House Financial Services Subcommittee Issues Testimony From Descendants of Freedmen of Five Civilized Tribes Association

WASHINGTON, July 27 -- The House Financial Services Subcommittee on Housing, Community Development and Insurance issued the following testimony by Marilyn Vann, president of the Descendants of Freedmen of the Five Civilized Tribes Association, at a hearing entitled "Native American Housing and Self Determination Act of 1996 Reauthorization: Addressing Historic Disinvestment and the Ongoing Plight of the Freedmen in Native American Communities":

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My name is Marilyn Vann and I serve as the President of the Descendants of Freedmen of the Five Civilized Tribes Association, which is an Oklahoma based nonprofit. The organization educates the public on the 1866 treaties, which created citizenship rights for the black freedmen and freedmen descendants of the Five "Civilized" Tribes (Cherokee Nation, Muscogee Creek Nation, Seminole Nation of Oklahoma, Choctaw Nation of Oklahoma, and Chickasaw Nation). The Association also works for an end to Federal and tribal discrimination against freedmen descendants in tribal enrollment, and in receiving Federal and tribal funded services available to members/citizens of federal recognized tribes. Our organization has members and official supporters throughout the United States and incorporated in 2002. I have been President of the organization since incorporation. On behalf of the Association, I want to thank the Subcommittee for holding today's hearing and for issuing an invitation to me to testify before you today on this important issue. In addition, I want to recognize and thank Chairman Maxine Waters and her staff for their steadfast support of the freedmen and to strengthening NAHASDA.

I am a member of the Cherokee Nation and was a litigant in the DC Federal court litigation, Cherokee Nation v. Nash and Vann v Zinke and all the historical research for the legal briefs. These cases reaffirmed the 1866 treaty rights to tribal membership of Cherokee freedmen descendants. In 2021, I was also a litigant in Cherokee Nation tribal court case (Mayes v. Cherokee Nation Election Commission and Vann), which dealt with the rights of freedmen tribal members to hold office. Although I am not an attorney (I am a retired engineering team leader), I have spoken on the history and the rights of the freedmen descendants for almost 20 years including at the Congressional Black Caucus Foundation meetings in 2007 and 2008. My ancestors on the federal Dawes Indian tribal rolls were registered as Cherokee, Chickasaw, and Choctaw freedmen although I do have documented Cherokee and Chickasaw Indian ancestry. By education I have a BS degree in engineering and retired from the Federal government as a Treasury Department Engineering Team leader with 32 years of Federal service.

NAHASDA Draft Legislation - Title VI, Section 604 (Compliance with Treaty Obligations)

Honorable Committee members, I appear before you today to urge you to include Title VI Section 604 Compliance section in the final NAHASDA reauthorization bill that is adopted by Congress. This provision would authorize the Secretary of the Department of Housing and Urban Development (HUD) to withhold or reduce NAHASDA funds from one (or more) of the 5 Oklahoma based tribes (formerly known as the Five Civilized Tribes) if the tribe is found to be in violation of 1866 treaty obligations relating to lineal descendants of freedmen registered on the Final Rolls approved by Congress in 1907. It is important to note that this provision only applies to the five tribes referenced in this testimony. Current NAHASDA law includes a provision (section 801) passed in 2008 that limits NAHASDA funds to the Cherokee Nation if a temporary court order continuing freedmen citizenship was violated during the pendency of the federal litigation. Litigation ended in 2017 after United States District Court Judge Thomas Hogan ruled in favor of the Cherokee freedmen descendants retaining their citizenship rights in Cherokee Nation v. Nash./1

The language in the draft bill would allow tribal freedmen descendants to have access to NAHASDA funded programs without having tribal registration. It would also create financial incentives for tribal governments and their housing authorities to come into compliance with treaty obligations with respect to descendants of freedmen. Tribal nations in compliance with their treaty obligations would not be affected. Furthermore, as noted above, the language does not affect any of the more than 500 tribal nations which did not go to war against the United States to keep blacks as permanent slaves.

