has that power, of course. But the court answers:
The Cherokee Nation’s sovereign right to determine its membership is no less now, as a result of this decision, than it was after the Nation executed the 1866 Treaty. The Cherokee Nation concedes that its power to determine tribal membership can be limited by treaty. [citation] The Cherokee Nation can continue to define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and the descendants of Cherokee freedmen.
The underlying issue is, of course, race, and therefore profoundly sensitive. After all, Cherokees and Cherokee freedmen are all citizens of the United States, entitled to equal protection by our government, regardless of their treatment by any other government—and the universal principle of equal rights must take precedence. The court concludes,
The ultimate issues in this case are weighty and the competing interests and equities reflect the casualties of profound acts of injustice, indignity and demoralization committed during anguished times in our nation’s history. And while both the Cherokee Freedmen and the Cherokee Nation are victims of that history in different, albeit intertwined, respects, it cannot be gainsaid that the Cherokee Freedmen bear no culpability for the course of historical acts and agreements that ultimately ushered them to this Court and over which they commanded no voice, representation or power. The Court finds it confounding that the Cherokee Nation historically had no qualms about regarding freedmen as Cherokee “property” yet continues, even after 150 years, to balk when confronted with the legal imperative to treat them as Cherokee people. While the Cherokee Nation might persist in its design to perpetuate a moral injustice, this Court will not be complicit in the perpetuation of a legal injustice.
A very interesting decision—well reasoned and persuasive—and, of course, bound to lead to appeal. Read the whole thing here.