[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2761 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2761
To sever United States Government relations with the Cherokee Nation of
Oklahoma until such time as the Cherokee Nation of Oklahoma restores
full tribal citizenship to the Cherokee Freedmen disenfranchised in the
March 3, 2007, Cherokee Nation vote and fulfills all its treaty
obligations with the Government of the United States, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 8, 2009
Ms. Watson (for herself, Ms. Norton, Mr. Cummings, Mrs. Christensen,
Mr. Butterfield, Mr. Conyers, Mr. Clay, Ms. Lee of California, Mr.
Towns, Mr. Al Green of Texas, and Mr. Fattah) introduced the following
bill; which was referred to the Committee on Natural Resources, and in
addition to the Committee on the Judiciary, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To sever United States Government relations with the Cherokee Nation of
Oklahoma until such time as the Cherokee Nation of Oklahoma restores
full tribal citizenship to the Cherokee Freedmen disenfranchised in the
March 3, 2007, Cherokee Nation vote and fulfills all its treaty
obligations with the Government of the United States, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress finds the following:
(1) In the 1830s, members of the Cherokee Nation were
removed from their lands in the southeastern United States and
forced to migrate to Oklahoma along a route known as the Trail
of Tears. Among those persons forced to migrate were the Black
slaves of Cherokees, free Blacks married to Cherokees, and the
children of mixed-race families, known now as the ``Black
Cherokees''.
(2) In 1861, the Cherokee Nation executed a treaty with the
Confederate States of America, thereby severing its relations
with the United States Government. Members of the Cherokee
Nation held positions in the Congress and military of the
Confederate States of America and waged war against the United
States during the Civil War.
(3) Following the Civil War, the United States
reestablished relations with the Cherokee Nation through the
Treaty of 1866. The Treaty of 1866 declared that the Black
Cherokees, also known as ``Cherokee Freedmen'', were to be made
citizens of the Cherokee Nation and to have all the rights of
Cherokees.
(4) The Treaty of 1866 further guarantees the following:
(A) Laws ``shall be uniform throughout said
nation'' and that if ``any law, either in its
provisions or in the manner of its enforcement, in the
opinion of the President of the United States, operate
unjustly in [the Freedmen] district, he is hereby
authorized and empowered to correct such evil.''.
(B) The Cherokee Freedmen are given the right to
elect officials and to representation ``according to
numbers'' on the national council.
(5) Following the Treaty of 1866, the Cherokee National
Council amended its constitution to guarantee the Cherokee
Freedmen full rights as citizens of the Cherokee Nation.
(6) Also following the Treaty of 1866, the Courts upheld
the Cherokee Freedmen's treaty rights, including--
(A) in 1895, the Court of Claims held that the
Cherokee Freedmen were entitled to share in the tribe's
land sale proceeds and the Cherokee Nation's
sovereignty could not be exercised in a manner that
breached the nation's treaty obligations to the United
States (Whitmire, Trustee for the Cherokee Freedmen v.
Cherokee Nation, 30 CT Cl. 138, 180 (CT Cl. 1895)); and
(B) in 1906, the Supreme Court noted that the
Cherokee Freedmen are citizens of the Cherokee Nation
entitled to the same property rights as other members
of the Cherokee Nation under the Treaty of 1866 (Red
Bird v. United States, 203 U.S. 76, 84).
(7) In a December 19, 2006, ruling in Vann v. Kempthorne,
the United States District Court for the District of Columbia
found that in 1906, the Dawes Commission registered members of
the Cherokee Nation under separate categories: the ``Freedmen
Roll'' for the Black Cherokees and the ``Blood Roll'' for other
Cherokees. Individuals possessing African blood were placed on
the Freedmen Roll, where no levels of Indian blood were
recorded. Those possessing no African blood were placed on the
Blood Roll, where levels of Indian blood were recorded. The
Dawes Commission declared that persons recorded on the Freedmen
Roll were on equal footing with those on the Blood Roll.
(8) In 1970, Congress passed the ``Principal Chiefs Act''
requiring the Chickasaw, Choctaw, Creek, Seminole, and Cherokee
Nations to obtain approval for their voting laws for selection
of the principal chief. The Department of the Interior drafted
a policy stating that it was not necessary that each of these
groups have identical or similar regulations, but that three
conditions are deemed fundamental to the democratic selection
of a principal tribal official. One of the three conditions
stipulated by the Department is that voter qualifications of
the Cherokees must be broad enough to include the enrolled
Cherokee Freedmen citizens.
(9) In May 2003, the Cherokee Nation held an election for
its officers and ratification of a new constitution. The vote
proposed to amend the 1999 constitution of the Cherokee Nation
by removing the requirement that the United States Department
of the Interior and Bureau of Indian Affairs approve amendments
to the Cherokee Nation Constitution. The Cherokee Freedmen were
not permitted to vote or run for office. The election violated
the Treaty of 1866, the 13th Amendment to the United States
Constitution, the Principal Chiefs Act of 1970, and the
Department of the Interior's guidance on the ratification of a
new constitution.
