The CNO (Cherokee Nation of Oklahoma) is putting a definite spin on this case. The Court of Appeals ruled that the tribe has sovereign immunity, but NOT the tribal officials, meaning that the Freedmen’s case will still proceed against Chief Chad Smith and other officials. And, the decision opens the door for the Freedmen to take the case to the US Supreme Court.
But this is only one side of this case. The tribe might have the right to break its treaty obligations to the Freedmen (and in the end the individual officials might share those rights), but it doesn’t make it right to do so.
In the past, I’ve focused on punitive ways to force the CNO to change it’s current policies (and I’ll restate for new readers who haven’t followed past posts on this controversy, that while I’m not a CNO citizen but I do have Cherokee ancestry and care a lot about the outcome of this decision), but I think now that it is better to focus on ideas for a positive outcome to this dispute that doesn’t involve coercion.
Here are my suggestions:
1. The CNO leadership could put the issue of the Freedmen up for another vote. Voter turnout was horribly bad before, and I think many Cherokees didn’t understand the critical significance of this vote and would turn out to vote to reinstate the Freedmen if given the chance again. This vote would be of historic proportions and would be significant not only in Cherokee history but in US history too.
2. If such a vote is not possible, then I would suggest that the US Federal government sit down with the CNO to engage in state-to-state level treaty negotiations. If the CNO continues to exclude the Freedmen, this is a breach of the Federal government’s (and also the Freedmen’s) treaty rights*, and it would seem reasonable that the matter be resolved on the diplomatic level. I’m not sure what this settlement might look like (i.e. a financial settlement, or possibly a separate co-existent sovereign status for the Freedmen, in exchange for increased financial or other assistance for the tribe from the Federal government), but I think it could be workable.
I know this would be a major change in US Indian policy (the Federal government quit signing treaties with the tribes around the turn of the century), but it would be far better than the alternatives, either ignoring the treaty violation or Congress using its plenary powers under the US constitution to mandate a solution.
3. However, whatever option is used (# 1 or 2 above), I think the other alternatives are horribly negative and harmful to all parties involved. A SCOTUS ruling on appeal of the current decision or action by the US Congress would result in a horrible, horrible precedent against future tribal rights (and would result in years and years of animosity between CNO citizens, both Freedmen and non-freedmen). This is why I no longer support punitive measures to force the CNO to do the right thing.
In conclusion, I think that the CNO has a tremendous opportunity here. It can once and for all stand up for the rights of all Cherokee people (including the Freedmen) and make right the wrongs of past generations who enslaved the Freedmen. And I think in doing this, it would gain significant political and moral power that could be used in the continued struggle justice for all Native peoples.
* I know that some readers may find it ironic that I’m complaining about an Indian tribe violating its treaty obligations with the US federal government, when the US government has broken countless treaties with the tribes.
I would argue however, that two wrongs don’t make a right, and more pertinently that the Freedmen were an indirect party to the treaty. In other words, the US government was serving as a protector and trustee of the rights of the Freedmen in this treaty, and as such while the US government sign the treaty, the real folks who were once protected by the treaty, and who are now hurt when it is broken, are the Freedmen.
JM,
I believe that punitive measures ARE needed to nudge tribes to do the right thing. Sometimes, greed blinds the eye to what is right and clinging to treating tribal members badly is not a good thing. Exercising MORAL OUTRAGE includes a way to allow tribes to continue to do wrong, they just don’t get the benefit.
If it is the sovereign right of the Cherokee to eliminate their members, then it’s also the sovereign right of the US and it’s citizens to not give up millions in housing dollars to a tribe that treats its people like this.
Great post. I’ll link it at my blog
3. However, whatever option is used (# 1 or 2 above), I think the other alternatives are horribly negative and harmful to all parties involved. A SCOTUS ruling on appeal of the current decision or action by the US Congress would result in a horrible, horrible precedent against future tribal rights (and would result in years and years of animosity between CNO citizens, both Freedmen and non-freedmen). This is why I no longer support punitive measures to force the CNO to do the right thing.
With all due respect, Mr Branum, you, like most outsiders who have written on this subject, are woefully uninformed and misinformed. With the same unmitigated arrogance of generations of Americans before you, you insist you can define “the right thing for Cherokees to do.” You obviously do not the history of Cherokee participation in slavery, our overwhelming support for the UNION in the Civil War, or the way in which the Treaty of 1866 was negotiated.
