IN THE UNITED STATES DISTRICT COURT
                                                         FOR THE DISTRICT OF COLUMBIA


MARILYN VANN, RONALD MOON,                       )
HATTIE CULLERS, CHARLENE WHITE,                )
and RALPH THREAT,                                                   )
                                                                                          )
Plaintiffs,                                                                           )
v.                                                                                        )                          Case No.: 1:03cv01711 (HHK)
                                                                                           )
GALE A. NORTON, Secretary of the United                 )
States Department of the Interior; UNITED                   )
STATES DEPARTMENT OF THE                                  )
INTERIOR,                                                                        )
                                                                                             )
Defendants.                                                                         )
 

                                                        PLAINTIFFS’ RESPONSE TO THE MOTION
                                         OF THE CHEROKEE NATION FOR LIMITED INTERVENTION

The Cherokee Nation of Oklahoma’s Motion to Intervene should be denied
because its interest in this matter has been limited by the 1970 Principal Chiefs Act, the
Government Defendants can adequately represent its interests, the Motion has been filed
eighteen months after the initiation of the suit, and granting intervention would interfere
with ongoing settlement discussions between the parties.

                                                                      INTRODUCTION
On May 24, 2003, Cherokee Nation of Oklahoma (“CNO”) held an election for its
officials that was in violation of applicable United States law. The CNO did not obtain
approval for its voting procedures pursuant to the 1970 Principal Chiefs Act, Pub. L. No.
91-495, 84 Stat. 1091, which states that the principal chiefs of the Cherokee, Choctaw,
Creek, and Seminole Tribes of Oklahoma and the governor of the Chickasaw Tribe of
Oklahoma shall be popularly selected by the respective tribes in accordance with
procedures established by the officially recognized tribal spokesman and/or governing

2
entity. The Principal Chiefs Act further mandates that such established procedures shall
be subject to approval by the Secretary of the Interior.
The Secretary of Interior could not have approved the procedures adopted by the
CNO because they prohibited the Black Cherokee Nation Citizens – the Cherokee
Freedmen – from voting in the election. The Secretary of the Interior recently refused to
recognize a similarly situated tribe – the Seminole Nation of Oklahoma – when it
attempted to vote out the Seminole Freedmen and preclude their right to vote. The
Government took the position that the Seminole Freedmen were members of the
Seminole Nation pursuant to the Treaty of 1866 and possessed the right to vote in Tribal
elections. The Government then successfully defended its position in two cases before
this Court. See Seminole Nation v. Norton, No. 00-2384 (D.D.C. Sept. 27, 2001) (CKK)
(“Seminole I”), and Seminole Nation v. Norton, 2002 WL 31109804 (D.D.C.) (RBW)
(2002) (“Seminole II”).

                          BACKGROUND ON THE LEGAL RIGHTS OF THE CHEROKEE FREEDMEN

Cherokee Freedmen were granted membership in the Cherokee Tribe pursuant to
the Treaty with the Cherokee Indians, July 19, 1866, 14 Stat. L., 799 (the “1866 Treaty”),
The 1866 Treaty contains the following provisions:

                           ARTICLE 4.

All the Cherokees and freed persons who were formerly
slaves to any Cherokee, and all free negroes not having
been such slaves, who resided in the Cherokee Nation prior
to June first, eighteen hundred and sixty-one, who may
within two years elect not to reside northeast of the
Arkansas River and southeast of Grand River, shall have
the right to settle in and occupy the Canadian district
southwest of the Arkansas River, and also all that tract of
country lying northwest of Grand River, and bounded on
the southeast by Grand River and west by the Creek
reservation to the northeast corner thereof; from thence

west on the north line of the Creek reservation to the
ninety-sixth degree of west longitude; and thence north on
said line of longitude so far that a line due east to Grand
River will include a quantity of land equal to one hundred
and sixty acres for each person who may so elect to reside
in the territory above-described in this article: Provided,
That part of said district north of the Arkansas River shall
not be set apart until it shall be found that the Canadian
district is not sufficiently large to allow one hundred and
sixty acres to each person desiring to obtain settlement
under the provisions of this article.
                       
                          ARTICLE 5.

