JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION
Lucy Allen,
)
Plaintiff,
)
)
vs. ) Case No.
JAT 04-09
)
Cherokee Nation
Tribal Council, )
Lela
Ummerteskee, Registrar, and )
Registration
Committee,
)
Defendants. )
BRIEF IN RESPONSE TO DEFENDANTS’ RESPONSES
TO PETITIONER’S BRIEF
COMES NOW Plaintiff, Lucy Allen, pro se, by and through her appointed lay advocate David Allen Cornsilk, for her cause of action submits this Brief in Response to Defendants’ Responses to Petitioner’s Brief and states the following:
INTRODUCTION
In accordance with the June 3, 2005 Order of the Judicial Appeals Tribunal that Plaintiff has until June 24th to submit a final brief, Lucy Allen herein complies with the Order of the Honorable Court with the presentation of the following and by reference herein readopts her previously filed brief submitted to the Court on November 11, 2004 entitled, “BRIEF IN SUPPORT OF PETITION FOR DECLARATORY JUDGMENT and her previously filed brief submitted to the Court on April 22, 2005 entitled, “BRIEF IN SUPPORT OF PETITION FOR DECLARATORY JUDGMENT.”
Defendants have raised several defenses not previously heard by the Plaintiff and never before adjudicated by the Judicial Appeals Tribunal (JAT). At the June 3rd hearing, Petitioner expressed concern that the Court might not have the information necessary to properly understand the new issues and asked the Court for an amount of time certain to provide a response. The Court granted time for a response and your Petitioner herein offers the following responses:
REGISTRAR AND REGISTRATION COMMITTEE CLAIMS
DEFENDANTS CLAIM:
I.
It is a fundamental right of the tribe to
determine citizenship (reliance upon the U.S. Supreme Court decision in
Santa Clara Pueblo v.
PETIONER’S RESPONSE:
While the basic premise of Defendants’ claim is correct, the application is wrong. The Cherokee people constitute the tribe. Elected tribal officials, serving only temporarily in office, are not the tribe. The Cherokee people, by and through their Constitution (1976) are the determiners of citizenship in our Nation.
Elected officials are empowered only to abide by the Constitution and carry out its tenets. Any action on the part of elected officials which is above and beyond the authority vested in them by the Constitution is unconstitutional. Petitioner draws the Courts attention to her previous Brief filed on November 11, 2004 entitled, “BRIEF IN SUPPORT OF PETITION FOR DECLARATORY JUDGMENT” wherein she presented the U.S. Supreme Court rulings detailing the inability of Congress to deprive U.S. citizens of citizenship and drawing a comparison between the U.S. Congress and the Cherokee Nation Tribal Council regarding the inability of both entities to strip citizens of citizenship.
The application of the
DEFENDANTS CLAIM:
II.
Indian Civil Rights Act does not waive
sovereign immunity (reliance upon the U.S. Supreme Court decision in
Santa Clara Pueblo v.
PETIONER’S RESPONSE:
Indian governments are not bound by the ICRA because they were not a party to it and Congress has not authorized it. ICRA is not enforceable in Federal Court against an Indian government, with the exception of the provisions for habeas corpus. However, in the case of the Cherokee Nation of Oklahoma, the provisions of the ICRA have become part and parcel of the Constitution (Article II, Bill of Rights). This does not mean that the Cherokee Nation of Oklahoma has brought itself under the jurisdiction of the ICRA, nor could it. It means exactly what it says, the provisions of the ICRA shall be a bill of rights for the Cherokee people and as such, the provisions are enforceable in the courts of the Cherokee Nation of Oklahoma as constitutional or civil rights. Plaintiff has never said and would not say that the ICRA itself applies to the Cherokee Nation of Oklahoma or is enforceable in the federal courts against the Nation or its officers. She has said and will only say that the enumerated rights of the ICRA have been adopted by the Cherokee people as a Bill of Rights; and by the wording in the Constitution itself, sovereign immunity is waived. It is the Cherokee people’s adoption of the provisions of the ICRA which operate to waive immunity, not the ICRA itself. It would make no sense at all for the framers of the Constitution to embrace a list of enumerated rights but not make those rights enforceable in the only forum available to the Cherokee people. Article II says the courts of the Cherokee Nation are open to adjudicate every wrong and injury. In the same article, not even in a separate section, the framers embraced the ICRA as a bill of rights; thus waiving immunity as it relates to those civil rights and making them enforceable by the Cherokee courts.
DEFENDANTS CLAIM:
III. 1839 Constitution was superceded (reliance upon DeMoss v. Jones, JAT 96-01 at 7.)
PETITIONER’S RESPONSE:
The 1839 Constitution has been
superceded. This Court has so ruled. Superceded is not the same as abrogated. Therefore, any rights, existing in the
Cherokee people, flowing from the 1839 Constitution were extant up to
the very second the 1976 Constitution became law. Prior
to 1976, the rights of all Cherokee citizens flowed from that historic
document. Post-1976, the rights of
Cherokees flow from the current (1976) Constitution.
Petitioner and her ancestors were incorporated into the Cherokee
Nation as citizens equal to Native Cherokees (by blood).
Her ancestors became indistinguishable under the law from all
other Cherokees (12 Ind. Cl. Comm. 570 Cherokee Nation
vs. The
Section 2 of
Article I of the Cherokee constitution was amended to affirm that the
lands of The Cherokee Nation would remain common property until
allotted as permitted by Article XX of the treaty.
Section 5 of Article III of the constitution was amended to
define freedmen and their descendants as unqualified citizens of The
Cherokee Nation. When, after these
amendments were adopted, the Cherokees had occasion to mention the
freedmen, it was the consensus of its leaders that the freedmen were in
fact Cherokee citizens, with all of the rights of native Cherokees, and
that they acquired such rights by virtue of Article IX of the treaty of
1866.
At all material
times, the Cherokees intended that when they granted freedmen “all the
rights of native Cherokees”, no civil, political, or property rights
were excluded and all conceivable rights were included.
In this state of legal indistinctness, the Cherokee people did adopt a new Constitution in 1976. The provisions of that Constitution at Article III also make the citizenry of the Cherokee Nation of Oklahoma legally indistinguishable from each other.