The United States was not protecting the interests of either freedmen or Cherokees in Article IX of the Treaty. Freedmen did not want tribal citizenship and petioned the US government for a separate tract of land that they could own and where they could govern themselves. The Cherokee Nation offered land for the freed slaves of the 296 Cherokees who had owned slaves but it was not a big enough parcel to accommodate the freed slaves of the other tribes and the United States refused.
Contrary to what you may read in today’s freedmen descendant propaganda, the original freedmen did not see themselves as Indian any more than freed slaves in the American South saw themselves as white. They had a pride in an identity that was their own and they wanted land they could own. This was not possible under tribal law and freedmen continued to ask for separation from the Cherokees for more than two years after the Treaty and the resultant act of the Cherokee National Council that granted them citizenship.
From the Cherokee point of view, citizenship had always been a matter or ancestry and marriage. They had never incorporated a large segment of non-Indians and they bitterly resented being treated as defeated foes when they had lost so much fighting for the North. Over 70% of the Cherokee men fought for the North, while less than 2% of the Cherokees owned even one slave. The majority of Cherokees felt that the United States should take responsibility for the welfare of the freedmen since the US had introduced and supported the institution. Long before the war, most Cherokees had grown decidedly anti-slavery since slave-holding Cherokees were prone to ostentatious displays of wealth, a most anti-Cherokee value. After the war with their country devastated and so many widows and orphans, Cherokees were worried about taking care of themselves. Not people they perceived as outsiders.
So what you had was the United States putting two very different groups of oppressed people on the same road knowing each wanted to go in very different directions. Almost immediately, freedmen allied themselves with the federal effort to promote allotment and the termination of the Cherokee Nation. Cherokees struggled desperately to hold on to the country they had been forced onto a few short decades earlier. The more the pro-allotment sentiment of freedmen became known, the more the tensions grew. When the US refused to provide land for Southern slaves, thousands streamed illegally into Cherokee country and a brisk business began with Cherokee freedmen selling the information state freedmen would need to apply for citizenship. The railroads (also forced on us by the 1866 Treaty) brought even more thousands of white intruders and IN DIRECT VIOLATION OF THE TREATY the US did nothing until we Cherokee were outnumbered in our own country. So then the US could step in, shatter all our treaties and force allotment in preparation for destroying our country to create an American state. Oh, and this greed was aided by the efforts of several do-gooder organization who were convinced that this was “right for the Indians.” And if you actually read the legislation by which this was done, you will see that CONGRESS nullified any treaty obligations regarding citizenship then. Over a hundred years ago.
And by that process, freedmen interests were served. Through allotment, freed slaves and their descendants received land and monetary payments that America never made. The Cherokees were devastated. The Cherokee economy was built on communal land ownership, not on the backs of slave labor like the American South. Most Cherokees were reduced to living in abject poverty in isolated pockets of Cherokee community struggling to maintain their language, culture and identity in the face of the American ideal of forced assimilation. Another “we know best what’s right for the Indian.”
So what do we still owe, Mr. Branum? You say we need to “right the wrongs of past generations?” Do not freedmen descendants also need to acknowlege and “right the wrongs” of their ancestors who willfully participated in the destruction of our country and the near destruction of our nation? For seventy years, Cherokees and only Cherokees kept alive the remnants of our self-government. Is it so surprising then, that when we were finally “permitted” to re-organize, we limited citizenship to those of Indian ancestry.
The bottom line is that there are no living freedmen, sir. The entire Cherokee Nation took responsibility for the actions of a few and made reparations to the actual people who were harmed by those actions. Their descendants call themselves Freedmen (as though they were enslaved themselves) in order to portray themselves as victims of racism when, in fact, their actions are the oldest form of racial discrimination on this continent.
The highest law, in my opinion, that should be considered here is international human rights law. In response to shadow reports from Indian organizations, including the Cherokee Nation, to the United States periodic review, the Committee for the Elimination of Racial Discrimination, in its Concluding Observations, linked U.S. compliance with the ICERD to the provisions of the Declaration of the Rights of Indigenous Nations even though, of course, the US voted against it. The provisions of the ICERD were already clear on this but the Declaration goes even further. Forced assimilation or forced integration of another culture onto an indigenous nation is strictly forbidden. Nor can the inherent rights to self-determination of indigenous nations be infringed upon and they may not be discriminated against on the basis of their indigenous identity or origin. Why can’t we all respect that minority rights and indigenous rights are different?
