Copyright © 2007 NLThomas
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WASHINGTON: February 22, 2007 – A federal judge in Washington, D.C., denied a preliminary injunction motion that was filed to stop the Cherokee Nation’s March 3 special election, which will decide whether Cherokee Freedmen descendants can remain tribal citizens. U.S. District Judge Henry H. Kennedy on Feb. 21 denied a request by six Cherokee Freedmen to stop the election, writing that the plaintiffs’ motions were “moot.” Kennedy said the harm the Freedmen descendants are seeking to avoid is not the election itself but rather its possible outcome. “Judge Kennedy’s ruling reaffirms principals of Indian law surrounding tribal sovereignty. He recognized the importance of allowing the Cherokee people to vote. The deference and respect Judge Kennedy showed for the Cherokee Nation is appreciated,” CN Attorney General Diane Hammons said. “The court said there would be no irreparable harm by holding the election and acknowledged our strong interest in following our own laws and constitution. Any challenge to our election procedures should be brought in our tribal courts and not in the District of Columbia.” This month’s election will be on whether to amend the CN Constitution. The amendment calls for proof of Cherokee blood for citizenship in the tribe, with an exception of Delawares and Shawnees, who were adopted into the tribe by treaties. If the citizenship measure passes, it will exclude Freedmen from having Cherokee citizenship. Principal Chief Chad Smith said he is “pleased that the court affirmed the most basic democratic right and that’s the right the vote.” Attorneys for the six Freedmen filed the motion in the District Court of Washington, D.C., on Feb. 1. They are part of an ongoing lawsuit, Vann v. Kempthorne, which is pending in federal court. Jon Velie, an attorney for the Freedmen, said he and his plaintiffs look at the ruling “as losing the battle but winning the war.” “The judge said he was not going to enjoin the election because it was not proved the Cherokee Freedmen would be voted out - there was still a chance that they wouldn’t be. However, he did say if they were voted out we would be back in court,” Velie said. Velie added that the U.S. government said it would not recognize an amendment to the CN constitution if the Cherokee people indeed vote to amend the constitution to exclude the Freedmen. “If the Freedmen are voted out it essentially violates the Treaty of 1866, and we would be able to litigate that in Washington, D.C., (as part of Vann v. Kempthorne),” Velie said. “The vote of the Cherokee people is really not just a vote to vote out the Freedmen, but it may be a vote to violate a treaty. The Treaty of 1866 re-established the government-to-government relationship with the United States. A condition of that treaty was the inclusion of the former slaves into the tribe and their membership, so by violating the treaty it puts a pretty precarious position on what the relationship with the United States would be for violation of a conditional treaty.” In the case of Vann v. Kempthorne, Freedmen contend the CN, with approval from the Department of Interior secretary, prevented them from participating in the 2003 tribal elections and seek a court order declaring the 2003 elections invalid and directing the secretary from recognizing the results of the election. According to a press release from Freedmen Association President Marilyn Vann, Freedmen plaintiffs involved in Vann v. Kempthorne filed the injunction to stop the special election because it is designed to “remove the Freedmen tribal members from the voting ranks of the Cherokee Nation through amendment of the tribal constitution.” Vann stated that if Freedmen are removed from tribal rolls because of the March 3 special election, their right to vote would be denied again because they would not be allowed to vote in the June 2007 tribal elections.