The Cherokee Freedmen Dispute: Legal Background, Analysis, and Proposed Legislation in the 110th Congress

The Cherokee Freedmen Dispute:
Legal Background, Analysis, and
Proposed Legislation
Updated August 7, 2008
Yule Kim
Legislative Attorney
American Law Division

The Cherokee Freedmen Dispute:
Legal Background, Analysis, and
Proposed Legislation
Summary
Several bills pending in the 110^th Congress have the potential to affect a dispute
between two groups within the Cherokee Nation (the Tribe): the “Blood” Cherokee
and the Cherokee Freedmen. This dispute, which is also the subject of litigation in
both federal and tribal courts, centers on whether the Cherokee Nation’s sovereign
right to define its own membership has been diminished by a treaty with the federal
government. In this suit, the Cherokee Freedmen allege to be “direct descendants of
former slaves of the Cherokees, or free blacks who intermarried with Cherokees, who
were made citizens of the Cherokee Nation in the Nineteenth Century.” The
Cherokee Nation, a federally recognized Indian tribe headquartered in Oklahoma,
has, over the past several years, through both tribal legislation and constitutional
amendment, attempted to expel this particular group of its citizens. The Cherokee
Freedmen obtained their Cherokee citizenship pursuant to the terms of an 1866 treaty
with the United States, under which two groups of people — former slaves of the
Cherokee Nation and “all free colored persons” — either residing in Cherokee
territory when the Civil War began or who returned within six months, and the
descendants of such persons, were guaranteed “all rights of native Cherokees.” In
response to the efforts to deny them citizenship rights, the Cherokee Freedmen have
turned to litigation in both federal and tribal court, claiming that the action of the
Cherokee Nation conflicts with the treaty and violates equal protection. The
Cherokee Nation’s arguments are grounded on the premise that the authority of
Indian tribes to define membership is inherent. Any attempt by the Cherokee Nation
to act on its measures to disenroll the Cherokee Freedmen has been enjoined in tribal
court while federal litigation proceeds.
Although determination of membership is one of the fundamental powers of an
Indian tribe, Congress may define tribal membership for federal purposes. The
current Cherokee Nation membership roll dates back to membership lists compiled
in 1907 by the Dawes Commission pursuant to congressional direction to allot the
lands of the Cherokee, Choctaw, Creek, Chickasaw, and Seminole tribes of
Oklahoma. There are at least three bills in the 110^th Congress that contain provisions
that would withhold specific federal benefits from the Cherokee Nation if the
Cherokee Freedmen are not fully recognized as citizens of the Tribe: H.R. 2786, H.R.

2824, and H.R. 3002.

This report will continue to be updated based on future legislative activity or
judicial action.

Contents
In troduction ..................................................1
Historical Background..........................................1
Origins of the Dispute......................................1
Tribal Legislation to Disenroll Freedmen.......................2
Alleged Disenfranchisement of the Freedmen....................3
Amendments to Tribal Constitution...........................6
Analysis .....................................................6
Congressional Power Over Indian Affairs.......................7
Potential Enforcement of the 1866 Treaty Provisions..............8
Legislation ..................................................10

The Cherokee Freedmen Dispute:
Legal Background, Analysis, and
Proposed Legislation
Introduction
Several bills pending in Congress have the potential to affect a dispute between
two groups within the Cherokee Nation (the Tribe): the “Blood” Cherokee and the
Cherokee Freedmen. This dispute, which is also the subject of litigation in both
federal and tribal courts, centers on whether the Cherokee Nation’s sovereign right
to define its own membership has been diminished by a treaty with the federal
government.¹ Specifically, the Freedmen, who largely trace their descent from the
former slaves of the Cherokee Nation, have sought to prevent attempts by certain
members of the Tribe to expel them from the tribal membership. Although Indian
tribes have traditionally held the authority to determine their own makeup, Congress
holds near plenary authority over Indian affairs and may circumscribe tribal
sovereignty through legislation.
Historical Background
Origins of the Dispute. The Cherokee Freedmen, in a suit filed in federal
district court, claim to be “direct descendants of former slaves of the Cherokees, or
free blacks who intermarried with Cherokees, who were made citizens of the
Cherokee Nation in the Nineteenth Century.”² Their claim for tribal membership is
based on an 1866 treaty between the Cherokee Nation and the federal government,
which provides, inter alia, that the Freedmen and their descendants shall have the
same rights as native Cherokees.³ However, even after the federal government and

