IN THE JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION


Lucy Allen,
Petitioner,                                                                     JAT-04-09

Cherokee Nation Tribal Council,                  )
Leia Ummerteskee, Registrar,                    )
Registration Committee,                           )
Respondents.                                        )

For the Petitioner: David Allen Cornsilk

For the Respondents: Todd Hembree for the Cherokee Nation Tribal Council

Richard D. Osburn for Lela Ummerteskee, Registrar, and Registration Committee


The majority opinion is filed by Justice Stacy L. Leeds (special concurrence by Justice
Darrell Dowty). A dissenting opinion is herein filed by Chief Justice Darell Matlock, Jr.

OPINION OF THE COURT


            Petitioner Lucy Allen is a descendant of individuals listed on the Dawes


Commission Rolls as "Cherokee Freedmen." To become a tribal member under the


current legislation, she must prove she is "Cherokee by blood." She asks this Court to


declare 11 C.N.C.A. § 12 unconstitutional because it is more restrictive than the


membership criteria set forth in Article III of the 1975 Constitution.
 

Sovereign Immunity

Respondent Cherokee Nation asks this Court to follow the United States Supreme
Court's decision in Santa Clara v. Martinez1 and dismiss this case because the Cherokee
Nation is immune from suit. If this case were filed against the Cherokee Nation in a
federal or state court, Santa Clara would certainly require dismissal. In fact, when other
Cherokee Freedmen have asked the federal courts to enforce their rights under the 1975
Constitution, the federal courts have properly dismissed those lawsuits. 2
Article VII of the 1975 Constitution, however, created this Court to "hear and
resolve any disagreements" arising under the "constitution or any enactments of the
Council." This case involves a direct conflict between the language of the constitution
and legislation passed by the Council. The Cherokee JAT is the only proper forum.
The Power of the Cherokee People

The Cherokee citizenry has the ultimate authority to define tribal citizenship.
When they adopted the 1975 Constitution, they did not limit membership to people who
possess Cherokee blood. Instead, they extended membership to all the people who were
"citizens" of the Cherokee Nation as listed on the Dawes Commission Rolls.
The Constitution could be amended to require that all tribal members possess
Cherokee blood. The people could also choose to set a minimum Cherokee blood
quantum. 3  However, if the Cherokee people wish to limit tribal citizenship, and such
limitation would terminate the pre-existing citizenship of even one Cherokee citizen, then
it must be done in the open. It cannot be accomplished through silence.

____________________________
 1436 U.S. 49 (1978).
 2See Nero v. Cherokee Nation of
Oklahoma, 892 F.2d 1457 (10th Cir. 1989).

3The people of the United Keetoowah Band and the Eastern Band of Cherokee Indians have done so.

                                                                                            

 

The Council lacks the power to redefine tribal membership absent a constitutional
amendment. The Council is empowered to enact enrollment procedures, but those laws
must be consistent with the 1975 Constitution. The current legislation is contrary to the
plain language of the 1975 Constitution.

The 1975 Cherokee Constitution

Article III of the 1975 Constitution defines eligibility for tribal membership very
broadly:
All members of the Cherokee Nation must be citizens as proven by
reference to the Dawes Commission Rolls, including the Delaware
Cherokees of Article II of the Delaware Agreement dated the 8th day of
May 1867, and the Shawnee Cherokees as of Article m of the Shawnee
Agreement dated the 9th day of June, 1869, and/or their descendants.
4
(emphasis added)
There is simply no "by blood" requirement in Article HI. There is no ambiguity to
resolve. The words "by blood" or "Cherokee by blood" do not appear.
           Article III only requires proof of citizenship by referencing the "Dawes
Commission Rolls." Article III does not exclude anyone who is listed on the Dawes
Commission Rolls.
           It is important to note that the phrase "Dawes Commission Rolls" is plural. While
the overwhelming majority of people on the Dawes rolls are Cherokee by blood, the rolls
also include other people who the Cherokee Nation recognized as citizens at the time the
Dawes rolls were compiled. Membership is not limited, in Article III, to those
individuals only appearing on the "Cherokee by blood" pages of the Dawes rolls.

_______________________
4Cherokee Constitution of 1975, Article in. Section 1.

       

 In the dissenting opinion. Chief Justice Matlock agrees with the majority on one
very crucial point: "The Cherokee Freedmen. Delaware Cherokee and Shawnee
Cherokees were citizens of the Cherokee Nation prior to the adoption of the 1975
Constitution of the Cherokee Nation."
If the Cherokee Freedmen were "citizens" in
1975, as all three justices unanimously agree, then they must have been "citizens" at the
time the Dawes Rolls were completed. If they were citizens of the Cherokee Nation at
the time the Dawes Rolls were compiled, then they are expressly included in the 1975
Constitution, which extends membership to the "citizens" on the Dawes Rolls.
If the Freedmen's citizenship rights existed on the very night before the 1975
Constitution was approved, then they must necessarily survive today. These rights were
not terminated by the adoption of the 1975 Constitution. In fact, the 1975 Constitution
affirms these rights by linking citizenship to one single document: the Dawes
Commission Rolls.