The inhabitants electing to reside in the district described in
the preceding article shall have the right to elect all their
local officers and judges, and the number of delegates to
which by their numbers they may be entitled in any general
council to be established in the Indian Territory under the
provisions of this treaty, as stated in Article XII, and to
control all their local affairs, and to establish all necessary
police regulations and rules for the administration of justice
in said district, not inconsistent with the constitution of the
Cherokee Nation or the laws of the United States;
Provided, The Cherokees residing in said district shall
enjoy all the rights and privileges of other Cherokees who
may elect to settle in said district as hereinbefore provided,
and shall hold the same rights and privileges and be subject
to the same liabilities as those who elect to settle in said
district under the provisions of this treaty; Provided also,
That if any such police regulations or rules be adopted
which, in the opinion of the President, bear oppressively on
any citizen of the nation, he may suspend the same. And all
rules or regulations in said district, or in any other district
of the nation, discriminating against the citizens of other
districts, are prohibited, and shall be void.
                                                              
                       ARTICLE 9.

The Cherokee Nation having, voluntarily, in February,
eighteen hundred and sixty-three, by an act of the national
council, forever abolished slavery, hereby covenant and
agree that never hereafter shall either slavery or involuntary
servitude exist in their nation otherwise than in the
punishment of crime, whereof the party shall have been
duly convicted, in accordance with laws applicable to all
the members of said tribe alike. They further agree that all


freedmen who have been liberated by voluntary act of their
former owners or by law, as well as all free colored persons
who were in the country at the commencement of the
rebellion, and are now residents therein, or who may return
within six months, and their descendants, shall have all the
rights of native Cherokees: Provided, That owners of slaves
so emancipated in the Cherokee Nation shall never receive
any compensation or pay for the slaves so emancipated.
                                                                 
                          ARTICLE 10.

Every Cherokee and freed person resident in the Cherokee
Nation shall have the right to sell any products of his farm,
including his or her live stock, or any merchandise or
manufactured products, and to ship and drive the same to
market without restraint, paying any tax thereon which is
now or may be levied by the United States on the quantity
sold outside of the Indian Territory.(Complaint ¶ 16.)

In 1883, the Cherokee Tribal Council passed legislation that excluded the
Freedmen – and other tribal citizens without Cherokee blood, such as the Shawnees,
Delawares, and intermarried whites – from sharing in tribal assets. (Complaint ¶ 17.)

In 1888, the United States Congress responded with legislation that required the
Tribe to share its assets equally with the Freedmen and other adopted citizens. (25 Stat.
L. 608-609.) To determine the number of eligible Freedmen and provide for their
equitable treatment, Congress sent a federal agent to make a full record of all those who
were entitled to share in the dispersal of federal funds within the Cherokee Nation.
Complaint ¶ 18.)

In 1889, 3,524 Freedmen were enrolled on a federal document called the Wallace
Rolls to legitimate their claims to Cherokee Citizenship. (Complaint ¶ 19.)
 
In 1890, as the Cherokee Tribe continued to resist the Freedmen’s equal right to
Cherokee citizenry, the United States Congress authorized the federal Court of
Claims to adjudicate the rights of the Cherokee Freedmen. (Complaint ¶ 20.)

Moses Whitmire, Trustee for The Cherokee Freemen v. The Cherokee Nation and
the United States, 30 Ct. Cl. 138 (1895), held that the Freedmen were entitled to receive
equal per capita payments of funds as equal citizens of the Cherokee Tribe. The Court of
Claims held that while the tribal council could sell the common property, it could not
discriminate against a particular class of citizens in deciding who was entitled to share in
the proceeds. Ruling in favor of the Freedmen, the court awarded them $903,365 as their
rightful share of $7,240,000 that had been generated from the sale of tribal lands.
In 1893, the United States government established the Dawes Commission for the
purpose of creating authoritative membership rolls for all of the Native American tribes
in Oklahoma, including the Cherokee Nation. Although not required or authorized to do
so, by 1898 the Dawes Commission began enrolling the Black Cherokee on a “Freedmen
Roll”; other Cherokees were enrolled on a separate “Blood Roll.” The effect of this
gratuitous act of racial segregation in compiling the Dawes Rolls – imposed upon the
Cherokee Nation by the Dawes Commission – was to divide the Cherokee Nation into
“Freedmen” (those with some Black ancestry) and “Blood Indians.” This division also
was illogical and inconsistent: a Cherokee who was half Native American and half Black
was designated a “Freedman”; one who was one quarter Native American and three
quarters White was designated a Cherokee “by blood.” No effort was made to record the
percentage of Native American blood of those listed on the “Freedmen Roll,” though
historians agree that many of the Freedmen enrollees had mixed Native American


ancestry. As a result, throughout the segregation years the Freedmen were subjected to
Jim Crow laws and other forms of state-sanctioned discrimination. (Complaint ¶ 22.)

1898, Congress passed the Curtis Act, providing for allotment of communal tribal
lands to all citizens of Cherokee Nation including Freedmen. The Curtis Act also
extended jurisdiction over Indian Territory and abolished tribal courts. (Complaint ¶ 23.)

