IN THE JUDICIAL APPEALS TRIBUNAL
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IN THE JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION F r LE D
Lucy Allen, )
) MAR 07 2006
Petitioner, )
) TiME_/2:
% ) — JAT-04-09 CHEROKEE NATION
) JUDICIAL APPEALS TRIBUNAL |
Cherokee Nation Tribal Council, )
Lela Ummerteskee, Registrar, and )
Registration Committee, )
)
Respondents. )
For the Petitioner: David Allen Cornsilk
For the Respondents: Todd Hembree for the Cherokee Nation Tribal Council
Richard D. Osbum for Lela Ummerteskee, Registrar, and the
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 ITI 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. Martinez! and dismiss this case because the Cherokee
Nation is immune from suit. If this case were filed against the Cherokee Nation ina
federal or state court, Sarita 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,
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.* 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.
436 US. 49 (1978).
® See Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457 (10" Cir, 1989).
° The people of the United Keetoowah Band and the Eastem 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 II 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 8" day of
May 1867, and the Shawnee Cherokees as of Article III of the Shawnee
Agreement dated the 9" day of June, 1869, and/or their descendants.
(emphasis added)
There is simply no “by blood” requirement in Article III. 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.
“Cherokee Constitution of 1975, Article III, 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 IIT. 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 Corstitution
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. Itis
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 IIT 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 éocument. 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 II might
require further discussion so that the Cherokee people fully 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.* 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.”
* 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 ths ttle 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 fesleral court case dealing with the distribution of Cherokee Nation funds to Freedmen, as
Cherokee citizens. Asa result of the Whitmore case, in which Freedmen citizenship rights were upheld, a
‘new Freedmcn 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 (0 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.° On these census cards, there is no blood
degree listed but there is en “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.” 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.* 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
© There are also pages that list “Minor Cherokee Freedmen.” There are no separate pages for Shawnee,
Delaware or Intermarried White minors.
“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.
“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 Iands 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 of Cherokee 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? 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 Incian has the same legal citizenship rights as a person who is
1/1024" 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,
° 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 taw.
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 Iook 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 shail be a citizen of the
Cherokee Nation of Oklahoma in accordance with Article III He shall
have been born 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)"
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
‘This provision has been changed, through constitutional amendment, to add a residency requirement for
the Principal Chief.
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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.”!” 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.'?”
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.
Constitution of the Muscogee (Creek) Nation, Art I, Section 1 (1979),
°Constitution of the Choctaw Nation of Oklahoma, Article Il, Section 1 (1983).
1
The Chickasaw Nation Constitution restricts citizenship to “Chickasaw Indians by
blood” who are listed on the Dawes Commission final rolls.!® 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
Ill. Itis 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 II. Only
the Shawnee and Delaware are listed by name. Are both the “Cherokees by blood” and
the “Cherokee Freedmen” included by silence? Ifnot, 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
Constitution of the Chickasaw Nation, Article IL, 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.
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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 IIT 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.
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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 II. The dissent suggests that the individuals
who drafted the 1975 Constitution intended to exclude the Cherokee Freedmen as a
means of preserving tribal culture.'* 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”
“This argument was not preseited by cither party to this lawsuit.
4
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."
(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
'® Cherokee Nation v, US, 180 Ct. Cl. 181 (1967) affirming 12 Ind. Cl. Comm. 570 (1963)(the Cherokee
‘Nation was the Plaintiff that iniiated this lawsuit),
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court rejected their claims.'® 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. '” ‘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.™
(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."
(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 2”
'® Cherokee Freedmen & Cherokee Freedmen’s Association v. the United States and the Cherokee Nation,
195 Ct. CL 39 (1971)(the Cherckee Nation was a named Defendant to this lawsuit)
” Public Law 87-775 (October 9, 1962).
'* 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
(ofa marriage with a Cherokce person and those children would be Cherokees by blood.
'® These conveyances were the result of the 1902 Agreement in which the Cherokee Nation agreed to allot
the Cherokee lands to individual citizens.
