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The descendants of “Freedmen,” former African slaves owned by the Cherokee Nation, may go forward with a lawsuit against the tribe’s officers in which they claim they were barred from voting in two tribal elections because they lacked an ancestral link to the “Blood Roll” of native Cherokees, a federal appellate court has ruled. A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia held on July 29 that the tribe itself was protected from suit by sovereign immunity, but that immunity did not extend to tribal officers. Vann v. Kempthorne, No. 07-5024. The sovereign immunity question drew the panel back into the tribe’s history, a history marked by a “stain” shared by the United States, it said: ownership of African slaves. In an 1866 treaty with the United States, the Cherokee Nation renounced slavery and involuntary servitude, and promised to extend “all the rights of native Cherokees” to the former Cherokee slaves, who came to be known as “Freedmen.” In 1896, Congress directed the Dawes Commission to create membership rolls for the so-called Five Civilized Tribes of Oklahoma, which included the Cherokee Nation. The rolls for the Cherokees, completed in 1907, resulted in two lists: a “Blood Roll” for native Cherokees, and a “Freedmen Roll” for former slaves and their descendants. The panel explained that the lists serve an important function because the tribal constitution of 1976 provides that citizenship in the Cherokee Nation must be proven by reference to the Dawes Commission Rolls. Marilyn Vann and other descendants of persons listed on the Freedmen Roll allege they were not permitted to vote in two tribal elections in 2003. They sued the secretary of the U.S. Department of Interior, who is responsible for approving election procedures, claiming violations of the 13th and 15th amendments, the Cherokee constitution, the 1866 Treaty, the Principal Chiefs Act and the Indian Civil Rights Act. The Cherokee Nation, its chief and other tribal officers were added as defendants. The district court held that the Cherokee Nation and its officers did not enjoy sovereign immunity from suit. The appellate panel, however, said that U.S. courts have long recognized that Indian tribes were and remain independent political societies. As sovereigns, they enjoy immunity against suits unless Congress abrogates it by “an explicit and unequivocal statement to that effect.” The panel said there was no such abrogation in the 13th Amendment, the treaty and other texts on which the Freedmen relied. In deciding whether the tribal officers enjoyed immunity, the panel looked to a key Supreme Court precedent and related cases which have been applied to tribal immunity questions. “Faced with allegations of ongoing constitutional and treaty violations, and a prospective request for injunctive relief, officers of the Cherokee Nation cannot seek shelter in the tribe’s sovereign immunity,” wrote Judge Thomas Griffith. John Velie, partner in Velie & Velie in Norman, Okla., counsel to Vann and the Freedmen, said, “The court crafted an opinion that protects both tribal sovereignty and individual Indian civil rights. The is a great day for Indian Country.” The suit seeks an injunction prohibiting future elections without Freedmen participation, including the right to run for office.

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