In closing, I would like to point out that you have claimed that freedmen are hurt when the Treaty is broken. As I’ve pointed out actual Freedmen were delighted when the Treaty was broken, not by the Cherokee but by the US. I challenge you to explain to me how their descendants are harmed by our laws any more than the 299 million 750 thousand other Americans who also are not entitled to Cherokee citizenship. Whereas the continued infringement on our inherent right to self-determination does immeasurable harm not only to the Cherokees but also to all Indian nations. Which is why Indian leaders across the country have been so vocal in their support. We have always known that the only people who should be deciding what is right for Indians are the Indians.
Jmb Said:
The CNO (Cherokee Nation of Oklahoma) is putting a definite spin on this case. The Court of Appeals ruled that the tribe has sovereign immunity, but NOT the tribal officials, meaning that the Freedmen’s case will still proceed against Chief Chad Smith and other officials. And, the decision opens the door for the Freedmen to take the case to the US Supreme Court.
The “Elder” Cornsilk says!
Yes Jim they are most assuredly putting a PURE BS spin on this ruling, and people that don’t bother to read and understand what the ruling says and means only helps the CNOT Spin! The thing I find really ignorant on CNOT’S part, the link on you article to CNOT’s BS spin has a link at the bottom of the page to the actual document. As if to say the facts are posted here but you readers are to dumb to understand just swallow what we post and accept it!! NOT nuna me! I read it and is just purty dang simple!
Now I think the first thing we need to get into is DICTA, CNOT people are famous for quoting dicta in attempt of twisting an opinion in law with the words in or from the formation of the opinion
What is Dicta and what is its purpose, well here is the legal description of DICTA – It is the part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory opinions expressed by the judges on points that do not necessarily arise in the case. Dicta is regarded as of little authority, on account of the manner in which they is delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination.
This document en total (DICTA) is a very interesting read but, the only parts that means anything are: Page 23 at the end Part III section A, at the end of the paragraph it says “ We reject Cherokee Nation’s argument”
And at the end of Section B, Page 24 it says Cherokee Nation’s “Seminole Tribe Argument Fails” an at the end of part C it says “we reject this Argument” then the crux of the Ruling: Part IV on page 25 and 26 the actual order, these are the items in the Document that lay out the law of the ruling!
Jmb Said:
But this is only one side of this case. The tribe might have the right to break its treaty obligations to the Freedmen (and in the end the individual officials might share those rights), but it doesn’t make it right to do so.
In the past, I’ve focused on punitive ways to force the CNO to change it’s current policies (and I’ll restate for new readers who haven’t followed past posts on this controversy, that while I’m not a CNO citizen but I do have Cherokee ancestry and care a lot about the outcome of this decision), but I think now that it is better to focus on ideas for a positive outcome to this dispute that doesn’t involve coercion.
Here are my suggestions:
The “Elder” Cornsilk says!
No Jim the simple fact is and this comes from the ruling in that it said that if the officers of CNOT are culpable, they can NOT hide behind Sovereign immunity that is an inherent right of the tribal entities Cherokee Nation included. They can be sued! And they have been…
NOW, it is up to Judge Kennedy in the DC District Court whether the case can/will continue against the CNOT and BIA officials. What Smith an CNOT are crowing about is NOT an win in this matter by any stretch of the imagination, the Court simply reaffirmed ALL Tribal Entities do enjoy Sovereign immunity Cherokee Nation Included to the extent allowed by the U.S. Congress, ant that fact was mentioned in the dicta in citing the Supreme Court case Cherokee Nation V. Georgia of 1831
There is NO Coercion involved Jim, it is simply a matter of abiding by law, or the blatant disregard for it as CNOT wishes to do.
I think if you are serious with wanting to offer any help you need to reconsider what you might want to suggest; to help with your understanding of what it is all about I offer a couple of Short post from my forum the First is by David Cornsilk my Son, The oner is by Robin Mayes, the gggrand son of the legendary Chief of the Cherokee 1827 to his death in 1866, John Ross.
David Cornsilks Said:
As for what the ruling is and means I saw a short piece by David Cornsilk on Johns place on the subject it is worth your effort if you have an interest in what it all means:.