The rights of Petitioner originated in
1866 with the adoption of the Treaty of 1866 as an agreement between
the
There is ample evidence in the historic and legal record of recognition of the Freedmen class of Cherokees as citizens, both pre-Oklahoma statehood (1907) and after. Petitioner’s parents and she herself, as Cherokee citizens, did move forward in time with the Cherokee Nation, incorporated and legally indistinguishable from all other Cherokee citizens, carrying with her and them the vested rights of citizenship flowing from the Constitution of the Cherokee Nation of 1839.
There was no law, prior to the one in
question before this Honorable Court, which acted in such a way as to
destroy her rights. In fact, the Courts of
the United States have, on numerous occasions, affirmed the citizenship
rights of the Freedmen as recently as 1967 (U.S. Ct. Cl. Appeal No.
5-66, Ind. Cl. Comm. Docket No. 190 12 Ind. Cl. Comm. 570 – 1967). The Indian Claims Commission (12
The Cherokee people as a whole did adopt and ordain the Constitution of the Cherokee Nation of Oklahoma in 1976. In order for the 1976 Constitution to abrogate the rights of any class of Cherokee citizens, it would have had to say emphatically that it was doing that.
A
METAPHOR
When I go to Sonic
Drive-in and order a Number two Cheeseburger, it comes with a bun,
meat, lettuce, tomato, mustard, pickles and onions.
If I want it to be something different than what I order, I must
say so. I might want to omit onions. I would then order a Number two Cheeseburger,
hold the onions. When the Cherokee people
created their 1976 Constitution, they were like that cheeseburger, each
part comprising the whole. The Cherokee
Nation was comprised of Cherokees by blood,
The Solicitor General of the
The 1976 Constitution does no such thing. In fact, it is clear in its directive to the elected and appointed officials that membership in the Nation shall be constituted from the citizens as listed on the Dawes Commission Rolls. In an effort to create racial disharmony and destroy the rights of the black Cherokees, elected officials, only temporarily in office, have created a law which applies a ‘by blood’ test upon applicants which is designed to deprive the Freedmen and their descendants of citizenship and at the same time deprives the Cherokee people of their inherent right to define citizenship by and through their own Constitution.
A comparison of the membership clauses of the constitutions of three of the Five Civilized Tribes shows a clear pattern of exclusion of the Freedmen based on “by blood” requirements (Choctaw Nation, Muscogee Creek Nation, and Chickasaw Nation). The Seminole Nation, due to the political structure of their government, provided for the full participation of the Freedmen Bands. The Choctaw, Creek and Chickasaw Nations all have membership provisions which require their members to be by blood only, thus excluding their Freedmen (see attached membership articles of the Choctaw, Chickasaw and Creek Nations). Taken in context with the 1941 Solicitor’s opinion, it is clear that the pattern set by three of the Five Tribes was to emphatically drop membership for their Freedmen and for the Cherokee Nation not to.
Had the Cherokee Nation of Oklahoma intended that the Freedmen of our Nation be excluded, there was plenty of opportunity to do so. However, there is ample evidence that it was not the intent of the Cherokee people to exclude the Freedmen when the 1976 Constitution was adopted. It was not until a political situation arose in 1983, which pitted the Freedmen against the sitting Principal Chief and threatened his reelection, that a Cherokee by blood requirement arose, and then only after the new Constitution had been in place some seven years.
DEFENDANTS CLAIM:
IV. Defendants claim that the amendment to the 1839 Constitution adopting the Freedmen and certain free blacks was not adopted in accordance with the requirements of the 1839 Constitution (reliance upon a book called Emmet Starr History of the Cherokee Indians 130-1993).
PETITIONER’S RESPONSE:
Plaintiff respectfully claims that the Judicial Appeals Tribunal is not authorized to go behind the 1976 Constitution and rule on laws and actions arising from the 1839 Constitution. Article VII of the 1976 Constitution provide only for the adjudication of controversies arising under the provisions of the Constitution which created the JAT. Anything occurring under the provisions of the 1839 Constitution is settled law. Unless and until the Council might provide for jurisdiction in the JAT for causes of action arising under the 1839 Constitution and subsequent laws of the Cherokee Nation, this Court lacks jurisdiction.
The Cherokee Nation Constitution of
1839 is our best witness to the proper verbiage in describing how the
Freedmen,
No person shall
be eligible to a seat in the National Council but a male citizen of the
Cherokee Nation who shall have attained to the age of twenty-five
years, and who shall have been a bona fide resident of the district in
which he may be elected, at least six month immediately preceding such
election. 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 no residents
therein, or who may return within six months from the 19th
day of July, 1866, and their descendants, who reside within the limits
of the Cherokee Nation, shall be taken, and deemed to be, citizens of
the Cherokee Nation.
That provision of the organic document
under which our ancestors lived was the law of the Cherokee land. Defendants claim that the amendment was
improperly adopted, yet they make no such claim in their efforts to
prevent the
The
(Moses
Whitmire, Trustee for The Cherokee Freemen v. The Cherokee Nation and
the United States, 30 Ct. Cl. 138 (1895), held that the
Freedmen were entitled to receive equal per capita payments of funds as
equal citizens of the Cherokee Tribe. The Court of Claims held
that while the tribal council could sell the common property, it could
not discriminate against a particular class of citizens in deciding who
was entitled to share in the proceeds. Ruling in favor of the
Freedmen, the court awarded them $903,365 as their rightful share of
$7,240,000. that had been generated from the sale of tribal land; Daniel Red Bird v. United States,
203 U.S. 76, 27 S. Ct. 29 (1906), the Supreme Court affirmed the
citizenship and proprietary rights of the Freedmen as ensured by the
1866 Treaty as opposed to the intermarried whites that did not have
such rights, Journeycake v. Cherokee Nation, 30 Ct. Cl. 172
(1895), the Court of Claims ruled the Cherokee Nation lands held in
common. The Delaware, Shawnees, and
freedmen can benefit from proceeds derived from the sale of the “outlet
lands” to the United States, and Alberty
v. United States, 162 U.S. 499 (1896), the U.S. Supreme Court ruled
the courts of an Indian Nation have jurisdiction over offenses
committed by one Indian against the person of another.
According to statutes, “Indians” includes both Indians by blood
and adoption).
