Cherokee Freedman retain tribal citizenship under the tribe’s 1975 constitution and are legally entitled to vote, the tribe’s highest court ruled 2-1 Tuesday.
Judicial Appeals Tribunal Justices Tracy Leeds and Darrell Dowty concurred that to exclude a class of citizens from membership, the constitution would have to do so with specific and clear language.
“Exclusion cannot be left to inference by omission or by silence.,” Dowty said.
Lucy Allen, a Freedmen, sued the tribal council, the tribal registrar and registration committee in November 2004 because legislation at the time said she had to prove she was “Cherokee by blood.” She alleged that was unconstitutional because it was more restrictive than the membership criteria set forth in Article III of the 1975 Constitution.
Drafters of the 1975 Cherokee Constitution were well educated and some were attorneys and familiar with tribal legal history, the court ruling states.
They were aware that in 1967, the U.S. Court of Claims ruled the Cherokee Freedmen were entitled to receive payments from the Cherokee Nation judgment fund like any other Cherokee citizen listed on the Dawes Commission Rolls.
They cited other federal rulings involving the Freedmen.
The language of the 1975 Constitution does not specifically exclude Freedmen from continuing membership, the ruling states. The constitutional language requires membership by reference to the Dawes Commission Rolls and the Freedmen were included in those rolls.
“I therefore, concur (with Leeds) that Riggs v. Ummerteske must be reversed and that 11 CNCA No. 12 (the legislation that changed the status of Freedmen) is unconstitutional because it imposes a more restrictive requirement on membership (by blood only) than does the plain language of the Constitution of 1975.”
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