Freedmen Descendants' Lawsuit Against Cherokee Nation Dismissed

07/29/2008
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July 29, 2008

Freedmen Descendants' Lawsuit Against Cherokee Nation Dismissed

D.C. Circuit Court of Appeals unanimously rules that Cherokee Nation has sovereign immunity, Rejects Freedmen descendants' theory
 
Opinion says tribal sovereign immunity existed since founding of U.S. and continues today

 WASHINGTON, DC. -- The U.S. Court of Appeals for the District of Columbia Circuit unanimously dismissed a lawsuit against the Cherokee Nation brought by a handful of non-Indian Freedmen descendants. 
            Judge Thomas Griffith, in his written opinion for the three members of the court, stated: “The Freedmen argue that our search for intent to abrogate is misguided because the Thirteenth Amendment and the 1866 Treaty predate the doctrine of tribal sovereign immunity, such that the drafters of those texts could not have foreseen the interpretive rule requiring express and unequivocal abrogation ... This argument misapprehends the nature of tribal sovereign immunity, which is not the product of any enactment but an inherent attribute of a tribe's sovereignty.  Tribal sovereign immunity existed at the Founding, as surely as did tribal sovereignty, and our only concern is whether the Thirteenth Amendment or the 1866 Treaty later abrogated that immunity.  The unequivocal-abrogation rule reflects the belief, as true in the nineteenth century as it is today, that lawmakers do not lightly discard sovereign immunity.  We see no reason to depart from the established interpretive rule based on the vintage of the texts.  Because nothing in the Thirteenth Amendment or the 1866 Treaty amounts to an express and unequivocal abrogation of tribal sovereign immunity, the Cherokee Nation cannot be joined in the Freedmen's federal court suit without the tribe's consent.  We reverse the District Court’s determination to the contrary.”
“In the 1830s, the Cherokee Nation won court cases, but Congress and the President ignored the rulings and instead forcibly removed the Cherokee Nation from our eastern homelands on the Trail of Tears, killing more than a quarter of our tribe’s population,” said Chad Smith, Principal Chief of the Cherokee Nation.  “It remains to be seen whether Congress will treat the Cherokee Nation any differently 170 years later.   Today, the court held that the 1866 Treaty preserves the Nation’s sovereign immunity from these claims.  What Congress and the Nation agreed to in 1866, the Congress should not violate now.  The court has sent the case back to the District Court, and Congress should continue to let the courts decide.”
The appeals court remanded the case against tribal officials back to the District of Columbia District Court.  Griffith wrote: “The District Court must determine whether ‘in equity and good conscience’ the suit can proceed with the Cherokee Nation’s officers but without the Cherokee Nation itself.”

 “This decision is a strong affirmation for tribes across the country, who rely upon federal courts to uphold tribal sovereignty when it comes under attack,” said Chief Smith.  “The court once again acknowledged that tribes have inherent sovereignty that predates the founding of the United States, and that tribal sovereign immunity still exists today.”

Full opinion is available here.
The full opinion is also available at www.cherokeenationfacts.org and www.cherokee.org.