“The lawsuit Vann v. Kempthorne was not about the 2007 amendment or whether the Cherokee people could even amend their constitution. The Freedmen were not permitted to vote in 2003. Marilyn Vann et al attempted to vote and were forced to file contested ballots that were eventually disqualified. The principal chief enforces the law by appointing surrogates to do his work, i.e. marshals, assistants and members of the election commission. The chief is ultimately responsible for the enforcement of law. I wish those idiots who keeps blathering on about the 2007 vote could use whatever brain cells they have functioning and realize that if the 2003 election (which included the vote for the 2003 constitution) is invalid, then the 2007 vote is invalid.
Why? Because the three judges who ruled in favor of the bogus petition were not valid and thus their ruling was not valid. That leaves Justice Dowty’s and Justice Leed’s opinion against the petition as the majority, thus destroying the 2007 vote. Its not brain surgery.“
All you have to do is read the original complaint and follow the time line and documents. Which can be found at cornsilks.com
David Cornsilk
Robin Mayes Said:
Earlier today, the second highest court in the country ruled against Chad Smith and the Cherokee Nation of Oklahoma (CNO) in the landmark decision of Vann v. Kempthorne. The federal appellate court rejected all three arguments presented by Smith and CNO, “finding none of them persuasive,” to hold that Cherokee tribal officers did not enjoy any derivative sovereign immunity and could be sued in their personal capacity under the Ex parte Young “stripping doctrine” as first applied to the illegal acts of tribal officials in Santa Clara Pueblo v. Martinez.
The Kemthorne decision hands a devastating defeat to Chad Smith and the CNO by exposing all tribal officials who have acted in violation of such federal laws as the 1866 Treaty and the Thirteenth Amendment subject to federal court injunction and even personal liability. This decision finally and indisputably extinguishes Chad Smith’s untenable claim that he could violate federal law with impunity beyond the reach of federal courts. The Kempthorne decision makes unmistakably clear that Chad Smith is personally subject to federal judicial process and even personal liability for -ALL- his acts in violation of federal law.
The Kemthorne decision is a great victory for the Freedmen and the Cherokee people against lawless, racist tribal officials, such as Chad Smith, who have throughout their long corrupt terms in office shown nothing but contempt for federal law as they tried to hide their misconduct behind the shield of tribal sovereign immunity. The Kemthorne court today decreed that Chad Smith and all other corrupt tribal officials no longer have any place to hide. Today’s stunning federal court victory promises not only improved democratic accountability in tribal government for all Indian people, but also long overdue justice for our Cherokee brothers and sisters called the Freedmen.”
Robin Mayes
Jmb Said:
* I know that some readers may find it ironic that I’m complaining about an Indian tribe violating its treaty obligations with the US federal government, when the US government has broken countless treaties with the tribes.
The “Elder” Cornsilk says!
Yes it is sorta ironic Jim, you would say this as a Non-Cherokee Citizen, when it is an actual fact that while the US has broken many Treaties it is a historical fact the Cherokee People have NEVER broken a Treaty with the U.S. until Now and Chad Smith and this violation the absolute first!
Jmb Said:
I would argue however, that two wrongs don’t make a right, and more pertinently that the Freedmen were an indirect party to the treaty. In other words, the US government was serving as a protector and trustee of the rights of the Freedmen in this treaty, and as such while the US government sign the treaty, the real folks who were once protected by the treaty, and who are now hurt when it is broken, are the Freedmen.
The “Elder” Cornsilk says!
While the old cliché is true 2 wrongs don’t make a right, I am at a loss Jim how you get 2 wrongs, with only one party doing wrong and that be CNOT!!
John “The Elder” Cornsilk
Cherokee CNOT Member
Purveyor of Simple Truth!
JMB.
Thank you for standing up for the Cherokee Freedmen/Women.
Black people have been harmed and abused by so many non-black races in this country, only to have the aggressors scream and cry, “Denial!” time after time.
Thank you for making a difference.
Not many people care.
I for one would have wanted to see the Freedmen/Women take their case to the United Nations. I have posted on the racism from Chad Smith’s regime and the expulsion of the Freedmen/Women, because that is exactly what it is: a racial expulsion.
I agree with you; the CN election was badly handled and many Cherokee did not realize the gravity of the result of their uninformed vote.
I desire to see the Cherokee Freedmen/Women treated right and with respect to their right to citizenship in the CN.
God knows, black people have suffered enough at the hands of so many damn enemies in this hypocritical country.
Thank you for your time.
Thank you for your solidarity.
Peace.
