Well Folks on the Brief Robin McLain Smith been posting tidbits from I guess is about all a person can do that is not a puter whiz...Marilyn Vann was kind enough to send me a copy of it I got it open and can read it but that is all I can not find a way to make or post a link, cant do anything with this format, if there is any out there that can let me know and I will see if I can forward the copy I have... The one thing that sticks out like a sore thumbh, much of it is stuff the Cornsilks been telling ya for a long time... Here is a tid bit that may be of interest: The Cherokee Nation’s assertion that Article 9 of the Treaty has been abrogated should be rejected. IV. THE CHEROKEE NATION DOES NOT HAVE A SOVEREIGN RIGHT TO DISREGARD FEDERAL TREATY OBLIGATIONS. The Cherokee Nation argues that it has the sovereign right to determine its own membership, and that this entitles the Nation to exclude the Freedmen. Interior agrees that the Cherokee Nation is a sovereign entity that retains powers of self-government. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978). These retained powers include, as a general matter, the power to define its own membership. Id. at 72; Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007). However, tribal authority, including the right to define tribal membership, can be constrained by treaties or other federal laws. See United States v. Wheeler, 435 U.S. 313, 323 (1978) (“Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute….”); Vann v. Kempthorne, 534 F.3d 741, 746 (D.C. Cir. 2008) (“Congress may whittle away tribal sovereignty as it sees fit.” (citations omitted); see also Williams, 490 F.3d at 789 (“An Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress.”); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 880 (2d Cir. 1996) (tribes have right “absent limitation by treaty or federal statute . . . to determine questions of membership.”). In this case, through Article 9 of the Treaty of 1866, Congress has constrained (with the Cherokee Nation’s agreement) the Nation’s authority to determine tribal membership. In a slightly different context, the D.C. Circuit has already rejected the Cherokee Nation’s argument that the Tribe’s interest in defining tribal membership to exclude the Freedmen is a “core sovereign interest” of the tribe. Vann v. Kempthorne, 534 F.3d at 755 (D.C. Cir. 2008). The Vann Court was considering the Cherokee Nation’s argument that the Freedmen could not pursue their claims relating to membership against individual Cherokee officers under an Ex parte Young theory because “the requested relief ‘implicates special sovereignty interests.’” 534 F.3d at 755 (citations omitted). The Court rejected this argument, stating “[t]he Cherokee Nation has no interest in protecting a sovereignty concern that has been taken away by the United States.” Id. The Court held that “the Thirteenth Amendment and the 1866 Treaty whittled away the tribe’s sovereignty with regard to slavery and left it powerless to discriminate against the Freedmen on the basis of their status as former slaves.” Id. at 756. The Cherokee Nation also discusses, at some length, the passage of the Oklahoma Indian Welfare Act of 1936 (OIWA)23, and a 1941 Department of the Interior Solicitor’s memorandum that concludes that the “Freedmen were adopted as full members into the Cherokee, the Choctaw, the Seminole, and the Creek Tribes pursuant to the treaties of July 19, 1866 (14 Stat. 799) (Cherokee). . .” and that the Freedmen had “all rights of citizenship in the Nations, including the right of suffrage.” See CN Br. at 22-23; Ex. 39, Solicitor’s Opinion, Oct. 1, 1941, 1 Op. Sol. on Indian Affairs 1076-78 (U.S.D.I. 1979). That memorandum also stated that the Oklahoma Indian Welfare Act provided the consent of Congress for tribes to reorganize, as provided for by that Act, and modify their membership requirements if desired. Even assuming arguendo that OIWA reflects a clear congressional intent to provide a path for the abrogration of rights and obligations guaranteed by earlier treaties, it does not apply here. The Cherokee Nation has never reorganized under OIWA. See, e.g., United Keetoowah Band of Cherokee Indians of Oklahoma v. United States, 67 Fed. Cl. 695 (Ct. Cl. 2005) (noting that the Cherokee Nation has never been organized under OIWA)
Posted on: Sun, 02 Feb 2014 17:47:39 +0000