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Cherokee Nation drops DOI and Salazar from Freedmen suit
By WILL CHAVEZ
Mon, Oct 18, 2010
TAHLEQUAH, Okla. – The Cherokee Nation on Oct. 6 dropped the Department of Interior and Interior Secretary Ken Salazar as defendants from its federal lawsuit against five Cherokee Freedmen.
The lawsuit was filed Feb. 2, 2009, in the Northern District of Oklahoma. It sought declaratory judgment regarding the citizenship of Cherokee Freedmen under an 1866 Treaty between the CN and federal government.
Salazar, the DOI and the five Freedmen in the case moved to transfer the case to the District Court for the District of Columbia where a similar case (Vann et al v. Salazar) has been since 2003.
On July 2, 2010, U.S. District Judge Terence C. Kern for the Northern District of Oklahoma said the case should be transferred to the District of Columbia court because the plaintiffs and defendants in both cases were substantially similar and “involve a single core” issue – whether the 1866 Treaty guarantees Cherokee Freedmen certain rights within the CN.
However, CN Attorney General Diane Hammons said Kern did not transfer the entire case to the D.C. circuit.
“Instead, he asked the judge in the D.C. case to decide whether or not the case should be heard in D.C. or if it should be heard in Oklahoma. That decision has not been made yet, and there is still a possibility that this case can be heard here in Oklahoma, where the Cherokee Nation is located and where the non-Indian Freedmen descendants, who are parties to the suit, also live,” she said. “For whatever reason, some people on the other side of the case would rather have this case take place in Washington, D.C., which adds costs and inconvenience to all parties.”
Freedmen attorneys Alvin Dunn and Jon Velie said the CN filed the Oklahoma action “solely as a tactical maneuver” to avoid having the case heard in Washington.
“The Cherokee Nation filed the Oklahoma action only after a protracted intervention in the D.C. action, first attempting to have the suit dismissed and then seeking to re-assert its sovereign immunity,” Dunn and Velie wrote in a court brief. “It was only in 2009, when the Cherokee Nation feared that this (D.C.) court might hear the claims brought by the Freedmen against (Principal) Chief (Chad) Smith, that the Cherokee Nation sought to circumvent that outcome by seeking to have those claims heard instead by a court of its own choosing – the U.S. District Court for the Northern District of Oklahoma.”
On Aug. 31, 2010, the U.S. Department of Justice filed a motion to dismiss the federal defendants from the tribe’s 2009 lawsuit. The CN responded on Oct. 6 by requesting the court to dismiss the claims against the DOI and Salazar, who indicated they did not intend to waive their sovereign immunity to litigation for claims the tribe alleged.
“That lack of waiver, at this time, prevents the Cherokee Nation from litigating this action against the federal defendants for a declaratory judgment as to the rights of the Cherokee Nation and the United States under the Treaty of 1866, as amended,” the tribe’s request states.
Regarding the other Freedmen court cases, Vann v. Salazar is pending in the D.C. court, and there is a judgment pending in CN District Court in the case of Nash v. Cherokee Nation Registrar, which was filed in 2007. A hearing was held for that case in July 2009.
Nearly 390 Freedmen joined Nash in the suit claiming they were illegally removed from the Nation’s citizenship rolls through an amendment approved by Cherokee voters in March 2007. In the 2009 hearing, both sides asked the judge for a summary judgment, which is a decision made on the basis of statements and evidence presented for the record without a trial.