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Title: 'This is 21st Century racism and apartheid': Cherokee Indian tribe expels all slave descendants
Source:
Daily Mail Online
URL Source: http://www.dailymail.co.uk/news/art ... pelling-slave-descendants.html
Published: Aug 27, 2011
Author: Paul Bently
Post Date: 2011-08-27 18:30:25 by Sebastian
Keywords: None
Views: 17601
Comments: 24
The nation's second-largest Indian tribe formally booted from membership thousands of descendants of black slaves who were brought to Oklahoma more than 170 years ago by Native American owners. The Cherokee nation voted after the Civil War to admit the slave descendants to the tribe. But on Monday, the tribe's Supreme Court ruled that a 2007 tribal decision to kick the so-called 'Freedmen' out of the tribe could be upheld. Scroll down for video Heritage: The case centred on whether the descendants of black slaves taken in by Native American owners should be deemed official members The controversy stems from a footnote in the brutal history of U.S. treatment of Native Americans. When many Indians were forced to move to what later became Oklahoma from the eastern U.S. in 1838, some who had owned plantations in the South brought along their slaves. Some 4,000 Indians died during the forced march, which became known as the Trail of Tears. Verdict: Members of the tribe site in court to hear the outcome of the case 'And our ancestors carried the baggage,' said Marilyn Vann, the Freedman leader who is a plaintiff in the legal battle. In the winter of 1838, U.S. soldiers rounded up Cherokees and led them on a thousand mile march from their homelands in Tennessee to Indian Territory in Oklahoma. The brutal programme of forced removal, implemented so their land could be annexed, would later be referred to as the Trail of Tears. It is believed that about 4,000 of the tribe died on the journey, which many took completely barefoot. Handed blankets for the trip from a hospital where a smallpox epidemic had broken out, the Cherokees were not allowed into any towns along the way for fear they would spread infection. At one point they were massively overcharged to cross a river and were forced to wait while other travellers took precedence. Many Cherokees died huddled in the cold waiting to cross. Officially, there are about 2,800 Freedmen, but another 3,500 have tribal membership applications pending, and there could be as many as 25,000 eligible to enter the tribe, according to Vann. The tribal court decision was announced one day before absentee ballots were to be mailed in the election of the Cherokee Principal Chief. 'This is racism and apartheid in the 21st Century,' said Mrs Vann, an engineer who lives in Oklahoma City. Tribal member Kenneth Payton told NewsOn6: 'It's my legal right [to be in the tribe]. It's my humane right. This is more of a human rights issue than anything else.' Member David Adams, however, said: 'A person ought to have at least one member of family to be tribal.' Spokesmen for the tribe did not respond when asked to comment. The move to exclude the Freedmen has rankled some African American members of Congress, which has jurisdiction over all Native American tribes in the country. Support: Many tribal members back the decision, despite accusations of racism Furious: The decision has been labelled a serious human rights abuse by critics A lawsuit challenging the Freedman's removal from the tribe has been pending in federal court in Washington, for about six years. As a sovereign nation, Cherokee Nation officials maintain that the tribe has the right to amend its constitutional membership requirements. Removal from the membership rolls means the Freedmen will no longer be eligible for free health care and other benefits such as education concessions.
THE TRAIL OF TEARS
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#1. To: Sebastian (#0)
The Cherokee Nation Supreme Court found that it lacked subject matter jurisdiction and DISMISSED FOR WANT OF JURISDICTION. The Cherokee Nation amended their constitution in 2007. The Court has no choice but to follow it. The Judicial Appeals Tribunal of the Cherokee Nation was renamed and is now the Supreme Court of the Cherokee Nation. The JAT was, and the Supreme Court is, the highest court of the Cherokee Nation, just with a different name. In 2006, the Freeman descendant citizenship issue was decided by the Court in favor of the Freedman descendants. The Cherokee statute 11 C.N.C.A § 12 ("Tribal membership is derived only through proof of Cherokee blood based on the Final Rolls" referring to Dawes Commission rolls dating to shortly after the Civil War) was declared unconstitutional under the 1975 Cherokee Constitution. However, the Court specifically stated, "citizenship is an internal matter for the Cherokee citizenry to ultimately decide." On March 3, 2007 the Cherokee amended its constitution. The 2011 Opinion of the Court at 6 states: At 11, the Certificate of Mailing states, "REVERSED AND REMANDED WITH INSTRUCTION TO DISMISS FOR WANT OF JURISDICTION. In the Concurring Opinion of the Justice Haskins it states: Failure to properly and timely raise these issues denied this Court the opportunity to timely address these weighty issues and detennine whether it should enjoin the vote whkh gave rise to the Constitutional Amendment of March 3, 2007. The March 3, 2007, special election was held in compliance with Cherokee law, and included voting members of the Freedmen. An overwhelming majority of the citizens of the Cherokee Nation voted to support the Constitutional Amendment. Once the Cherokee Nation Constitution was amended by a popular vote of the people on March 3, 2007, it then became woven into the legal fabric of the Cherokee people - by which this Court must abide. This Court [The Supreme Court of the Cherokee Nation], is a constitutionally created court. Each Justice has individually taken an oath to defend our Constitution - as a Whole. Regardless of how this Court 's majority Opinion may be scrutinized and dissected, the issue at bar was not about race. The Court's majority Opinion neither supports nor rejects the Freedmen's citizenship with the Cherokee Nation. We find only that the Cherokee Courts lack subject matter jurisdiction to now resolve the Freedmen challenge. Whether the March 3, 2007, Cherokee Nation vote of self-detennination of its citizenry violates the Treaty of 1866 between the Cherokee Nation and the United States of American is now an issue for the two governments to resolve. I would also like to point out that the United States of America never sought to intervene in these proceedings. - - - CHEROKEE Freedman Decision 03-07-2006, Judicial Appeals Tribunal of the Cherokee Nation - - - Cherokee Nation Registrar v Nash et al, Supreme Court of Cherokee Nation, SC-2011-02, 22aug2011 - - -
Refreshingly simple.