The Disputed Legislation

The disputed legislation sets forth "membership requirements" in 11 C.N.C.A §
12. These "membership requirements" are more restrictive than the "membership"
 provision of Article III. 11 C.N.C.A. § 12 states:
                  A.    Tribal membership is derived only through proof of Cherokee

                          blood based on the Final Rolls.
                   B.    The Registrar will issue tribal membership to a person who
                            can prove that he or she is an original enrollee listed on the
                            Final Rolls by blood or who can prove to at least one direct
                            ancestor listed by blood on the Final Rolls.
This legislation adds new and more restrictive membership requirements than those
found in the Constitution. The legislation in subsection (A) states that "tribal
membership is derived only through proof of Cherokee blood." This is contrary to the
plain language of the Constitution.
In subsection (B), the legislation requires proof of lineage "by blood." This too is
contrary to the plain language of Article III, which lacks any "blood" requirement
whatsoever. The Constitution only requires proof of lineage from a "citizen." It does not
require proof of Cherokee or Indian blood.
Providing proof of Cherokee blood is clearly one way to become a member. It is
not the only way to prove membership. In fact. Article III expressly mentions the
Shawnee and Delaware, who posses some Indian blood, but not Cherokee blood. The
Shawnee and Delaware are not citizens "by blood" of the Cherokee Nation.
Article III expressly includes all people, who can prove that they were "citizens"
on the Dawes Commission Rolls with no mention (one way or the other) about Cherokee
or Indian blood quantum. The Cherokee Freedmen, the Shawnee and Delaware were all
citizens at the time the Dawes rolls were finalized and they all continue as citizens to this
day.

Scope of Additional Inquiry

When interpreting legislation or constitutional provisions, this Court must look at
the plain language of the document. If this Court can reach its conclusion by looking at
the plain language alone, there is no need to look to additional sources. The language
should speak for itself and in this case, it does. Article III does not limit membership to

"Cherokees by blood," but instead, refers to the "citizens" on the Dawes rolls, which
include Freedmen. 11 C.N.C.A. § 12, however, requires proof of Cherokee blood where
no such requirement is found in Article III. There is no ambiguity and this Court could
end the discussion with that simple conclusion. The legislation is unconstitutional.
This Court does, however, recognize that the word "citizen" in Article III might
require further discussion so that the Cherokee people folly understand this Court's
decision. For this reason, the Court will engage in a more detailed discussion of legal
citizenship in the Cherokee Nation.
This Court will also discuss the 1975 Constitution as a whole, paying particular
attention to those provisions in the Constitution that define the rights of Cherokee citizens
by blood. The Court will note that under the 1975 Constitution, the rights of Cherokee
citizens by blood differ from the rights of the other citizens of the Cherokee Nation.

The Dawes Commission Rolls

The Dawes Commission Rolls were not created by the federal government from
scratch. When the Dawes Commission compiled the rolls, they referred to previous
Cherokee Nation census records which also included a broad citizenry. Most of the
people listed on the Dawes Rolls will also appear on the Cherokee Nation's own tribally
controlled censuses that pre-date the Dawes rolls. The Cherokee Nation's own censuses
included Freedmen in addition to "native Cherokees," intermarried whites, and Indians of
other tribes, all of whom were recognized by the Cherokee Nation as citizens. The 1975
Constitution makes no reference to these tribal rolls, but instead, relies on the Dawes
Rolls for inclusion and exclusion.

           The Dawes Commission Rolls are the final citizenship rolls of the Cherokee
Nation. 5 On the basis of their Cherokee citizenship, the people who were listed on these
rolls were entitled to allotments from the Cherokee Nation, including the Cherokee
Freedmen. The Dawes Rolls include several groups of people and are not limited to
Cherokees by blood.
Individual Shawnees are actually listed on the "Cherokee by blood" pages of the
Dawes Commission Rolls. There are no separate Cherokee Shawnee pages. On the
census cards, Shawnees are listed with a blood degree and are referenced as "AS" or
"Adopted Shawnee." The Shawnee are Cherokee citizens on the Dawes rolls, but they

are citizens by adoption, not "by blood."
Individual Delaware are listed on separate pages in the Dawes Commission Rolls
with the caption "Delaware Cherokee" at the top. On the census cards, the Delaware are
listed with a blood degree and are referenced as "AD" or "Adopted Delaware." The
Delaware are Cherokee citizens on the Dawes rolls, but they are citizens by adoption, not
"by blood."