History of the
Cherokee Indians by Emmett Starr shows the following individuals listed
as Negro who served on the Cherokee Council: Tahlequah
District: 1875 – Joseph Brown, 1893 – Stick Ross, 1895 – Ned Irons;
Illinois District: 1887 – Frank Vann, 1895 – Samuel Stidham;
Cooweescoowee District: 1889 – Jerry Alberty.
Numerous other cases cited earlier by Plaintiff show the Cherokee Nation, as well as the United States (Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864; 40 L. Ed., 1051), viewed the Freedmen as citizens of the Cherokee Nation. Defendants’ have shown no legal basis upon which they may couch their argument that the 1866 amendment to the 1839 Constitution was invalid or that this Court is cloaked in any kind of authority to review it.
In the year 2006, the Freedmen will
have been adopted into the Cherokee Nation for 150 years.
20-plus of those years, nearly an entire generation has been
spent fighting for civil rights denied them by the elected officials of
the Cherokee government. If the adoption
of the Freedmen had been performed improperly, it would have been
litigated. It wasn’t.
It only stands to reason that an argument against the validity
of the amendment would have arisen in the Cherokee courts during the
tumultuous years following the Civil War when a court existed to review
it. That argument would have been brought
up in the
“Indian Affairs: Laws and
Treaties,” compiled and edited by Charles J. Kappler, a treatise on
Indian law, gives the following entry regarding adoption:
2. By adoption—(a)
Of individuals.—A tribe of Indians may admit aliens to membership
in the tribe,3 and a person so adopted acquires all the
rights and incurs all the obligations of a member of the tribe.4
He does not, however, lose his status as a citizen of the United States,5
nor does he become an “Indian” within the meaning of the statutes.6
The ordinary occasion for adoption is the marriage of one not an Indian
to an Indian woman, but such marriage does not of itself make one a
member of the tribe.7
3Stiff v. McLaughlin, 19 Mont., 300; 48 Pac., 232;
Delaware Indians v. Cherokee Nation, 193 U. S., 127; 24 S. Ct.,
342; 48 L. Ed., 646 [affirming 38 C. Cls., 234].
4Tuten v. Byrd, 1 Swan (
5French v. French (Tenn. Ch.
App., 1898), 52 S. W., 517; Roff v. Burney, 168
6Alberty v. U. S., 162 U. S.,
499; 16 S. Ct., 864; 40 L. Ed., 1051; Westmoreland v. U. S.,
155 U. S., 545; 15 S. Ct., 243; 29 L. Ed., 255; U. S. v.
Rogers, 4 How. (U. S.), 567; 11 L. Ed., 1105 [affirming 27 Fed. Cas.
No. 16187; Hempst., 450];
7Grinter v. Kansas Pac. R.
Co., 23 Kans., 642; Stiff v. McLaughlin, 19 Mont., 300; 48
Pac., 232; Nofire v. U. S., 164 U. S., 657; 17 S. Ct., 212; 41
L. Ed., 588.
Marriage with an Indian woman, except in the Five
Civilized Tribes in the
This same important work speaks
specifically to the adoption of the Cherokee Freedmen:
(b)
Collective adoption of freedmen.—The freedmen
of the Cherokee Nation8 and of the Choctaw Nation9
have become members of the respective tribes by adoption, but the
Chickasaw freedmen have never been adopted by that nation.10
[114] Colored persons never held as slaves in the Indian country have
no more rights in the Indian country than other citizens of the United
States.11
8Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864;
40 L. Ed., 1051; Journeycake v. Cherokee Nation, 31 C. Cls.,
140; Whitmire v. Cherokee Nation, 30 C. Cls., 138.
9Lucas v.
10U. S. v. Choctaw Nation, 38
C. Cls., 558 [affirmed in 193
11U. S. v. Payne, 8 Fed., 883;
2 McCrary, 289.
DEFENDANTS CLAIM:
V. The Petitioner seeks to have the Cherokee Nation be the only federally recognized Cherokee entity to allow citizenship to persons who cannot prove Cherokee blood.
PETITIONER’S RESPONSE:
The Cherokee Nation of Oklahoma claims to be the historic successor to the Cherokee Nation and thus heir to and embracing all classes of Cherokee Nation citizens. The Eastern Band of Cherokees in North Carolina (EBC) makes no such claim and neither does the United Keetoowah Band (UKB). Both of those entities are made up of Cherokee Indians by blood only and have the inherent right to determine their own citizenship based on the delegation of authority to govern in accordance with organic documents adopted by the members of the respective bands. Those two Cherokee entities were originally constituted as governments of Cherokees by blood only with specific degree of blood requirements for enrollment purposes and have never voluntarily incorporated any other classes of citizens. Those groups were never parties to the holding of slaves, adoption of Freedmen or reorganizations of the Cherokee Nation in 1976.
The legal history of the EBC and the UKB is separate and distinct from the Cherokee Nation of Oklahoma. That those two bands have historically defined their membership by blood is not relevant to the laws which govern membership in the Cherokee Nation of Oklahoma and Defendants claims have no bearing on this case.
While not funny in the comedic sense, it is funny in an ironic sense that Defendants seek to exclude the Freedmen in their effort to make the Cherokee Nation of Oklahoma membership strictly made up only of persons with Cherokee blood, but then cling to provisions of the 1866 Treaty and its subsequent agreement between the Cherokee Nation and the Delaware (1867), which made them citizens of the Cherokee Nation, yet they have NO Cherokee blood (Cherokee Nation v. Norton, U.S. Ct. of Appeals No. 02-5055). By their own actions, the officials of the Cherokee Nation of Oklahoma defeat their argument. The Cherokee Nation of Oklahoma is already a Cherokee entity with members who are not Cherokee by blood. Defendant did not do that, the events of history and our ancestors’ actions have done it already. What Defendants are really saying is they do not want the Cherokee Nation of Oklahoma to be the only Cherokee entity with members of Negro ancestry.
The Indian Court of Claims ruled appropriately in a well reasoned opinion, that the Freedmen had been fully incorporated into the Cherokee Nation (12 Ind. Cl. Comm. 570 -1963) which stated:
It has been
heretofore been established that nothing in the 1866 treaty related to
the freedmen – Cherokee relations called for monetary consideration. The freedmen then gained nothing of monetary
value and, conversely, the blood Cherokees yielded nothing of monetary
value. The net result was only that at the
consummation of the treaty there were more definable classes of
Cherokee citizens, including freedmen and others, than at the beginning
of the war. These newly-accepted citizens,
with their exactly equal rights, had no greater interests than any
blood Cherokees to the common property of the Cherokee Nation. Nor did they have any lesser interests. The interest of each Cherokee citizen was
equal and, as to lands and funds, wholly intangible.