I am thinking it is their right to do, however, it is not a kind or benevolent move. Some things are worth fighting for and some aren't. I am not thinking this should be a hill to die upon.
What else is new?
Free health care is pretty attractive, assuming the care is competent. Worth dying for? Maybe not. But probably worth fighting for.
Some things are worth fighting for and some aren't. I am not thinking this should be a hill to die upon. A little background may help to show that it is not all a straight-forward and simple issue. From the 2007 Amendment: At issue would appear to be descendants of Freedmen who were once slaves owned by member of the Cherokee Nation, but who are unable to show the requisite blood relationship to the Cherokee Nation. It is not clear why they would have any legal claim to being Cherokee indians. This appears to affect only those 2,800 or so who enrolled in 2006-07 following the 2006 decision and before the constitutional amendment. As usual with things in the Civil War era, the "official" history can afford to be given some scrutiny. The 1866 Treaty obviously followed the Civil War. Not so obvious to most these days is that the Cherokee Nation mostly sided with and fought alongside the forces of the Confederate States of America. While the CSA surrendered, General Stand Watie, leader of the Cherokee Nation did not, although some books say he did. Watie entered into a cessation of hostilities, which differs from a surrender wherein one side surrenders their weapons and freedom to the other. In a cessation of hostilities, both sides leave the battlefield and stop fighting. That was the status until a treaty was made. At the time, the Cherokee Nation occupied what was then called the Oklahoma Territories. It should be borne in mind that when the U.S. Federal government says the Cherokee Nation did something voluntarily in 1863, it is akin to saying the State of Virginia voluntarily agreed to partition itself, allowing for the creation of the State of West Virginia during the war. There was an officially recognized government of the State of Virginia throughout the war, it just wasn't the one in Richmond, but a U.S. government approved group in Alexandria who purportedly acted for the entire state. http://en.wikipedia.org/wiki/John_Ross_(Cherokee_chief) John Ross led the Cherokee Nation through the tumultuous years of the Civil War. Now there is some official history. And where was John Ross while doing this leading? http://en.wikipedia.org/wiki/Stand_Watie Article 9 of the 1866 Treaty with the [union] Cherokee Indians: Note carefully that nowhere does it state that the Freedmen, or their descendants, became members of the Cherokee Nation or Tribe. It said those meeting specified conditions shall have all the rights of native Cherokees. The 2011 Opinion of the Court at 8 states: It stands to reason that if the Cherokee People had the right to define the Cherokee Nation citizenship in the above mentioned 1866 Constitutional Amendment they would have the sovereign right to change the definition of Cherokee Nation citizenship in their sovereign expression in the March 3, 2007 Constitutional Amendment.
Article 1 of the Treaty of 1866: The "pretended" treaty with the CSA was made by the majority, and repudiated by the minority leader who was in exile in Washington D.C. while doing his repudiating.
:) Yes.. I do understand. It is their right. They have a legal right. They also have a choice to make a stand for kindness and love and chose not to. I just don't think it is kind or benevolent thing to expel people from the tribe- for no wrong doing. Sometimes man made laws should be acknowledged and we should just do the right thing, anyway. People who were driven off of the land they believe the Great Spirit gave them, should have some empathy for people who were taken from their land. I am part Cherokee, and disappointed that peace would not be sought, but exclusion of people in need. Surely there is a more creative solution, which could offer a bit of respect to the people who find themselves without a tribe now. I think the Great Spirit would cry. But yes- I am sure they are legally within their rights.