______________________
5 The cover page to the Dawes Commission Rolls reads: "Index to the Final Rolls of the Citizens and
Freedmen of the Five Civilized Tribes in
Indian Territory." Respondents argue that this title suggests that the Freedmen were not citizens of the Cherokee Nation. There are at least two reasons for the distinction.
           First, not all of the Five Tribes recognized the Freedmen as citizens of their nations. Unlike the
other tribes, the Chickasaw never adopted the Freedmen as citizens by amending their own tribal laws. Chickasaw Nation v.
United States, 318 U.S. 423 (1943). All of the other tribes, including Cherokee, adopted the Freedmen by amending their tribal laws or constitutions.
           Second, the Curtis Act mentioned Freedmen separately from other citizens as a result of the
Whitmore federal court case dealing with the distribution of Cherokee Nation funds to Freedmen, as
Cherokee citizens. As a result of the Whitmore case, in which Freedmen citizenship rights were upheld, a new Freedmen roll was to be taken to ensure that only those individuals who met the qualifications for citizenship would be included on the rolls. The Curtis Act specifically mentions this litigation. It is unreasonable to argue that the Curtis Act deprived Freedmen of citizenship when it specifically refers to a court case that upheld Freedmen citizenship.



             Individual Freedmen, like the Delaware, appear on separate pages with the
caption "Cherokee Freedmen" at the top. 6 On these census cards, there is no blood
degree listed but there is an "F" or "Freedmen" notation. The Freedmen are Cherokee
citizens on the Dawes rolls, but they are citizens by adoption, not "by blood."
The only time the words "by blood" appear in the Dawes Commission Rolls is at
the top of the "Cherokee by blood" pages (which actually includes some Shawnees) and
"Minor Cherokees by blood" pages. It is true that the Dawes Commission listed a blood
degree on the census cards for Delaware and Shawnee. This degree of blood would refer
to Delaware or Shawnee Indian blood, not a degree of Cherokee blood. 7 Therefore, it is
incorrect to refer to Delaware and Shawnee as citizens by blood of the Cherokee Nation,
even if they possess a CDIB card. The Delaware and Shawnee, like the Freedmen, are
citizens of the Cherokee Nation by adoption only.
The Dawes Commission had their own federal purposes for including a blood
degree on their documents. The federal government continues to use these blood degrees
for their own purposes today. 8 It is not clear that the Dawes Commission had any
appreciation for the fact that Indian blood, of the various tribes, is different. Shawnee
blood is not Cherokee blood. Delaware blood is not Cherokee blood. It is important for

___________________________
6 There are also pages that list "Minor Cherokee Freedmen." There are no separate pages for Shawnee, Delaware or Intermarried White minors.
7 If some of the
Shawnee or Delaware were also mixed Cherokee, there is no way to confirm it on the
Dawes rolls. Likewise, if some of the Cherokee Freedmen were mixed with Cherokee, there is no way to confirm it on the Dawes rolls. It is inconceivable that not a single
Delaware, Cherokee Freedmen, or Shawnee had any Cherokee blood, yet that is what the Dawes rolls suggests.
8 We continue to lose more and more of our land base every year because the federal government only protects against alienation the lands owned by individuals with high blood degrees. When lands

are owned by Cherokees with less Indian blood, those lands are subjected to state taxation and vulnerable to state eminent domain. The federal and state governments benefit when Cherokee blood quantum drops. Federal protection of our lands cease and state regulatory authority begins.

this Court to question whether all these federal blood degrees really matter today, for
purposes ofCherokee citizenship laws.
The "blood" degrees of the Dawes Commission are absolutely irrelevant for the
purpose of determining who is a legal citizen of the Cherokee Nation of Oklahoma.9 A
1/64 blood Shawnee has the same legal citizenship rights as a full blood Cherokee Indian.
A Cherokee Freedmen has the same legal citizenship rights as 1/8 blood Cherokee Indian.
A full blood Delaware Indian has the same legal citizenship rights as a person who is
1/1024th Cherokee by blood or less. They are all legal citizens of the Cherokee Nation
pursuant to the plain language of our Constitution.
             The only time a legal right, under Cherokee law, depends on Cherokee blood, is
when a person decides to run for elected office. In that instance, we rely on the blood
degree findings of the Dawes Commission to make sure our Principal Chief and Council
members are Cherokee citizens by blood. This guarantees Cherokee control of
government, but that government is ultimately elected by a larger and more diverse
constituency of citizens.
             The Cherokee Nation is a Sovereign. The Cherokee Nation is much more than
just a group of families with a common ancestry. For almost 150 years, the Cherokee
Nation has included not only citizens that are Cherokee by blood, but also citizens who
have origins in other Indian nations and/or African and/or European ancestry. Many of
these citizens are mixed race and a small minority of these citizens possess no Cherokee
blood at all.

