IN THE JUDICIAL APPEALS TRIBUNAL OF THE CHEROKEE NATION

This Court has long followed the Judicial policy of stare decisis. This is a doctrine
that when the Court has once laid down a principal of law as applicable to a certain state
of facts it will adhere to that principal and apply it to all future cases, where facts are
substantially the same regardless of whether the parties and properties are the same.
Black's Law Dictionary 4^th edition. In the case at bar the exact same legal facts and
issues were clearly and completely argued in the case of Riggs vs. Ummerteskee. JAT-97-
03 K. The decision in Riggs, which was filed in this Court on December 7^th, 2001, ruled

"All members of the Cherokee Nation must be citizens as proven by reference to
the Dawes Commission Rolls." Article III Section i of the Cherokee Nation Code
Annotated.

There has been some contention that the above Constitutional requirement for
membership is inappropriately augmented by n C.N.C.A. section 12, Membership
Requirements, which requires proof of Cherokee blood. The statutory provision states:

"Tribal membership is derived only through proof of Cherokee blood based on the Final
Rolls." Defendant asserts that the Constitutional provision and the statutory
requirement of "proof of Cherokee blood' provision of Title ll are not in conflict due to
the wording of the Dawes Act, also known as the Five Tribes Act, Act of April 26,1906,

which established the Dawes Rolls and the Freedmen Rolls. From its first provision, this
document makes a strict distinction between tribal citizens and Freedmen. Section l
states: "... after the approval of this act no person shall be enrolled as a citizen or
freedman of the Choctaw, Chickasaw, Cherokee Creek or Seminole tribes of Indian in the
Indian territory, except as herein otherwise provided..." The implication of this
distinction is that the Act considers these two sets of people to be different and separate,
otherwise the term Freedman would be included in the designation of citizens. However
more importantly, section 3 of the Act creates a Freedman roll that is strictly separate
from the citizens' roll, and section 4 of the Act states that the citizen's roll is by blood
only. Section 3 states:

The roll of the Cherokee freedmen shall include only such persons of
African descent, either free colored or the slaves of Cherokee citizens and
their descendents, whp were actual personal bona fide residents of the
Cherokee Nation August eleventh, eighteen hundred and sixty-six, or who
actually returned and established such residence in the Cherokee nation
on or before February eleventh, eighteen hundred and sixty-seven; but
this provision shall not prevent the enrollment of any person who has
heretofore made application to the Commission to the Five Civilized
Tribes or its successor and has been adjudged entitled to enrollment by
the Secretary of the Interior.

Section 4 states:

That no name shall be transferred from the approved freedmen, or any
other approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or
Seminole tribes, respectively, ttothe roll of citizens by blood, unless the
records in charge of the Commissioner to the Five Civilized Tribes show
that application for enrollment as a citizen by blood was made within the
time prescribed by law by or for the party seeking the transfer, and said
records shall be conclusive evidence as to the fact of such application,
unless it be shown by documemtary evidence that the Commission to the
Five Civilized Tribes actually received such application within the time
prescribed by law.

Due to the above wording, Defendant Tribal Council, believes it is significant that
the Cherokee Constitution references to the Dawes rolls but does not reference the
Freedman rolls. Such trouble is taken in the Dawes Act, supra, to separate these two
documents and to maintain these two documents as two separate classes of persons that
reference to the "Dawes roll" cannot include the Freedman roll by implication. The
Freedman roll would have to be specifically mentioned in addition to the Dawes roll for
the Freedman to be included in the class of persons intended for citizenship by the
Constitution. Further, the Dawes roll specifically maintains a by blood requirement, as is
plainly stated by the Act at section 4, quoted above. Therefore, any reference to the
persons named by the Dawes roll necessarily means persons who are citizens by blood.
The reference to the Dawes roll by the Constitution includes the by blood requirement,
because the roll itself, by definition, only allowed persons with Cherokee blood to be
included or listed. For the Constitution at Article III, Section I to restate the by blood
requirement would have been harmless, but it would have been redundant since the

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Constitutional requirement of tracing ancestry to the persons listed on the Dawes roll
already meant these persons were Cherokee by blood.

The above argument is significantly bolstered by the wording of the Curtis Act,
Act of June 28,1898, formally entitled " An Act for the protection of the people of the
Indian Territory, and for other purposes". The Curtis Act was the precursor to the Dawes
Act, and called for the preliminary tribal rolls which were later finalized in the Dawes
Act. The Curtis Act at Section 21 states:

That in making 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
proceeding Acts of Congress, and to enroll all persons now living whose
names are found on said roll, and all descendants born since the date of
said roll to persons whose names are found thereon; and all persons who
have been enrolled by the tribal authorities who have heretofore made
permanent settlement in the Cherokee Nation whose parents, by reason of
their Cherokee blood, have been lawfully admitted to citizenship by the
tribal authorities, and who were minors when their parents were so
admitted; and they shall investigate the right of all other persons whose

names are found on any other rolls and omit all such as may have been
placed thereon by fraud or without authority of law, enroll only such as
may have lawful right thereto, and their descendants born since such rolls
were made, with such intermarried white persons as may be entitled to
citizenship under Cherokee laws. It 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.

It is obvious from the Curtis Act's separate treatment of the by blood rolls and the
Freedman rolls that treatment of this issue was consistent with the Dawes Act. In fact,
the Curtis Act continues from the above quote to require separate rolls of the by blood
members of the other Five Tribes.