(10) In May 2003, the Cherokee Nation held an election for
its officers and the ratification of a new constitution. The
new constitution removed the requirement that the United States
Department of the Interior and the Bureau of Indian Affairs
approve amendments to the Cherokee Nation constitution. The
Cherokee Freedmen were not permitted to vote in this election.
The election violated the Treaty of 1866, the 13th Amendment to
the United States Constitution, and the Principal Chiefs Act of
1970.
(11) The Department of the Interior has not recognized the
May 2003 vote to amend the Cherokee Nation's constitution. The
Cherokee Nation has subsequently removed its request for
approval from the Department of the Interior.
(12) Currently, the Cherokee Nation operates under a
Principal Chief elected in violation to the 1970 Principal
Chiefs Act and Treaty of 1866, a National Council constituted
without Cherokee Freedmen representatives in violation of the
Treaty of 1866, and a Constitution not approved by the United
States pursuant to article XV, section 10 of the 1975 Cherokee
Nation Constitution.
(13) In May 2003, the Cherokee Nation renamed its highest
court, formerly named the Judicial Appeals Tribunal and newly
renamed the Supreme Court, after the Judicial Appeals Tribunal
ruled in a 2-1 decision that the Cherokee Freedmen were
entitled to citizenship pursuant to the 1975 Cherokee Nation
constitution. Pursuant to the new May 2003 constitution, which
still has not been approved by the Department of the Interior,
the illegally elected Principal Chief appointed two additional
judges to the Supreme Court. The panel of five Supreme Court
judges ruled in a 3-2 decision that the Cherokee Nation could
hold a vote on the tribal status of the Cherokee Freedmen.
(14) Operating under the unapproved Constitution, the
Cherokee Nation held an election in March 2007, to remove the
Cherokee Freedmen from the Cherokee Nation. In a vote of less
than 4 percent of the total Cherokee Nation population, the
voters elected to remove Cherokee Freedmen not on the Dawes
blood rolls from the Nation.
(15) In May 2007, the Cherokee Nation leadership determined
that it would allow registered Freedmen to vote in the June 23,
2007, election for tribal officers. Despite the Cherokee
Nation's decision to allow Freedmen to vote, Freedmen's rights
as members of the Cherokee Nation are severely restricted:
Freedmen are not allowed to run for office in the June 2007
election in violation of the Treaty of 1866; the registration
of Freedmen entitled to Cherokee citizenship under the 1906
Dawes Rolls has been halted; and the election is to be held
under provisions of an unapproved constitution and in violation
of the 1970 Principal Chiefs Act that requires the Cherokee
leadership to submit its voting requirements for the election
to the Secretary of the Interior for his approval. Further, the
actions of the Cherokee Nation in halting citizenship
application processing and voter registration of Freedmen have
disproportionately reduced the number of Freedmen voters that
can participate in the election.
(16) The manner in which the Cherokee Nation is conducting
the relationship between the United States and the tribal
entity is not in the best interest of the United States
Government, citizens of the Cherokee Nation, and violates
existing treaties and laws governing the relationship between
the United States Government and the Cherokee Nation.
(17) Current efforts of the Cherokee Nation to expel
members of the Cherokee Freedmen from the tribal rolls and
abolish Department of the Interior oversight are being pursued
in violation of the treaty rights extended to the Cherokee
Freedmen in a treaty agreement between the United States and
Cherokee Nation in the 1866 Treaty and in violation of Freedmen
citizenship under the federally approved Cherokee Nation
constitution of 1975.
(18) The Department of the Interior has failed to uphold
its fiduciary responsibility by recognizing the May 2003
Cherokee Nation election for Principal Chief in which Freedmen
were not allowed to vote in violation of the Principal Chiefs
Act and the Treaty of 1866 and by failing to take any
administrative action against the Cherokee Nation leadership
for its decision to sanction a referendum in March 2007 in
which the Freedmen were expelled from the Cherokee Nation.
SEC. 2. SEVERANCE OF RELATIONS WITH THE CHEROKEE NATION.
(a) In General.--The United States hereby severs all relations with
the Cherokee Nation, including all financial obligations or otherwise,
until such time as the Cherokee Nation is meeting all of its treaty
obligations and other federal statutory obligations (including all
obligations of the Treaty of 1866, the Principal Chiefs Act, holding
elections for tribal leaders that are in compliance with the Act, and
has restored the rights of all Cherokee Freedmen disenfranchised from
the Cherokee Nation in the March 3, 2007, Cherokee Nation vote), as
determined by a final certification under section 2(d).
(b) Compliance With the Requirements of the Act.--The Secretary
shall coordinate with all departments and agencies of the United States
Government to ensure that every effort is being made by the United
States Government to comply with this Act.