Background and History

The freedmen were persons of African ancestry legally living within the 5 tribes at the beginning of the Civil War - the majority who were enslaved under tribal law. The 5 tribes in 1861 signed treaties with the Confederate states with the continuation of black chattel slavery being the primary reason for the alliance with the confederate states. Although not all tribal members owned slaves, the leadership of the 5 tribes were slaveholders, and the majority of the tribes' wealth was due to the slave based economy. Some of the tribal slaveowners owned hundreds of slaves, lived in mansions, and had large plantations. The 1866 treaties of the Cherokee, Creek and Seminole nations adopted after the Civil War between the tribes and the United States Government ended slavery in the tribes, and set up provisions for tribal citizenship of the freedmen with provisions giving freedmen all the rights of native Indians of their tribal nation. The 1866 Treaties between the Choctaw and Chickasaw nations and the U.S. Government Gave each of these tribes the option to adopt the freedmen, in which case the tribe would receive a payment from the U.S. Government. The Choctaw nation adopted the freedmen in 1883, and received the funds they were entitled to as stated in the 1866 treaty. Tribal freedmen were not entitled to US citizenship under the 14th amendment to the United States Constitution as they were not slaves of U.S. citizens. The members/citizens of the 5 tribes, including freedmen, were not U.S. citizens and did not receive U.S. citizenship until the 1901 Five Tribes Citizenship Act was passed. The Dawes final rolls were made by the U.S. government between 1898 and 1906 to distribute lands of the 5 tribes owned in common to the citizens/tribal members based on agreements between each tribe and the Federal government. The majority of members of the tribes were listed on the "by blood" sections of the rolls with a degree of blood assigned by the Dawes commission.

Freedmen/descendants of freedmen of the Five tribes were placed on separate sections of the Dawes rolls without degrees of blood by the U.S. Government largely to have a class of citizens whose allotment land would have restrictions lifted earlier (1904) than other tribal members. A review of tribal membership lists (such as the Cherokee Nation 1880 tribal census) and U.S. government payment rolls (such as the 1852 Cherokee Drennen payment roll), and the 1871 immigration roll of Shawnees who were granted citizenship in the Cherokee Nation by agreement between the U.S., Cherokee and Shawnee tribes show that the 5 tribes and the U.S. government did not have degrees of blood/blood quantum for tribal members before the late 1890s. In the 1926 Oklahoma Supreme Court case Sango V Willig, the court makes it clear that a Dawes enrolled Creek freedwoman whose mothers was listed as a 1/4 Creek by blood on the Dawes roll is a "non Indian" for allotment purposes (i.e. the date to sell her allotment) but not necessarily for other purposes. As stated in the book, "The Dawes Commission" by national archives administrator Kent Carter, persons of mixed African Indian blood were generally classed as freedmen by the Dawes Commission. The Department of the Interior (DOI) issues certificate of Indian blood cards (CDIB) based on the degrees of blood assigned by the Dawes commission. Descendants of freedmen are unable to acquire CDIB cards for this reason. In the 20th century, the U.S. government began to use the degrees of blood to limit access to tribal services - again divesting the freedmen communities of needed resources.

Need for Congressional Action and Federal Legislation

At the end of the Civil War, written promises were made to tribal freedmen and their descendants - promises which have been broken. Today's descendants of freedmen are denied access to Federal housing programs available to members of Federal tribes in violation of the treaty provisions by tribal governments whose leadership assert tribal sovereignty as sufficient reason to violate the treaty and human rights of the freedmen. However, just as the U.S. Supreme Court determined the U.S. government did not have a unilateral right to break Article 3 of its 1866 treaty agreement with the Muscogee Creek Nation (see e.g. McGirt v Oklahoma2) the tribes do not have a unilateral right to remove treaty rights from the freedmen. All amicus briefs submitted to the U.S. Supreme Court by the 5 tribes stressed the validity of Article 3 (ceding and conveying the west half of their lands in present day Oklahoma) of the Creek Treaty when it came to the Muscogee Creek Nation retaining its reservation . Article 2 of the treaty (abolishing slavery by the Creek Nation) still remains in effect.

