Cherokee Nation v. Nash

267 F.Supp.3d 86

The CHEROKEE NATION, Plaintiff/Counter Defendant,

v. Raymond NASH, et al., Defendants/Counter Claimants/Cross Claimants,andMarilyn Vann, et al., Intervenor Defendants/Counter Claimants/Cross Claimants,andRyan Zinke, Secretary of the Interior, and The United States Department of the Interior, Counter Claimants/Cross Defendants.

Civil Action No. 13–01313 (TFH)

United States District Court, District of Columbia.

Signed August 30, 2017

A. Diane Hammons, Campbell & Tiger, PLLC, Tulsa, OK, Jonathan Philip Guy, Kathleen A. Orr, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Michael Todd Hembree, Cherokee Nation Office of the Attorney General, Tahlequah, OK, for Plaintiff/Counter Defendant.

Frederick Harter Turner, Frederick Harter Turner, U.S. Department of Justice, Alvin Bertram Dunn, Jack McKay, Cynthia C. Robertson, Pillsbury Winthrop Shaw Pittman, LLP, Jonathan Philip Guy, Kathleen A Orr, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Jonathan Velie, Velie Law Firm PLLC, Norman, OK, Michael Todd Hembree, Cherokee Nation Office of the Attorney General, Tahlequah, OK, A Diane Hammons, Campbell & Tiger, PLLC, Tulsa, OK, for Defendants/Counter Claimant.

Amber B. Blaha, United States Department of Justice, Counter Claimants/Cross Defendants.

MEMORANDUM OPINION

Thomas F. Hogan, Senior United States District Judge

Although it is a grievous axiom of American history that the Cherokee Nation's narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American Indians and removed them from their lands,¹ it is, perhaps, lesser known that both nations' chronicles share the shameful taint of African slavery.² This lawsuit harkens back a century-and-a-half ago to a treaty entered into between the United States and the Cherokee Nation in the aftermath of the Civil War. In that treaty, the Cherokee Nation promised that "never here-after shall either slavery or involuntary servitude exist in their nation" and "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 ...." Treaty With The Cherokee, 1866, U.S.–Cherokee Nation of Indians, art. 9, July 19, 1866, 14 Stat. 799 [hereinafter 1866 Treaty].

The parties to this lawsuit have called upon the Court to make a judicial determination resolving what they believe to be the "core" issue in this case, which is whether the 1866 Treaty guarantees a continuing right to Cherokee Nation citizenship for the extant descendants of freedmen listed on the Final Roll of Cherokee Freedmen compiled by the United States Commission to the Five Civilized Tribes,³ also known as the "Dawes Commission."⁴ As partially reflected in the case caption, the parties to this lawsuit are as follows: Plaintiffs and Counter Defendants the Cherokee Nation and Principal Chief Bill John Baker (collectively the "Cherokee Nation"); Defendants, Counter Claimants and Cross Claimants Raymond Nash, Larry Wasson, Robert Allen, Kathy Washington and Lisa Duke, as well as Intervenor Defendants, Counter Claimants and Cross Claimants Marilyn Vann, Ronald Moon, Donald Moon, Charlene White, Ralph Threat, Faith Russell, Angela Sanders, and Samuel E. Ford (collectively the "Freedmen"—descendants of Cherokee slaves listed on the Dawes Commission's Final Roll of Cherokee Freedmen⁵ ); and the United States Department of the Interior and Ryan Zinke, Secretary of the Interior (collectively the "Interior"). Pending before the Court are the following four motions they filed: (1) Cherokee Nation and Principal Chief Baker's Motion for Partial Summary Judgment, ECF No. 233; (2) The Department of the Interior's Motion for Summary Judgment, Memorandum of Points and Authorities In Support Thereof, and Opposition to the Cherokee Nation and Principal Chief Baker's Motion for Partial Summary Judgment, ECF No. 234; (3) Cherokee Freedmen's Cross–Motion for Partial Summary Judgment, ECF No. 235; and (4) Cherokee Nation and Principal Chief Baker's Motion to Strike Expert Report of Emily Greenwald, ECF No. 240. As will be explained, because the 1866 Treaty guarantees that extant descendants of Cherokee freedmen shall have "all the rights of native Cherokees," including the right to citizenship in the Cherokee Nation, the Court will deny the Cherokee Nation's motion for partial summary judgment and grant both the Interior's and Cherokee Freedmen's motions. The Cherokee Nation's motion to strike will be denied as moot.