____________________
9 The federal government might have a purpose for the blood quantum in the administration of services or for determining who is an "Indian" by their standards. This has no effect on legal citizenship status under Cherokee law.


              People will always disagree on who is culturally Cherokee and who possesses


enough Cherokee blood to be "racially" Indian. It is not the role of this Court to engage


in these political or social debates. This Court must interpret the law as it is plainly


written in our Constitution.


Other Provisions of the 1975 Constitution


            This Court must look at all the language in the 1975 Constitution. As this Court


has stated. Article III has no "by blood" requirement. There are, however, two other

constitutional provisions that actually do impose a "by blood" requirement. Article VI,


Section 2 requires the Principal Chief to be a member "by blood":
             

             The Principal Chief of the Cherokee Nation shall be a citizen of the
              Cherokee Nation of
Oklahoma in accordance with Article III. He shall
               have been bom within the boundaries of the United States of America, its
               territories or possession; and he shall have obtained the age of thirty (30)
               years of age at the time of his election and be a member by blood of the
               Cherokee Nation of Oklahoma, (emphasis added)
10

                                                                       
Article V, Section 3 requires that Council to be "members by blood:"
               The Council shall consist of 15 members, who are members by blood of
                the Cherokee Nation of Oklahoma, and shall be elected at large.
               A "by blood" requirement is only needed, in these two provisions, if there are
people who are not citizens by blood. Otherwise, it would be pointless to have a "by
blood" requirement to hold office. If everyone was a citizen by blood, then everyone
could hold office. The Shawnee, Delaware and Freedmen make up the class of people

_____________________
10 This provision has been changed, through constitutional amendment, to add a residency requirement for the Principal Chief.
who are not citizens by blood. They are all citizens by adoption and therefore, ineligible
to hold elected office.
            The fact that the "by blood" requirement was written into two other provisions of
the Constitution, shows that the authors knew exactly what words to use when they
intended to restrict a right to "by blood" citizens only. If there was any intent to exclude
the Cherokee Freedmen from membership, there should have been the same type of
unmistakably clear language.
          The laws of the other four tribes that appeared on the Dawes Commission Rolls
are not, of course, binding on the Cherokee Nation. The constitutions of the other tribes
are instructive, however, in terms of the type of language that would be required to
clearly terminate Freedmen citizenship rights.
              In 1979, the Muscogee (Creek) Nation adopted a new Constitution that provided:
"Each Muscogee (Creek) Indian by blood shall have the opportunity for citizenship in the
Muscogee (Creek) Nation." 11 In doing so, the Muscogee (Creek) Nation excluded
Freedmen unless that individual can also prove Creek Indian blood pursuant to Muscogee
(Creek) law.
            In 1983, the Choctaw Nation of Oklahoma adopted a new constitution that limited
membership to "all Choctaw Indians by blood whose names appear on the final rolls of
the Choctaw Nation. 12" In doing so, the Choctaws decided to reference the Dawes
Commission Rolls for membership, but they were very clear that they were only using
those pages that list "Choctaws by blood." This clearly excluded the Choctaw Freedmen.

________________________
11Constitution of the Muscogee (Creek) Nation, Art. n. Section 1 (1979).
12Constitution of the Choctaw Nation of
Oklahoma, Article n. Section 1 (1983).

            The Chickasaw Nation Constitution restricts citizenship to "Chickasaw Indians by


blood" who are listed on the Dawes Commission final rolls.13 They clarified exactly


which portion of the Dawes Commission Rolls that could be referenced.


The language in the Choctaw, Chickasaw and Muscogee (Creek) Nation


constitutions makes it unmistakably clear that membership is limited to their citizens "by


blood" only. The Cherokee Constitution is a completely different matter. It lacks the


type of clear language to terminate the pre-existing citizenship rights of the Freedmen.


             The Respondent Cherokee Nation argues that the Cherokee Freedmen are not


eligible for membership because they are not specifically mentioned by name in Article


III. It is true that the "Cherokee Freedmen" are not mentioned by name in Article III. It


is also true that the "Cherokees by blood" are not mentioned by name in Article III. Only


the Shawnee and Delaware are listed by name. Are both the "Cherokees by blood" and


the "Cherokee Freedmen" included by silence? If not, can one group be included by


silence while the other is excluded by silence?