In Daniel Red Bird v. United States, 203 U.S. 76, 27 S. Ct. 29 (1906), the
Supreme Court affirmed the citizenship and proprietary rights of the Freedmen as ensured
by the 1866 Treaty as opposed to the intermarried whites that did not have such rights.
In 1907, the Dawes Commission closed the final rolls of the Cherokee Tribe. The
Dawes Commission created two separate rolls for the Cherokee Nation. Individuals
possessing African blood as unscientifically determined by the Dawes Commission
official would place the individual on the Cherokee Freedmen Roll. If an individual was
half Black and half Cherokee Native American, he or she would be placed on the
Freedmen Roll with no notation of Indian Blood. However, if the individual was ¾
White and ¼ Cherokee Native American, he or she would be placed on the Cherokee by
Blood Roll with a notation of percentage of Indian Blood. The Dawes Commission
stated that the Negroes were on equal footing with the full-bloods. (Complaint ¶ 25.)

BIA’s Solicitor’s Opinion, October 1, 1941, 1 Op. Sol. On Indian Affairs 1076
(U.S.D.I. 1979), addressed the question whether the Freedmen are entitled to vote on the
acceptance of a Constitution in pursuance of section 3 of the Oklahoma Indian Welfare
Act. The opinion states, in relevant part:
As the membership rights of the Freedmen in the Five
Civilized Tribes have been fixed by Treaties, which are the
equivalent of statutes, and by formal tribal action in
pursuance of these treaties, the Secretary would not appear to be authorized to issue
regulations which would deprive the Freedmen of their right to vote on constitutions to be
adopted by the Five Civilized Tribes under the Oklahoma Indian Welfare Act.(Complaint ¶ 26.)

The 1970 Principal Chiefs Act, Pub. L. 91-495, 84 Stat. 1091, enacted by
Congress, states that, notwithstanding any other provisions of law, the principal chiefs of
the Cherokee, Choctaw, Creek, and Seminole Tribes of Oklahoma and the governor of
the Chickasaw Tribe of Oklahoma shall be popularly selected by the respective tribes in
accordance with procedures established by the respective tribes in accordance with
procedures established by the officially recognized tribal spokesman and or governing
entity. It further mandates that such established procedures shall be subject to approval
by the Secretary of the Interior. (Complaint ¶ 27.)

On June 26, 1976, Cherokee Freedmen voted in a Cherokee election on the
adoption of a Cherokee Constitution (“1976 Constitution.”). (Complaint ¶ 29.) Article I

of the 1976 Constitution states that the Cherokee Nation is an inseparable part of the
Federal Union, and that the Constitution of the United States is the Supreme law of the
land, and therefore, the Cherokee Nation shall never enact any law which is in conflict
with any Federal law. (Complaint ¶ 30.)

Article II of the 1976 Constitution states, in pertinent part, that the appropriate
protections of the Civil Rights Act of 1964 shall apply to all members of the Cherokee
Nation. (Complaint ¶ 31.)

 Article III, Section 1, of the 1976 Constitution states: “All
members of the Cherokee Nation must be citizens as proven by reference to the Dawes
Commission Rolls….” The Freemen can prove direct lineage to the Dawes Commission
Rolls. (Complaint ¶ 32.)

Article V, Section 7 of the 1976 Constitution states, in pertinent part: “Laws or
enactments which are required by Federal Statutes to be approved shall be transmitted
immediately upon enactment provided by Section 11 of this Article to the President of the
United States or his authorized representative.” (Complaint ¶ 33.)

Also in the 1976 Constitution, Article IX, Elections, Section 1, states in relevant
part: “The Council shall enact an appropriate law not inconsistent with the provisions of
this Constitution that will govern the conduct of the elections. . .” Section 2 limits the
candidacy for Council to members by blood, but does not restrict voting to blood
members only. Thus, pursuant to the 1976 Constitution, the Freedmen are entitled to
citizenship with voting rights. (Complaint ¶ 34.)

The Election of May 24, 2003,
and Defendants’ Reversal of Position
On March 15, 2002, Neal McCaleb, Assistant Secretary of Indian Affairs, wrote
to Cherokee Chief Chad Smith (“March 15, 2002, Letter”) that he had no objection to the
Constitutional Amendment striking the approval of the President of the United States or
his authorized representative from the Cherokee Constitution, subject to certain
understandings. First, all members of the Cherokee Nation, including the Freedmen
descendants who are otherwise qualified, must be provided an equal opportunity to vote
in the election. Second, under current law, no amendment of the Nation’s constitution
can eliminate the Freedmen from membership in the Nation absent Congressional
authorization. And third, notwithstanding any amendment of the Nation’s Constitution,
the Act of October 22, 1970 (94 Stat. 1091), until it is repealed or amended, will still
require the Secretarial approval of the procedures for the election of the leaders of the
Cherokee Nation and the other Five Civilized Tribes. (Complaint ¶ 35.)