¹ See, “Powers of Indian Tribes,” 55 I.D. 14, I Opinions of the Solicitor, Department of the
Interior, Indian Affairs 445-456 (October 25, 1934), discussing “The Power of An Indian
Tribe to Determine Its Membership” and the authority exercised by Congress to define
membership for various federal purposes.
² Vann v. Kempthorne, 467 F. Supp. 2d 56, 60 (D.D.C. 2006); See also Angie Debo, And
Still The Waters Run 10 (University of Oklahoma Press 1984) (1940) [hereinafter, Debo].
³ Treaty with the Cherokee, 1866, art. IX, (July 19, 1866) 14 Stat. 799 (“[A]ll freedmen who
have been liberated by voluntary act of their former owners or by law, as well as all free
colored persons who were in the country at the commencement of the rebellion, and are now
residents therein, or who may return within six months, and their descendants, shall have all
the rights of native Cherokees...”).

Cherokee Nation enacted the treaty, the native Cherokees contested the Freedmen’s
membership in the Tribe.⁴
In 1896, Congress created the Dawes Commission (Commission) to catalogue
the members of the Cherokee Nation.⁵ The Commission⁶ accomplished this by
compiling separate “rolls” of Cherokees: the “Freedmen Roll,” comprising the
Freedmen, and the “Blood Roll” consisting of other Cherokee members.⁷ Although
these rolls were originally created to enable the Commission to allot reservation lands
among tribal members by determining and recording the membership of the Tribe,⁸
they later became the exclusive means to establish tribal membership.⁹ Eventually,
the creation of two separate rolls formed the basis of the dispute between the “Blood”
Cherokees and the Freedmen. This dispute has continued to this day, with both the
Freedmen, the federal government, and the Cherokee Nation seeking to assert control
over the composition of the tribal membership.
Tribal Legislation to Disenroll Freedmen. In 1976, the Cherokee Nation
ratified a constitution which provides that tribal membership must be “proven by
reference to the Dawes Commission Rolls.”¹⁰ The terms of the constitutional¹¹
provision made no distinction between the Freedmen or Blood Rolls. The
constitution also required the Bureau of Indian Affair’s (BIA) approval of any future¹²
constitutional amendment. Subsequently, however, the Cherokee Nation passed
legislation¹³ which required descent from a person on the Blood Roll to establish

⁴ Debo, at 135, n.1.
⁵ Id. at 45-47.
⁶ The Dawes Commission, named for its first chairman, Henry L. Dawes, was established
by the Act of March 3, 1893, ch. 209, §§ 15-16, 27 Stat. 612, to allot lands of the Five
Civilized Tribes in Indian Territory, selling surplus lands to the United States with the
ultimate goal of creating a state (Oklahoma). The Dawes Commission was directed to create
the membership roles of the Five Civilized Tribes of Oklahoma, which include the Cherokee
Nation, by the act of June 10, 1896, ch. 398, 29 Stat. 321, 339.
⁷ Kent Carter, The Dawes Commission 113-114 (Ancestry.com, Inc.1999); Debo, at 47, n.

⁸ Lydia Edwards, Comment, Protecting Black Tribal Members: Is the Thirteenth Amendment
the Linchpin to Securing Equal Rights Within Indian Country?, 8 Berkeley J. Afr.-A. L. &
Pol’y 127 (2005).
⁹ 1976 Cherokee constitution, art. III § 1. The constitution can be found at
[http://thorpe.ou.edu/constitution/cherokee/index.html ].
¹⁰ Id.
¹¹ Id.
¹² Id. at art. XV § 10 (“[N]o amendment or new Constitution shall become effective
without the approval of the President of the United States or his authorized
represent at i v e.”).
¹³ 11 C.N.C.A. § 12, quoted in Allen v. Cherokee Nation Tribal Council, JAT 04-09
(Cherokee Nation Jud. App. Trib., March 7, 2006) (“Tribal membership is derived only
through proof of Cherokee blood based on the Final Rolls.”).