We can see from this opinion, the rights of all classes of Cherokees were equal, and then the right to reorganize the Cherokee government was also equal. None of the Cherokee citizenship classes had any greater right to deny the others their interest in the whole Cherokee Nation. By the same token, none of the Cherokee citizenship classes had any fewer rights to the reorganization of the Cherokee Nation unless specifically excluded by the Constitution upon which they had been permitted to vote. All Cherokees of every class were equal and indistinguishable as they approached the polls to reorganize their government in 1975.
So why make a different argument
regarding the Freedmen and their descendants than is made regarding
other minority groups in the Cherokee Nation? Freedmen
are human beings, just as the
The Constitution of the Cherokee Nation of Oklahoma is clear in its plain and black letter reading that the Registrar and the Registration committee are authorized to only consider the “qualifications” and determine the “eligibility” for membership (Article III, § 2a). In accordance with the provisions of Article III, Section 1, the qualifications are to be a “citizen as proven by reference to the Dawes Commission Rolls….and/or their descendants.” Officials are not empowered to define the membership. That is already defined and determined by a provision of the Constitution (Article III, § 1).
Petitioner fully understands that the law in question before this Court was passed by the Council and not the Registrar and the Registration Committee. However, they enforce the law in spite of its constitutionally suspicious language. If there is any smidgen of authority in the Constitution for the Council to define membership, it is controlled by the fact that the Council is restrained from passing laws which are extra-constitutional and in violation of the vested civil rights of the Cherokee people, including the Cherokee peoples’ right to define membership.
We are not talking about the Council
passing membership requirements demanding a birth certificate,
affidavits or particular application form. Such
requirements would be appropriate as all living
Let us assume we are debating a residency requirement imposed by the Council on membership. A residency requirement, like the by blood requirement, would destroy the rights of segments of Cherokee society and unfairly add extra-constitutional laws to constitutional provisions. There would be a tremendous outcry from those Cherokees who reside beyond the limits of the historic boundary of the Cherokee Nation. Such a requirement is not beyond our imaginations, as just such a requirement was the constitutional flaw debated and overruled in Leach.
Defendants’ continue to make apples to oranges comparisons when they claim that the potential exists for a non-Cherokee descendant of an intermarried white could claim any right to citizenship in the Cherokee Nation. This assertion is totally baseless and not supported by law. The rights of the intermarried whites, whose names appear on the Dawes Rolls, obtained those rights by marriage. The right of citizenship flowed from the Cherokee spouse to the non-Cherokee spouse only. It is a matter of settled law that non-Cherokee children of intermarried whites obtained no rights of citizenship from their parents (Cherokee Intermarriage Cases, 203 U.S. 76 - 1906). That Court said:
The laws and
usages of the Cherokees, their earliest history, the fundamental
principles of the national policy, their constitution and statutes, all
show that citizenship rested on blood or marriage; that the man who
would assert citizenship must establish marriage; that when marriage
ceased (with special reservation in favor of widows or widowers)
citizenship ceased; that when an intermarried white married a person
having no rights of Cherokee citizenship by blood, it was conclusive
evidence that the tie which bound him to the Cherokee people was
severed and the very basis of his citizenship obliterated.
The rights of citizenship existed solely in the intermarried individual and were not vested in future generations of non-Cherokee children or any other relative. There is not a single case of a white child of an intermarried white obtaining citizenship in the Cherokee Nation either through the Dawes Commission itself or the Courts of the United States unless that child had married a Cherokee citizen by blood, and then only if that marriage took place prior to November 1, 1875.
A careful review of the enrollment records of the Dawes Commission relative to the enrollment of intermarried whites shows that a large number of whites married to Cherokee Indians and previously enjoying citizenship in the Cherokee Nation were stricken from the Dawes Roll. The reason for this is simple; they had citizenship rights that, in accordance with Cherokee law, provided for suffrage, but did not include proprietary rights. In other words, they could vote, but could not share in the division of Cherokee assets. The fact that there existed in the Cherokee Nation two classes of intermarried white citizens, it became incumbent upon the Dawes Commission to create a separate roll of intermarried whites possessing both the right of suffrage and proprietary rights in the Nation followed by the Commission striking the names of intermarried white citizens who did not have possess proprietary rights.
That, of course does not mean there were no whites in the Nation with rights of citizenship in the Cherokee Nation different from the intermarried whites. One adopted white family appears on the Dawes Roll in integrated among the enrollees on the “by blood roll” (see Mary E. Bennett, Cherokee Roll #10270 – census card attached, and Roxana Abbott, Cherokee by blood Roll #10273 – census card attached).
Roxana Abbott and her sister Mary Bennett were white people adopted into the Cherokee Nation. Their rights of citizenship flowed from their father, Joseph Bennett, Cherokee Roll #10269(stricken). Joseph Bennett was a white man who purchased citizenship rights in the Cherokee Nation in 1877 in accordance with Cherokee law (Constitution and Laws of the Cherokee Nation, Chapter 12, Article 15, Section 75 – see enrollment testimony attached). His name was stricken from the Dawes Roll, not because he was white, but because he died before the roll was closed. However, his children and grandchildren, all white, appear with roll numbers on the so-called “by blood” section of the Dawes Roll. Mr. Bennett’s rights were perfected under the laws of the Cherokee Nation. Neither the Dawes Commission, nor the Cherokee Nation could deny his rights including the right to pass his citizenship to his non-Cherokee white children equal to any Cherokee by blood. Not even his marriage to a white woman (Huldah Ringold) could destroy his citizenship. On the other hand, intermarried whites, whose citizenship was governed under different laws, lost their Cherokee citizenship if they divorced their Cherokee by blood spouse or if widowed, married a person not of Cherokee blood. According to the enrollment testimony, Joseph Bennett wasn’t even married to a Cherokee when he purchased rights in the Nation. Plaintiffs purpose in bringing up the facts of Joseph Bennett’s enrollment is to show that the by blood roll of Cherokee citizens was in fact, just another list of Cherokees whose citizenship rights had similar origins.
