Treatise For Ethnic Native Americans
Citizens Navigating Beyond Sovereign Road Blocks
"Illegitimate Use of Judicial Power"
Dr. Angela Finley Molette
(Tuscaloosa Ohoyo) Black Warrior Woman
[The term "illegitimate use of judicial power" arises from an 1858 description
of Judge Taney's Dred Scott v. Sandford ruling]
Friday, September 30, 2011 Ruling
The US District Court for DC is part of the US Federal Government
“A federal judge on Friday dismissed one of two lawsuits over whether black slaves once owned by members of the Cherokee Nation have the right to tribal citizenship.” U.S. District Judge Henry Kennedy in Washington ruled that a lawsuit brought by the slaves’ descendants alleging that about 2,800 freedmen were disenfranchised in violation of the 13th Amendment of the U.S. Constitution and the Treaty of 1866 could not proceed because the tribe was not a defendant in the case and couldn’t be compelled to abide by the court’s ruling.”
“The dismissed suit also claimed the Treaty of 1866 gave the freedmen and their descendants “all the rights of native Cherokees.”
“The tribe at one time was a defendant in the 2003 lawsuit but it was dismissed. The tribe’s chief and officials at the U.S. Department of the Interior, which includes the Bureau of Indian Affairs, also were named as defendants.”
However, the June 28, 1898 enactment, “An Act for the Protection of the People of the Indian Territory (30 Stat. 495, c.517)"-Curtis Act, expressly considers “citizenship issues arising from the treaties” (read, inter-tribal issues): “the court is authorized and required to make said tribe a party to said suit by service upon the chief or governor of the tribe.”
The original language of the second section states:
“Section 2: when in the progress of any civil suit, either in law or equity, pending in the United States Court in any district in said territory, it shall appear to the court that the property of any tribe is any way affected by the issues being heard, said court is hereby authorized and required to make the said tribe a part to said suit by service upon the chief or governor of the tribes, and the suit shall thereafter be conducted and determined as if said tribe had been an original part to said action.”
Nothing is mentioned regarding the necessity of waiving Tribal Sovereignty to resolve citizenship issues arising from the treaties. Additionally, instead of tossing Vann’s suit, it would seem that Kennedy was required by this law to enjoin the Cherokee Nation in order for the suit to progress forward, otherwise the citizens are harmed by their nation and the very last judicial venue authorized to act in their favor. What force kept Justice Kennedy from enjoining the Cherokee Nation to progress the suit forward?
Dawes Commission Recommendation To The U.S. Congress:
“…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 Indians so deprived of his rights, unless the government does interfere to administer such trust.” [Dawes Commission Report, November 18, 1895].
To that end, the Sovereignty “block,” used against tribal citizens over citizenship issues is an enigma invoked at will whenever it is convenient. Because, at issue are persons descended from original tribal nation citizens with 1866 Treaty Rights. Further, the other issue is that Smith (as the Cherokee Nation’s Executive Administrator and the Cherokee Nation itself) controls Cherokee Nation Entertainment (CNE), a gaming and hospitality company with thousands of employees in Eastern Oklahoma, in addition to *Cherokee Nation Industries, a Federal Defense Contractor.
*An EPA Superfund Program, Region 6. That means the Cherokee Nation serves in the capacity as a U.S. Defense Contractor and has entities funded by the EPA (ITEC and OES) providing government funded goods and services to as many as 37 other tribes.
**How many of the Nations of the 5 Civilized Tribes also act in that capacity?
A Federal Contractor is a person or entity that contracts with the Federal Government to provide supplies, services, or experimental or research work.
EEOC Definition of Federal Contractor (Executive Order 11246), prohibits Federal Contractors and Federally assisted construction contractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of Race, Color, Religion, Sex or National origin.
Government Contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
Viewed from that perspective, the Cherokee Nation of Oklahoma’s dogged determination to exile Ethnic Cherokees having African Ancestry out of their Nation based upon their origin historic slave status, leaves little room for doubt and certainly leaves the door open to further violations of U.S. and Treaty Law, relating to consideration of African Ancestered persons as eligible potential Citizens for hire. It may also demonstrate why there has been an incredible spike in the number of conservative Oklahomans proffering the end of Affirmative Action in the State of Oklahoma.