tribal membership.¹⁴ Because the Freedmen can only trace descendants from the
Freedmen Roll, this law, if enforced, would have effectively expelled the Freedmen
from the Tribe. The Tribe’s highest appellate court responded in March 2006 by
striking down this law and holding that changes in the tribal membership criteria can
only be made by an amendment to the Tribe’s constitution.¹⁵
Alleged Disenfranchisement of the Freedmen. The Cherokee Nation
organizes its government through procedures outlined in the Principal Chiefs Act, a
law passed by Congress authorizing the Cherokee Nation to elect a “principal chief”
to lead their tribal government.¹⁶ Under the Principal Chiefs Act, the Secretary of the
Interior must approve the election procedures of a Cherokee Nation chief before the
election’s final results become effective.¹⁷ The BIA, as the principal agency within
the Department of the Interior responsible for Indian affairs, exercises this power in
the Secretary’s stead.
On May 24, 2003, Cherokee elections for Principal Chief and other officers
were held. Following the 2003 election, several Freedmen made allegations to the
BIA, claiming that they were not permitted to vote in this election. They also alleged
that, as a matter of policy, the Cherokee Nation was denying membership to
Cherokees whose ancestry can be traced only to the Freedmen Roll. Nonetheless, the¹⁸
BIA approved the results of the election; thereupon the Freedmen filed a federal law
suit against the Secretary of the Interior in the U.S. District Court for the District of
Columbia, Vann v. Kempthorne, which sought a declaratory judgment under the
Administrative Procedure Act that the election was invalid.¹⁹ Other Freedmen also²⁰
filed a similar challenge to the election in tribal court. In light of this controversy,
the Chief Judge of the Cherokee District Court temporarily restored the tribal
membership and voting rights of the Cherokee Freedmen until the cases in both the
federal and tribal courts are fully adjudicated.²¹ Pursuant to this order, several
Freedmen have allegedly been able to participate in elections held in June and July
of 2007.²²
In Vann, the Freedmen argued that the Secretary of the Interior acted in an
“arbitrary and capricious” manner when he approved the May 2003 election because

¹⁴ See Allen, JAT 04-09.
¹⁵ Id.
¹⁶ Principal Chiefs Act of 1970, P.L. 91-495, 84 Stat. 1091.
¹⁷ Id.
¹⁸ See Vann, 467 F. Supp. 2d. 56.
¹⁹ Id.
²⁰ See Nash v. Cherokee Nation Registrar, Temporary Order and Temporary Injunction
(May 14, 2007).
²¹ See Nash v. Cherokee Nation Registrar, Temporary Order and Temporary Injunction
(May 14, 2007); Teddye Snell, Tribe allows Freedmen temporary citizenship, Tahlequah
Daily Press, May 15, 2007.
²² See Memorandum in Support of the Cherokee Nation Defendants’ Motion to Dismiss, 7-8.

the Cherokee Nation excluded the Freedmen from the vote in violation of the
Thirteenth Amendment to the U.S. Constitution and the 1866 Treaty.²³ Thus, the
election should not have been approved. The Cherokee Nation, however, countered
that it was a “necessary and indispensable party” to the suit, but because sovereign
immunity shielded the Cherokee Nation from having to participate, the suit should
be dismissed.²⁴ The Freedmen responded by filing an amended complaint naming the
Cherokee Nation and several tribal officers as defendants.
In a preliminary ruling, the District Court held that both the Thirteenth
Amendment to the U.S. Constitution and the 1866 Treaty abrogated tribal sovereign
immunity with respect to the suit filed by the Freedmen; thus, the court granted the
Freedmen’s motion to file its amended complaint which named the Cherokee Nation
and the tribal officers as defendants. Important to the court’s reasoning was the long
history of “Federal Protections for the Freedmen,” which it gleaned from the
Freedmen’s complaint.²⁵ The Cherokee Nation subsequently filed an interlocutory

