Join the Genealogy Revolution.
Search for your surname in the largest DNA database of its kind!

My Surname

Banner - Family Tree Maker 2008

Domain Name Registration at 120x60

African-Native American Genealogy Forum

Re: Press Release: DC Circuit Rules for Freedmen

Greetings Spivey,

In my opinion, the spin out of the Cherokee Nation is done for the people who won't take the time to read the full decision.

The court in simple terms split the baby. They confirmed the sovereignty of the Cherokee Nation and indicate they can not be sued by Vann et al.

At the same time, the ruling demonstrated the officers of the Cherokee Nation are subject to being sued if they do not comply with the 13th Amendment and the Treaty of 1866.

It also prevents the officers and specifically named "Chief Smith" from holding elections that do not include freedmen descendants, in effect, supporting their rights and privileges as citizens.

It is interesting because the tribe can't be sued based on their sovereignty and the officers of the tribe can't hide behind sovereignty to deny freedmen descendants rights as citizens.

There also appears to be language that makes it clear (as if it wasn't before) that Congress has the "implicit" power to abrogate the treaty and if they choose to enact legislation to that effect, then that is the right of Congress.

In my mind this demonstrates clearly that the actions of Congresswoman Watson and the CBC are justified and reasonable if tribal officials are violating the Constitution and the Treaty of 1866, and tribal sovereignty is not at issue.

Here is some of the decision I've excerpted that may help you understand.

Perhaps someone with a legal background can explain this better than me, but beyond the legalese it is a pretty straight forward decision giving both parties something to hang their hat on, but not definitive as we see by the actions of the tribe.

You should get a copy of Black's Legal Dictionary for some definitions but once you get past the citations and legalese it is pretty straight forward stuff (I guess?)

Whatever the precise meaning of “affirmative action,” we think it clear that the Freedmen’s suit against the Cherokee Nation does not run afoul of the prohibition as used in footnote 11. The Second Amended Complaint contains a single request for relief against an officer: an injunction preventing Chief Smith “from holding further elections without a vote of all citizens, including the Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138. This relief, if granted, would not oblige the tribe’s officer to use his discretionary authority to comply with the injunction. To the contrary, it would prevent the officer from exercising any such authority in violation of the Thirteenth Amendment or the 1866 Treaty.

The Cherokee Nation complains that the requested relief will require amendments to the tribe’s constitution and voting laws, but the Freedmen do not call for any such changes on the part of the tribe’s officers in their Second Amended Complaint. That the tribe might ultimately amend its constitution to bring its elections into conformance with federal law is irrelevant to our sovereign immunity analysis, because any such change would not be the direct result of judicial compulsion. If the tribe pursues these changes, its discretion will not be steered by the judicial hand.

The Freedmen’s suit falls squarely within the principle of Ex parte Young. See 209 U.S. at 159 (“The general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains the state officer from taking any steps towards the enforcement of an unconstitutional enactment to the injury of complainant. In such case no affirmative action of any nature is directed, and the officer is simply prohibited from doing an act which he had no legal right to do. An injunction to prevent him from doing that which he has no legal right to do is not an interference with the discretion of an officer.”).

At bottom, the Cherokee Nation’s reliance on footnote 11 and similar pronouncements reflects wishful thinking.5 The tribe imagines a world where Ex parte Young suits cannot proceed if they will have any effect on a sovereign. But that is what Ex parte Young suits have always done. See, e.g., Milliken, 433 U.S. at 288–90 (relying on Ex parte Young in
suit to desegregate public schools); Griffin v. County Sch. Bd., 377 U.S. 218, 228 (1964) (same); Orleans Parish Sch. Bd. v. 5 The tribe quotes two cases with similar language. See Gordon, 373 U.S. at 58 (“The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. Here the order requested would require the [federal officer’s] official affirmative action, affect the public administration of government agencies and cause as well the disposition of property admittedly belonging to the United States.

The complaint is therefore dismissed.”) (citations omitted); Pennhurst State Sch. & Hosp., 465 U.S. at 101 n.11 (“The general rule is that a suit is against the sovereign if ‘the judgment sought
would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it
to act.’ ”) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotation marks omitted)).
Bush, 242 F.2d 156, 160–61 (5th Cir. 1957) (same); Sch. Bd. v. Allen, 240 F.2d 59, 62–63 (4th Cir. 1956) (same). To credit the tribe’s position would be to conclude that Larson
overruled Ex parte Young in dicta, in a footnote, without even citing the case. We doubt whether a case of such monumental importance could have come to rest in such a shallow grave. See 17A WRIGHT & MILLER, supra, § 4231 (“Indeed it is not extravagant to argue that Ex parte Young is one of the three most important decisions the Supreme Court of the United States has ever handed down.”). The Supreme Court mentioned no such change when it recently “confirmed that the core of the Young doctrine is still alive and well.”

RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1028 (5th ed. 2003) (citing Verizon, 535 U.S. 635). We therefore reject the Cherokee Nation’s argument.
The Cherokee Nation’s next attempt to fend off Ex parte Young relies on Seminole Tribe v. Florida, 517 U.S. at 73–76. In that case, a tribe sued a State and its officers under a provision of the Indian Gaming Regulatory Act (“IGRA”) purporting to abrogate state sovereign immunity. After concluding that Congress lacked power under Article I so to abrogate, id. at 57–73, the Seminole Tribe Court considered the tribe’s contention that the suit could proceed against state officers under Ex parte Young. The Court rejected this argument because the IGRA provided for a remedial scheme against the States that was more limited in scope than would have been a suit under Ex parte Young. See Seminole Tribe, 517 U.S. at 74 (“[W]here Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.”).

This Seminole Tribe exception applies if we can discern an intent to displace Ex parte Young suits through the establishment of a more limited remedial regime. See Verizon,
535 U.S. at 647–48. The Cherokee Nation argues that article VII of the 1866 Treaty provides such a remedial scheme against the tribe, thereby foreclosing suits against the tribe’s officers. But the treaty provision in question, which opens the federal courts to suits between “inhabitant[s]” of two different districts within the tribe’s territory, does not by its terms provide for any type of suit against the tribe itself. As the Cherokee Nation itself argues elsewhere in its briefs, the tribe is not an “inhabitant” of its own territory. Cherokee Nation’s Br. at 26. The 1866 Treaty does not provide for any remedial
scheme against the Cherokee Nation, much less a “detailed remedial scheme,” so the Seminole Tribe argument fails.

Finally, the Cherokee Nation argues that the Freedmen cannot pursue their claims under Ex parte Young because the requested relief “implicates special sovereignty interests.”
Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 281 (1997). In Couer d’Alene, the Supreme Court held that Ex parte Young did not allow a tribe to sue state officers for infringing upon tribal property rights in violation of federal law, reasoning that control of submerged lands was a core sovereign interest of the State. The Cherokee Nation contends that its special interests in controlling internal governance and defining tribal
membership call for a similar result. We reject this argument.
The Cherokee Nation has no interest in protecting a sovereignty concern that has been taken away by the United States. As the district court went to great lengths to explain,
Vann, 467 F. Supp. 2d at 66–70, the Thirteenth Amendment and the 1866 Treaty whittled away the tribe’s sovereignty with regard to slavery and left it powerless to discriminate against the Freedmen on the basis of their status as former slaves. The tribe does not just lack a “special sovereignty interest” in discriminatory elections — it lacks any sovereign
interest in such behavior.

In addition, we cannot extend Couer d’Alene beyond its “particular and special circumstances,” 521 U.S. at 287, which involved the protection of a State’s land. In this regard, Couer d’Alene closely aligns with earlier decisions holding that Ex parte Young cannot be used to gain access to the State’s treasury. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh amendment.”) (citing Ford Compared to the interests at stake in Couer d’Alene, whose historical pedigree is carefully set forth in that opinion, 521 U.S. at 283–87 (citing, inter alia, Magna Carta and the Institutes of Justinian), the Cherokee Nation’s relatively newfangled interest in controlling its tribal elections strikes us as less compelling. We leave it for the Supreme Court to decide whether to add additional sovereign interests to the core concerns discussed in Couer d’Alene.

The district court determined that the Cherokee Nation was a required party under Federal Rule of Civil Procedure

19(a).6 Having concluded that the district court erred in holding that the Cherokee Nation was amenable to suit, we reverse the judgment in part. On remand, the district court must determine whether “in equity and good conscience” the suit can proceed with the Cherokee Nation’s officers but without the Cherokee Nation itself. See FED. R. CIV. P. 19(b).
So ordered.

18 Dec 2002 :: 14 Nov 2008
Copyright © 2002-2008 by AfriGeneas. All rights reserved.
AfriGeneas ~ African Ancestored Genealogy