Tuesday, July 29, 2008

Federal Opinion - Freedmen vs Cherokee Nation

Link to the Federal Appeals Opinion:

http://pacer.cadc.uscourts.gov/common/opinions/200807/07-5024-1130149.pdf

Federal Court rules in Cherokee Nation's favor on Tribal Immunity

Tribal Officers not immune from suit.

This case is going to hold tribal officials responsible for their actions under Ex Parte Young, more on this later. This is a Federal Appeals court, so this will make the litigation very far from finished.

The question will be whether or not the Tribal Officials were acting on behalf of the Cherokee Nation or had a personal interest? If acting on behalf of the Tribe, I'd say they would not be liable - recall there was a democratic vote on this - however, it also appears the only thing that could be done, is to issue an injunction - which the Cherokee Nation has already stipulated to. I don't see where the Chief or the Council had a *personal* interest in this issue other than implementing the vote of the people and this has been an issue within the Cherokee Nation for a very very very long time, long before casinos. I don't know, seems to me with the injunction in place this is really a moot issue at this point.

So the real question comes down to the interpretation of that 1866 Treaty and subsequent congressional acts ... and how the Cherokee Constitution plays into all this. If they tie the 13th amendment to this 1866 Treaty it would seem that this provision in the Treaty modernly would not apply to the Tribes. The District court will determine whether it's a badge of slavery, but the Supreme Court has stated the Bill of Rights do not apply to the Tribes.

So this case is a long way from being over.

All very interesting issues by the way....:)