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Our firm assisted a tribe in its successful effort to secure a Forest Service decision banning rock climbing on Cave Rock, a significant tribal cultural site, and filed an amicus brief in Access Fund v. U.S. Department of Agriculture in support of the Forest Service’s decision, which was upheld.

General Memorandum 17-046

General Memorandum 17-046
Court Rules Freedmen Have Citizenship Rights in the Cherokee Nation of Oklahoma

On August 30, 2017, the U.S. District Court for the District of Columbia issued a decision in Cherokee Nation v. Nash, the case involving the right of the "Freedmen", former slaves of the Cherokee people, to join the Cherokee Nation of Oklahoma ("Cherokee Nation") as citizens. Judge Thomas Hogan, writing for the court, held that the Freedmen have the right to citizenship under The Treaty of July 19, 1866 with the Cherokee ("1866 Treaty"). Following the decision, the Cherokee Nation's Attorney General said that he will not file an appeal and that his office "will move forward in a way that best serves the interests of the Cherokee Nation and its citizens, including Freedmen descendants."

The Cherokee Nation filed suit in 2009 against the Freedmen and the U.S. Interior Department in order to obtain a ruling on whether a 2007 amendment to the Tribe's Constitution to terminate the Freedmen's citizenship was permissible. The 2007 Constitutional amendment followed a 2006 Cherokee Nation Supreme Court ruling that the Freedmen were eligible for tribal citizenship.

In the Cherokee Nation decision, Judge Hogan ruled that 1866 Treaty gave the Freedmen the same rights as "native" Cherokees. Article 9 of the 1866 Treaty states: "that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees."

Hogan wrote that the Cherokee Nation was mistaken "to treat [F]reedmen's right to citizenship as being tethered to the Cherokee Nation Constitution when, in fact, that right is tethered to the rights of native Cherokees. Furthermore, the [F]reedmen's right to citizenship does not exist solely under the Cherokee Nation Constitution and therefore cannot be extinguished solely by amending that Constitution."

Hogan concluded:

"The Cherokee Nation's sovereign right to determine its membership is no less now, as a result of this decision, than it was after the Nation executed the 1866 Treaty. … The Cherokee Nation can continue to define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and the descendants of Cherokee [Freedmen]."

Counsel for the Freedmen have stated that they will work with the Cherokee Nation to secure full citizenship rights in the tribe, including voting rights, the ability to run for office, and access to health care, education and other benefits. In a recent press release, Cherokee Nation announced that it has begun processing membership applications for Freedmen descendants.

Please let us know if we may provide additional information regarding this case.

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Inquiries may be directed to:
Chris Stearns (cstearns@hobbsstraus.com)

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