With over 50 whites appearing on the by blood section of the Cherokee roll, it is easy to see this roll is not just by blood Cherokees. It is, in fact, a list of Cherokee citizens whose names appeared on the 1880 Authenticated Roll of Cherokee Citizens and their descendants. Joseph Bennett and the rest of the Adopted Whites appear on that roll or are the children or grandchildren of those whites.
The peculiar rights of intermarried
whites and the fact that some of them had married too late (1875) to
have land rights, precipitated their separate enrollment on the Dawes
Roll from the rest of Cherokee citizens. The
intermarried white section is a list of Cherokee Nation citizens with
enrollment rights different enough from the rest as to require a
separate listing, as was the case with the Freedmen and
In an effort to show the arbitrary and capricious nature of the Dawes Commissions decisions regarding who was enrolled as Cherokee by blood and who was enrolled as Freedmen, it is at this juncture Plaintiff believes it is important for the Court to have information regarding some of the specific enrollment anomalies among the Freedmen and Cherokees by blood.
An exhaustive search of the 1880 Authenticated Roll of Cherokee Citizens (see attached copies of Barbara Benge’s transcription of the 1880 Roll used by the Dawes Commission with marginal notes included), shows that many Native Cherokees by blood, so listed and authenticated by the Cherokee Nation, were later enrolled as Freedmen instead of the category in which they belonged, Cherokee by blood. Plaintiff has found at least one case where siblings, sharing both mother and father in common, were listed separately, one as a Freedmen and one as Cherokee by blood.
Cynthia Lynch, Cherokee Roll #31968,
is listed as a ¼ Cherokee by blood. She
is enrolled with her children Earl, Emma O., Bert W. Lynch and Ruth E.
Whitemire, all enrolled as 1/8 Cherokee by blood (see attached Census
Card #3364) showing Cynthia as their mother and Allen Lynch, Freedmen,
as their father. The 1880 Authenticated
Roll of Cherokee Citizens (see attached page 165) shows Cynthia Lynch
#1550 to be Native Cherokee. The record
furthers shows the following: Florence
Lynch, #1551, Eddie Lynch, #1552, Birtie Lynch, #1553, Andrew Lynch,
#1554, and Mary Lynch, #1555, enrolled as Native Colored.
Cancelled Cherokee Freedmen Census Card #1258, shows Edward B.
Lynch having been enrolled on the 1880 Roll at
Two children of Cynthia and Allen Lynch were enrolled as Freedmen. Mary E. Kelley, Cherokee Freedmen Roll #2953 and Andrew Lynch, Cherokee Freedmen Roll #3428, even though they share the same parents as their siblings listed as Cherokees by blood.
This scenario is not unusual. Many, many of the persons listed on the Dawes Roll as Freedmen and now denied their rights of citizenship in the Cherokee Nation of Oklahoma, would be eligible today but for two things. First, they were unjustly enrolled on the wrong roll. Second, even though they appear on the Freedmen Roll, they are unjustly denied their rights in the Cherokee Nation of Oklahoma by the law at bar before this Court.
It was to the advantage of those
hoping to buy Cherokee lands that everyone possible be placed on the
Freedmen Roll, regardless of their blood ties to the Nation. Following the close of the tribal government
and the rise of the state of
Everyone thought the Dawes enrollment was the end of the Cherokee Nation. No one knew that ending up on the Freedmen Roll would one day be the death knell of ones’ citizenship rights. Plaintiff’s direct ancestors were listed on the 1880 Roll as Native Cherokees. Yet, they were subsequently enrolled as Freedmen. Not because they did not have Cherokee blood, they do. They, like so many of the Cherokees of the time were uneducated in the ways of white men. They looked black and were, like so many Cherokees by blood with African ancestry, simply herded to the Freedmen tent and listed on the wrong roll.
Fortunately for the Freedmen and all Cherokees, the Cherokee Nation was not destroyed in 1906. The Nation, along with all of its citizenship classes moved forward in time right up to the second of the adoption of the 1976 Constitution by those same classes of Cherokee citizens. What are unfortunate are the continued attempts by elected and appointed officials to segregate and deny rights to certain Cherokee citizens.
DEFENDANTS CLAIM:
VI.
PETITIONER’S RESPONSE:
A
METAPHOR
My grandmother
baked a cake. She incorporated flour,
sugar, leavening, milk, oil, eggs and her secret ingredient, ginger. Without the ginger, the cake would have been
just a yellow cake. It was delicious. I asked my granny for the recipe so that I
could have the cake any time I wanted. But
before I could leave her house, I started feeling funny.
My face swelled, I itched and broke out in welts all over my
body. I was allergic to the ginger. I still wanted the recipe, but I marked out
the ginger.
Once the cake was made, there was no way to take out the ginger,
even though I could smell it and taste it. All
of the ingredients had already been incorporated as to be totally
indistinguishable from each other. The
only way to make a cake without the ginger was to make another cake. And then, using the same recipe, I ran the
risk of making the exact same cake. I was
required to take action to avoid the allergic reaction by deleting the
ginger from the recipe. To do that, I
marked out ginger from the list of ingredients, not allowing it into
the mix. I had to take specific action to
change the recipe.
Defendant tries to play semantics
games in reference to the
Section 5 of
Article III of the constitution was amended to define freedmen and
their descendants as unqualified citizens of The Cherokee Nation. When, after these amendments were adopted, the
Cherokees had occasion to mention the freedmen, it was the consensus of
its leaders that the freedmen were in fact Cherokee citizens, with all
of the rights of native Cherokees, and that they acquired such rights
by virtue of Article IX of the Treaty of 1866.
The Freedmen were to be taken by the Cherokee Nation as citizens
with the same rights as Native Cherokees. The
two were meant to be indistinguishable in the law.