There is no doubt that many descendants of freedmen of the tribes qualify for NAHASDA programs based on income. The lower incomes of freedmen are due not only to current racism but to historic racism where the Federal government assisted in limiting assets of tribal blacks. The Choctaw and Chickasaw freedmen treaty allowed these nations to limit freedmen to 40 acre allotments if adopted in sharp contrast to other tribal members, including adopted whites, who received 320 acre allotments. In 1907, Oklahoma became a state without the U.S. Government requiring anti-discrimination laws in the state constitution. The first law passed was Senate Bill 1 which set up Jim Crow segregation laws throughout Oklahoma only for persons of African ancestry - persons without African ancestry were legally white. Establishment of sundown towns in cities such as Henryetta in the Muscogee Creek Nation where all blacks were forced out and the 1921 Greenwood north Tulsa community Race Massacre (Greenwood community is located in the Cherokee Nation reservation) compounded poverty of freedmen citizens. Freedmen citizens such as Attorney BC Franklin -- the father of Historian John Hope Franklin who was a Dawes enrolled Choctaw freedmen -- lost all of their assets in the massacre.

The non-profit Oklahoma Policy Institute in 2010 published a paper showing a significant wealth gap between Oklahoma Native Americans and Oklahoma African Americans with native Americans having a median income of 11,216 below the median come for the state and African Americans having a median income of 18,231 below the state median income. This same survey shows 63.4 % of Oklahoma native Americans owned homes while only 42.7% of Oklahoma African Americans were homeowners. Of course, freedmen descendants were negatively affected by the U.S. government's redlining policies in the past while currently being unable for the most part to participate in the Federal funded Native American programs to increase home ownership. The aiser Family Foundation reports black poverty of 28% in Oklahoma versus 19% for American Indians in 2019. Descendants of Freedmen, due to direct actions by the U.S., state, and tribal governments that have diminished their net worth, have few financial resources to enforce their rights in court or petition Congress for enforcement of 1866 treaty rights.

Impact of the Denial of NAHASDA and Other Federal Benefits on Descendants of Freedmen

As a result of past and current systemic racism, Descendants of Freedmen have substantial needs. While there are too many to name here today, some of the persons who need assistance at the present time include:

* Mr. L. Lovett of Okmulgee - A senior citizen on disability who has had a double lung transplant. He greatly needs rental assistance. He is a Creek freedmen descendant.

* Mrs. B. Wilson of Okmulgee - A widowed senior citizen who desperately needs a roof. She has a tarp on her roof right now. She greatly needs housing repair assistance. She is a Creek freedmen descendant.

* Ms. W. Rice of Okmulgee - A single mom who works a part-time job and is a student. She needs rental assistance, but would eventually like to receive assistance with a down payment to purchase a home. She went to the Creek Nation to apply for assistance, but was denied due to not being registered due to freedmen status