            This Court is guided by the principles set forth in DeMoss v. Jones, JAT 96-01.


In that case, the Court established parameters for how the 1975 Cherokee Constitution


should be interpreted.


          According to DeMoss, this Court must interpret the language of Article III as "the


people voting upon it" would have understood it in 1975 and "in the sense most obvious


to the common understanding at the time of its adoption." This Court unanimously


agrees on one thing: the Cherokees by blood, Cherokee Freedmen, Shawnee and


Delaware were all citizens in 1975 on the eve of the adoption of the Constitution. If they

13Constitution of the Chickasaw Nation, Article II, Section 1 (1990). The Chickasaw have always contested the inclusion of the Freedmen and unlike the other tribes, they never amended their constitution or passed new tribal laws extending citizenship to Freedmen following their post-Civil war treaty.

 were all citizens in 1975, then they all would have been legally entitled to vote.


Following the instructions in DeMoss, this Court must consider how each of these groups


would have understood the language in Article III at that time.


             When the average Cherokee by blood read Article III, there is little doubt what


they would have thought. They would have thought they were necessarily included,


despite the fact that their group was not specifically mentioned like the Shawnee and the


Delaware were. They knew they (or their parents/grandparents) were "citizens" of the


Cherokee Nation as listed on the Dawes Commission Rolls

 

            When the average Cherokee Freedmen read the language of Article III, it is

reasonable that they too, would have thought they were included, despite the fact that


their group was not specifically mentioned like the Shawnee and Delaware were. They


knew their history. They knew they (or their parents/grandparent) were "citizens" of the


Cherokee Nation as listed on the Cherokee Dawes rolls.


            It is not a requirement that the "Cherokees by blood" or the "Cherokee Freedmen"


be specifically mentioned in Article III, like the Shawnee and Delaware were. The


"Cherokees by blood" and the "Cherokee Freedmen" were all citizens of the Cherokee


Nation when the Dawes Rolls were completed. When Article III stated that "all members


of the Cherokee Nation must be citizens as proven by reference to the Dawes


Commission Rolls" it expressly included both the Cherokees by blood and the Cherokee


Freedmen.
                                                              
                                                                                           

 

 

   Drafting the 1975 Constitution

The dissenting opinion spends significant time discussing the "intent of the
framers." The dissent improperly focuses on the Preamble of the Constitution rather than
on the membership provisions of Article III. The dissent suggests that the individuals
who drafted the 1975 Constitution intended to exclude the Cherokee Freedmen as a
means of preserving tribal culture. 14 The dissent then speaks in terms of "Cherokee
Indian identity" and of "common character and ancestry."
           No one disputes that the Shawnee and Delaware are entitled to citizenship in the
Cherokee Nation. The Shawnee and Delaware are not, however, Cherokee Indians.
They have very different languages and they have a culture of their own. They do not
share a common ancestry with each other, or with the Cherokee people. They are,
nonetheless, legal citizens of the Cherokee Nation.
If the dissent is correct, in that the 1975 Constitution sought to create an
exclusively "Cherokee" Nation for purposing of preserving tribal culture and common
ancestry, then why would Indians from other tribes be included?
            A truly "Cherokee" Nation, in a strictly cultural sense, might have limited
citizenship to Cherokee ancestry and/or required a cultural tie to clan, religion or
language. The 1975 Constitution does none of these things. The 1975 Constitution, as it
is plainly written, envisions something much more inclusive in terms of qualifications for
legal citizenship.
           The plain language of the Constitution does not impose a "by blood" requirement.
The language of the Constitution controls. The framers did not include a "by blood"

_________________________
14This argument was not presented by either party to this lawsuit.

requirement when they drafted the Constitution. This Court cannot rewrite the language


today.


The dissent's discussion of the intent of the framers lacks historical context. If


this Court is to engage in a retrospective review of what the framer's thought, it should


also focus on what those people knew, or must have known, about the citizenship status


of the Cherokee Freedmen. The individuals who drafted the 1975 Constitution were


well-educated and some were attorneys. They were familiar with Cherokee Nation legal


history. When they included a direct reference to the Dawes Commission Rolls in the


1975 Constitution, they knew the Cherokee Freedmen were included in that document.


These individuals were also familiar with Cherokee history under the 1839


Constitution, the Cherokee Nation's treaties and agreements, and the allotment process.


The authors could not have been unaware of the citizenship status of Cherokee Freedmen.


At that point in time, the Cherokee Freedmen had been legal citizens of the Cherokee


Nation for 110 years.


On the eve of the new 1975 constitution, the Cherokee Nation would have been


very mindful of the citizenship rights of Cherokee Freedmen. Those rights had just been


the subject of two federal court cases in which the Cherokee Nation participated. Both of


these cases were concluded just a few years before the 1975 Constitution was drafted.

