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October 1, 2011

Judge tosses 1 of 2 suits over Cherokee freedmen

OKLAHOMA CITY — A federal judge on Friday dismissed one of two lawsuits over whether black slaves once owned by members of the Cherokee Nation have the right to tribal citizenship.

U.S. District Judge Henry Kennedy in Washington ruled that a lawsuit brought by the slaves’ descendants alleging that about 2,800 freedmen were disenfranchised in violation of the 13th Amendment of the U.S. Constitution and the Treaty of 1866 could not proceed because the tribe was not a defendant in the case and couldn’t be compelled to abide by the court’s ruling.

The dismissed suit also claimed the Treaty of 1866 gave the freedmen and their descendants “all the rights of native Cherokees.”

The tribe at one time was a defendant in the 2003 lawsuit but it was dismissed. The tribe’s chief and officials at the U.S. Department of the Interior, which includes the Bureau of Indian Affairs, also were named as defendants.

Friday’s ruling doesn’t affect a court order issued last week that allows the freedmen to vote in the special election for principal chief. A tribal supreme court order reinstated a tribal constitutional amendment that effectively kicked the freedmen out of the tribe and wouldn’t allow them to participate in balloting.

Kennedy also transferred a second lawsuit by the Cherokee Nation against another group of freedmen back to federal court in Tulsa, where it was initially filed. In that lawsuit, the tribe argued that federal statutes modified the 1866 treaty in a way that no longer provided the Freedmen rights to citizenship.

Kennedy wrote that the lawsuit, Cherokee Nation v. Nash, offers the freedmen an alternative forum for the legal issues underlying the case to be addressed.

“Unlike a potential judgment in this case, which would not bind the Cherokee Nation, the Cherokee Nation is the plaintiff in Nash and would be bound by any judgment rendered in that suit,” he wrote.

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