Evidence of Ongoing Discrimination and Denial of Federally-Funded Benefits

Seminole Nation of Oklahoma

The ancestors of the Seminole freedmen were an integral part of the nation even prior to the Civil War - serving as warriors, interpreters, and after the Civil War as elected tribal leaders of freedmen political bands. Article 2 of the Seminole Nation 1866 treaty states the freedmen should have all the rights of native citizens. Seminole Nation registers its descendants of freedmen in the tribe, but classifies them as "citizens" rather than "members" and denies them access to services. They are allowed to vote and allowed 4 out of 28 tribal council seats based on the tribal constitution. In 2000, the tribe attempted to remove the freedmen completely through a constitutional amendment, but was blocked by the Department of Interior (DOI), as they did not receive permission from the DOI to remove the freedmen from the tribe. In the DC Federal case Seminole Nation v. Norton,/3 the court ruling made it clear that the Department of the Interior had not overreached its authority in protecting the Seminole freedmen 1866 treaty rights to tribal membership. Subsequently, the Department of the Interior issued a letter to the Seminole Nation that freedmen qualify for federal services based on membership in Federal tribes (See Exhibit) The Seminole Nation then reissued the freedmen tribal membership cards to have zero ("O")blood quantum on the front and the words "voting privileges only on the back." The Seminole Nation Housing authority uses a point system to determine priority for NAHASDA funded services with fullbloods having the highest number of priority points. In 2015, Seminole Nation Freedmen Tribal Councilwoman Leetta Osborne Sampson and I requested in writing that the office of inspector general and former HUD Secretary Julian Castro investigate the denial of NAHASDA funded services to Seminole freedmen. (Housing policies at that time required a CDIB card and applications from freedmen citizens were not accepted). In 2016, we received a letter from HUD officials that the tribe had changed the housing policy to allow freedmen to apply for housing services. (See Exhibit) The written policy was changed to allow freedmen to apply for the programs in the applications by removing the requirement for CDIB card and adding the words freedmen/citizens as eligible to apply.

Despite this change however, Seminole freedmen tribal citizens did not receive Housing services because freedmen were not awarded points and were placed in the same category as members of other tribes. In April 2018, Councilwoman Osborne and I met in Washington D.C. with Heidi Frechette, Director of Office Native American Programs (ONAP) with the Department of Housing and Urban Development's Office of Public and Indian Housing, and explained toMs. Frechette and her colleagues that freedmen tribal members/citizens still were being denied access to NAHASDA funded services. On September 1, 2018, the Attorney for the Housing Authority of the Seminole Nation informed the tribal council in a meeting (available on YouTube) that she had been contacted by HUD and informed that the Seminole freedmen needed to be able to receive NAHASDA funded services. Tribal councilmembers at the meeting raised issues of tribal sovereignty, others stated that federal law limited the programs to CDIB holders, that the freedmen should be satisfied to be included with members other tribes, or that the federal government should do something to fix the problem of the housing for the freedmen and not the tribe. A review of the November 2020 Housing application has removed the Seminole freedmen citizens from being included with members of other tribes and again requires CDIB cards as part of the application - resulting in Seminole freedmen once again being denied the ability to apply for NAHASDA funded services (New_Housing2020.pdf (hasnok.org).

I am unaware if Seminole freedmen have applied to other tribes for housing assistance, but the Seminole Nation has proactively worked to discourage other tribes and Federal agencies from providing federal services such as Indian Health Services to Seminole Nation tribal citizens. For example, the Cherokee nation was told by the Seminole nation that Seminole freedmen did not qualify to be seen at Cherokee Nation medical clinics. The Seminole tribe as of 2021 has approximately 18,800 registered members and citizens, which includes freedmen. Of that number, reedmen citizens account for approximately 3,200 persons in 2021. It is my understanding based on information received from tribal council representatives that the tribe/tribal housing authority submits population including both "members and "citizens" for its Federal funding requests. Notably, by counting freedmen among its total population, the Seminole Nation receive a greater proportion of NAHASDA formula funds, despite the fact that it continues to take affirmative steps to limit and often deny the freedmen access to these federally-funded benefits. I want to emphasize that no tribe is completely sovereign in use of NAHASDA funds and that Seminole Nation elected leaders are aware of this. For example, an Office of Inspector General (OIG) audit report dated September 10,2003 for the Seminole Nation Housing Authority required the authority to repay NAHASDA funds used to purchase land in 2001, which was not appraised prior to purchase and for which an environmental review was not made prior to purchase. Finding (hud.gov) Muscogee Creek Nation:

