Cherokee Nation v. Nash
267 F.Supp. 3d 86 (2017)
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Rule of Law:
A treaty between the United States and a Native American tribe guaranteeing a group of people and their descendants "all the rights of native" members secures a right to tribal citizenship that is coextensive with the rights of native-born members and cannot be extinguished by the tribe's subsequent constitutional amendments or internal laws.
Facts:
- Prior to the Civil War, the Cherokee Nation permitted the institution of slavery and passed laws disenfranchising people of African descent.
- During the Civil War, the Cherokee Nation entered into a treaty of alliance with the Confederate States of America, partly to preserve the practice of slavery.
- Following the Civil War, the United States required the Cherokee Nation to negotiate a new treaty to re-establish relations.
- In 1866, the United States and the Cherokee Nation executed a treaty, Article 9 of which mandated that freed slaves and their descendants "shall have all the rights of native Cherokees."
- Shortly after the treaty's ratification, the Cherokee Nation amended its constitution to explicitly recognize these freedmen and their descendants as citizens, stating this was necessary to comply with the treaty.
- Throughout the late 19th century, the Cherokee Nation passed acts attempting to exclude Freedmen from per capita distributions of tribal funds derived from land sales, limiting payments to "citizens of the Cherokee Nation by Cherokee blood."
- In 2007, the Cherokee Nation amended its constitution to remove citizenship from all persons who could not prove descent from an ancestor listed on the 'Cherokee by Blood' portion of the Dawes Rolls, thereby disenrolling thousands of Freedmen descendants.
Procedural Posture:
- The Cherokee Nation filed a complaint in the U.S. District Court for the Northern District of Oklahoma seeking a declaratory judgment against certain Freedmen descendants and the U.S. Department of the Interior.
- Descendants of original enrollees on the Dawes Commission's Freedmen Roll moved to intervene as a class.
- The case was transferred by the Oklahoma court to the U.S. District Court for the District of Columbia under the first-to-file rule, due to a pre-existing, related case.
- After the related case was dismissed and then reinstated on appeal, the instant case was briefly transferred back to Oklahoma before being returned permanently to the D.C. District Court.
- The parties agreed to stay pending motions and file cross-motions for summary judgment to resolve the core legal question of the Freedmen's rights under the 1866 Treaty.
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Issue:
Does Article 9 of the 1866 Treaty between the United States and the Cherokee Nation, which grants Cherokee Freedmen and their descendants 'all the rights of native Cherokees,' provide a continuing and enforceable right to citizenship in the Cherokee Nation?
Opinions:
Majority - Thomas F. Hogan
Yes, the 1866 Treaty guarantees a continuing right to Cherokee Nation citizenship for the descendants of Cherokee Freedmen. The plain language of Article 9, granting Freedmen and their descendants 'all the rights of native Cherokees,' is an expansive and unambiguous grant of rights. As citizenship is a fundamental right of native Cherokees, the treaty secures that same right for the Freedmen descendants. The Cherokee Nation’s own actions immediately following the treaty, namely amending its constitution to grant citizenship to the Freedmen, demonstrate its contemporaneous understanding that the treaty compelled this outcome. While the Cherokee Nation possesses sovereign authority to determine its membership, that sovereignty is limited by its binding treaty obligations. Later legislation, such as the Five Tribes Act of 1906, was administrative in nature, intended to finalize tribal rolls for allotment, and did not demonstrate the 'clear and plain' congressional intent required to abrogate the vested rights under the treaty. Therefore, the Freedmen's right to citizenship is coextensive with that of native Cherokees; their rights rise and fall together and cannot be unilaterally severed by the Nation.
Analysis:
This decision solidifies the principle that a tribe's inherent sovereignty, particularly the right to determine its membership, is not absolute and can be constrained by treaty obligations with the United States. It sets a strong precedent that rights granted by treaty are vested and enduring unless explicitly abrogated by a clear act of Congress, preventing tribes from unilaterally revoking such rights through internal legislation or constitutional amendments. The ruling resolves a long-standing legal and social conflict, affirming the citizenship of thousands of Freedmen descendants and reinforcing the supremacy of treaties in defining the relationship between tribes, the federal government, and distinct groups within the tribe.