Whether or not the sitting Presidential Administration or Congress subscribes to the intended mission of Affirmative Action, the onus is still upon the U.S. Government to continue guarding all the rights of Historic Ethnic Protectorate of the Tribes as mandated by the Treaties and demonstrate Zero Tolerance of State Sponsored Racism. The U.S. must also clarify the validity of the 1866 Treaty Rights of All Freedmen, according to Cherokee District Judge John Cripps' January ruling in favor of the Cherokee Freedmen, which cited their rights under the 1866 Treaty.
Presidential Authorization To Correct Such Evil
In consideration of Citizenship issues arising from the 1866 Treaties, a remedy is found regarding oppressive laws impacting the Ethnic Tribal Citizens and Freedmen ceded the Canadian District in the Cherokee Nation (insofar as Correction of oppressive unequal laws, representation in national council). Benefit may be gained by adhering to the 1866 Cherokee Treaty at Article 6, which states;
Article 6. "The inhabitants of the said district hereinbefore described shall be entitled to representation according to numbers in the national council, and all laws of the Cherokee Nation shall be uniform throughout said nation. And should any such law, either in its provisions or in the manner of its enforcement, in the opinion of the President of the United States, operate unjustly or injuriously in said district, he is hereby authorized and empowered to correct such evil, and to adopt the means necessary to secure the impartial administration of justice, as well as a fair and equitable application and expenditure of the national funds as between the people of this and of every other district in said nation."
Nothing could be so crystal clear. Our Ethnic Native American and Freedmen Ancestors expressly considered (via the Cherokee, Chickasaw, Choctaw, Creek and Seminole 1866 Treaties), the profound oppressiveness of racism, racist policies, effects upon the Ethnic Native Americans and Freedmen inhabiting certain Districts within the Tribal Nations and included a remedy for it. There was no exclusion of the Ethnic Citizens and Freedmen in the 1866 Treaties, and certainly no intention to bounce them from court to court, or reliance upon fearful judges, afraid that the tribe may not be compelled to abide by it's ruling to respect the rights of Ethnic Native American People-Citizens of their nation. Rather, what we are witnessing is an inducement to just do nothing, because it is simply easier to watch them trample upon Freedmen Rights, at will.
So, what is wrong with all of the smart people running the Tribes, Courts and the United States Government, if we aren"t dealing with institutionalized racism?
1866 Treaty Facts
1866 Treaties entitled several classes of Freedmen:
1. Former Slaves -Persons of African Ancestry and Blood
2. Persons of Color Never Having Been Slaves
3. Adopted Persons
The 1866 Treaties Addressed Classes of Sovereign, Autonomous Nations (Communities) and Groups of Freedmen, including Special Delegates and Signatories for the Southern Creeks and Southern Seminoles (the Autonomous Seminole Negro Scouts).
In order to protect the Treaty Rights, Civil Rights, Constitutional Rights and Human Rights of Ethnic Native Americans and Freedmen, the United States must disallow distractions from Tribal racialists, including former associates and clients of Jack Abramoff still plying his divisionary tactics in Indian Country, intending to infringe upon the Nationality and Citizenship Rights of the Freedmen People, lineal descendants of original melanated Indigenous Aboriginals, and undertake new resolve to treat with the Freedmen Tribes and allied Bands (successors in interest, to original predecessor Sovereigns) upon Nation to Nation basis.
Pressure Upon The Supreme Court
Resulting In Illegitimate Use of Judicial Power
Justice Kennedy, the person responsible for tossing the Cherokee Claim a week ago, serves under Chief Justice Royce Lamberth (original champion "for many years" of the Cobell Indian Money Claim). During the course of trial, United States Attorneys and Department of the Interior Personnel admitted to him that they shredded Indian Money Account Documents, while in the midst of trial. The possibility exists that Freedmen Individual Indian Money Accounts were among the shredded documents.
Perhaps the most important issue of note is that Kennedy's mentor (Lamberth) was the Justice that compelled Congress to order an audit of historic Indian Money Accounts, going further back in time than present settlement parameters, leading to intense Congressional opposition, debate and rancor.