* Whitmore v. Cherokee Nation, 30 Ct. Cl. 138 (1895).
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(© Inthe 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) Inthe 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."
(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 1856, the Cherokee Nation agreed to extend citizenship to
Freedmen and agreed to give them the same rights as “native” Cherokees. Although this
7! 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 Freedmen
‘as a matter of Cherokee law, based on a Cherokee amendment to the 1839 Cherokee Constitution.
V7
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
10 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.
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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.
Its 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.
Ifthe 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.”
* Petitioner argues that the 183 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
19
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
Feason 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. (1) 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.
In McLain v. Cherokee Nation Election Commission, IAT 98-12 (1998), this
Court set aside a legislative act which imposed a residency requirement on candidates.”°
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.
* The 1975 Constitution has now been amended to include a residency requiremeut. ‘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.
20
‘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.
Tagree 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
21
03/87/2086 99:48 1 7eS8645a54 KU SCHOOL OF Law PAGE 92/02
Contrary to the plain language of Article III of the 1975 Constitution. If Article III was
intended to limit membership to citizens “by blood’ it should have said so.
‘The principle of stare decisis,” which gives strong weight to the prior decisions,
hhas been the norm in this jurisdiction anc I respect the predictability it provides. The
Riggs Court, however, feiled 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
Tequirements to a constitutional provision. 11 C.N.C.A § 12 adds a “by blood”
requirement that simply does not exist in Article IIL
11 C.N.C.A. §12 is hereby deemed unconstitutional. This Court's decision in
Riggs v, Ummerteske is hereby reversed.
ITIS SO ORDERED this 7” day of March, 2006.
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,
siting Demoss, for guidance in constitutional interpretation, and that “ [t]o determine this
™ Stare decisis is Latin for “to stend by things decided.”
22
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,
Tagree 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.
aul
Justice Darrell Do
23
Dissenting Opinion of Chief Justice Matlock:
After reviewing the majority opinion and concurrence, I respectfully dissent and
offer the following:
Factual Record
The parties entered into a stipulation of facts to govern this Court’s determination
and are as follows:
1. A person cannot enroll in the Cherokee Nation without a Certificate Degree of
Indian Blood (CDIB) card or an ancestor listed on the Dawes Rolls with a degree of
Cherokee, Loyal Shawnee, or Delaware Cherokee blood
2. A person cannot complete the Cherokee Nation enrollment process without a
CDIB card or an ancestor listed on the Dawes Rolls with a degree of Cherokee, Loyal
Shawnee, or Cherokee Delaware blood.
3. The Plaintiff, Lucy Allen does not possess a CDIB card. The Plaintiff has
been denied a CDIB card by the Cherokee Nation and the Bureau of Indian Affairs but
has not appealed the decision of the Bureau of Indian Affairs to the appropriate Federal
District Court.
4, That the language of the 1975 Constitution of the Cherokee Nation controls in
this case.
I take judicial notice that Article III of the 1975 Constitution of the Cherokee
‘Nation has not been amended and that 11 C.N.C.A § 12 has not been amended.
24
Ttake judicial notice the Cherokee Freedmen, Delaware Cherokees and Shawnee
Cherokees were citizens of the Cherokee Nation prior to the adoption of the 1975
Constitution of the Cherokee Nation.
I further find that the parties’ stipulation of facts and my judicial notice findings
put the issues raised by the Petitioner, Lucy Allen, squarely within the issues decided by
this Court in Riggs v. Ummterteske, JAT 97-03 by unanimous decision on August 15,
2001 and therefore the Petitioner's request for relief must fail for the reason of the
doctrine of stare decisis and that the Petitioner has failed to prove standing.
