D.C. Circuit Revives Cherokee Slaves’ Case | Courthouse News Service
Wednesday, November 29, 2023
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Wednesday, November 29, 2023 | Back issues
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D.C. Circuit Revives Cherokee Slaves’ Case

WASHINGTON (CN) - The D.C. Circuit reversed dismissal of a case against the Cherokee Nation, by descendents of its freed slaves who claimed the tribe disenfranchised them in violation of an 1866 treaty.

The principal chief of the tribe can adequately represent the Cherokee Nation in the case, giving the descendents of the slaves - known as Freedmen - a way to skirt the tribe's sovereign immunity, Judge Brett Michael Kavanaugh wrote for the three-judge panel.

The Freedmen are direct descendants of former slaves of Cherokees and free blacks who intermarried with Cherokees.

"Applying the precedents that permit suits against government officials in their official capacities, we conclude that this suit may proceed against the Principal Chief in his official capacity, without the Cherokee Nation itself as a party," Kavanaugh wrote for the court.

The ruling breathes new life into the legal battle between descendants of Freedmen and slave-owning Indian tribes.

During the Civil War, the Seminole, Cherokee, Choctaw, Creek and Chickasaw tribes cut ties with the Union and made treaties with the Confederacy. In 1866, the tribes had to make new treaties with the United States to regain their land and trust beneficiary status.

But at some point nearly a century later, the Cherokee Nation decided it would no longer consider the Freedmen members of the tribe, and stripped them of their rights to land and to vote in tribal elections.

In a related case, the descendants of slaves owned by the so-called Five Civilized Tribes challenged the $3.4 billion class action settlement of 2010, in Elouise Cobell et al. v. Ken Salazar, with a class action of their own.

In this case, the Harvest Institute Freedman Federation claimed that the Cobell settlement was racially discriminatory, as the United States paid off descendants of treasonous Indian slave-owners who took the South's side in the Civil War, but stiffed descendants of the Indians' slaves.

Unlike the Harvest Institute's doomed case, which was tossed by a Federal Court that placed a 6-year statute of limitations on its claims under the Tucker Act and denied appeal, this minor victory gives new hope to descendants of Freedmen.

Alvin Dunn argued the case for the descendants of the Freedmen.

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