Finally, this separate treatment of the by blood citizens and the Freedmen as
established in the Curtis and Dawes Acts is referenced in the Cherokee Agreement of
April i, 1900, at section 40-42, which states:

The rolls of citizenship of the Cherokee Nation shall be made as of April
first, nineteen hundred, and the names of all persons then living and
entitled to enrollment on that date shall be placed on said rolls by the
Dawes Commission. No child born to any citizen after the first day of
April, nineteen hundred, nor any white person who has intermarried with
a Cherokee citizen since the sixteenth day of December, eighteen hundred
and ninety-five, shall be entitled to enrollment. Such rolls shall in all
other respects be made in strict compliance with the provisions of section
twenty-one of the Act of Congress of June twenty-eighth, eighteen
hundred and ninety-eight, entitled " An Act for the protection of the
people of the Indian Territory, and for other purposes".

As set above Acts of congress, including the Dawes Act, require a separate roll for
the citizens by blood and the Freedmen, Defendant asserts that the Cherokee
Constitutional reference to the Dawes roll necessarily includes a by blood requirement;

that the Dawes roll and the Freedman roll cannot be the same document as such trouble
was taken to keep the two documents separate in name and in content; and that since
there is no mention of the Freedmen roll within the Cherokee Constitution, the

The Supreme Court in the familiar Santa Clara Pueblo v. Martinez, 98 S. Ct.
1670 (1978) held that tribes are entitled to determine their own membership. See id at
1675. Santa Clara was a case where no one contested the fact that Mrs. Martinez'
children were full-blood Indians- halfNavaJo and half Pueblo. The children had lived
their entire lives in the Pueblo community and spoke fluent Tewa, the native pueblo
language. But the Pueblos are patrilineal, and because of the children's Pueblo blood
derived from their mother rather than their father as required by the tribe for
membership, they were not eligible for Pueblo membership. The Supreme Court upheld
the Pueblo membership requirement of paternal Pueblo blood quantum as a
membership issue entirely internal to the tribe.

The Supreme Court has consistently recognized that on of an Indian Tribe's most
basic powers is the authority to determine questions of its own membership. Santa Clara
Pueblo, supra, U.S. vs. Wheeler, 435 U.S. 313 (1978); the Cherokee Intermarriage Cases,
203 U.S. 76 (1906) where the 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 or widows or widowers)
citizenship ceased; that when an intermarried white married a person
have 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.

IThe Nation has the right to determine its own membership, and unfortunately
without proof of Cherokee blood, the Plaintiff is in the same position as the children of
Mrs. Martinez. She does not satisfy the tribal membership requirements and therefore
cannot be given tribal membership.

The Treaty with the Cherokee Indians, July 19, 1866 is referred to in many of the
Plaintiffs briefs as the primary document from which Freedman citizenship should flow.
This treaty was entered into between the Cherokee Nation and the federal government
after the end of the Civil War, a conflict in which the Cherokee Nation had sided with the
Confederacy. This treaty was designed to realign the Cherokee Nation with the reunited
federal Union. It is to Article IX of this document that Plaintiff cites as creating a
citizenship right in Cherokee Freedmen. However, the Supreme Court construed Article

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X of this treaty four years later in 1870, in a case called The Cherokee Tobacco, __ Sup.

Ct.616 (1870),

A treaty may supersede a prior act of Congress, and an act of Congress
may supersede a prior treaty.... Treaties with Indian nations within the
jurisdiction of the united States, whatever considerations of humanity and
good faith may be involved and require their faithful observance, cannot
be more obligatory. They have no higher sanctity; and no greater
inviolability or immunity from legislative invasion can be claimed for
them. The consequences in all such cases give rise to questions which
must be met by the political department of the government. They are
beyond the sphere of judicial cognizance.

Defendant Tribal Council asserts that the Treaty of 1866 has indeed been
superseded by the subsequent Acts of Congress cited above: The Act for the protection of
the people of the Indian Territory, and for other purposes (The Curtis Act) of 1898, the
Cherokee Agreement of 1900, and the Five Tribes Act ( The Dawes Act) of 1906, all of
which made a clear distinction between by blood Cherokee citizens and the Freedmen.
Further, the Dawes Act at section 29 states "[t]hat all acts and parts of Acts inconsistent
with the provisions of this Act be, and the same are hereby, repealed." As the by blood
requirement was imposed on the enrollment process for 'citizens' under this Act,
Defendant asserts this is further evidence that any Freedman membership references in

The Cherokee Nation has the right to determine it's citizenship. We have done so
by our Constitution and statutes. This Court has heard the arguments and determined
this issue in the recent past. The Plaintiff is not a member of our Nation. Her
descendants our part of the "Freedmen" Roll separate and distinct from the "By Blood"
Roll which signifies Cherokee citizenship. Defendant Cherokee Nation Tribal Council
prays this Court to determine that Title ll Section 4,6, and 12 are Constitutional.

Respectfully Submitted,

Todd Hembree, OBA #14739

HEMBREE & HEMBREE LAW OFFICE

219 W. Keetoowah

Tahlequah, Oklahoma 74464

(9l8) 453-0101

(918) 458-9898 facsimile

Attorney for Defendant
Cherokee Nation Tribal Council

CERTIFICATE OF MAILING

I hereby certify that on the 5th   day of May, 2005, I mailed a true and correct
copy of the foregoing Motion to Dismiss, via first-class mail with sufficient postage
prepaid thereon, to:

_________________

Misty D. Lacie, Legal Secretary
For Hembree & Hembree