²³ Vann v. Kempthorne, No. 07-5024, slip op. at 3-4.
²⁴ Id. at 4.
²⁵ The history provided to the court in the Freedmen’s complaint and summarized by the
court is as follows:
In 1883, the Cherokee Tribal Council passed legislation excluding the
Freedmen and other tribal citizens without Cherokee blood (such as a Shawnees,
Delawares, and intermarried whites) from sharing in tribal assets....In response,
Congress enacted a law requiring the Cherokee Nation to share its assets with the
Freedmen and other tribal members. See An Act to secure to the Cherokee
Freedmen and others their proportion of certain proceeds of lands, Oct. 19, 1888,
25 Stat. 608. In 1890, the Congress further authorized the U.S. Court of Claims
to hear suits by the Freedmen against the Cherokee Nation for recovery of
proceeds denied them. See An act to refer to the U.S. Court of Claims certain
claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee
Nation, Oct. 1, 1890, 26 Stat. 636. A trustee was appointed to assist the
Freedmen in securing their claims and, in 1895, the Court of Claims held that the
Freedmen were entitled to share in the Tribe’s proceeds and that the Cherokee
Nation’s sovereignty could not be exercised in a manner that breached the
Nation’s treaty obligations to the United States. Whitmire, Trustee for the
Cherokee Freedmen v. Cherokee Nation, 30 Ct. Cl. 138, 150-51 (Ct. Cl. 1895).
In 1906, the Supreme Court confirmed that the Freedmen are citizens of the
Cherokee Nation entitled to the same property rights as other members of the
Nation under the Treaty of 1866. Red Bird v. United States, 203 U.S. 76, 84, 27
S. Ct. 29, 51 L. Ed. 96, 42 Ct. Cl. 525 (1906). A year later, the
federally-appointed Dawes Commission finished compiling authoritative
membership rolls for the so-called “Five Civilized Tribes” in Oklahoma....The
Dawes Commission created two separate categories of Cherokee citizens: the
“Freedmen Roll” for the Black Cherokee, and the “Blood Roll” for the other
Cherokees....An individual possessing any African blood was placed on the
Freedmen Roll, whereas an individual possessing any Indian blood was placed
on the Blood Roll, as long as that individual did not possess any African blood.
For example, an individual who was half Black and half Cherokee was placed on
the Freedmen Roll, whereas an individual who was one-quarter Indian but
three-quarters White was designated Cherokee by blood. No record of the
(continued...)

appeal of this preliminary ruling to the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit).²⁶
The D.C. Circuit ruled on July 24, 2008, that the sovereign immunity of the
Cherokee Nation was not abrogated by the Thirteenth Amendment or the 1866
Treaty. However, the court also held that tribal sovereign immunity does not bar a
suit that seeks to enjoin the officers of the Cherokee Nation from violating the
Thirteenth Amendment and 1866 Treaty rights of the Cherokee Freedmen.²⁷ The
court first reasoned that, although Congress has the power to abrogate tribal
sovereign immunity, neither the Thirteenth Amendment nor the 1866 Treaty contains
express and unequivocal language which would indicate an intent to effect such an
abrogation. Absent such language, the court concluded that it could not infer that
Congress chose to exercise this power.²⁸
On the other hand, the court noted that sovereign immunity does not necessarily
shield the tribal officers from litigation. Rather, the court extended the doctrine of Ex
parte Young²⁹ to tribal sovereign immunity. This doctrine allows a federal court to
enjoin state officers from either violating the federal Constitution directly or acting
contrary to federal statute or regulation, even when sovereign immunity prevents the
state itself from being sued.³⁰
According to the court’s reasoning, if the tribal officers were attempting to
violate rights ensured by either the Thirteenth Amendment or the 1866 Treaty, they
would be acting outside their official capacities as representatives of the Tribe.³¹
Since such actions would be considered to have been conducted in the officers’
individual capacities, the officers would not be sheltered by the Tribe’s sovereign
immunity despite the fact that the Tribe authorized these acts.³² However, even
though the court ruled that the suit may commence against the officers, the court
remanded the case so that the district court could determine whether the suit could
continue without the Cherokee Nation as a party to this litigation.³³

²⁵ (...continued)
quantum of Indian ‘blood’ of the Freedmen was kept....Although the Dawes
Commission created the separate rolls, it declared that those on the Freedmen
Roll were on ‘equal footing’ with those on the Blood Roll. Vann, at 62
(citations to plaintiffs’ complaint omitted).
²⁶ Vann v. Kempthorne, No. 07-5024, slip op. at 5 (D.C. Cir. July 29, 2008).
²⁷ Id. at 2.
²⁸ Id. at 11.
²⁹ 209 U.S. 123 (1908).
³⁰ Vann, No. 07-5024, slip op. At 12.
³¹ Id.
³² Id.
³³ Id. at 25-26 (noting that the District Court determined that the Cherokee Nation was a
necessary and indispensable party to this litigation when it granted the Tribe’s joinder to the
suit pursuant to Rule 19(a) of the Federal Rules of Civil Procedure).