(1)   In 1967, the United States Court of Claims ruled that the Cherokee Freedmen
        were entitled to receive payments from the Cherokee Nation judgment fund  like  any other Cherokee citizen listed on the Dawes Commission Rolls.
15


(2)    In 1971, a small group of individuals who were not listed on the Dawes
        Commission Rolls tried to be included in these payments. This group argued that they were Freedmen who were inadvertently left off the Dawes Rolls. The federal

 

________________________

15Cherokee Nation v. US, 180 Ct. Cl. 181 (1967) affirming 12 Ind. Cl. Comm. 570 (1963)(the Cherokee Nation was the Plaintiff that initiated this lawsuit).
                                                                                               

 

court rejected their claims. 16 Only those Freedmen that are actually listed on the


Dawes Rolls were entitled to share in Cherokee Nation funds. This case


reaffirms the notion that the Dawes Rolls (in their entirety) are the final


citizenship rolls of the Cherokee Nation.

 


             The individuals who drafted the 1975 Constitution would have also been well
aware of additional legal realities:


(1)    In 1962, Congress passed legislation ordering payments to the Cherokee Nation
for prior takings of Cherokee lands. Congress instructed the money to be
distributed to individuals on the Dawes Commission Rolls. 17 The Freedmen were
paid just like all the other citizens.


 (2)   No laws changing Cherokee citizenship were passed by the federal or the tribal
government between the completion of the Dawes Commission Rolls and the
adoption of the 1975 Constitution.


(3)   In 1906, the United States Supreme Court heard a challenge about the allotment
of Cherokee lands. The U.S. Supreme Court ruled that Intermarried Whites were
not entitled to the same citizenship rights (unless they married in before 1875) as
the Cherokees by blood, Shawnee, Delaware and Freedmen. 18


(4)    The Cherokee Freedmen were included on the Dawes Commission Rolls and as a result, they received allotments as citizens of the Cherokee Nation. The
allotments were not free grants of land from the United States. The lands were
conveyed by the Cherokee Nation and signed by the Principal Chief. 19


(5)   In 1895, the United States Court of Claims ruled that Cherokee Freedmen have
the same rights as "native" Cherokees and therefore Freedmen were entitled
to a share of payments from sales of Cherokee lands. This decision was
based on the Treaty of 1866 and tribal amendments to the 1839 Constitution. 20

 

 

 

 

 

_____________________________________________

16 Cherokee Freedmen & Cherokee Freedmen's Association v. the United States and the Cherokee Nation,

195 Ct. Cl. 39 (1971)(the Cherokee Nation was a named Defendant to this lawsuit).
17 Public Law 87-775 (October 9, 1962).
18 Redbird v.
United States, 203 U.S. 76 (1906). The Respondent Cherokee Nation argues that if this Court
allows Freedmen citizenship, then there will also be Intermarried Whites that would be entitled to
citizenship. If there are any Intermarried Whites still living, that are listed on the Dawes Rolls, they would
be entitled to citizenship. Keep in mind that these people would have been married to native Cherokees on
or before 1875. To the extent that they have lineal descendants, those children would likely be the product
of a marriage with a Cherokee person and those children would be Cherokees by blood.
19These conveyances were the result of the 1902 Agreement in which the Cherokee Nation agreed to allot
the Cherokee lands to individual citizens.
20 Whitmore v. Cherokee Nation, 30 Ct. Cl. 138 (1895).
                                                                                                  


(6)    In the late 1800s the Cherokee Nation conducted several censuses as a matter of
tribal law. The censuses included native Cherokees, Freedmen, adopted whites
and various other adopted Indians, including Shawnee and Delaware. The
Cherokee census does not list blood degrees for anyone. Blood degrees appeared
on the Dawes rolls but not in Cherokee Nation's own documents.


(7)   In the 1870s, the Cherokee Nation Supreme Court (this Court's predecessor)
heard several citizenship cases but never rejected the Freedmen as a class. Some
Freedmen were individually rejected because they did not meet residency or
timing requirements. The Court admitted many individual Freedmen as citizens. 21
(8)    The Cherokee Nation signed a Treaty with the United States in 1866 agreeing to
extend citizenship to the Freedmen.


In light of this long and consistent history, the 1975 Constitution was adopted with a


membership provision which includes "citizens" and descendants of the Dawes


Commission Rolls. If the Cherokee Freedmen are to be treated differently than all the


other people on the rolls, then specific language should demonstrate that the Freedmen


were being excluded. There is no such language.