(P.S.: If you do not mind, I would like to post your essay at my blog with your permission, with the link provided back to your site.)
Original Pechanga (comment #1), please feel free to reprint this post.
You also make very good arguments on behalf of the possible need for more punitive measures. You may be right, but I’m hoping (and that was this post was about) that another solution could be met.
In response to Gayle Ross (comment #2), I take offense at you referring to me as an “outsider.” The only reason I do not have CNO citizenship is because my Cherokee ancestor (at the time of the Dawes rolls) was forbidden to sign by her white husband.
I also object to you referring to me as being “woefully uninformed and misinformed.” I think I know far more about this subject than most of the CNO citizens who voted for this racist measure.
I do agree that the history is complicated and messy, and I understand the irony of calling upon the CNO to uphold a higher standard that the US federal government has ever met, but I would say in my defense that I support FULL REPARATIONS to all descendants of slaves, to be paid in shares by both the federal and also the state and tribal governments that allowed slavery to exist.
Yes, you are probably right that only 2% of Cherokees owned slaves (which was similar to the low percentages of slave ownership by whites in the south), but this doesn’t let the governments involved off the hook. The truth is that the CNO profited off of slavery, because it was government by, for, and of the rich, just like the federal and state governments were (and in large part still are).
Now, as to how the funds for these reparations can be found, I think the answer is simple. Tax the hell out of the rich, and then give the money to the descendants of those forced to labor against their will.
I’m sick and tired of hearing how the freemen/women are a bunch of uppity negroes who are trying to get more than they deserve! What about basic justice? Imagine spending 20, 40 even 60 years of your life working and never being paid for it. What would that be worth to you and your children? That is why I’m speaking out on this issue.
I love my people as a Cherokee. This is why I demand that we do better than this.
Well Sadly JM, as asinine as Gayle “the one who blows” Ross’s blathering is, because she simply don’t have a dam clue, complete BS in-toto I might add…simply a CROCK of equine excrement supplied her by smith and company,simply compare it to the crap on the CNOT site you have linked at the top of your article to know what it is!
She is right about your status, as the law stands today, maybe some day the law may be change to include the few who actually are of Cherokee descent, and yes it is a known fact there are a few though a scant few but they do exist! And sadly gale “one who blows” ross is a blue card toten CNOT-suckin fool, a slight nose bleed, and she would be non existent as a Cherokee, course thats just wishful thinking!
I sent your post to my Son David, he wrote back and said , “dam shame this man aint a Cherokee”! He is one of the most adament about the law, but does admit there are a few unenrolled Cherokee!
As for the ruling it is quite simple the crux of what it says I posted above, as I said it is an interestig read as to reference to law but the ruling of law is quite narrow and simple!
John “The Elder” Cornsilk
Real Cherokee CNOT Member
Purveyor of Simple Truth!
To Gayle,
We both live outside of the boundries of the CNO. Have you ever researched the 1860 Cherokee Slave Schedules, there are 6 files and can be found at:
http://www.accessgenealogy.com/native/census/index.htm
The number of 268, I don’t believe is true. My ancestors owned slaves, in fact when a 4th great grandpa left Hightower District in 1829, he brought his 11 slaves with him to Arkansas.
I also do not believe that 70% of the Cherokees fought for the Union, that is not true. Have you ever studied the Indian Brigade or the Kansas Indian Home Guards? Even John Ross signed a treaty to go Confederet and when he changed his mind, a large group (not 70%) changed sides as well. I recently read in a govt book published re: the 5 Tribes that special consideration was given to the slaves that John Ross owned, technically they were not in the Nation in 1866 because they had been removed by John Ross, they were admitted in an “exception” fuling. If you should research the Slave Schedules, you will find that among the largest slave owners was John Ross and his brother Lewis.
You wrote some interesting news, but you should really do some research yourself to discover the truth.
Thank you Mr Brannum for addressing this subject.
Donna
Well Sadly Donna, the CNOT-suckin fools won’t bother to read an learn anything they simple regurgitate the male bovine excrement Smith continuely feeds them…
The Situation is so simple to grasp, The Freedmen Are Descendants of Cherokee, by fact of Law, The last ruling says Smith an cronies can be sued, for racially discriminating against them, they have been and will be you can count on that, until the complete ignorance is iradicated!!!
John “The Elder” Cornsilk
Real Cherokee CNOT Member
Purveryor of Simple Truth!