Because the Cherokee Nation lost its interlocutory appeal in Vann, the case will
most likely proceed to its merits. The District Court will most likely address an array
of issues. These issues might include matters that may require extensive examination
of the history of U.S. dealings with the Cherokee Nation and complex issues of
federal Indian law, such as: (1) the extent of the Tribe’s associational rights in
regulating its own membership;³⁴ (2) whether the United States abrogated the 1866
Treaty, such as through allotment; (3) whether the treaty should be treated like a
contract and the issue of breach considered;³⁵ (4) whether the abrogation would
constitute a material breach of the treaty;³⁶ (5) whether material breach would provide
the Tribe the option of rescission from its own treaty obligations; and (6) assuming
the treaty provisions are enforceable, what remedies would be available for the
Cherokee Freedmen if the membership rights were vindicated.
Amendments to Tribal Constitution. There are currently two amendments
to the 1976 Cherokee constitution that have been passed by referendum votes: one,
passed on March 3, 2007, would exclude the Freedmen from tribal membership;³⁷
while the other, passed on June 23, 2007, would remove the requirement for BIA
approval of constitutional amendments.³⁸ Though the BIA has approved the
amendment removing federal oversight, in doing so, the BIA has made clear that the
approval should not be construed as an endorsement of any violation of federal law.³⁹
The BIA has not approved the amendment excluding the Cherokee Freedmen from
the Tribe.
Analysis
This situation involves the ongoing friction that exists between tribal
sovereignty and the federal plenary power over Indian affairs; specifically, whether
the Cherokee Nation can exercise its sovereign right to define its own membership
in the face of constraints on that right imposed by treaty by the federal government.⁴⁰

³⁴ See Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
³⁵ See Charles F. Wilkinson and John M. Volkman, Judicial Review of Indian Treaty
Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth” — How Long a
Time Is That?, 63 Cal. L. Rev. 601 (1975) (comparing Indian treaties with contracts of
adhesion).
³⁶ “A substantial breach of contract, usu[ally] excusing the aggrieved party from further
performance and affording it the right to sue for damages.” Black’s Law Dictionary 183 (7th
ed. 1999).
³⁷ “Congressional Black Caucus backs Freedmen,” [http://www.indianz.com], March 14,

2007.

³⁸ “Cherokee Nation holds election amid national scrutiny,” [http://www.indianz.com], June

25, 2007.

³⁹ Letter from Asst. Secretary Carl J. Artman to Chief Chadwick Smith (August 9, 2007).
[ ht t p: / / www.cher okee.or g/ docs/ news/ BIA_l t r _Ar t ma n_080920007_r eadabl e .pdf ] .
⁴⁰ See, “Powers of Indian Tribes,” 55 I.D. 14, I Opinions of the Solicitor, Department of the
Interior, Indian Affairs 445-456 (October 25, 1934), discussing “The Power of An Indian
Tribe to Determine Its Membership” and the authority exercised by Congress to define
(continued...)

Tribal sovereignty predates the U.S. Constitution and survives in part even after a
tribe’s incorporation into the United States.⁴¹ To this day, tribes largely retain their
inherent sovereignty over their own internal affairs.⁴² However, tribal sovereignty has
been viewed by the federal courts as limited, in view of the tribes’ status as domestic
dependent nations,⁴³ and is subject to the near plenary power of Congress.⁴⁴
Congressional Power Over Indian Affairs. Tribes generally have the
power to determine their own membership.⁴⁵ However, Congress has the power to
define membership differently from the tribe when necessary for administrative
purposes.⁴⁶ Furthermore, various treaties contain provisions which define a tribe’s
membership by establishing procedures to enroll certain categories of people within
a tribe regardless of actual ethnic origin.⁴⁷ Such a provision can be found in the 1866
Treaty with the Cherokee Nation requiring membership for the ancestors of the
Freedmen. Much like the provisions in international treaties, the provisions in treaties
with Indian tribes are the supreme law of the land, preempting any inconsistent state
or tribal law.⁴⁸ While Congress has discontinued the practice of treaty-making with
Indian tribes, it has also expressly continued the effectiveness of existing treaties that
were previously in force.⁴⁹