Worse yet, the Feds in the Justice Department tried desparately to test the limits of Lamberth's Judicial Authority, probably an attempt to sully his good reputation. Ultimately, the United States was successful in its efforts to remove him as a Justice presiding over "Cobell". In the end, it would be the incoming Obama Administration that salvaged the Cobell Claim for Eloise Cobell of Browning, Montana. In the settlement, U.S. Attorney's ratcheted down the claim's multi-billion dollar value, so both sides settled upon just over $3 Billion dollars.
With Freedmen claims considered the value would surely have continued to climb even higher. A couple of years ago, I communicated directly with Eloise Cobell over the internet.
We discussed Freedmen of the 5 Civilized Tribes and our Indian Money Account Claims. It was at that time, I let Mrs. Cobell know about my Finley surname Tribal Ancestors and in response, she sent me a list of Finley surname claimants that were collected for her suit. Mrs. Cobell also gave the name of one of her personal contacts near my Enid home.
Imagine the surprise of finding out that one of the Cobell settlement rules of access was that "claimants" must conform to eligibility requirements, like having a CDIB in order to qualify.
Stranger still, is that not all "Indians" with Money Accounts had CDIB. If Accounting parameters begin at 1877, that is certainly a pre-CDIB era, meaning the Tribal Account-Bearers themselves never had CDIB (Certificate of Degree of Indian Blood).
Such blocks only serve to discriminate against Freedmen and create a denial of access to legal beneficiaries, heirs and assigns to ancestral Trust Funds and Money Accounts.
The near ruin of Lamberth (perceived as working on behalf of Indians, instead of Justice), could very likely serve as a 'head on a totem-pole' warning, or powerful incentive for Justices', like Kennedy and Legal Eagles like Congressman Conyers, to shrink like violets...unless they are very sure of their ability to stand upright and finally speak truth to power, on behalf of Cherokee, Chickasaw, Choctaw, Creek and Seminole Freedmen.
Black Indians United Legal Defense and Education Fund, Inc., are strong pro-Sovereignty Advocates and vigorously oppose forces and outside interests, proposing extinguishment of Tribal Sovereign Immunity. Yet, we advocate just as solidly (within the protective Sovereign cocoon) for respecting the Tribal Citizenship and Nationality Rights gained and/or extended for hundreds (perhaps thousands) of years to melanated Indigenous Aboriginals, Ethnic Native Americans, Freedmen and their Descendants having African Ancestry, in the hemisphere.
There has been proponents (particularly Anthropology advocates) and of late, a small core of Legal and Educational Advocates working against persistent racially-biased laws, policies, and codified rules of access in use by the United States and the modern manifestation of the 5 Civilized Tribes. Revoking the historic birthright, adoption and treaty-mandated eligibility of Ethnic Native Americans and Freedmen, along with forced exile, has had the effect of rendering them ineligible for modern citizenship enrollment. Couple that with failures of Federal Guardians and Stewards to take action to guard the rights of the protectorate of the tribes and the moving party has effectively hijacked the forward momentum of lineal descendants, progeny, heirs and assigns of melanated Indigenous Aboriginals, Ethnic Native Americans and Freedmen.
They are the only Class of Native American Citizens having been denied their self-determined efforts to attain consultant status and/or protections under the U.S. Native American Graves Protection and Repatriation Act (NAGPRA), to manage their tribal burial places and repatriation of the multi-ethnic remains dug up by the U.S. Army Corps of Engineers throughout the Indian Territory. Such actions against them has also served to thwart Ethnic Native American and Freedmen economic security, procurement of goods and services to vulnerable Ethnic Tribal Populations (including Infants, Elders, Women and Children). All having been accomplished by promulgation of the idea that Indian Tribes are somehow degraded by the admission, retention and enfranchisement of the lineal descendants of original Tribal Nation Citizens and Freedmen having admixture of African Blood (one drop rule). There has been little consideration of the Autonomous Ethnic Native American Tribes, Freedmen Bands, their Colonies, Communities and Districts in State Historic Preservation Programs or National Save Our History Campaigns.
The intent of malevolent policies and laws in Indian Territory seems aimed at eradicating the legal existence of the Ethnic Native Americans and Indian Freedmen Protectorate of the Tribes, despite their historic Occupation, Citizenship, Nationality, 1866 Treaty-mandated Enfranchisement, and Human Right to choose and/or retain their own Nationality, which is the gateway to enjoyment of rights. Our true history is being hidden behind a virulent white-washing campaign.