I further adopt the universally accepted doctrine of stare decisis to promote a
stable and orderly system of justice in Cherokee Nation juris prudence
Majority’s Incorrect Factual Record Citations
No where in the evidentiary record can be found that the Plaintiff, Lucy Allen, is
a descendant of individuals listed on the Dawes Commission Rolls as “Cherokee
Freedmen”
Petitioner’s Request for Relief
The Petitioner, Lucy Allen, in her pleadings has, in effect, asked this Court to
revisit the decision rendered in the Riggs case, and I will for the limited purpose of
explaining the findings of the Riggs decision, address the following issues which are
joined in these proceedings:
1. Does Article IIf Section 1 of the 1975 Constitution of the Cherokee Nation
include the Cherokee Freedmen as persons eligible for citizenship in the Cherokee
Nation?
25
2. Is 11 C.N.C.A. § 12 as enacted by the Council, constitutional under Article TIT
of the 1975 Constitution of the Cherokee Nation?
Discussion
1 ARTICLE III SECTION 1 OF THE 1975 CONSTITUTION OF THE
CHEROKEE NATION DOES NOT INCLUDE THE CHEROKEE FREEDMEN AS
PERSONS ELIGIBLE FOR CITIZENSHIP IN THE CHEROKEE NATION.
A. The Court in the case of Demoss v. Jones, JAT 96-01 set forth the rules of
construction the Court uses when interpreting the 1975 Constitution of the Cherokee
Nation.
1. “The 1975 Constitution of the Cherokee Nation of Oklahoma, totally,
completely and unconditionally replaces the 1839 Constitution of the Cherokee
Nation of Oklahoma in its entirety and none of the provisions of the 1839
Constitution remain in force or in effect.”
2. “In interpreting a Cherokee Nation Constitutional provision our goal is to give
effect to the intent of its framers and the people adoption it. To determine this
intent we look to the instrument itself and when the text of a constitutional
provision is ambiguous, this Court in constructing it is not at liberty to search for
meaning beyond the instrument.” (emphasis added)
“Words or terms used in construction on ratification by the people voting upon it
must be understood in the sense most obvious to the common understanding at the
time of its adoption.”
4. “That words appearing in the constitution are presumed to have been used
according to their ordinary, plain, natural and usual signification and import.”
26
B. The United States Supreme Court in Seanfa Clara v, Martinez, 436 U.S. 49 (1978)
confirmed the right of Sovereign Tribes to determine their citizenship,
‘The Court in the Riggs decision looked to all the language of the 1975
Constitution of the Cheroxee Nation to clarify the language of Article III Section 1,
THE AUTHORITY OF THE PREAMBLE ISTO BEA
GUIDE TO THE MEANING OF THE CONSTITUTION AND
THE CONSTITUTION IS TO BE CONSIDERED AS A WHOLE
AND NOT 4 COLLECTION OF UNCONNECTED PARTS
The Preamble of the 1975 Constitution of the Cherokee Nation sets forth the
language,
“We, the people of the Cherokee Nation, in order to preserve . .. our tribal
culture . .. do ordain and establish this Constitution...” (emphasis
added)
The word tribe or tribal, according to English dictionaries, refers to a group of
persons having a common character, or who come from the same ancestor; an ethnic
group. (emphasis added)
It is apparent that the word tribal refers to the Cherokee Indians who are joined by
their common character and ancestry.
Synonyms for ancestry are blood, bloodline and genealogy.
The word culture is defined in part by English dictionaries as social forms or
material traits ofa racial group. (emphasis added)
Again, it is apparent that the word culture refers to the Cherokee Indians who are
joined by a material trait and is a racial group. (emphasis added)
27
Therefore, the framers of the 1975 Constitution of the Cherokee Nation and those
who adopted it were defining the language that follows the Preamble and were obviously
preserving the Cherokee Indians identity and autonomy.
The language of Article III Section 1 of the 1975 Constitution of the Cherokee
Nation:
“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 8 day of
May 1867, and the Shawnee Cherokees as of Article III of the Shawnee
Agreement dated the 9" day of June, 1869, and/or their descendants.”
When considered in light of the Preamble of the Constitution the words contained in
Article Ill, Section 1, “All members of the Cherokee Nation” must be interpreted to
mean, “All Cherokee Indiens of the Cherokee Nation”, and, the words in Article TIT,
Section 1, “must be citizens as proven by reference to the Dawes Commission Rolls” is a
mandate of genealogy which can only be accomplished by tracing one’s bloodline.