⁴⁰ (...continued)
membership for various federal purposes.
⁴¹ Felix S. Cohen. Handbook of Federal Indian Law 205 (Nell Jessup Newton ed. 2005). See
also Worcester v. Georgia, 31 U.S. 515, 559 (1832) (characterizing Indian tribes as “distinct,
independent political communities”) [hereinafter, Cohen].
⁴² See United States v. Wheeler, 435 U.S. 313 (1978).
⁴³ See Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester, 31 U.S. 515.
⁴⁴ For an analysis of retained tribal sovereignty, see Duro v. Reina, 495 U.S. 676 (1990);
Montana v. United States, 450 U.S. 544 (1981).
⁴⁵ See Santa Clara Pueblo v. Martinez, 436 U.S. 39, 72 n. 32 (1978) (“A tribe’s right to
define its own membership for tribal purposes has long been recognized as central to its
existence as an independent political community.”); Cherokee Intermarriage Cases, 203 U.S.

76 (1906).

⁴⁶ Delaware Tribal Bus. Comm. V. Weeks, 430 U.S. 73, 84-86 (1977). See also Cohen, at

182.

⁴⁷ See Act of July 1, 1902, §§ 27-35, 32 Stat. 641 (rules for enrollment of Choctaw and
Chickasaw citizens and Freedmen); Treaty with the Osages, Sept 29, 1865, 14 Stat. 687;
Treaty with the Chippewas, February 22, 1855, Art. 5, 10 Stat. 1165, 1169; Treaty with the
Wyandots, Senecas, Delawares, Shawanese, Potawatomees, Ottawas, and Chippeways,
September 29, 1817, Art. 7, 7 Stat. 160, 163.
⁴⁸ See Worcester, 31 U.S. 515; Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Johnson v.
M’Intosh, 21 U.S. 543 (1823). See also U.S. Const. art. V. § 1, cl. 2; Missouri v. Holland,
252 U.S. 416 (1920) (“[t]reaties made under the authority of the United States, along with
the Constitution and laws of the United States made in pursuance thereof, are declared the
supreme law of the land.”).
⁴⁹ Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71).

The treaty provision enrolling Freedmen within the Cherokee Nation was made
as a condition of the government-to-government relationship between the United
States and the Cherokee Nation.⁵⁰ Whether or not the court would find that provision
to continue in force might require extensive examination of the long subsequent
history of U.S. relations with the Cherokee Nation including later treaties, laws, and
executive actions. The subsequent history of other treaty provisions might have an
impact on whether a court would hold the Cherokee Nation to be presently bound by
the membership provision.
Potential Enforcement of the 1866 Treaty Provisions. Enforcement of
the membership requirements in the 1866 Treaty might be problematic, assuming that
the membership provision remains viable, because the treaty contains no explicit
mechanism for enforcement by federal officials or by aggrieved tribal members.
Nonetheless, despite the absence of an express enforcement mechanism, there have
been some examples of enforcement in the federal courts. For example, several cases
challenging Cherokee Nation distributions of property in violation of a treaty
provision were brought under specific statutes providing federal court jurisdiction
over claims of the Freedmen.⁵¹ One case invalidated, as contrary to Article IX of the
1866 Treaty, a Cherokee Nation Council action denying the Freedmen pecuniary
benefits owed to all Cherokee Nation members.⁵² In another decision, the U.S.
Supreme Court ruled that even though the Cherokees have broad powers to deny
membership rights, they cannot deny individuals those rights which were secured by⁵³
a treaty.
One possible method of enforcement could be the ability of the BIA to refuse
to certify Cherokee procedures for electing a Principal Chief if the Cherokee⁵⁴
constitution is amended to disenfranchise the Freedmen. Until August 2007, there
was another avenue available to the BIA — rejecting any amendment to the Cherokee⁵⁵
constitution that would disenroll the Freedmen. On August 9, 2007, however, the
BIA approved a constitutional amendment which eliminated the requirement for BIA

⁵⁰ Similar conditions were imposed upon other tribes. See Treaty with the Seminole Nation,

1866, art. 2, 14 Stat. 756.

