Wednesday, April 30, 2008

News from the Front

Three courts considering Freedmen claims

By Will Chavez

TAHLEQUAH, Okla. – As the Freedmen issue is discussed in the halls of Congress, attorneys for Freedmen descendents and the Cherokee Nation are preparing for more hearings in three different courts.

The U.S. District Court in Washington, D.C., the District of Columbia Circuit Court of Appeals and the Cherokee Nation District Court have Freedmen cases pending.

Six Freedmen descendents are waiting for their case, Vann v. Kempthorne (Department of Interior), to be heard in U.S. District Court regarding their citizenship and voting rights in the CN. The plaintiffs contend the CN, with approval from the DOI secretary Dirk Kempthorne, prevented them from participating in the 2003 tribal election and seek a court order declaring the 2003 election invalid. They also want DOI to not recognize the results of the elections until Freedmen are permitted to vote.

In December 2006, a federal judge denied the CN’s motion to dismiss Vann v. Kempthorne and issued an opinion that the CN’s sovereign immunity did not prevent the tribe from being sued.

“That is the kind of order that can immediately be appealed,” said CN Attorney General Diane Hammons. “We did that. So now that part of the case is in the Federal (D.C.) Circuit Court of Appeals.”

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BIA approves amendment but not constitution

By Will Chavez

TAHLEQUAH, Okla. – The Bureau of Indian Affairs acknowledged on Aug. 9 that the federal government no longer has the authority to approve amendments to the Cherokee Nation’s Constitution. However, according to the CN attorney general, it doesn’t mean the agency approved the 2003 Constitution.

In a letter to the tribe, BIA Assistant Secretary Carl J. Artman stated the Cherokee people voted on and approved a constitutional amendment on June 23 that removes federal approval of changes to the CN Constitution. The amendment removes Section 10 of Article 15 in the 1975 CN Constitution that states no amendment or new constitution shall be effective without presidential approval or his authorized representative.

Cherokee voters initially OK’d the removal of federal approval during the 2003 general election before approving the new constitution in the runoff election.

“They (BIA) approved the (June 23) reaffirmation (of the amendment),” Attorney General Diane Hammons said. “The practical effect will be that we will not submit anything to them for approval anymore nor will they ask for it. It doesn’t necessarily mean the 2003 Constitution is also approved, and I think Artman worded his letter the way he did because the 2003 Constitution itself is the whole subject of Vann v. Kempthorne.”

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Attorney General issues opinion on term limits

By Will Chavez

TAHLEQUAH, Okla. – At the Tribal Council’s request, Attorney General Diane Hammons recently wrote an opinion stating Cherokee Nation officials elected in 2007 are serving their first term under the 1999 Constitution.

The council’s Rules Committee requested Hammons’ opinion on the term limits outlined in the 1999 Constitution, which became law in 2006. The committee asked if elected officials who took office in 2007, and who were previously elected in 2003, were serving their first or second term under the constitution.

She answered the committee stating that any official who served from 2003-07 and was re-elected in 2007 would be serving his or her first term.

In her opinion, Hammons wrote the 1999 Constitution instituted term limits for elected officials that were not included in the previous constitution. The council limitation found in the 1999 document states that councilors shall be limited to two consecutive terms and must sit out a term before seeking re-election to a council seat.

The principal chief and deputy chief terms are also limited. According to the constitution, anyone having been elected principal chief in two consecutive elections shall not be eligible to file for the principal chief seat in the election following his or her second term.

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