(c) Reports.--
(1) Federal agencies.--Not later than 30 days after the
date of the enactment of this Act, and continuing annually
until the final certification as determined under section 2(d),
all departments and agencies under the jurisdiction of the
United States Government shall submit a report to the Secretary
describing--
(A) all Federal programs under their jurisdiction
that provide financial assistance and other services to
the Cherokee Nation; and
(B) the efforts that are being undertaken comply
with all requirements of this Act.
(2) Status reports.--Until the Secretary certifies to
Congress that the Cherokee Nation is in compliance with its
treaty obligations, the Secretary shall submit monthly public
reports to Congress on the status of the United States
Government's efforts to ensure that all departments and
agencies of the Federal Government are in compliance with the
requirements of this Act.
(3) Other freedman indians.--Not later than 6 months after
the date of the enactment of this Act, the Secretary shall
issue a public report to Congress on the status of freedmen in
the Cherokee, Choctaw, Chickasaw, Muscogee (Creek), and
Seminole Nations of Oklahoma. The report shall address whether
each of those Indian tribes is complying with all treaty
obligations and Federal laws with respect to its freedmen
members, the level of participation of freedmen in tribal
leadership positions, tribal benefits received by the freedmen,
and previous or current efforts on the part of those Indian
tribes to disenfranchise its freedmen members.
(d) Congressional Certification.--After the Secretary has certified
to Congress that the Cherokee Nation is in full compliance with all its
treaty obligations and Congress approves the Secretary's certification
by a vote taken on a resolution introduced in both chambers of Congress
certifying that the Cherokee Nation is in full compliance with its
treaty obligations, the final certification of the Cherokee Nation's
treaty compliance shall take effect.
SEC. 3. SUSPENSION OF RIGHT TO CONDUCT GAMING OPERATIONS.
(a) In General.--The Cherokee Nation's authority to conduct gaming
regulated under the Indian Gaming Regulatory Act and to administer any
funds from such gaming are suspended until such time that the Cherokee
Nation is in compliance with all treaty and other obligations with the
United States, as determined by a final certification under section
2(d).
(b) Report.--Not later than 30 days after the date of the enactment
of this Act, the National Indian Gaming Commission shall submit a
report to Congress detailing the actions that have been taken to
enforce subsection (a).
SEC. 4. DEFINITIONS.
(a) ``Cherokee'' and ``Cherokee Nation''.--The terms ``Cherokee''
and ``Cherokee Nation'' mean the Cherokee Nation of Oklahoma.
(b) ``Cherokee Freedmen'', ``Freedmen'', and ``Black Cherokees''.--
The terms ``Cherokee Freedmen'', ``Freedmen'', and ``Black Cherokees''
refer to individuals who can trace their ancestry to individuals listed
on the 1906 Dawes Commission Roles for the Cherokee Freedmen.
(c) ``Other Freedman Indians''.--The term ``Other Freedmen
Indians'' refers to individuals who can trace their ancestry to the
1906 Dawes Commission Rolls who are members of the Choctaw, Chickasaw,
Muscogee (Creek), and Seminole Nations.
(d) Secretary.--The term ``Secretary'' means the Secretary of the
Interior.
SEC. 5. NONCOMPLIANCE.
(a) Effective Date.--Notwithstanding any decision by Congress under
section 2(d) of this Act, the provisions of this Act shall again take
effect if at any future date the Secretary certifies to Congress that
the Cherokee Nation of Oklahoma is not in full compliance with its
treaty obligations or Federal statutes that govern its relations with
the United States Government.
(b) Private Action.--Any Cherokee Freedmen shall have a private
right to bring actions for injunctive relief, declaratory relief, or
monetary damages against the Cherokee Nation of Oklahoma, officials of
the Cherokee Nation of Oklahoma, or Federal officials for noncompliance
with this Act or for violations of the terms of the Treaty of 1866, the
13th Amendment to the United States Constitution, or the Indian Civil
Rights Act of 1968. The appropriate Federal courts shall have exclusive
jurisdiction over actions brought under this subsection.
SEC. 6. DEPARTMENT OF JUSTICE.
The Attorney General shall issue a finding on whether the Federal
civil rights of the Cherokee Freedmen have been violated by either the
Cherokee Nation of Oklahoma or the Department of the Interior, or both.
Individual Freedmen shall also have a private right of action to compel
the Attorney General to investigate federal civil rights violations and
provide a determination of whether a violation has occurred within 180
days of submitting a complaint describing the violation in writing.
SEC. 7. GAO REPORT ON EXPENDITURE OF FEDERAL FUNDS.
The Government Accountability Office shall issue a public report to
Congress detailing for each of the 5 years ending immediately before
the report was completed the Cherokee Nation's expenditure of all
Federal funds. The report shall include an analysis of Federal funds
allocated by the Cherokee Nation's leadership for its member benefits
and services and for administrative and other purposes. The report
shall determine whether or not the Cherokee Nation is in full
compliance with all Federal regulations and laws regarding the
management and disbursement of Federal funds.
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