More on the Cherokee Freedmen Issue

For those who may not have seen it, in separate litigation the United States District Court for the District of Columbia held that the Cherokee Nation of Oklahoma had no sovereign immunity on the issue in question and could be joined in a suit originally brought against federal officials contesting recognition of Cherokee governmental actions that excluded the Cherokee freedmen. The district court effectively held that the 13th Amendment and the 1866 Treaty as well as other federal action combined to waive any tribal sovereign immunity on the freedmen issue. Thus, the court, refused to dismiss the action for failure to join the tribe as a necessary and indispensable party under Rule 19 of the Federal Rules of Civil Procedure. The case is Vann v. Kempthorne, No. 03-01711(HHK) (D.C. Dist. Ct., decided Dec, 19, 2006). Interestingly, the case contains almost no discussion of the Martinez jurisdictional issue since the complaint cleverly was postured primarily as an Administrative Procedure Act case despite the fact that it implicates tribal membership.

The district court's approach to tribal sovereign immunity seems quite questionable. To use a far-fetched hypothetical, if some foreign delegation to the United States or the United Nations brought slaves with them to their embassy or legation, it is highly doubtful that the breadth of the language of the 13th Amendment would be considered to abrogate their foreign sovereign and diplomatic immunity despite the fact they were in the United States. The question of whether the slavery was illegal generally would be considered an entirely separate question from the issue of whether the foreign legation had sovereign or diplomatic immunity. Unfortunately, the district court conflated those two issues in the Vann and thereby produced an arguably just result that was totally at odds with most traditional notions of sovereign immunity. This case constitutes a perfect example of how Indian tribes and the federal government often end up making truly bad law by pushing a legal position too far in cases which would require a court to accept an unjust result if it accepts the tribe's sovereign immunity position.