If they are not indistinguishable the only difference is skin
color, because the meaning and intent of the law is clear, the Freedmen
were incorporated. Of course we can look
at the Plaintiff and see she does not look like any stereotype we may
hold of a Cherokee. But then how many
Cherokee citizens fit that stereotype? Plaintiff
claims that the Freedmen, Delaware and Shawnees were adopted into the
Cherokee Nation in accordance with the understanding of a process taken
directly from Cherokee traditional culture and thus, were incorporated. Plaintiff pointed out in her previous Brief
the story of the adoption of the slave woman Molly, who, by her
adoption into the Deer Clan of the Cherokees, became legally
indistinguishable from the rest of the Cherokee population, was
incorporated by adoption, and Cherokees by blood came forward to claim
her as a Native Cherokee and protect her from slavers.
So too have the Freedmen,
Certainly, it is possible to look at most Freedmen and say,
“there is a negro.” And it is possible to
attend a
The status of the Cherokee people in
relationship to their government and its relationship to the
There is no difference between the
adoption of the Freedmen by an amendment to the Constitution of 1839
and the incorporation of the
TRIBAL COUNCIL PROPOSITIONS
TRIBAL COUNCIL PROPOSITION I:
VII. Title 11, Cherokee Nation Code Annotated, Sections 4, 6, and 12 have been determined to be constitutional by this Court (reliance upon Riggs vs. Ummerteskee, JAT-97-03K).
VIII. Cherokee people have not had enough time since Riggs to allow for a slow modification to eventual changes in Court precedence.
PETITIONER’S RESPONSE:
Petitioner Lucy Allen understands that the res judicata/stare decisis argument may be the greatest impediment to her case. She understands fully that some of the Cherokee people have not changed in their views of racism and bigotry against members of her class of Cherokee citizens.
Defendants note that a “mere 3
½ years” have passed since the ruling against Bernice Riggs on
WHEREAS, it is the desire of the said [Cherokee] Nation to recognize the right of its bona fide citizens Freedmen, under the ninth article of the Treaty of 1866, in the per capita disbursements heretofore made to the Cherokees of Cherokees by blood, from which its Freedmen have been excluded;…(emphasis in original)
Neither res judicata, nor stare decisis apply in this instance. The JAT has, on several occasions revisited previous rulings it has made and overruled them or amended them. The best example of this is the issue of standing, where this Court began the journey of defining Cherokee standing in Cornsilk v. Council, amended it in Mayes v. Thompson, further amended it in Phillips v. Eagle and amended it further in Mayes v. Smith. Had either of the above mentioned doctrines been applied, standing would be as found in either Cornsilk v. Council, extremely liberal or Mayes v. Thompson, extremely conservative. In the development of doctrine in this very youthful court system, the doctrines of res judicata and stare decisis would have stifled the development of this Court and make Cherokee law stagnant.
Notwithstanding the ruling in Riggs, the Doctrine of res judicata does not touch the theory of this Plaintiff because it has not been heretofore litigated.
Riggs did not bring suit herself. Her suit was brought by the Cherokee Nation Registrar as required by the Cherokee Nation Membership Act providing for an appeal from an adverse enrollment decision of the Registrar to be heard by the District Court of the Cherokee Nation and filed on behalf of the applicant by the Cherokee Nation.
This Plaintiff has not applied for membership, as it is proven in Riggs and Denson, and stipulated to by Defendants in this case that an application for membership would be pointless because Plaintiff is unable to obtain a CDIB card. Since one of the elements of res judicata is identity in the thing sued for (Hymen v. Regenstein, 222 F. 2d 545 (5th Cir., 1955)), and since the Plaintiff has not heretofore sued the Defendants, nor has is she seeking anything from Defendants, the Doctrine of res judicata is inapplicable. Plaintiff is not suing to be awarded membership in the Cherokee Nation. At no time has she even asked for that. Plaintiff has sued to remove an impediment to her application for membership. Once that impediment is removed, she will apply for membership, thus permitting the Registrar to finally determine her qualifications in accordance with the provisions of Article III, Section 1, of the Constitution.
Any defense of judicial estoppels, as
related to facts decided, is equally inapplicable.
This defense requires that the parties now litigating must be in
the same capacities and in the same antagonistic relationship as were
the parties to the prior action (
The plaintiff in Riggs was an applicant for registration in the Cherokee Nation of Oklahoma. Her adversary was the Tribal Registrar. In this case, one defendant remains the same constitutionally-created appointee; however, the Plaintiff is different and her claims against the Registrar and the new Defendants, Registration Committee and Tribal Council are different. This Plaintiff seeks to remove an extra-constitutional bar which operates to prevent her from filing a completed application for registration. Riggs sought reversal of an adverse enrollment decision of the Tribal Registrar after she had applied for membership, been denied and all in a suit brought, not by herself, but in accordance with Cherokee law, by the Registrar on her behalf. While the issues are similar, the litigants are not in the same adversarial relationship to each other.
While the Doctrine of stare decisis is
binding upon strangers to the record (Leake v. Jones, 18 R.F.D. 80 (DC
Okla., 1955), it is the doctrine of precedent in the determination of
legal principles and does not pertain to judicial resolution of facts
or issues (Radovich v. National Football League, et al., 352 U.S. 445
(1957). If the Doctrine of stare decisis
applies in this instance, it is that the legal principle embraced by
the Court in Leach, extra-constitutional is unconstitutional, should
have applied in Riggs. The
Further, this Court need not rely upon rulings and orders which can be shown to be wrong, poorly reasoned or lacked information which would have altered the outcome. To do so would force the Court and the Cherokee people to live under laws that are wrong, a highly untenable precept.
Petitioner claims that the Riggs
decision is wrong in several respects. First,
the
Second, Petitioner claims that the
Riggs decision is wrong in light of the Leach Decision which predated
it. The
We have two orders of the highest court in the Cherokee Nation, Riggs and Leach, in conflict with each other. On first blush, they may seem disparate, but in fact are fraternal twins born of the same constitutional question: are extra-constitutional laws constitutional. Yes, they differ in many ways, but they are the same where it counts. One ruling, Leach, says an extra-constitutional law is unconstitutional. The other ruling, Riggs, says an extra-constitutional law is constitutional. While the particulars of each case are different, the foundational question is the same: can the Council pass extra-constitutional laws?
Leach raised the question of whether the Council can pass laws (residency requirement) which add to requirements found in the Constitution for candidacy. The JAT said no, thus adopting the legal principle that extra-constitutional is unconstitutional.
