The U.S. Court of Appeals for the District of Columbia overturned a lower court’s ruling that the case could not proceed because the tribe was not a defendant in the case and couldn’t be compelled to abide by the court’s ruling.
"Applying the precedents that permit suits against government officials in their capacities, we conclude that this suit may proceed against the principal chief in his official capacity, without the Cherokee Nation itself as a party," the court wrote.
The court noted that an 1866 treaty granted the former slaves known as Cherokee Freedmen all tribal rights, including the right to vote. But in 2007, the tribe approved an amendment to its constitution requiring all tribal citizens to have a Native American ancestor listed on the Dawes Roll, thus rescinding the tribal membership of about 2,800 Freedman descendants.
The Freedmen claim the chief — and through him the sovereign tribe — broke federal law by not honoring the treaty.
Cherokee Nation Attorney General Todd Hembree said the tribe is pleased that the appellate court reaffirmed in its ruling that the nation is a sovereign government.
"However, the court of appeals also ruled that the interests of the tribe can adequately be represented through its elected officers," Hembree said. "Although our principal chief stands ready, willing and able to protect and defend the Cherokee Nation constitution and the will of its people, we believe that the entity that should be tasked with that responsibility is the nation itself."
A telephone message left Friday with an attorney for the Freedmen was not immediately returned.
Removing the Freedmen from the tribe was not a racially motivated decision, but one of a tribe’s sovereign ability to determine who is a citizen, Hembree said.
"It’s not a race-based situation. It is an identity," he said. "It’s not asking too much that in order to be a citizen of an Indian tribe, that you be Indian.
"We believe that’s very important, and so did the Cherokee people, and we intend on representing their will in this case."