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Federal judge promises quick decision in Cherokee freedmen case

— After 11 years of sometimes contentious litigation, a federal judge said here Monday that he will soon decide whether the Cherokee Nation can bar citizenship to descendants of slaves who had been owned by tribal members.

Senior U.S. District Judge Thomas F. Hogan made the announcement after a hearing on the core issue in the case: whether an 1866 treaty between the tribe and the U.S. government means Cherokee freedmen descendants must always have the same rights as native Cherokees.

Hogan voiced skepticism on Monday that the treaty allows the tribe to change its constitution to require tribal blood for citizenship.

Cherokee voters approved such a change in 2007, and tribal attorney Diane Hammons argued Monday that the Cherokee Nation — the biggest tribe in the United States — has the right to define its own citizenship.

She said a previous U.S. Supreme Court decision allows tribes to set membership requirements, even ones “that seem sexist or racist.” And Hammons said the 1866 treaty was approved at a time when the freed slaves lived among tribal members and neither group was considered U.S. citizens; freedmen no longer need the protection tribal citizenship afforded them, she said.

Descendants attend

Attending the hearing Monday was a contingent of freedmen descendants, including Marilyn Vann, of Oklahoma City, who was the lead plaintiff in the original lawsuit filed in 2003. Vann estimated that 30,000 freedmen descendants could be affected by the outcome of the case.

Norman attorney Jon Velie, who is representing Vann and the freedmen, told Hogan that some individual Cherokees owned slaves on plantations and declared war on the United States to protect slave-holding. After the Civil War, he said, Cherokee leaders believed the treaty they signed with the United States was meant to guarantee tribal citizenship for freedmen and their descendants in perpetuity.

The judge repeatedly asked about the benefits that Cherokees receive from tribal membership. Velie and Hammons said there were health care benefits, employment assistance, education assistance and voting rights.

Velie said the issue wasn’t so much the benefits as the cultural heritage and identity that would be taken from freedmen if they’re denied citizenship in the Cherokee Nation.

U.S. government attorney Amber Blaha said the historical evidence was compelling on the side of the freedmen.

The Cherokee Nation “made a commitment: We will give the (freedmen) and their descendants all the rights of native Cherokees,” Blaha told the judge.

Unusual agreement

The hearing Monday was made possible by an extraordinary agreement among the tribe, the Department of Interior and the freedmen to stop arguing over side issues and allow a judge to interpret the 1866 treaty.

Hogan alluded to the fact that whatever he decides could be appealed. However, just having a district judge’s opinion on the core issue would represent major progress in the case.

Cherokee Nation Attorney General Todd Hembree attended the hearing Monday and told The Oklahoman afterward that he made getting a resolution in the case a top priority when he took office two years ago.

Hembree, who shook hands with Velie, the opposing attorney, after the hearing, said the judge had been fair and balanced.

“I was happy to hear he would make his decision shortly,” Hembree said.

Chris Casteel

Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. Casteel covered the police beat, federal courts and the state Legislature in Oklahoma City. From 1990 through 2016, he was the... Read more ›

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