Riggs raised the question of whether the Council can pass laws (by blood requirement) which add to requirements found in the Constitution for membership. In contradiction to the Leach decision and the Doctrine of stare decisis, the JAT said yes. One or the other of those two decisions must fall. They are in direct conflict with each other.
Riggs cannot be relied upon for res judicata or stare decisis. In light of these facts, this case can be decided on the merits. This case gives the JAT the opportunity to reconcile the Leach and Riggs decisions and set the record straight. If Leach prevails, the Constitution of the Cherokee Nation and thus, the will of the Cherokee people are safe. If Riggs prevails, there is no need for a Constitution because the Council can overrule it at will. The dangers to democracy and civil rights are obvious.
Defendants claim that this Court
should postpone or even worse, rule against a finding of law in favor
of certain people’s desire to avoid change. Petitioner
can find no instance in the development of controversial law based on
court precedence where social upheaval did not occur.
While the elapse of time between the findings of the U.S.
Supreme Court in Plessey v. Furgusson to the alternative findings in
Brown v. Board of Education regarding separate but equal accommodations
was about 60 years. News reports from the
day show the white people of 1950s
In 1954, when the Brown decision was
enforced and a black child, an innocent girl of 12, was walked up the
steps of the school, she was spat upon and threatened by white
protestors. She had to be guarded by a
military contingency appointed by the President of the
The racists in the
If Defendants are claiming that an oppressed people must await the readiness of their oppressors to seek redress before the courts, and obviously they are; they are ignorant of human history and behavior. Defendants are asking this Court and the Cherokee people to ignore and subvert the very purpose of the Court: to protect the rights of the common man, even against an evil concocted by elected leaders to suppress the rights of a weak and innocent minority. The oppressors of the Freedmen will never be ready for change regardless of the passage of time, keeping in mind that 2006 will be the Sesquicentennial or 150th anniversary of the citizenship of the Freedmen. It is an illegitimate and self-serving argument by Defendants to demand that the Freedmen wait them out, while in the meantime their rights are trampled and snuffed out without their consent or the consent of the whole Cherokee people. Further, Defendants’ demand is not founded in law.
TRIBAL COUNCIL PROPOSITION II:
IX. The Dawes Roll makes a strict distinction between tribal citizens and freedmen.
PETITIONER’S RESPONSE:
Plaintiff has shown in her previous Brief that the Dawes Roll is made up of several sections, including the Freedmen and Freedmen minors sections. Defendants’ claims are false and misconstrue the legislation leading to the creation of the Dawes Rolls.
The Freedmen were made citizens of the
Cherokee Nation by amendment to the Constitution of the Cherokee Nation
in 1866. That amendment was written by
Principal Chief William Potter Ross, a
Congress gave specific instructions to the Dawes Commission regarding the making of a final roll of the members of the Five Civilized Tribes. The Dawes Commission was continued in fiscal year 1896 by the appropriations act for the Department of Interior (28 Stat. 910, at 939), and in fiscal year 1897 by the appropriations act for the Indian Department (29 Stat. 321, at 339). Extensive instructions to the Dawes Commission were given by Congress in the latter act (id., pp. 339, 340):
That said
commission is further authorized and directed to proceed at once to
hear and determine the application of all persons who may apply to them
for citizenship in any of said nations, and after such hearing they
shall determine the right of such applicant to be so admitted and
enrolled:…
The Curtis Act was enacted on
That in making
the rolls of citizenship of the several tribes, as required by law, the
Commission to the Five Civilized Tribes is authorized and directed to
take the roll of Cherokee citizens of eighteen hundred and eighty (not
including freedmen) as the only roll intended to be confirmed by this
and preceding Acts of Congress,…
It [the Dawes
Commission] shall make a roll of Cherokee freedmen in strict compliance
with the decree of the Court of Claims rendered the third day of
February eighteen hundred and ninety-six.
On first blush, it might appear the Curtis Act was segregating the Freedmen for some sinister purpose, as implied by Defendants. However, this argument is totally baseless. Nothing in the Curtis Act implies or infers the intent of Congress was to destroy the rights of the Freedmen as citizens of the Cherokee Nation. The language of the empowering Acts of Congress, relevant to the work of the Dawes Commission, was clearly to make a roll of citizens of the Cherokee Nation.
So why did the Dawes Commission make a separate roll of the Freedmen? The answer is simple and not as sinister as Defendants would have us believe. A group of so-called Freedmen of the Cherokee Nation were residing in the Cherokee Nation, but who were not citizens in accordance with the Constitution and treaty provisions, made it important to protect the Cherokee Nation from fraud. Congress recognized the problem of noncitizen freedmen versus citizen Freedmen seeking enrollment. To solve this problem, Congress, through the Curtis Act, ordered that a separate list of Freedmen shall be made in accordance with the Decree of the Court of Claims.
Defendants would have us believe and this Court hold that Congress, by protecting the citizenship rights of the Freedmen, and at the same time protecting the Cherokee Nation from fraud, somehow inadvertently or intentionally destroyed the citizenship of the Freedmen. The argument is too far fetched and is not supported by the requirement that Congress would have to explicitly abrogate the Freedmen’s citizenship, thus depriving the whole Cherokee people of their right to define and determine membership.
There is no evidence that the intent of Congress, either through the enrollment efforts of the Dawes Commission or the operation of the Curtis Act, was to segregate the Freedmen in order to destroy their citizenship. In fact, the opposite is true. Congress had ordered the enrollment of citizens of the Cherokee Nation in both the Dawes Act and the Curtis Act. The specific mentioning of the Freedmen in that Act was not incidental, but was an intentional effort on the part of Congress to protect the Freedmen and the Cherokee Nation.
The Dawes Commission took testimony, gathered evidence and enrolled the citizens of the Cherokee Nation on what has become known as the Dawes Roll. Had it been the intent of Congress to destroy the citizenship rights of the Freedmen and deprive the Cherokee people of their inherent rights to define citizenship, the laws purported to do so would have to say so. They do not.
The right of the Cherokee people to
organize and reorganize their government at will is totally independent
of the laws of the
Were there Freedmen in the Cherokee Nation who were not citizens? Yes. There was a large group of Freedmen, over 1,000 of them enumerated on the Kerns-Clifton Roll, who were not citizens and their names are not found on the Dawes Roll. Their exclusion gave rise to a Court of Claims action which ruled against the non-Dawes Freedmen because they were NOT citizens (Cherokee Freedmen Association v. Cherokee Nation, U.S. Ct. of Claims – 1964). If the Freedmen whose names appear on the Dawes Rolls were not citizens of the Cherokee Nation, they would not have been enrolled.