Frequently hostile, petulant, discriminatory forces are also determined to deprive autonomous Ethnic Native American Tribes and allied Bands of Freedmen, rights to Federal and/or State Recognition and compacts despite historic relationships arising from birthright, protectorate status, cultural-political alignment and Treaty mandated enfranchisement extending from 1785 through to 1866 within the Cherokee, Chickasaw, Choctaw, Creek and Seminole Nations (necessary for attainment of State Compacts and Federal Recognition).
Autonomous Ethnic Native Americans and Indian Freedmen Tribes and Bands were reduced to dependencies (protectorates) and ultimately enforced Slave Status, following incursion with Europeans. Despite their well-known, highly publicized historic attachment (through all historical-social and economic changes) to the 5 Civilized Tribes.
Reorganizing Tribes By Exiling Ethnic Indians And Freedmen
Choctaw-Chickasaw Sons of Charlotte Finley
Rufus Arther, Robert Gulley, Joe Arther Bonham and Mose Burris
Grandsons of Flora Folsom (also known as Flora Brown)-Choctaw
The U.S. Government suggested (in 1941) that the Tribes could reorganize without their Ethnic Native and Freedmen Citizens, but gave no equal and opposite direction to the population deprived and directly affected the action of suddenly being stripped of Citizenship and Nationality through initiation of that action. However, the Descendants of Ethnic Indians and Freedmen (having no other Nationality) took it to mean that they too had the right to reorganize (under the terms of the Indian Reorganization) to benefit their own Tribal Citizens. Although, it has become clear that none of the Historic Cherokee, Chickasaw, Choctaw, Creek or Seminole Freedmen Tribes or Bands have ever received independent Federal Acknowledgement or Recognition following reorganization, the impact of which has been devastating upon the lives of this Ethnic Class of Indian Citizens and their blighted communities.
Over-arching discriminatory policies, procedures and codified rules of access has thrust the Ethnic Protectorate of the 5 Civilized Tribes onto the road less traveled in order to attain economic parity goals. Although impoverished, it is important that in addition to standing on their own, they must also:
1. Educate the Nation’s President, Congress and the Masses about their true history;
2. Petition Politicians to outlaw racially biased, oppressive laws affecting them negatively, while Introducing and Passing Legislation Beneficial to their people; and
3. Initiate Litigation.
Struggling To Survive Termination and Extinction
“Another method used by the Bureau of Indian Affairs, when their Indians got out of line and started talking politics, was to tell their Indians, “with one stroke of the pen, you will no longer exist. This is what the United States Government’s Indians have said to me. But, I am not an Indian. Indians were created by the United States Government, as a purely temporary expedient for annihilating the Aboriginal Indigenous People."
The Europeans created the identity of “Indian,” they own their Indians, and the Indians have to thank the White man for their existence.” [Quotes; Wub-e-ke-niew (Francis Blake, Jr.), July 17, 1992, Reflections from the Anishinabe Ojibway Nation].
The July 10. 1992 issue of the Free Native American Press printed an Associated Press article from Seattle on the front page, stating that the George Herbert Walker Bush administration has quietly asserted that it has the power to declare any Indian tribe in the nation extinct.
The policy of the United States (historically) has always been to terminate Indian Tribes. Part of the scheme to accomplish that goal, was to “design blood quantum” requirements in the 20th century, which has nothing whatsoever to do with the 1866 Treaties, except that modern racists wish to use it to ethnically cleanse the Tribes and deny rights to Tribal Citizens with admixture of African Blood.”
Forceful Ethnic Reclassification
Another method of termination has been forceful Ethnic Reclassification of the descendants of Indigenous Aboriginal Peoples. For instance, the United States Statutes on Indian Enrollment, including Title 25, Section 479, provides that “Aboriginal peoples…shall be considered Indians.” The descendants of Indigenous Ethnic Native Americans and Freedmen have been forcefully reclassified as “African Americans,” even though that terminology was originally designated to embrace African ancestored persons born within the boundaries of U.S. States or Colonies, which does not apply to persons of African Ancestry born within the boundaries of historic Indian Country, Indian Territory or the Tribal Domain, and never resided in the jurisdiction of U.S. States formed after the exodus of the Native American Peoples.