‘The use of the foregoing common word definitions and elementary language
construction rules produce the meaning of the language of Article III, Section 1 of the
1975 Constitution which is as follows:
“All Cherokee Indians of the Cherokee Nation must be citizens as proven
by bloodline to the Dawes Commission Rolls including the Delaware
Cherokees of Article II of the Delaware Agreement dated the 8° day of
May 1867, and the Shawnee Cherokees as of Article III of the Shawnee
Agreement dated the 9" day of June 1869, and/or their descendents.”
This interpretation is also supported, by the framers and the people adopting it,
finding it necessary to expressly include two other ethnic classifications of people listed
on the Dawes Commission Rolls, those being the Delaware Cherokees and the Shawnee
Cherokees and who also were members of the Cherokee Nation prior to the adoption of
28
the 1975 Constitution of the Cherokee Nation. The majority opinion correctly sets forth
that the three ethnic groups, Cherokee Freedmen, Shawnees and Delawares were in the
same legal position on the eve of the adoption of the Constitution. If the three ethnic
groups had the same legal status before the adoption of the Constitution, it would be
logical that all three ethnic groups would have to be expressly included as citizens. Any
other interpretation and particularly the one adopted by the majority opinion would
indicate that the Cherokee Freedmen had a superior right to citizenship status than the
Delaware Cherokees and the Shawnee Cherokees; and, that was not the case as admitted
herein by the majority opiaion. ‘The majority decision also mentions that it was argued
some Freedmen actually did vote in the Constitution adoption election, The evidentiary
record is void as to this speculation and as to whether or not the Freedmen voted against
or for the Constitution,
The majority opinion goes to great lengths of historical rhetoric to prove what is
obvious; that the Cherokee Freedmen were citizens of the Cherokee Nation prior to the
adoption of the 1975 Cherokee Nation because of the 1866 amendment to the 1839
Constitution of the Cherokee Nation. However, the majority opinion fails to point out
that the Treaty of 1866 and the 1866 amendment to the 1839 Constitution of the
Cherokee Nation which was a direct result of the 1866 Treaty was brought about by
duress from the United States Federal Government after the Cherokee Nation chose the
losing side of the Civil Wer. The Dawes Rolls were a product of the United States
Government and not the Cherokee Nation, My colleagues in the majority opinion have
failed to cite any instance where the Cherokee Nation voluntarily granted citizenship to
the Cherokee Freedman prior to and after 1866.
29
The majority opinion completely ignores the Preamble of the 1975 Cherokee
Nation Constitution and attempts to justify their position by citing documents that are
outside the language of the 1975 Constitution of the Cherokee Nation and the evidentiary
record as presented by the parties herein, By so doing they have violated the precedents
they profess to follow as set out in Demoss v, Jones, JAT 96-01 and sound principles of
due process,
Itis irrelevant what the Muskogee (Creek) Nation, the Choctaw Nation or the
Chickasaw Nation did or didn’t do in their constitutions.
The strong intent of preservation of tribal culture expressed throughout the 1975
Constitution of the Cherokee Nation requires that the Cherokee Freedmen would have to
be expressly included as one of those ethnic groups in the language of the 1975
Constitution as are the other ethnic groups, Shawnee Cherokees and Delaware Cherokees
before they would be eligible for citizenship.
2. 11 C\N.C.A. §12 IS CONSTITUTIONAL AS WRITTEN
The Court in Riggs applied the following well established principles of
considering a statute's constitutionality:
A A heavy burden is cast on those challenging a legislative enactment to show its
unconstitutionality and every presumption is to be indulged in favor of the
Constitutionality of a statute. If two possible interpretations of a statute are possible, only
one of which would render it unconstitutional, a Court is bound to give the statute an
interpretation that will render it constitutional, unless constitutional infirmity is shown
30
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.