I was thinking about this doctrine as I reflected on the actions taken by the Cherokee Nation when their attorney general office announced they would appeal the decision of the Cherokee Nation District Court regarding the recent ruling that Cherokee Freedmen descendants were citizens of the nation based on the Treaty of 1866.
It appears the Cherokee Nation believes they have grounds to overturn the District Courts ruling, despite the initial Supreme Court decision. It is because of this I began looking at what the Congressional Record might have to say in this regard. What laws did Congress enact that could have an effect on the Treaty of 1866 and Cherokee Freedmen citizenship?
Granted there are many documents that could illustrate my point but one that appears to cover the issue thoroughly is House Report 844 (50th Congress, 1st Session) March 5, 1888.
This report dealt with the Cherokee Nation’s attempts to discriminate in the payment of $300,000 by ONLY paying “citizens by blood.” The council attempted to exclude three classes of citizens; the freedmen, adopted Shawnees and Delaware Indians who were all CITIZENS in the Cherokee Nation.
The House of Representatives created a bill (H.R. 5066) to accompany this report for the signature of the President of the United States that would establish the fact that Cherokee Freedmen, Shawnee and Delaware Indians ALL were citizens of the Cherokee Nation.
Apparently in 1883 the Cherokee Chief understood the nation’s commitment to adhere to their legal treaty obligation to protect the rights of ALL citizens which included the former slaves and their descendants. It was the Cherokee legislature that sought to violate their responsibility of paying all the citizens their share of the $300,000.
It is important to see how connected the rights of freedmen were in conjunction with the Shawnee and Delaware Indians; they ALL were given citizenship rights as a result of the treaty of 1866. But then as now, it seems it is only the freedmen who had to mount a legal challenge to this corrupt and illegal action to deprive them all of their rights as Cherokee Citizens.
In this part of House Report 844 (50-1) it is extremely enlightening to see language that if enacted by the Cherokee legislature the Cherokee Nation would be in “violation of existing law.” It also pointed out accurately this violation amounted to discrimination! Apparently the contemporary leaders of the Cherokee Nation seem to think they are immune to the laws and power of Congress?
This particular passage is astounding when you think about it. The President of the United States is “authorized to correct such evil and adopt the means necessary to secure the impartial administration of justice…” The passage also indicates that “Congress has the power to grant the relief sought by claimants…” It would appear the Cherokee Nation’s Supreme Court could have some unusual scrutiny regarding any decision that could deprive Cherokee Freedmen descendants of their “rights and privileges” as citizens?
Remember “Stare Decisis?” Here we have President Grover Cleveland issuing a message to the Senate and House of Representatives indicating his support of “securing” the rights of Cherokee Freedmen in 1886. Is the Cherokee Supreme Court prepared to ignore the principles of law that state the rights of Cherokee Freedmen obtained by a treaty can be violated by the unconstitutional and discriminatory act of denying them citizenship?
The rights of citizenship for Cherokee Freedmen should be unquestioned. The Nation through a VOLUNTARY ACT in 1863, (prior to the Treaty of 1866) by their council, abolished slavery AND granted the former slaves, free colored persons AND their descendants “ALL THE RIGHTS OF NATIVE CHEROKEES! AND, IF THEY ARE POSSESSED OF THOSE RIGHTS, IT IS A VIOLATION OF THE TREATY TO DENY THEM SUCH RIGHTS”
Clearly there is ample documentation that the rights of citizenship in the Cherokee Nation have been established for the Cherokee Freedmen and their descendants. Any actions by the Cherokee Nation Supreme Court to overturn their past decision (Stare Decisis) of these rights would be in direct violation of the United States Constitution and Constitutional Law.