U.S.: Freedmen Right To Sue
December 18, 2012
Halito! Greetings To All Whom These Blessings May Come!
It is pleasing to consider that our Cherokee Freedmen Kin continues to seek clarity in Rights to Citizenship in their Ancestral Nation. Denial of such is tantamount to illegal exile based solely upon admixture of African Ancestry, which is in direct violation of their Constitutional Rights (as Dual Citizens, Cherokee/American), 1866 Treaty Rights and Human Rights as Indigenous Peoples of North America; and further, therefore violation of the provisions set forth in the United Nations Declaration on the Rights of Indigenous Peoples (U.S. ratified, 2010).
On that note, you may remember that President Barack Obama announced that the United States endorses the UN Declaration on the Rights of Indigenous Peoples (ratified, December 2010). In a brilliantly choreographed move as the last holdout signatory, Mr. Obama said, “There is now a global consensus and this will improve the lives of Indian and Alaska Native nations and indigenous peoples everywhere. He further stated that ” It has been said that “The United States endorsement of the UN Declaration marks the culmination of over three decades of hard work by Indigenous Peoples and other members of the International human rights community…We can and should use the UN Declaration on the Rights of Indigenous Peoples as a powerful affirmation of our rights. Only through continued use will the Declaration’s provisions become reality.”
That said, I cannot help but to feel that the recent ruling on the “Right To Sue The Cherokee Nation Chief” is simply more parlor games ripped right out of the “Round and Round the Mulberry Bush” playbook. My feelings are based upon very sound reasons;
#1. The 1866 Cherokee Treaty (proper) confers the right directly upon the U.S. President to negate and abolish discriminatory laws affecting Freedmen Peoples immediately (an option apparently passed over throughout the last four years by the African Ancestored President of the United States). All laws operating in contravention to U.S. constitutional laws may also be abolished by the U.S. President (per each 1866 Treaty).
#2. U.S. Courts and Judges continue failing to enjoin the Cherokee Nation (particularly when U.S. Constitutional Law and 1866 Treaties requires and compels the Tribal Nation enjoined whenever issues arise directly from Treaties and involves Lands, National Funds, or Citizenship), and the action to sue the Chief as an individual (possibly successfully) still allows the Cherokee Nation to duck and cover via Sovereignty (whether Foreign Sovereigns, or U.S. Chartered Domestic Dependent Nation operating on U.S. Soil). The Tribal Nation continues to escape dealing with deeply entrenched racism still interwoven and integrated into the fabric of its revised Tribal Constitution, National Policies and Membership (Citizenship) Policies and Procedures, even though such laws have been long-abolished by the United States.
#3. In 2002, U.S. District Judge Vicki Miles LaGrange was forced (by technicality) to conclude that exclusion of Seminole Freedmen to a $56 million dollar judgment fund was warranted because the Seminole Nation was not made a party to the suit.
(The $56 Million in settlement monies was rendered forth by Congress to benefit the entire Tribe for expropriated Florida Lands owned by the Tribe). However, LaGrange could not proceed forth without involvement of the tribe. The suit was brought against the Department of the Interior. Nobody in that entire claim ever made the point that Black Indians formerly held numerous Tribal settlements including the Crown Colony of St. Augustine, Fort Mose, Peliklakaha, Chukachatti among others. The 10th Circuit Court of Appeals (without ruling on merits, in 1999) ruled that the Freedmen claim was entitled to indepth review, which is how it got into the hands of Justice Vicki Miles-LaGrange.
It reminds me that the Cherokee Freedmen are now pursing the Chief (or former Chief) because they can. Yet, in my mind he may be implicated as a villain who conspired to violate the Civil, Treaty and Human Rights of the African Ancestored Cherokee Peoples and fomented unrest leading to the expulsion of Cherokee Freedmen. He might implicate the Cherokee Nation and cause them to repeal all discriminatory laws. Beyond that remains to be seen.
But, curiously, none of these high jinx should ever stop (in theory) the U.S. Federal Government from stepping around discrimination to deal directly with the affected group of suffering Peoples on U.S. Soil (and I mean GROUPS of Freedmen, because the Cherokee Freedmen are only 1 of 5 Nations, each having numerous Bands of Freedmen Tribes).
Every one in the entire legal community in succession seems to have bought into the lie that Tribes cannot be enjoined without waiving their sovereign immunity, but an original Treaty and Congressional law designed around moral principals specifically to protect the rights of Citizens (particularly the vulnerable classes, like Freedmen, Women and Children) compels THE JUDGE to enjoin the Tribe when issues arise from the Treaties, for which precedent was successfully set for use by the Chickasaw Freedmen and won them the right to Treaty mandated Lands (although, the Chickasaw Nation and U.S. Federal Government appear to have colluded at that time to allow ceded Freedmen Lands to remain vulnerable to predation, graft and corruption by removing Federal Protection of the same).