 

 

 

Further Discussion of the 1866 Treaty



 

It has been argued that the Cherokee Freedmen were forced on the Cherokee


Nation by the federal government and that the Cherokee Nation never voluntarily


accepted the Freedmen as citizens. This is simply not the case.


In the Treaty of 1866, the Cherokee Nation agreed to extend citizenship to


Freedmen and agreed to give them the same rights as "native" Cherokees. Although this

_____________________
21 The dissent argues that there is no instance were the Cherokee Nation voluntarily

extended citizenship to the Freedmen. This is inaccurate. The Cherokee Nation Supreme

Court extended citizenship to Freedmenas a matter of Cherokee law, based on a Cherokee

amendment to the 1839 Cherokee Constitution.
                                                                                             

 

treaty was signed at the end of the Civil War, when the Cherokee Nation was in a weaker

bargaining position, it is nonetheless an agreement between two sovereign nations.
            When the Cherokee Nation enters into treaties with other nations, we expect the
other sovereign to live up to the promises they make. It is rightly expected that we will
also keep the promises we make.
            It cannot be overstated that the 1866 Treaty, in which the Cherokee Nation agreed
to extend citizenship to the Freedmen is the exact same treaty where the Cherokee Nation
agreed to have other Indian tribes (ultimately the Shawnee and Delaware) relocated
inside the Cherokee Nation. After the 1866 Treaty, the Cherokee Nation amended the
1839 Constitution to extend citizenship to the Freedmen as a matter of tribal law. After
the 1866 Treaty, the Cherokee Nation also entered into individual treaties with both the
Delaware and the Shawnee Indian tribes. Both of these actions show that the Cherokee
Nation complied with the terms of 1866 Treaty.
           

 

            The inter-tribal treaties with the Shawnee and Delaware were not as freely
negotiated as the Respondent Cherokee Nation contends. First, the United States
completed relocation treaties with the Shawnee and the Delaware. Then, the Cherokee
Nation agreed with the United States to accept the relocation of the Shawnee and
Delaware. Only after making a treaty with the United States did the Cherokee Nation
embark on the inter-tribal treaty negotiations with the Shawnee and the Delaware. With
the approval of the United States, the inter-tribal treaties set forth that the Shawnee and
Delaware Tribes will be incorporated into the Cherokee Nation. This is how individual
Shawnee and Delaware came to have citizenship rights in the Cherokee Nation.
The Cherokee treaties with both the Shawnee and Delaware required the approval
of the United States with reference to the 1866 Treaty. A freely negotiated treaty
between two independent sovereigns does not need the approval of a third sovereign.
It is argued that the 1866 Treaty should not be binding for purposes of Cherokee
Freedmen citizenship. The Cherokee Nation argues, however, that the 1866 Treaty (and
the resulting inter-tribal treaties that followed) is binding for Shawnee and Delaware
purposes.
            The Respondent Cherokee Nation asserts that extending citizenship to the
Delaware and Shawnee was the Cherokee Nation's free and independent choice but that
the Freedmen were forced on the Cherokee Nation against the will of the Cherokee
people. The timing of the treaties does not support this argument. It is not as if the
Cherokee Nation approached the United States and asked them to settle some other
Indian tribes on lands perpetually that had been guaranteed in fee to the Cherokee Nation.

To the contrary, the United States stood in a strong position and needed a place to
relocate other Indians and the Cherokee Nation obliged. After these agreements, the
Cherokee Nation ultimately extended citizenship to these new citizens just as it had
already done with the Freedmen.
            If the 1866 Treaty is enforceable for the ultimate inclusion of Shawnee and
Delaware it must be enforceable as to the Freedmen. The fact that internal Cherokee
laws were amended to acknowledge the Cherokee Nation's compliance with the 1866
Treaty should not be ignored. 22


22 Petitioner argues that the 1839 Constitution was amended to extend citizenship rights to the Freedmen.Respondent Cherokee Nation argues that this amendment was not properly adopted. We cannot address whether it was properly adopted or not. That would have been the role of the Cherokee Nation Supreme
                                                                                                   

This case poses an interesting question of whether the Cherokee Nation, like other


sovereigns, has the internal power to unilaterally abrogate treaties. This Court sees no


reason why the Cherokee Nation must be bound by a treaty until the end of time,


particularly when that treaty has been broken by the other sovereign.


However, if the Cherokee Nation is going to make a decision not to abide by a


previous treaty provision, it must do so by clear actions which are consistent with the


Cherokee Nation Constitution. A treaty provision cannot be set aside by mere


implication. This treaty discussion leads to the same conclusion as the constitutional


discussion. If the Cherokee people want to change the legal definition of Cherokee


citizenship, they must do so expressly.