Article 2 of the 1866 Creek treaty clearly maintains that the freedmen and their descendants shall have all the rights of native citizens and are entitled to an equal interest in the soil and to share in the funds of the nation - each Creek citizen including freedmen citizens received 160 acre allotments during the Dawes enrollment. https://learn.k20center.ou.edu/lesson/736/Reconstruction%20Treaties%20of%201866%E2%80%94Reconstruction%20in%20Indian%20Territory.pdf?rev=2701 After the Civil War, Creek freedmen served as tribal judges, elected leaders, tribal attorneys, and were leading businessmen. The descendants of these illustrious individuals such as Mrs. K Williams a descendant of Freedmen Judge Jesse Franklin wish to join their ancestors in serving their tribal nations. However, the Creek freedmen and their descendants were disenrolled through a tribal constitution in 1979 which limited tribal membership to descendants of Creeks listed on the Dawes roll by blood section. Freedmen citizens were not allowed to vote on the constitution. Currently Freedmen are being denied services through lack of tribal membership.

A 2018 Federal lawsuit filed by officers of an independent non-profit Freedmen organization (neither I or the Descendants Association are affiliated with this organization) to enforce 1866 treaty rights of Creek freedmen was dismissed for technical reasons.[Could it instead simply say Creek Freedmen unaffiliated with the Descendants of the Freedmen of the 5 Tribes?] Muscogee Creek Tribal leaders as well as most candidates for public office have justified the tribes right to discriminate against the freedmen based on tribal sovereignty and or the fact that the DOI approved the 1979 constitution. Although the current Muscogee Creek Nation chief issued a public statement on May 27, 2021 that the tribe should have town halls with public comment to consider revising the tribal constitution to again register freedmen descendants (https://www.nytimes.com/2021/05/28/us/politics/freedmen-citizenship.html) no public meetings have been set to date. A subsequent statement by Chief Hill on social media asserts that freedmen citizenship issues must be resolved by the Muscogee people. According to the Muscogee Nation website, the tribal population in 2021 is 86,100. Since the time of the Dawes enrollment, Creek freedmen were approximately 1/3 of the tribal members. By extension, the number of freedmen (if registered in the tribe were permitted) would be approximately 28,000. My conclusion is that the freedmen will continue to be denied services regardless of treaty obligations absent federal intervention.

Choctaw Nation of Oklahoma:

The Choctaw Nation of Oklahoma heavily supported the Confederate States. The tribe did not adopt the freedmen until 1883 and received money from the U.S. government for doing so pursuant to the terms of their 1866 treaty. Freedmen descendants were not allowed to vote on the constitution which disenrolled them in 1983. The freedmen thusly have been denied the ability to access NAHASDA funds due to disenrollment. The Choctaw nation had about 200,000 population in 2021. Based on the freedmen being 1/3 of tribal citizens during the Dawes enrollment, approximately 66,000 freedmen descendants should be currently registered in the tribe. A letter from Choctaw Principal Chief Batton dated June 25, 2020 to Honorable Speaker Pelosi criticizing proposed language in housing bills, which ties the ability of his nation to receive federal housing funds to the tribe honoring 1866 treaty obligations asserted the language would destroy tribal self-determination. Chief Batton stated that the Freedmen issue is a problem caused by the United States, not the Choctaw Nation - completely ignoring the slavery and black codes passed by tribal law prior to 1866, the tribes alliance with the Confederate States, the many years the freedmen were uneducated, stateless people without citizenship in any nation, discriminatory laws in existence after the adoption blocking Choctaw freedmen ability to hold office and intermarry with other tribal members - and the Choctaw tribe insistence on limiting the freedmen tribal members to 40 acre allotments all added to the impoverishment of the freedmen. This is not even addressing the inability of today's Choctaw freedmen descendants to access services available to registered tribal members - which was not a decision forced by the US government but due to tribal disenrollment actions. The Choctaw Nation Housing authority requires CDIB cards to qualify for its programs. Although Chief Batton in May 2021 issued a statement calling for dialogue about freedmen citizenship, no town halls or forums to discuss freedmen citizenship have been held. An Open Letter from Chief Gary Batton | Choctaw Nation. Based on past history, the chances of the tribe living up to its treaty obligations without federal intervention appears almost non-existent.