⁵¹ See, e.g., Act of October 1, 1898, ch. 1249, 26 Stat. 636 (referring to the claims, filed to
the Court of Claims by the Cherokee Freedmen, among others, for the recovery of their
share of funds which the Cherokee Nation was required by law to distribute on a per capita
basis).
⁵² Whitmire v. Cherokee Nation, 30 Ct. Cl. 138, 156-157 (1895).
⁵³ Cherokee Intermarriage Cases, 203 U.S. at 84 (holding that the Cherokee could expel
from the tribe whites who intermarried with Cherokee women since no law passed by the
Cherokee or the federal government granted the whites any property rights owed to
members, while also expressly distinguishing the “intermarried whites” from Freedmen,
because Freedmen rights were secured by the 1866 treaty).
⁵⁴ Under the Principal Chiefs Act of 1970, P.L. 91-495, 84 Stat. 1091, the Secretary of the
Interior or his representative must approve the election procedures of the principal chiefs
of the Cherokee, Choctaw, Creek, and Seminole Tribes of Oklahoma and the governor of
the Chickasaw Tribe of Oklahoma. The effects of non-certification, however, are unknown.
⁵⁵ 1976 Cherokee constitution, art. XV § 10.

approval of future constitutional amendments.⁵⁶ This would thereby eliminate the
need for BIA approval of any amendment denying membership to the Freedmen.
Vann v. Kempthorne represents another potential method to enforce the 1866
Treaty membership provisions: private litigation.⁵⁷ Although the doctrine of tribal
sovereign immunity would normally bar individual members from filing suit against
their tribe,⁵⁸ the U.S. Court of Appeals for the District of Columbia has ruled that the
doctrine of Ex Parte Young allows tribal officials to be enjoined from violating
Freedmen membership rights that are protected by the 1866 Treaty and the Thirteenth
Amendment to the U.S. Constitution.⁵⁹ This ruling appears to conflict with the
holding of the U.S. Court of Appeals for the Tenth Circuit in a similar case involving
the Cherokee Freedmen.⁶⁰ In that case, the Tenth Circuit ruled that the 1866 Treaty
did not constitute a waiver of tribal sovereign immunity and, therefore, the Freedmen
could not sue either the Tribe or tribal officials in their official capacities under
federal civil rights laws.⁶¹
Other possible enforcement mechanisms which might be used to compel the
Cherokee Nation to preserve the Freedmen’s membership rights would require
specific legislation. Congress may do so by calling upon its power over Indian affairs,
which stems from various provisions of the U.S. Constitution, including the Treaty
Clause⁶² and the Indian Commerce Clause.⁶³ This power, which the Supreme Court
has characterized as “plenary”⁶⁴ but not absolute, can provide Congress with many
options to address this issue. For example, one aspect of this near plenary power is
Congress’s ability to terminate the government-to-government relationship and
thereby, depending on the language of the legislation,⁶⁵ eliminate all or some of the

⁵⁶ Letter from Asst. Secretary Carl J. Artman to Chief Chadwick Smith (August 9, 2007),
[ ht t p: / / www.cher okee.or g/ docs/ news/ BIA_l t r _Ar t ma n_080920007_r eadabl e .pdf ] .
⁵⁷ Vann, 467 F. Supp. 2d at 14. See also Edwards, supra 122, n. 7.
⁵⁸ Under the concept of tribal sovereign immunity as recognized by the Supreme Court,
Indian tribes are immune to unconsented suit unless the immunity is waived by federal
legislation or by the tribe itself. See Santa Clara Pueblo, 436 U.S. 39; Puyallup Tribe, Inc.
v. Department of Game, 433 U.S. 165 (1977); United States v. United States Fidelity &
Guar. Co., 309 U.S. 506 (1940).
⁵⁹ Vann, No. 07-5024 (D.C. Cir. July 29, 2008).
⁶⁰ Nero v. Cherokee Nation, 892 F.2d 1457 (10th Cir. 1989).
⁶¹ Id. at 1461. (“We are not persuaded that [the treaty’s] language constitutes an
‘unequivocal expression’ of waiver by the Cherokee Nation of its sovereign immunity.”).
⁶² U.S. Const., art. II, § 2, cl. 2.
⁶³ U.S. Const., art. I, § 8, cl. 3.
⁶⁴ United States v. Lara, 541 U.S. 193, 200 (2004); Washington v. Yakima Indian Nation,

439 U.S. 463, 470 (1979).

⁶⁵ See Menominee Tribe v. United States, 179 Ct. Cl. 496, 500-501 (1967) (concluding that
termination legislation did not abolish the tribe or its membership, but merely terminated
federal supervision for the property and members of the tribe). See also Joint Council of the
Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975) (noting that an absence of
(continued...)

