Wilma Mankiller later passed an Act requiring that all tribal members be able to provide a Certificate of Indian blood Card (CDIB), based strictly on the Degree of blood listed on the Dawes Rolls for themselves or their ancestor.

Since that roll did not list a degree of blood for Freedmen tribal members, this effectively removed all Freedmen and their descendants from tribal membership, even though a large number if not the majority could provide a degree of Indian blood from their Dawes testimony, Guion Miller payment roll testimony, Henderson payment Roll, death and heir-ship documents of the US government,etc. This action of blocking the freedmen from tribal membership was not done under the direction of the Bureau of Indian Affairs (BIA), for BIA Muskogee officials Dennis Springwater and Joe Parker had met with tribal officials in 1983, and emphasized that the Cherokee constitution as well as the
treaty of 1866 granted citizenship to the Cherokee Freedmen and their Descendants.

 

The
tribe was told the Freedmen should be allowed to vote. Affidavits of the long standing BIA position are a part of the Nero case file. See also: Solicitor's Opinion, 1 Op. Sol. On Indian Affairs 1076 (U.S.D.I. 1979), where the BIA reaffirmed that the Cherokee Freedmen voting and membership rights were fixed by treaty and formal tribal actions.

The press took note of these matters, especially when a Reverend Nero and several other Freedmen filed a lawsuit against the Cherokee nation and the BIA in 1984. Then Chief Swimmer stated in the Oklahoma Eagle newspaper that it was easier for the registration department to process tribal memberships of people with CDIB cards (at that time, the tribe did not have a contract with the BIA to process CDIB cards), which must raise the question of why Cherokee citizens must be deprived of their rights in order to make the job of registration easier for tribal employees on salary.

The Baltimore son reported on July 29, 1984 that then Deputy Chief Wilma Mankiller told the Baltimore Sun that Cherokee Freedmen should not have tribal membership since such membership
should be for people with Cherokee blood, words which must clearly be seen as an effort to prejudice the Cherokee people as well as the general American people that people with African blood cannot document Cherokee blood and are not Cherokee Indian people, and perpetrating those old one drop of blood standards that people with African blood have no other blood and must be kept as a people completely apart unlike any other people. Cherokee nation attorney Wilcoxen during the Nero (Blog Author Note Wilcoxen now a CNO supremecourt judge) case appears to have clearly attempted to prejudice the judge against the Cherokee freedmen plaintiffs by wrongly
proclaiming that the Freedmen did not have Cherokee blood and that the 1975 constitution only allowed Cherokees, Delaware, Shawnee to be tribal members although the Constitution does not say that. (Bands of Delaware and Shawnee Indians were adopted into the Cherokee nation after 1866, whose individuals are not required to also have Cherokee blood to be Cherokee citizens).

The Nero lawsuit was dismissed by the judge in 1989 over jurisdictional issues; that for
example the case should have been tried in the court of claims due to the amount of dollars the plaintiffs were requesting. In 1998, the Cherokee nation justices heard a citizenship case by a descendant of Cherokee Freedmen, Bernice Riggs. (Bernice Riggs versus Lela Ummerteskee, Acting Registrar of the Cheorkee Nation (JAT 97-03-K) In 2001, The tribal justices ruled that the testimony and records provided that Mrs. Riggs
indeed had Cherokee blood. However, they held that this Cherokee ancestor, a man named Rogers was deceased at the time of the Dawes enrollment; - had he been alive at the time of the Dawes enrollment, she would have been able to become a Cherokee citizen based on his degree of Cherokee blood but that since his descendents were listed as Freedmen by the Dawes Commission, she did not have an ancestor
with a Dawes Final Roll number from whom she could obtain a CDIB card.

The tribal justices determined that the Cherokee nation is a sovereign nation and could grant membership to whomever they wished. (It must be noted that individuals with Caucasian mothers and dead Cherokee fathers were not excluded from being enrolled as citizens by blood by the Dawes Commission and that the descendants of such individuals are not barred from Cherokee membership today.).

The Cherokee nation prepared a new constitution to submit for BIA approval. The BIA, under Kevin Gover, rejected the new constitution, partially on the grounds that the Cherokee nation would not allow Cherokee Freedmen to vote on it, and that the new constitution would not allow Cherokee freedmen to hold office. According to the official Cherokee Phoenix tribal newspaper (Spring 2001), the CNO attempted to take the new constitution directly to president Clinton, but he would not sign it either. According to the tribal newspaper, they determined to request instead that the BIA agree to remove
requirements of federal government approval of constitutional amendments and new
constitutions. A decision was made to wait for a friendlier administration in the words of
the Cherokee Phoenix tribal newspaper. The same tribal newspaper article also
carried a statement from Attorney And Cherokee citizen Ralph Keen, that it is not the tribal constitution which bars freedmen and their descendants from voting on the constitution but a tribal statute.

In 2002, BIA head Neal McCaleb was approached with a request to allow a referendum by Cherokee voters on a constitutional amendment removing federal approval. Neal McCaleb wrote a letter in March 2002, stating that the Freedmen must be allowed to vote on the amendment and that no amendment of the Constitution could eliminate the Freedmen from tribal membership. In April 2002, another letter, with Neal McCaleb's signature said he did not write the first letter; the second letter did not say anything about the Freedmen being required to vote on the constitutional amendment. Note that this second letter was completely opposite of all BIA policy since the 1940s.

The Cherokee nation government, under Chief Smith, held various meetings around the
Cherokee nation, encouraging people to approve the referendum and also the proposed constitution, which has no provision for federal approval of constitutional amendments and did not make the Cherokee nation government subject to U S rule,

In May 2003, a referendum was held regarding the constitutional amendment, and a vote was held in July 2003 on the proposed new constitution. Both were passed by those individuals who were allowed to vote. Descendants of Cherokee freedmen
who tried to participate as voters were not given voting cards, or absentee ballots, and were given ;challenged ballots at the polls if they tried to vote in person. '

In June, 2003; several descendants of Cherokee Freedmen, through the law firm Velie and Velie; contacted the Department of the Interior, challenging the 2003 elections, based on the rights of the freedmen in the 1866 treaty, the 1975 constitution, and the Seminole nation versus Norton cases of 2001 and 2002 where Judge Kolar Kotelly had upheld the treaties of 1866 for the Seminole freedmen and their voting and membership rights in the Seminole nation.

Several prominent Cherokee nation individuals such as then Deputy Chief Hastings Shade also sent a letter to the BIA questioning the validity of an election when the
Cherokee freedmen were not allowed to vote. Various letters went from Chief Smith to the BIA accusing the BIA officials of having a bias against the self government rights of the Cherokee Nation.

In late July 2003, the Muskogee BIA director wrote a letter, temporarily recognizing Chief Smith, but still withholding approval of the constitutional amendment, citing the Seminole nation cases. About 1 week later, another letter, written by the same Muskogee BIA official recognized Chief Smith as principal chief, but still did not approve the constitutional amendment.