In a series of subsequent letters, Defendants denied the validity of the March 15,
2002, Letter; informed Chief Smith, citing Seminole I, of the requirement that prior to an
election of the Principal Chief the election procedures must be submitted to the Secretary
and must be approved; advised Raymond Vann of the Cherokee Nation Election
Commission that such compliance was required; notified Chief Smith on July 11, 2003,
that the Nation had been previously advised on two occasions regarding the requirements
of the Principal Chiefs Act of 1970 and asked the Nation to submit its current election
laws for approval; stated later in July 2003 that the procedures for selecting the Principal
Chief of the Cherokee Nation are subject to approval by the Secretary, and that the BIA
was “aware of no evidence that the Secretary has approved the current procedures for the
election of the Principal Chief.” Importantly, the July 25, 2003, letter also stated that
“the BIA views the situation to be identical to the one involving the Seminole Nation of
Oklahoma . . . . ” (Complaint ¶ 55.)

On August 6, 2003, the BIA completely reversed its position. It did so in a letter
from Jeanette Hanna to Chief Smith, stating it is “inappropriate and premature” “for the
Department to question the validity of the Tribal officials. Based on the Nation’s
Election Commission certification of the results of the May 24 election, the Department
recognizes you as Principal Chief of the Nation.” (Complaint ¶ 36.)

In the same letter of August 6, 2003, Defendants stated: “The Department
continues to have under review the May 24 Tribal election results on the proposed
amendment of the Tribal constitution that would remove the requirement that future
amendments be approved by the Secretary of the Interior.” (Complaint ¶ 37.)

The BIA has made a final agency decision on the election for Principal Chief.
The BIA decided to not require the compliance of the 1970 Principal Chiefs Act and
require submission of voter regulations. The BIA was on notice that the Freedmen
citizens were not entitled to vote in the election. (Complaint ¶ 38.)

The decision of the BIA to defer review of whether to acknowledge the
Constitutional amendment is also a final decision, as the decision to recognize the
Principal Chief in the same Election wherein the Freedmen were not permitted to vote
indicates that Defendants do not find the stripping of voting rights as a basis for
disavowing the Election results. (Complaint ¶ 39.)

Prior to the BIA’s abrupt reversal of position, Plaintiffs, through their counsel,
notified Defendants that the Freedmen were denied the right to vote in the May 24, 2003,
Election and, as a matter of policy, the Freedmen had been stripped of their membership
rights. (Complaint ¶ 40.)

                                                  INTERVENTION SHOULD BE DENIED

The CNO cannot meet the standards required for intervention under Federal Rule
of Civil Procedure 24.
The CNO is adequately represented by the Defendants. The CNO asserts that the
arguments raised by the Defendants are the same arguments that it would raise. Its
complaint is that the Defendants just have not made them fast enough. The factor of
expediency is not a factor in the analysis, as the CNO clearly states the Defendants have
raised the same defense of indispensable party it would raise if permitted to intervene and
has stated that the Defendants with the same lawyers have adequately raised these issues
in what the CNO states is a similar matter in Davis v. United States, 343 F. 3d 1282 (10 th


Cir. 2003), cert. denied, 124 S. Ct. 2907. Further, in Seminole I, this Court denied the
Seminole Freedmen their Motion to Intervene based on the finding that they were
adequately represented by the Government Defendants in that case. The case related to
virtually the same facts as the Seminole Nation argued it not need to obtain approval
from the United States to amend its Constitution to vote the Black Seminoles out of the
Nation. Although the membership of the Freedmen in their Nation was asserted by the
Seminole Freedmen as a reason for intervention, the Court determined that the
Government Defendants could adequately represent the interests of the Seminole
Freedmen.
Fed. R. Civ. P. 24(b) states that upon timely application anyone may be permitted
to intervene in an action (1) when a statute of the United States confers a conditional right
to intervene; or (2) when an application or defense and the main action have a question of
law or fact in common. In exercising its discretion the Court shall consider whether the
intervenor will unduly delay or prejudice the adjudication of the rights of the original
parties.
The CNO’s Motion to Intervene is not related to the issue of its election but to
whether it can dismiss the case based on sovereign immunity and eliminate the
Secretary’s duty to oversee the election, including the rights of Cherokee citizens rights
to vote.
The CNO seeks to excuse its failure to file its motion to intervene earlier by
stating that the parties are having “ongoing secret settlement discussions.” The statement
is incorrect and misleads the Court. Counsel for the Plaintiffs conversed with CNO
Attorney General Julian Fite regarding the issue of Cherokee Freedmen voting rights as