Cherokee Nation:

The Cherokee Nation, like the other 5 tribes that removed from the southeast United States to eastern Oklahoma, was a tribe which protected chattel slavery during the Civil War - with discriminatory black codes as part of tribal law. The tribe allied with the Confederate states. After the Civil War, the Cherokee freedmen and their descendants received all the rights of native Cherokees under Article 9 of the treaty prior to Oklahoma statehood. Freedmen such as Stick Ross, Jerry Alberty, Ned Irons and Fox Glass served in the tribal council and their descendants such as Mr. L Ross and Mr. M Harrison are active in the tribal community today. After the Civil War, the Cherokee freedmen periodically went to Federal courtto enforce their treaty rights to payments and annuities. In recent years, the Cherokee Nation has worked to live up to its treaty obligations to descendants of Cherokee freedmen, especially since Judge Thomas Hogan's order was issued in the Cherokee Nation V Nash case in August 2017. In 2021, the Federal order was finalized in the Cherokee Nation tribal supreme court in :RE: Effects of Cherokee Nation v. Nash and Vann.

As a result of this federal litigation, I am pleased to report that Cherokee freedmen descendants are being registered in the tribe and are accessing housing assistance programs under the Hoskin administration and previously under the Baker administration. However, I must emphasize to this Subcommittee that this state of affairs did not come about without federal intervention as well as great sacrifices by freedmen and their supporters. I myself spent more than $100,000 in personal funds to ensure that the attorneys were able to continue the Cherokee freedmen cases - this is outside of personal funds used for advocacy. My good friend, Mr. Eli Grayson, an activist who is Creek citizen with freedmen ancestry also spent more than $100,000 in personal funds to advocate and publicize freedmen rights. Former House Financial Service Committee Chairman Barney Frank and his staff worked tirelessly to get freedmen protective language included in the 2008 NAHASDA Re-Authorization legislation. The attorneys on the cases, especially the Velie law firm, expended hundreds of thousands of dollars of legal time - much of which has not been reimbursed - to see the cases through to the end.

In 2003, Cherokee freedmen descendants commenced litigation in Federal court on citizenship issues in the Vann v. Norton case and, subsequently, the Cherokee Nation v. Nash case, as well as in tribal court Under the administration of Principal Chief Chad Smith, the Cherokee Nation spent tens of millions of dollars to dismiss the case(s) on technical grounds, and hired Washington, DC lobbyists in attempt to tell a different history of the freedmen than what is in the historical record. There continue to be office holders and candidates for office who run on anti-freedmen platforms - implying that freedmen citizenship or freedmen rights to hold office is unconstitutional or an abrogation of tribal sovereignty.

Some office holders were even involved in illegally obtaining signatures for the freedmen removal petition in 2006. Indeed, there are a number of current councilmembers who argued in tribal court that the Cherokee Nation should appeal Judge Hogan's ruling to the U.S. Court of Appeals for the D.C. Circuit. A 2019 Chief Candidate who was serving on the tribal council even denied freedmen children school supplies they were entitled to under the Johnson Omally Indian Education program when he worked outside the tribal government as a school administrator in Muskogee. The language in the Housing draft bill will provide extra incentive and insurance against those seeking to deny freedmen their rights. Black U.S. citizens in the deep south did not only depend on the courts to uphold their rights but also sought support of Congress to uphold legal and human rights. The Cherokee Nation has a population of approximately 395,000 tribal members/citizens in 2021, including about 8,500 Cherokee freedmen tribal members. Based on the Dawes enrollment, freedmen registered in the tribe would have been approximately 44,000 - the lower number of currently registered freedmen is a direct result of the moratorium on freedmen registration instituted by earlier tribal leadership.