Defendants ask us to accept the segregation of the Freedmen as an accomplishment of their own desires to destroy the Freedmen’s rights. They ask us to ignore Cherokee law in favor of a few words in federal law which does not even address the question of why the Freedmen were to be enrolled on a separate section of the Dawes Roll. Defendants even expect us to ignore the fact that the Cherokee Nation Constitution of 1976 says that citizens listed on the Dawes Roll are eligible for membership in the Cherokee Nation of Oklahoma. But then that’s what this is all about.
The Freedmen section of the Dawes Roll was created by the Dawes Commission. It is a part of the Dawes Roll of the Cherokee Nation. Defendants do not explain how anyone could obtain enrollment on the Dawes Rolls and not be a citizen of the Cherokee Nation. Defendants ask this Honorable Court to use past prejudices and injustices against the Freedmen, which required their separate listing on the Dawes Roll, as a tool today to destroy the rights of those so listed and their descendants. Their arguments are lame and illegitimate, totally bereft of historic context, solid reasoning or foundation in law and are flat out wrong.
Further, Defendants’ argument that the
“By Blood” sections of the Dawes Roll is for Cherokees by blood only is
incorrect. There are a number of
individuals listed thereon who have NO degree of blood next to their
name. One white family adopted into the
Cherokee Nation as full citizens, show AW (adopted white) where blood
quantum should be. And others are listed
as AS (Adopted Shawnee) where blood quantum should be (those persons
were whites adopted into the Shawnee Tribe prior to that tribes
incorporation into the Cherokee Nation, thus perfecting their rights as
adopted citizen of the Cherokee Nation with no Indian blood whatsoever). All of these individuals, over 50 of them,
appear in the by blood section of the Dawes Roll thus destroying
Defendants’ argument that the Dawes Commission segregated that roll
carefully or with the intent to make it a roll of Cherokees citizens by
blood only or that the segregation of other Cherokees from that section
is proof they lost their citizenship. If
it was the intent of Congress to deprive non-blooded Cherokees of their
citizenship, there would be no adopted whites or adopted
Defendants would have us believe, and
this Court hold, that a section of a roll is not a part of the whole
roll. While Defendants’ claim in this
instance is silly, Petitioner feels it important to point out that the
Dawes Rolls (plural) are the Rolls of Citizens and Freedmen of the Five
Civilized Tribes, including those of the Cherokee, Choctaw, Chickasaw,
Seminole and Creek Nations. Each of the
five separate Dawes Rolls is further divided into sections. As shown in Plaintiff’s previous Brief, the
Cherokee Dawes Roll is divided into the following sections: Cherokees by blood, Cherokee minors by blood,
intermarried whites,
There is also the
The Freedmen were enrolled on a separate list because there were Freedmen in the Cherokee Nation who were not citizens and a careful listing of them had to be made. And most importantly, the Cherokee authorities themselves demanded that the enrollment of the Freedmen be done as carefully as possible so that not one inch of land be allotted to a Freedman who was not a citizen. All of this culminated in the separate listing of the Freedmen eligible for a land allotment based on the citizenship granted them and their descendants by amendment to the 1839 Constitution.
TRIBAL COUNCIL PROPOSITION III:
X. The Cherokee Nation is entitled to determine its citizenship.
PETITIONER’S RESPONSE:
Plaintiff has already covered the issues raised in these Defendants’ proposition III previously in this Brief. Once again, Plaintiff agrees the Cherokee Nation has the sovereign authority to determine its citizens. The contention lies in who actually is the Cherokee Nation and how is that process accomplished. Plaintiff claims it is the people of the Cherokee Nation, the citizens themselves, who are the Cherokee Nation and possess that inherent right. And they have exercised that right through their expressed will in the Constitution (1976).
Defendants contend the elected and appointed officials are the Cherokee Nation, even though they are serving only temporarily in office. It is incumbent upon this Court to determine who has the sovereign rights in the Cherokee Nation, its people or its leaders. Does sovereignty flow from the people, or does it flow from the power of the public office? Does the Constitution direct the elected officials, or do they direct the Constitution? Can elected officials destroy the rights of innocent Cherokee citizens by passing laws in violation of the Constitution, or must they obey the tenets of the Constitution and pass laws which are consistent with the provisions of the people’s will as expressed in their Constitution? Plaintiff believes that to be so.
TRIBAL COUNCIL PROPOSITION IV:
XI. The Treaty of 1866 has been superceded.
XII.
The subsequent approval by the
PETITIONER’S RESPONSE:
This is probably one of the most
shocking of Defendants’ claims. While it
is possible for Congress to supercede a treaty, and it is common for
the
Had there been an act of Congress
abrogating or superceding the Treaty of 1866, thus destroying the
citizenship rights of the Freedmen, that argument would have been made
in one of the various cases affirming the citizenship rights of the
Freedmen (Alberty, Whitemire, Redbird and Journeycake).
Where is that argument? No
reasonable person would make it, because there has been no superceding
of any treaty between the Cherokee Nation and the
The Act of Congress cited by Defendants in no way supercedes the Treaty of 1866, more particularly Article IX granting rights of citizenship in the Cherokee Nation for the Freedmen. The Dawes Act, as it applied to the enrollment of citizens of the Cherokee Nation, was designed to facilitate the dissolution of the tribal government, effectuate the final enrollment of all tribal citizens and distribute the lands and assets of the Nation. Nothing in the law purports to alter the citizenship status of any of the citizens of the Cherokee Nation. Supreme Court cases (Alberty, Whitemire, Journeycake, Redbird) have consistently held in favor of the citizenship status of the Freedmen. In fact, the Freedmen’s enrollment on the Dawes Commission Rolls is itself prima fascia evidence of their citizenship, as no one could be placed on those rolls except a citizen.
Plaintiff is in total agreement with the correctness of Defendants’ argument that Congress has the power to abrogate unilaterally any treaty or treaty provisions. Plaintiff further agrees that Congress did in fact abrogate Article X of the Treaty of 1866.&