special benefits conferred onto the Tribe, including federal supervision of the
property of the Tribe and its members.⁶⁶ Alternatively, Congress may, through
legislation, recognize the Cherokee Freedmen as a separate tribe.⁶⁷ It is also possible
that, in view of the historical context of the 1866 Treaty and its temporal proximity
to the adoption of the Thirteenth Amendment to the U.S. Constitution, any legislation
requiring implementation of the membership criteria could be based on the
protections afforded in that amendment.⁶⁸
Several other approaches might be considered. For example, legislation may be
passed to preclude the Cherokee Nation from ratifying a constitutional amendment
affecting membership criteria, absent approval from the BIA. Congress may also
create a federal cause of action that would authorize the Freedmen to file a civil suit
in federal court and specify the standards to be applied as well as the remedies to be
ordered. Alternatively, federal funding of the Cherokee Nation may be made
contingent on the Freedmen retaining their tribal membership.
Legislation
So far, three separate bills have been introduced addressing this matter. The first
bill, H.R. 2824, would sever the Cherokee Nation’s government-to-government
relationship with the United States until the Freedmen’s tribal membership is
restored. This would result in ending all federal Indian funding to the Cherokee
Nation. Moreover, the Cherokee Nation would incur the additional sanction of
having its authority to conduct gaming under the Indian Gaming Regulatory Act⁶⁹
suspended. The bill would also create a private cause of action for the Freedmen to
pursue claims in federal court alleging violations of the Indian Civil Rights Act,⁷⁰
Thirteenth Amendment, or the Treaty of 1866.⁷¹
There are also provisions added in an amendment to H.R. 2786 that would end
funding to the Cherokee Nation under the Native American Housing Assistance and
Self-Determination Act (NAHASDA) if the Freedmen lose their tribal membership.
However, funding will continue so long as the tribal court injunction restoring the

⁶⁵ (...continued)
federal dealings with a tribe does not necessarily mean that there is doubt as to the
genuineness of the tribe).
⁶⁶ See Menominee Tribe v. United States, 391 U.S. 404, 412 (1968) (holding that the
Termination Act did not abrogate the Menominee Tribe’s treaty fishing and hunting rights).
⁶⁷ See Federally Recognized Indian Tribe List Act of 1994, P.L. 103-454, §103(3), 108 Stat.
4791. See also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th
Cir. 2001). For an example of legislation that would recognize a subgroup of a tribe as a
separate tribe, see P.L. 106-568, 114 Stat. 2868, § 701 (2000), recognizing the Shawnee
Tribe as distinct from the Cherokees.
⁶⁸ U.S. Const. amend. XIII, § 2.
⁶⁹ See 25 U.S.C. § 2701 et seq.
⁷⁰ 25 U.S.C. §§ 1301-1303.
⁷¹ H.R. 2824, § 5(b), 110^th Cong. (2007).

Freedmen’s membership rights remains in effect. Moreover, the provision to end
funding will cease to be effective if the Freedmen prevail in their efforts in tribal and
federal courts to vindicate their tribal membership and overturn the March 3, 2007,
referendum excluding them from the Tribe.⁷² The House of Representative would
later include this language in a House-passed engrossed amendment to S. 2062, the
Senate version of NAHASDA.⁷³
Finally, H.R. 3002, the Native American Economic Development and
Infrastructure for Housing Act of 2007, was amended to establish a program that
would authorize the Secretary of Housing and Urban Development to guarantee
obligations issued by Indian tribes to finance community and economic development
activities.⁷⁴ The act as reported has a clause that will deny the expenditure of funds
appropriated under the act for the benefit of the Cherokee Nation until it is certified
that the Cherokee Nation is in compliance with the Treaty of 1866 and recognizes the⁷⁵
Cherokee Freedmen as citizens of the Cherokee Nation.

⁷² Native American Housing Assistance and Self-Determination Reauthorization Act of

2007, H.R. 2786, § 2(b), 110^th Cong. (2007).

⁷³ Native American Housing Assistance and Self-Determination Reauthorization Act of 2007
(Engrossed Amendment as Agreed to by House of Representatives), S. 2062, 110^th Cong.
(2008).
⁷⁴ Native American Economic Development and Infrastructure for Housing Act of 2007,
H.R. 3002, 110^th Cong. (2007).
⁷⁵ H.R. 3002, §2(h)(2), 110^th Cong. (2007).