Following is what I wrote on the issue back in 2008;
Aside from the fact that Cherokee, Chickasaw, Choctaw, Creek and Seminole Freedmen were denied the equal opportunity to have their Claims heard by the Indian Claims Commission (an Entity much friendlier to Native Americans than the U.S. Courts), we must consider the following;
Freedmen Harmed By Discriminatory Oklahoma Welfare Act and Indian Reorganization Act
Stripping Ethnic Indigenous Native Americans,
Black Indians and Indian Freedmen
of their Citizenship and Nationality
“Congressional enactment of The Oklahoma Welfare Act of 1936, constituted the basis for complete reorganization of the Oklahoma tribes, essentially giving the Five Civilized Tribes full authority to reorganize their membership “on a new basis.” The injury to the unique Micro-Ethnic Protectorate of the 5 Civilized Tribes, the Tribe’s Indian Freedmen Class of Citizens (lineal descendants of original Tribal Citizens and Nationals) was magnified and rendered even more catastrophic by the Racially Exclusionary, Discriminatory and Harmful Codified Federal Rules of Access to the Indian Reorganization Act(s) of 1934 and 1936. A virtual combination one-two knock-out punch of Ethnic Native Americans, Black Indians and Indian Freedmen.
Defect In Law
Both Acts resulted in the Ethnic Cleansing of the 5 Civilized Tribes by the introduction of New Tribal Constitutions containing language excluding Indian Freedmen from Citizenship eligibility, along with the implementation of Codified Federal Rules of Access that reinforced new Federal Blood Quantum Requirements that reinforced the “idea” that Indian Freedmen were not to be viewed as “Indians” for the purpose of denial of access to “Federal Recognition” and “Programs put on by the United States for Indians.” Therefore, the Indian Reorganization Act and the Codified Rules of Access, along with the Oklahoma Welfare Act were defective, unequal and discriminatory, violating the Treaty Rights, Citizenship Rights and Constitutional Rights of Ethnic Native Americans, Black Indians and Indian Freedmen.
An official inquiry was submitted by the Seminole Nation to the U.S. Solicitor on August 11, 1938, which presented a question concerning the status of the Freedmen in the Five Civilized Tribes in connection with the desire of some of these tribes, and particularly the Seminole Nation, to reorganize under the Oklahoma Welfare Act of June 26, 1936 without their Class of Indian Freedmen. The U.S. Solicitor’s legal “Opinion”, his official response to the query in 1941 gave aid, instruction and bolstered the position of Nations comprising the 5 Civilized Tribes, which indicated that the Tribes had the perfect right to “reorganize” without their Indian Freedmen. The 1941 Solicitor’s Opinion blatantly contradicted his 1935, which had confirmed the opinion confirming the Rights of Creek Freedmen (see attached: Solicitor’s Opinions, 1935 and 1941). It also bolsters the Freedmen Claim that "reorganized Tribes" without Freedmen Citizens are not representative of the "original Tribe" of which their Ancestors were included as Freedmen Citizens (Cherokee, Chickasaw, Choctaw, Creek and Seminoles.
Yet, there was no equal and opposite "Solicitors Opinion" supposing that the Indian Freedmen had also the right to reorganize without "By-Blood, Mixed Blood or Intermarried White Indians". Nor, were Freedmen advised upon how best to continue accessing their Treaty Mandated Rights, Trust Funds, Trust Lands (Colonies, Districts, Towns, City Lots), Mineral Rights, Infrastructure (Schools, Churches, Cemeteries) and National Representation stipulated by the 1866 Treaties. Nor, did the Solicitor advise either group of Natives that such a move would "de-Nationalize Indigenous Freedmen People".
In 1946, Ten years after the introduction of the aforementioned harmful and destructive Oklahoma Welfare Act that allowed Tribes to reorganize without their Freedmen Class of Citizens, Congress then enacted the Indian Claims Commission Act of 1946 along with the establishment of an Indian Claims Commission. However, the Act failed to address the status of the exiled Micro-Ethnic Protectorate of the 5 Civilized Tribes or how Indian Freedmen (Nationals of the Historic Tribes of Indian Country) would be able to access their Federal Stewards, Guardians and/or Treaty Mandated Protections (without injury or benefit) of Citizenship within their parent Nations.”
The 1866 Treaties expressly confers powers upon the President and Congress in regards to treatment of the Indian Nation Citizens (By-Blood, Freedmen and Inter-married Whites (multi-party beneficiaries of the Treaty Contracts). Additionally, amid much more, I finished with this;
Additional U.S. Legal Considerations
Jurisdiction/Venue: ·Congress ·U.S. Federal Court ·International Court
The Correct Jurisdiction: Congress or the Courts
The question of whether or not Indian Claims belong in the venue of Congress or the Courts has long perplexed various U.S. Presidential Administrations, primarily because of the tendency to dismiss, disrespect or fail to understand the Sovereign Status of the Tribes and the fact that Treaties were effected between two or more Sovereigns whose Stature is higher than U.S. Courts.