Further, those persons born in Indian Territory were born within a Congressionally set-aside domain of the Native American Nations, upon Tribal Lands in common ceded to Freedmen, Friendly Tribes and Refugees, but taken IN-TRUST by the United States for the betterment of the Tribal Peoples. Of the millions of acres ceded by the parent tribes to each of the Nations of Ethnic Native Americans and Freedmen, the only remainders (for those fortunate enough to have received original patents at all), after failures in Fiduciary Duties, are but a few hundred acres successfully converted to individual private trusts.
The most successful mode of relieving Ethnic Native Americans and Freedmen of their Lands has been by “Leases,” including Community Leases, Mineral Leasing by Oil, Natural Gas and Coal Derivative Corporations, Quiet Title Actions and Sales (without the signature of the seller). It seems that while all of Indian Territory was gaining fantastic wealth by the same methods, Ethnic Native Americans and Freedmen never gained more than a pittance of meager dollars (if anything at all). Most died waiting for annuity checks that never came.
On the whole, Fuel Extraction Operators, Oil, Natural Gas, Coal Derivatives Industries and Utility Companies operating on expropriated Freedmen lands are all fabulously wealthy entities, with opulent Corporate Headquarters Facilities, posting billions in annual profits (unfazed by even the country’s present economic woes), yet the Freedmen remain a shockingly destitute lot. It’s unconscionable.
Without a doubt, the most pernicious method of terminating tribes has been the Federal Recognition Process. It is where tribes trade their natural sovereignty and allodial title to lands, for recognition as Domestic Dependencies by Charters issued to them by a Foreign European Government.
Following his father’s act, in 2001, the George W. Bush Administration declared the Duwamish, in Seattle Washington, extinct. They sued to “reverse their extinct status.”
Freedmen Ceded Millions Of Acres By The Tribes
Despite being ceded millions of acres by the 1866 Treaties, with submissions of the Tribal Constitutions of a minimum of 5 Freedmen Tribes to the U.S. Department of the Interior and Bureau of Indian Affairs, and assignment of a correspondent number, there are still no Federally Recognized Ethnic Native American or Freedmen Tribes in Oklahoma,
Department of the Interior Communications back and forth with Representative, Angela Molette of Black Indians United Legal Defense and Education Fund, resulted in a letter from the Department of the Interior, referring to the Freedmen pursuit of clarification of Citizenship issues and/or Tribal Autonomy as “An Inter-Tribal Issue.”
Our interpretation of the “Inter-Tribal Issue” response, is that Freedmen should be “covered by the Federal Recognition of the Parent Tribe” since we were still legally attached and covered by the Tribal Constitution at the parent tribes applied for Federal Recognition, and therefore lies the reason why the DOI was hesitant to grant separation provisions without legal separation of Freedmen Bands.
However, nothing can stop Ethnic Native Americans and Freedmen from standing as successors in Interest, to administrate our own trust, replacing disinterested neglectful Federal Stewards, Guardians and Parent Tribes.
*Justice Henry Kennedy Bio
Henry H. Kennedy (born 1948) is a United States District Judge for the United States District Court for the District of Columbia.
Born in Columbia, South Carolina, Kennedy received an A.B. from Princeton University in 1970 and a J.D. from Harvard Law School in 1973. Following graduation, he worked for the law firm of Reavis, Pogue, Neal and Rose in Washington, D.C.
Subsequent to this he was an Assistant United States Attorney for the District of Columbia between 1973 and 1976.
He served as a United States Magistrate for the United States District Court for the District of Columbia between 1976 to 1979. He was appointed Associate Judge of the Superior Court of the District of Columber in December 1979 where he served until he was appointed a federal judge in September 1997.
On May 15, 1997, Kennedy was nominated by President Bill Clinton to a seat on the United States District Court for the District of Columbia vacated by Joyce Hens Green. Kennedy was confirmed by the United States Senate on September 4, 1997, and received his commission on September 18, 1997.
He has two children, Morgan and Alexandra, who both attended Princeton University. Morgan is now a student at Harvard Law School. Kennedy’s brother Randall is a professor at Harvard Law School.