LEGAL STANDARD

As indicated, each of the parties have moved for full or partial summary judgment in their favor on the principal issue of whether the 1866 Treaty provides a lasting right to Cherokee Nation citizenship for the descendants of freedmen who were listed on the Dawes Commission's Final Roll of Cherokee Freedmen. Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For the most part, the parties appear to agree about the historical events and facts that are material to this case,⁶ albeit the parties' characterizations of the events and facts are contested, particularly to the extent that such characterizations touch on interpretive matters that are at the heart of the legal question.⁷ Because there is no genuine dispute about the material facts, though, the focus of the Court's consideration will be directed at determining which of the moving parties, if any, is entitled to judgment as a matter of law. The Court will summarize the undisputed facts that are material to the legal issue in this case but commends one who has a historical interest in these matters to engage in a studied examination of all sources cited by the parties for a more nuanced portrait of the Cherokee Freedmen's tangled fate with the Cherokee Nation.

Although the undisputed facts can be found in the documents, letters, legislation, and cases cited and attached as exhibits by the parties, see supra note 7, these documents do not offer a particularly cohesive presentation of the sequence of historical events that lend context to the legal issues raised in this case. In the absence of comprehensive statements of facts, which were not submitted by the parties,⁸ and given the disagreements about the characterizations of historical events provided in the background sections of the parties' legal briefs, as well as the sources cited in those sections of the briefs, the Court found itself at somewhat of a disadvantage to furnish the historical background, which it views as a helpful foundation to understand the legal arguments and issues. The historical events that underlie the issues in this case are, however, well documented in legal precedent. To be clear, though, the historical events discussed in other legal precedent are cited only to set the scene for the legal contentions but otherwise serve no evidentiary purpose whatsoever with respect to the resolution of the pending motions.⁹

BACKGROUND, UNDISPUTED FACTS AND PROCEDURAL POSTURE

I. Historical Background: Pre–Civil War

At the outset, it is "[b]eyond doubt the Cherokees were the owners and occupants of the territory where they resided before the first approach of [European settlers] to the western continent," Holden v. Joy , 84 U.S. 211, 243, 17 Wall. 211, 21 L.Ed. 523 (1872), and "they claimed the principal part of the territory ... comprised within the states of North and South Carolina, Georgia, Alabama, and Tennessee," Heckman v. United States , 224 U.S. 413, 429, 32 S.Ct. 424, 56 L.Ed. 820 (1912). Before the Revolutionary War, as territories where the Cherokees resided were being colonized and settled by Europeans, "England claimed sovereignty over this territory but recognized the rights of the Indians to possession of the land on which they lived and to self-government." E. Band of Cherokee Indians v. Lynch , 632 F.2d 373, 375 (4th Cir. 1980). After the Revolutionary War and formation of the United States of America, "the United States succeeded to England's sovereignty," id. , and so began a lamentable saga of governmental treaties and policies by which the United States condescended to exercise dominion over the Cherokees, remove them from their lands, and dissolve their tribal government to serve the goals of expansionism and assimilation.¹⁰

In the decades before the Civil War, the Cherokee Nation became fragmented¹¹ and was repeatedly removed, forcibly and tragically in the end, from all lands it possessed east of the Mississippi River, as well as land set aside in the Arkansas Territory, and the Nation ultimately resettled and reunited in land that was designated "Indian Territory" and is now Oklahoma.¹² Sadly, contemporaneous records suggest that the Cherokee Nation's experience of subjugation by the United States did not cultivate the compassion to moderate the treatment of slaves in its own nation.

The Cherokee Nation acknowledges that, before the Civil War, "[s]ome Cherokees ... adopted the American institution of slavery." Cherokee Nation's Mem. In Support of Mot. for Summ. J. 4, ECF No. 233. See also Cherokee Freedmen's Opp'n Br. 4, ECF no. 235–1 (stating that "[p]rior to and during the Civil War, members of the Cherokee Nation owned slaves of African descent"). Although not all Cherokees owned slaves, and the Cherokee Nation appears to contend that the practice of slavery was adopted out of a misguided attempt to mirror the " 'systems and ideologies of governance from the United States to avoid being colonized by the United States,' " Cherokee Nation's Mem. In Support of Mot. for Summ. J. 4–5, ECF No. 233 (quoting Tiya Alicia Miles, Bone of My Bone:...