Chickasaw Nation:

The Chickasaw Nation together with the Choctaw Nation signed a joint treaty with the United States in 1866. The Chickasaw Nation had harsher slave and black codes than other tribes -the tribe had almost no freed blacks at the time of the Civil War. Like the Choctaw Nation, Chickasaw Nation was given the option to adopt the freedmen. During the 1870s, the tribe passed a legislative act to adopt the freedmen, but later rescinded it. I believe that the Chickasaw Nation's decision to rescind it resulted in part because of the large number of Chickasaw freedmen. Until the 20th century, the Chickasaw freedmen were stateless people. More than 1/2 of persons listed on the Chickasaw section of the Dawes rolls were listed as freedmen. The Chickasaw freedmen received 40 acre allotments because there was uncertainty of whether or not they had been adopted by the Chickasaw Nation. Currently, the Chickasaw Nation does not register freedmen as members of the tribe, and requires CDIB cards for federal services. Based on estimated current Chickasaw Nation population of 49,000, approximately 50,000 freedmen descendants would be registered in the tribe based on extrapolation of the Dawes enrollment.

Conclusion

Tribal governments and their housing authorities have received $498 million dollars in additional homeowner assistance funds in 2021 because of the American Rescue Act Plan funding. These funds as well as the prior year Cares act funding allowed tribes to extend social services to members. However, the programs funded are not available to the majority of the freedmen descendants. I ask that you vote to include the treaty obligation language in the final bill and support its passage in the full house. The History of the 5 tribes shows that without federal intervention, the 1866 treaty obligations will not be met. The language of the bill will assist in ensuring that all 5tribes comply with the law. The discrimination and impoverishment endured by the freedmen is not of their own making. There is no question that the qualifying freedmen descendants can be identified and, as appropriate, tribally registered. Descendancy letters can be issued by the DOI for freedmen descendants who are not tribally registered. Freedmen and their descendants as well as other tribal members who did not have CDIB cards were still able to get judgement fund payments during the 1960s. Consequently, the lack of CDIB cards is not an obstacle. Meanwhile, in the case of Seminole freedmen, the Subcommittee could send out letters to the tribal housing authority as well as other tribes and housing authorities and inform them that the tribal membership cards/citizenship cards of Seminole Freedmen make them eligible for NAHASDA funded services.

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Footnotes:

1 In ruling in favor of the Cherokee freedmen descendants and upholding the validity of the 1866 Treaty between the Cherokee Nation and the U.S. Government, Judge Hogan found that the Sovereign rights of the Cherokee Nation to determine citizenship remain but that it was limited, as here, by treaty. "The Cherokee Nation is mistaken to treat Freedmen'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 Freedmen's right to citizenship does not exist solely under the Cherokee Nation Constitution and therefore cannot be extinguished solely by amending that Constitution," states Hogan's ruling. "The Cherokee Nation's sovereign right to determine its membership is no less now, as a result of this (Aug. 30) decision, than it was after the Nation executed the 1866 Treaty. The Cherokee Nation concedes that its power to determine tribal membership can be limited by treaty. In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of Native Cherokees." Judge Hogan further noted that "[t]he 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. By interposition of Article 9 of the 1866 Treaty, neither has rights either superior or, importantly, inferior to the other. Their fates under the Cherokee Nation Constitution rise and fall equally and in tandem. In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of native Cherokees." Cherokee Nation v. Nash, 25 F. Supp. 3rd 86 (D.D.C. 2017).

2 McGirt v. Oklahoma, 591 U.S. __ (2020); 140 S. Ct. 2452 (2020).

3 Seminole Nation of Oklahoma v. Norton, 223 F.Supp.2d. 122 (D.D.C. 2002).

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URL: Descendants of Freedmen of the Five Civilized Tribes Association