There is also the tendency to discount the historical importance of Indian Treaties and the idea that Domestic Treaties remain the Supreme Law of the Land.
However, a Congressional Committee pondered the question of Indian Claims in regards to the potential for the abuse of Rights and Mistreatment of Citizens, Nationals and Tribal People in the protection of their civil, property or land rights, who were left to the Tribes without recourse or benefit of Congressional Over-site. In 1892-Senate Report No. 1079, 52d Congress, 1st Session, Committee on Indian Affairs Report Submitted to the Senate on July 26, 1892, stated the following:
“As we have said, the title to these lands is held by the tribe in trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, what is the duty of the government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the government has likewise recognized its guardianship over the Indians, and its obligations to protect them in their property and personal rights.
In the treaty with the Cherokees, made in 1846, we stipulated that they should pass laws for equal protection, and for the security of life, liberty, and property. If the tribe fails to administer its trust properly by securing to all the people of the tribe equitable participation in the common property of the tribe, there appears to be no redress for the Indian so deprived of his rights, unless the government does interfere to administer such trust.”
“Is it possible, because the government has lodged the title in the tribe in trust, that it is without power to compel the execution of the trust in accordance with the plain provisions of the treaty concerning such trust? Whatever power congress possessed over the Indians as semidependent nations, or as persons within its jurisdiction, it still possesses, notwithstanding the several treaties may have stipulated that the government would not exercise such power; and therefore congress may deal with this question as if there had been no legislation save that which provided for the execution of the patent to the tribes. 'If the determination of the question whether the trust is or is not being properly executed is one for the courts, and not for the legislative department of the government, then congress can provide by law how such questions shall be determined, and how such trust shall be administered, if it is determined that it is not now being properly administered.”
And the commission, after referring to tribal legislation in the Choctaw and Cherokee tribes bearing on citizenship, the manipulation of the rolls, and proceedings in Indian tribunals, further stated: “The commission is of the opinion that, if citizenship is left, without control or supervision, to the absolute determination of the tribal authorities, with power to decitizenize at will, the greatest injustice will be perpetrated, and many good and lawabiding citizens reduced to beggary.”
The Congressionally mandated resolution of the aforementioned problem regarding the “Trust of the common property of the Tribes” being left to the Tribes in 1892 (which was mishandled on the watch of the Tribes) was for the Trust Lands to be taken away from the Tribal Nations, to be placed in the custody and under the guardianship or “Trust” by the United States so that the “Trust may be properly administered”. This was achieved by the Dawes Commission in 1898 and subsequently turned over to the Department of the Interior. Sadly, anterior to the Dawes Commission, the result for Indian Freedmen has been an enlargement of the problem of improper Trust administration amid Failures in “Federal Trust duties” with devastating and Catastrophic consequences for Indian Freedmen Nations.
Jurisdiction/Venue: International or Indigenous Claims One Nation Court With International U.N. Recognition:
Primarily because of the tendency of the Colonizing Government to dismiss, disrespect or fail to understand the Sovereign Status of the Indigenous Tribal Nations and their historic International Trade histories or the fact that Treaties were effected between two or more Sovereigns whose Stature is higher than U.S. Courts, makes justice an elusive, difficult and nearly inaccessible thing to attain for the Ethnic Indian Tribal Nations in North America. With laws directing Tribal Nations to first establish a record of attempting to seek remedy from the offending Government, requires our Nations to spend many years attempting to seek openings in law that will allow our claims to ply their way through time-tested, perfected, and institutionalized racist systems designed to defeat Indigenous Nations from the outset.
There is also a tendency to discount the historic significance and importance of Indian Treaties or the idea that Domestic Treaties remain the Supreme Law of the Land.
Regardless of the challenges that lie ahead, the Micro-Ethnic Protectorate of the 5 Civilized Tribes, Ethnic Natives, Black Indians and Indian Freedmen Nations desire to press past the reticence and uncertainty of the U.S. President, Congress, parent Tribal Nations and States holding Black Indian Claims back in order to enter our Claims within an International Court Venue.
Our Nations will submit the attached Shadow Report and Summary and Appeal to the U.N. Commission or Rapporteur on the Elimination of All Forms of Racism and/or the newly implemented One Nation Indigenous Court (by whatever legal name said entity concludes) in order to bring our Claims before an Entity familiar with the needs of Indigenous Tribal Nations."