the parties began settlement discussion in this case. The conversation ended with Mr.
Fite stating he would speak with the Chief and get back with Plaintiffs, counsel if there
was any interest. The CNO never contacted Plaintiffs’ counsel following the initial
conversation. In addition to the conversation with the CNO Attorney General, Plaintiffs’
Counsel addressed the CNO Tribal Council on the issues of the present action the day it
was filed. The CNO has made no inquiries into participation with settlement discussions.
Not only has the CNO been invited into the settlement discussions, the Joint Statement, a
public document, references settlement discussions. The settlement discussions are not
secretive. The CNO seeks to intervene in order to dismiss the case and thereby cut off
the ongoing settlement discussions.
In the event the Motion to Intervene is granted and the settlement negotiations are
frustrated, the Plaintiffs intend to amend their complaint additional claims against the
Defendants, including violations of the 13 th and 15 th Amendments to the United States
Constitution. The Defendants directly violate the 13 th Amendment of the Constitution in
perpetuating "badges" of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
The Defendants violated the 15 th Amendment, which prohibits the United States
from denying the right to vote "on account of race, color, or previous condition of
servitude," by its express action in permitting the discriminatory regulations of the
Cherokee Nation that intentionally exclude its Freedmen citizens from the voting process.
The Secretary of Interior is mandated by Congress in the 1970 Principal Chiefs Act to
approve the voting procedures. The Secretary’s duty to enforce the voting rights of the
Cherokee Freedmen is further mandated in its duty to follow its own decisions as set
forth in the almost identical issues involving the Seminole Freedmen. In the Seminole


Freedmen matter, The Secretary of the Interior, through its Bureau of Indian Affairs
(“B.I.A.”), did not recognize the Seminole elected officials that took office and did not
recognize the government-to-government relationship with the illegally elected
administration that was elected in an election that forbid the Seminole Freedmen from
voting. The B.I.A. successfully defended its position in this Court in Seminole Nation v.
Norton, 2002 WL 31109804 (D.D.C.) (RBW) (2002) (Seminole II). The B.I.A. also
refused to recognize the Seminole Nation or the government-to-government relationship
and defended its position successfully in a case in this Court, where the Seminole
Freedmen were voted out of the Seminole Nation by a Constitutional Amendment
Referendum Election in Seminole Nation of Oklahoma v. Norton, No. 00-2384 (D.D.C.
Sept. 27, 2001) (CKK). The basis for the B.I.A’s position was that the Seminole
Freedmen were ensured full citizenship rights under the 1866 Treaty. The Cherokee
Tribe signed an 1866 Treaty with the same citizenship protections to the Cherokee
Freedmen. The B.I.A.’s determination to recognize the Cherokee election is a violation
of the 13 th and 15 th Amendments to the Constitution of the United States.
In the event the CNO is permitted to Intervene, Plaintiffs intend to amend their
complaint to name the CNO as a Defendant and will be prepared to demonstrate that the
Cherokee Nation’s claim to sovereign immunity is not valid.

In the event the Court does permit the CNO to intervene, the intervention should
not be limited to merely filing a motion to dismiss but rather should subject the CNO to
the jurisdiction of this Court on the issues raised by the Plaintiffs in the Complaint as well
as any raised in the amended complaint.


Unless and unt il the mot ion to intervene is granted, there is no obligat ion on
Plaintiffs to respond to the proposed motion to dismiss. If the motion to intervene is
granted, Plaintiffs will respond to the motion to dismiss in accordance with the rules of
this Court.
                                                                 CONCLUSION

Based upon the foregoing and the entire record of this case, Plaintiffs respectfully
request that the Cherokee Nation of Oklahoma’s Motion to Intervene be denied. In the
alternative, if the CNO’s Motion to Intervene is granted, the extent of the intervention
should not be limited.
Dated: February 1, 2005 Respectfully submitted,
_______________________
Alvin Dunn
Jonathan Gannon
SHAW PITTMAN LLP
2300 N Street, N.W.
Washington, D.C. 20037
(202) 663-8000
alvin.dunn@shawpittman.com
jonathan.gannon@shawpittman.com
Jonathan T. Velie
VELIE & VELIE
210 East Main Street, Suite 222
Norman, OK 73069
(405) 364-2525
jon@velielaw.com
Attorneys for Plaintiffs