 

Declaring Legislation Unconstitutional


This Court has been given clear guidance, in two cases, for when legislation must


be set aside as unconstitutional. (\)McLain v. Cherokee Nation Election Commission


and (2) Leach v. Tribal Election Commission. Both of these cases were binding


precedent at the time Riggs v. Ummerteske was decided and they are good law today.


There is no need to cite to the laws of other jurisdictions to interpret the 1975 Cherokee


Constitution. Cherokee law controls Cherokee citizenship.


InMcLain v. Cherokee Nation Election Commission, JAT 98-12 (1998), this


Court set aside a legislative act which imposed a residency requirement on candidates. 23


Court at that time. We note, however, that Cherokee Nation Supreme Court did extend

 

citizenship to the individual Freedmen who met the requirements under the treaty and

 

under tribal law.


23 The 1975 Constitution has now been amended to include a residency requirement. The constitutional amendment did not go into effect until it was adopted by the people and obtained federal approval, as required by the language of the 1975 Constitution.



The Court found that the legislation placed a "more stringent restrictions on candidates
for office than are required by the Cherokee constitution." As a result, the legislation was
unconstitutional. In that case, there was no express residency requirement in the
Constitution. In the present case, there is no express "by blood" requirement for
citizenship in the Constitution.
            In Leach v. Tribal Election Commission, JAT 94-01, this Court reached the same
conclusion. "Any legislative acts that would establish requirements over and above those
in the constitution are "contrary" to the constitution, and as such, are unconstitutional."
In the present case, the legislation requires individuals to prove they possess Cherokee
blood. This goes over and above the proof required by the Constitution,
                                                      

 

    The Riggs Decision

In Riggs v. Ummerteske, JAT 97-03, this Court ruled that 11 C.N.C.A. § 12 was
constitutional. At the time Riggs was decided it was a case of first impression under the
1975 Constitution. The Riggs Court was presented with federal court decisions that had
repeatedly upheld the citizenship rights of Cherokee Freedmen class. Those federal
decisions were based on the federal treaty interpretation, federal interpretation of the
1839 Cherokee Constitution, and the federal documents from the Dawes Commission.
I agree with the Riggs Court on one point: citizenship is an internal matter for the
Cherokee citizenry to ultimately decide. I do not fault the Riggs Court for basing their
decision solely on the 1975 Constitution. I must, however, respectfully disagree with the
Riggs Court's interpretation of the Constitution. The conclusion of Riggs Court is
contrary to the plain language of Article (II of the 1975 Constitution. If Article HI was
intended to limit membership to citizens "by blood" it should have said so.
The principle of stare decisis24 which gives strong weight to the prior decisions,
has been the norm in this jurisdiction and I respect the predictability it provides. The
Riggs Court, however, failed to apply previous precedents for interpreting the
constitution as set forth in Leach v. Tribal Election Commission and McLain v. Cherokee
Nation Election Commission.

Leach and McLain require a legislative act be held unconstitutional if it adds new
requirements to a constitutional provision. 11 C.N.C.A § 12 adds a "by blood" requirement that simply does not exist in Article III. 11 C.N.C.A, §12 is hereby deemed unconstitutional.

 

This Court's decision in Riggs v. Ummerteske is hereby reversed.
IT IS SO ORDERED this 7th day of March, 2006.

 

____________________

Justice Stacy L. Leeds


 
Special Concurring Opinion of Justice Dowty;
In light of the argument made by Justice Leeds, I am compelled to revisit and
reconsider my concurrence in Riggs v. Ummerteske. I agree with Chief Justice Matlock,
citing Demoss, for guidance in constitutional interpretation, and that " [t]o determine this

_________________________
24 Stare decisis is Latin for "to stand by things decided."
intent we look to the instrument itself and when the test of a constitutional provision is
ambiguous, this Court in constructing it is not at liberty to search for meaning beyond the
instrument." In considering the matter, I note that the Justices are in agreement that the
Freedmen were citizens of the Cherokee Nation at the time the 1975 Constitution was
drafted.
           I agree with Justice Leeds that to exclude a class of citizens from membership, the
constitution would have to do so with specific and clear language. Exclusion cannot be
left to inference by omission or by silence. The Cherokee Freedmen were citizens of the
Cherokee Nation prior to the enactment of the 1975 Constitution. The language of
Article III does not specifically exclude them from continuing membership. The
constitutional language requires membership by reference to the Dawes Commission
Rolls and the Freedmen were included in those rolls.
          I, therefore, concur that Riggs v. Ummerteske must be reversed and that 11 CNCA
§12 is unconstitutional because it imposes a more restrictive requirement on membership
than does the plain language of the Constitution of 1975.
Accordingly, I concur in the Opinion of Justice Leeds.

___________________

Justice  Darell Dowty