Dr. Angela Molette (Tuscaloosa Ohoyo)
Black Warrior Woman 12/18/2012
P.S. Additional Information:
In the 1880s, Elwell Otis wrote extensively upon “The Indian Question”. Ultimately, his book of the same title discussed (indepth) the inner workings of the Indian Affairs and Congress.I have included a few of his quotes for your information:
He begins discussing the merits of the Indian Treaties:
“The nation’s faith is pledged to a line of conduct which cannot be carried out, and it has been so pledged because of lack of foresight regarding celerity of national development, and false impressions concerning the ability of the other party to the contract, to fill the situation which it was supposed he would occupy. Accepting this statement of the case, the objection might be met by the plea that the supreme and unwritten law which neutralizes all constitutions and statutes in cases of manifest necessity, which legalizes action taken to meet unexpected exigencies, now places the Indian tribes under the guardianship of the United States even without their expressed consent. The proposition seems wild upon first thought and somewhat dubious after mature reflection, but consider well the relation which this population holds to the Government, as shown by actual attitude, and does it not appear that from the very nature of the position it is amenable to is authority?
Suppose, by way of illustration, that some Indian of a small treaty tribe, injured in person or robbed by his associate, should appeal for the protection of life or for the restoration of property, would it or would it not be the duty of the United States to listen to the complaint?
Under its constitution and statutes it could not interfere. The aggrieved party must seek safety and protection within his own tribal organization, and there he is not able to obtain either.
The law of nature and humanity would not turn a deaf ear to his entreaties. He is a subject of the United States to all intents and purposes, if not a citizen, and is entitled to the protection of its courts.
Suppose that he is wronged by some member of a treaty tribe other than his own, how can he obtain redress for his grievances?
The declared law of the land gives him none. He must take punishment in his own hand and content himself with such retaliation as he may be able to inflict, else peaceably submit to his injuries. As well base moral reflections upon a lie, as to excuse murder because of treaty stipulations founded upon the fiction of independence. The agreements which could only exist upon a mistaken supposition of facts, are opposed by public policy and are hostile to public morals.
It is the duty of the Government to protect the individual members of the Indian population in the exercise of their inalienable rights, and the execution of that duty necessitates the action of our courts under the guidance of a well defined criminal code.”
He also said; “The tenure by which the tribes are in possession of land is really of the same character as that by which a private citizen holds his patented real estate. The patent is equivalent to a warranty deed, with full covenants, and such an instrument passes continued complete ownership. The estate belongs to the patentee and his heirs forever. So the tribes have been invested with real property, with power to hold the same for all time. They gain no greater title by reason of original occupancy, for their tenure, in such territory, is the same as that conveyed b treaty. Their title and that of the private citizens, in the land occupied by them respectively, does not differ in any particular.”
Otis also argues that the acceptance of U.S. Nationality (even Dual Nationality) renders Tribes subject to U.S. Law.
Here he states; “They did not fall from that estate into legal imbecility. Those stipulations which promised self-government, expired with nationality, and members of the tribes are, by strict construction, responsible for their actions to United States authority. They are in theory answerable to the criminal law of the country, and it can and should be extended over them practically.”
“The apparently humane idea that the Indian population is excused from accountability for criminal conduct, because of ignorance or because of wrongs received, is not in accordance with commonly accepted Biblical doctrine. The ignorance of man is a sin, if instruction freely offered for his enlightenment is refused. It will not preserve him from future punishment if he is guilty of wicked action nor will it justify retaliation."
Otis, in the 1880s also wrote extensively upon the Constitutional Powers of the Executive Administration and enforcement of provisions:
“Did the constitution confer upon the Executive and Senate, the power to make all negotiation with the Indian nations other than those which regulated trade or commerce?
The question has received much discussion, and has apparently been decided by recent opinion as expressed in legislation in the negative. Early opinion however was explicit upon this point. Congress, in seventeen hundred and ninety-three, declared that all purchases of land from Indians must be by treaty entered into pursuant to the constitution; and a similar declaration is contained in our first Indian intercourse law passed nearly three years previous to that time.”
“The President and Senate insisted that the power to make treaties was an important act of sovereignty, which the constitution conferred upon the Executive, and when the President exercised that power, and executed a treaty, it became, upon ratification by the Senate, the supreme law of the land, and as such was paramount to the laws of the United States, and could not be set aside by legislation.
It was also insisted, that the constitution made no distinction between treaties with foreign nations and with Indian tribes, and that all treaties should be made by the President and then submitted to the Senate for approval; that when this rule was followed, and a treaty made and approved which involved the expenditure of money, the necessary appropriation should at once be made, or the national faith would be violated.”
In all the early discussion upon the treaty-making power, the Indian communities were conceded to be as free and independent as the nations of Europe, in so far as the possession of treaty rights was concerned.
President Adams, in his message of eighteen hundred and twenty eight, remarks that “at the establishment of the Federal Government under the present constitution, the principle was adopted of considering them as foreign and independent powers, and also as proprietors of the land.”