IN THE JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION

  LUCY ALLEN,                                                                                        )                       
   Petitioner,                                                                     )                         
                                                                                        )
             Vs.                                                                         )
CHEROKEE NATION                                                    )
                                                                                         )                                                                                                    
 TRIBAL COUNCIL,                                                                                  )         Case No. JAT-04-09
                                                                                          )
   LELA UMMERTESKEE,                                                        )
              Registrar,                                                                                        )
                  and                                                                                                 )
                                                                                           )
REGISTRATION COMMITTEE,                                                               )
                                                                                            )
          Respondents                                                                                          )
                              REPLY TO PETITIONER'S BRIEF IN SUPPORT
                                       OF PETITION FOR DECLARATORY JUDGMENT

        I. IT IS A FUNDAMENTAL RIGHT OF THE TRIBE TO DETERMINE CITIZENSHIP

The right to determine citizenship is a fundamental right of a sovereign Indian tribe. See
Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978). In Santa Clara, the Supreme Court held that
it was permissible for a tribe to exclude from membership those who did not meet the tribe's
criteria. Id. at 72 (reversing the court of appeals opinion). In the Santa Clara case, the tribal
ordnance excluded children of a Santa Clara mother and non-Santa Clara father from enrollment
in the Pueblo. Obviously, this policy would exclude children who could prove beyond any doubt
that they were one-half blood quantum Santa Clara tribal citizenship.

 

II. INDIAN CIVIL RIGHTS ACT DOES NOT WAIVE SOVEREIGN IMMUNITY

In Santa Clara, the petitioner tried to rely on the Indian Civil Rights Act as a waiver of
sovereign immunity. The Indian Civil Rights Act does not waive the immunity of an Indian tribe.
Id. at 58. Any reliance the petitioner in the case at bar places on the Indian Civil Rights Act
authorizing her suit is misguided.

III. 1839 CONSTITUTION WAS SUPERCEDED

In her petition, Ms. Alien claims the freedmen were citizens due to the 1866 Amendment
to the 1839 Constitution of the Cherokee Nation. This is incorrect.

/

After the Civil War, the United States forced the Cherokee Nation to agree to a treaty
ending the tribe's involvement in the war. As part of that treaty, the United States purportedly
required the Cherokee Nation to admit former slaves and free blacks as citizens of the tribe.

In 1866, by convention, the amendment was adopted. Under the requirements of the 1839
constitution, an amendment had to be proposed by a 2/3 vote of the National Council at least six
months prior to the next general election. After the general election, the new National Council
had to approve the amendment by 2/3 vote. Instead, citing the unusual circumstances, the
amendment was approved by a convention. See EMMET starr history of the cherokee
indians 130 (1993). Because the 1866 amendment did not follow the requirement of the
constitution for amendments, it is void and unenforceable.

<>Additionally, even if the 1839 constitution's 1866 amendment were valid, all provisions
of the 1839 constitution have been superceded. "[N]one of the provisions of the 1839
Constitution remain in force or effect." DeMoss v. Jones, JAT 96-01 at 7. Obviously, the 1839
constitution cannot be cited as authority in this matter.

IV. REQUIRING CHEROKEE BLOOD LINEAGE IS REASONABLE

<>The requirement to prove actual Cherokee ancestry to be a Cherokee citizen is not
outrageous. The United Keetoowah Band requires persons to prove that they are at least one-
quarter Cherokee blood quantum to enroll. The Eastern Band ofCherokees require persons to
prove that they are at least one-sixteenth Cherokee by blood to enroll. 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 claims that the "by blood" requirement unfairly targets descendants of the
freedmen. However, others who can trace a direct ancestor on the Dawes Rolls cannot enroll either.

Several hundred people are listed on the Dawes Rolls as intermarried whites. These
people were citizens of the Cherokee Nation. Hypothetically, a white citizen who was listed on
the Dawes Rolls and then re-married a non-Cherokee and produced offspring, those offspring and
their descendants would not be eligible to enroll even though they have a direct ancestor on the
Dawes Rolls. <>
  
                                                
IV. SHAWNEE AND DELAWARE SITUATION

Petitioner's reference to the Cherokee Delawares as "adopted" is incorrect. The
Delawares were incorporated into the Cherokee Nation by a treaty between the Delawares, <> 
Cherokee Nation, and the United States. The Delawares are free to leave the Cherokee Nation at
any time as long as their departure does not infringe on the sovereignty of the Cherokee Nation.
The Loyal Shawnee were similarly incorporated into the Cherokee Nation. The Cherokee
Nation and the Loyal Shawnee negotiated an agreement by which the Shawnee left the Cherokee
Nation. No one forced the Shawnee to remain.

                                                                        CONCLUSION
The 1839 constitution was superceded by the 1975 Constitution. Its provisions are no
longer in effect. The 1866 amendment referenced by the petitioner was not adopted in accordance
<>with the requirements of the 1839 constitution and is void.
The current law of the Cherokee Nation requires individuals to prove Cherokee descent to
qualify for citizenship. All three federally recognized Cherokee entities have such a requirement
This requirement applies equally to all persons who have direct ancestors on the Dawes Rolls
who were not listed by blood. This provision also applies to individuals who are of Cherokee
descent, possibly even full-bloods, whose ancestors did not sign the rolls.<>

Richard D. OsBum, CNBA#132
Cherokee Nation Department of Justice
P.O. Box 948
Tahlequah, OK 74465 (918) 456-0671, ext. 2438


                                 Certificate of Service
I hereby certify that on the 2nd day of March 2005,1 mailed a true and correct copy of the
foregoing Reply to Petitioner's Brief, via first-class mail with sufficient postage prepaid thereon,
to:

David Comsilk
5925 E. 33rd Court
Tulsa,OK74135


Richard D. Osbum