Wednesday, April 30, 2008

Cases in the DC Courts Memo and Order

A look at the Court's order in Vann vs DOI
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2003cv1711-41

1. The order cites this as Red Bird vs United States
http://supreme.justia.com/us/203/76/case.html
U.S. Supreme Court
Cherokee Intermarriage Cases, 203 U.S. 76 (1906)
Cherokee Intermarriage Cases
Nos. 125, 126, 127 and 128
Argued February 19, 20, 1906
Decided November 5, 1906
203 U.S. 76

APPEALS FROM THE COURT OF CLAIMS

Syllabus
Judgment of the Court of Claims affirmed to effect that all those white persons who married Cherokee Indians by blood subsequently to the enactment of the Cherokee law, which became effective November 1, 1875, acquired no rights of soil or interest in the lands and vested funds of the Nation as citizens, and that those white persons who married Cherokee citizens by blood prior to said date did acquire rights as citizens in the lands belonging to the Nation, and held and owned as national lands, except such of them as lost their rights as Cherokee citizens by abandoning their Cherokee wives or by marrying other white or non tribal men or women having no rights of citizenship by blood in said Cherokee Nation.

The rule that the language of a statute is to be interpreted in the light of the particular matter in hand and the object sought to be accomplished as manifested by other parts of the act, and that the words used may be qualified by their surroundings and connections, applied to the construction of the acts of Congress relating to citizenship in, and distribution of tribal property of, the Cherokee Nation.

It is a settled rule of construction that, as between the whites and the Indians, the laws are to be construed most favorably to the latter.

40 Ct.Cl. 411 affirmed.


2. Allen vs Cherokee Nation Council
http://www.cherokeecourts.org/Portals/5/JAT-04-09%2054-Opinion%203-7-06.pdf

(It is the amendment to the Cherokee Constitution which is still in limbo at the BIA and which was in response to this Cherokee Case interpreting the Cherokee Constitution - once again the Cherokee people are merely refining it's membership requirements which has been upheld as within their inherent sovereign powers.)

(there is nothing in either of these cases to show that the Cherokee Nation should not be allowed to determine it's own membership requirements; the first has to do with white intermarriages prior to 1875 and after that time period and the second has to do with the Cherokee Constitution and it's interpretation by the Cherokee courts)

(Since the Freedmen are on the Dawes Roll as non Cherokee, no blood quantum listed - then it seems the supporting documentation to those rolls would necessarily be conclusive records of what the Freedmen Roll was based on including whether or not there was any blood quantum - otherwise this roll will be interpreted outside it's historical context - these records are now at least 100 years old)


3. Wheeler vs DOI
http://cases.justia.com/us-court-of-appeals/F2/811/549/
United States Court of Appeals, Tenth Circuit. - 811 F.2d 549
Feb. 13, 1987

Conversely, the Cherokee Nation has a system for interpreting tribal law, and, when a tribal forum is available, courts have specifically held that the aggrieved party must seek relief in that forum. Learned v. Cheyenne Arapaho Tribe, 596 F.Supp. 537 (W.D. Okla. 1984); Ike v. United States Dept. of Interior, 9 Indian L. Rep. (Am. Indian Law. Training Program) 3043, No. CV-R-81-293-ECR (D. Nev. Mar. 10, 1982). Furthermore, in Goodface, 708 F.2d at 335, the court, in an election dispute, ordered the Department to recognize the newly elected tribal government, but only until the tribal forum resolved the election dispute. Since a tribal forum existed, neither the district court nor the Department had power to resolve the election dispute. Goodface, 708 F.2d at 339. Therefore, without deciding whether the Department should become involved when a tribal forum is not available, we hold that when a tribal forum exists for resolving a tribal election dispute, the Department must respect the tribe's right to self-government and, thus, has no authority to interfere.*

Indian tribes have a right to self-government, and the Federal Government encourages tribes to exercise that right. Consequently, while the Department may be required by statute or tribal law to act in intratribal matters, it should act so as to avoid any unnecessary interference with a tribe's right to self-government. Plaintiffs have not cited, and we have not found, any federal statute or any provision of Cherokee law that requires the Department to intervene in a Cherokee election dispute. Rather, the Cherokee Nation provides a tribal forum for resolving such disputes. Consequently, the Department has no authority to take action contrary to the tribal resolution of such disputes. In the present case, the Department does not have authority to invalidate the Cherokee election, and the courts have no authority to order the Department to grant such relief. The district court correctly granted defendants' motion for summary judgment, and its decision is accordingly AFFIRMED.

(Modern cases all recognize that Indian Tribes have self governance over their internal affairs; among those internal affairs is the right to determine their membership criteria; this order is in disagreement with all the other circuits on the issue of the 13th amendment and the Indian Civil Rights Act and it's effect on Indian Tribes - if this 1866 Treaty is a Badge of Slavery, why would the court wish to uphold it? In South Carolina the Confederate Flag was considered a badge of slavery and as such it was ordered removed from their Capital; it appears to this writer that the Freedmen are seeking citizenship within the Cherokee Nation solely based on their status as descendants of Slaves - there is no indication that any of the Freedmen are subject to involuntary servitude-nor did the Treaty of 1866 impose any responsibility onto the Cherokee Nation for *taking care of the Freedmen* - they only include the right to be treated like other Indians in the Territory, which could mean they would have the right to seek Federal Recognition as Freedmen like all the other Tribes in the Indian Territory - so many solutions to this problem but only force seems to come from the Congressional Black Caucus)

(It also appears this case is being handled as a straight Black Civil Rights case without regard to any of the Indian Cases involved; apparently there are some self ID'd descendants of slaves that didn't get on the Dawes Roll as Freedmen, who are now trying to claim that status under the 1866 Treaty - the court of claims has rightly ruled they are well over 100 years to late to state such a claim)