As opposed to those (such as Sam Houston, for example) who were adopted into the Cherokee Nation, I suppose.
I reckon it's a matter for the Cherokee Nation to deal with. Without opining on the wisdom, or lack thereof, it seems they have the sovereign right to adopt the constitutional provisions of choice for their nation. We have abolished the sale of booze and legalized it again. The provisions need not make any logical sense to be binding on the courts. The court cannot strike down, as unconstitutional, a provision of the Constitution. When it is the Constitution involved, it just works differently than when a statute or treaty is involved. The reason for claiming involvement of the Treaty of 1866 is to try to invoke the jurisdiction of the United States Federal courts. It appears that it was not the Treaty of 1866 which gave citizenship to specified Freedmen, but the Amendment to the Cherokee Nation Constitution of that same year. Cherokee Nation Const., Art. III, Sec. 5 (as amended in 1866). http://www.cherokeeobserver.org/Issues/1839constitution.html The descendants of Cherokee men by free women except the African race, whose parents may have been living together as man and wife, according to the customs and laws of this Nation, shall be entitled to all the rights and privileges of this Nation, as well as the posterity of Cherokee women by all free men. No person who is negro and mulatto parentage, either by the father or mother's side, shall be eligible to hold any office of profit, honor or trust under this Government. The Cherokee Nation Constitution of 1839, Article 3, Section 5. Sam Houston claimed the following Certificate of Citizenship. October 21, 1829, The Writings of Sam Houston, I, 143-144 The quality of being a sovereignty implies the authority to determine and regulate the citizenship status of those within the sovereignty. They made one determination in 1866 and another in 2007. The U.S. determined in 1868 that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Many today desire to revisit that determination. We would certainly have the authority to amend to Constitution to eliminate U.S. birth citizenship for children of aliens unlawfully present in the United States.
After the treatment of this tribe that did so much to assimulate by this country from the refusal by President Jefferson to their request to be part of this nation to Jackson's refusal to obey the Constitution and keep the Tail of Tears from happening, any criticism of the Cherokee Nation over this is just an exercise that is beyond the realm od being silly and pointless. Some tribes in Canada don't allow any mixing of blood with invader peoples anymore. That might be contriversal, but this isn't.
That was the intended method of the framers. To circumvent this minor issue, the courts have interpreted the US constitution to the point that no-one can make "heads or tails" of the document anymore; 222 years of court precedent becomes weary to understand.
The whole idea of precedents seems to me like an usurpation and unconstitutional.
I disagree, Stone. Any government needs precedence within judicial decisions for further decisions that may or may not deviate from the earlier cases under adjudication; continuity of governance is a key idea here. But, today, taking a case to federal court costs years of time and MILLIONS of dollars. Most folks don't understand the reasons, either. Each case is treated separately unless earlier related precedent through legal research that may be established; even afterward a court may find a contemporary case irrelevant. The legal research for "precedence" in common cases is mind-boggling.
No. They should go back to the original document in all decisions. Remember that game where someone at one end says something and they whisper it in the ear next to them, and by the time it gets to the end it is something else. That is what precedents do to the constitution. If a judge gets it wrong. Oh well he got a wrong decision. The next judge can look at the constitution and get it right. If you use precedents. The judge gets it wrong and every future judge is bound by a wrong decision. That is how we get the system that you described above.
15
Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts. To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).Although the doctrine of stare decisis does not prevent reexamining and, if need be, overruling prior decisions, "It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law. Case law keeps things consistent, and it allows the living, breathing document, the U.S. Constitution the means to be flexible in changing times and realities. When the SCOTUS considers a case, if they are going to change anything about a precident, it is kept as narrow a change in scope as possible. This system keeps the court system consistent in how cases are decided. And if this is what happens in court, appeals and review of the outcome of any court proceeding are supposed to catch that. No system of law is perfect, but precidents keep things much more balance and consistent in the outcome of actions in the legal system.
The constitution isn't supposed to be flexible. It says what it says and means what it says. It is pretty black and white. The Amendment process is what allows the constitution to change with times and realities. Not some judge pretending interstate commerce means the government can do anything they want to do.
The reason the Articles of Condederation failed to work was because of reasons such as being unable to create the national unity between 'the several states' in a workable fashion. Taxes, tariffs and duties between states acting too much like independent governments caused these articles to be replaced with a clearly defined framework of rights and responsibilities. The precident case, Marbury v. Madison in 1803 is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional. Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. This is the idea that courts may oversee and nullify the actions of another branch of government. The landmark decision helped define the "checks and balances" of the American form of government. In 1824, Gibbons v. Ogden defined broadly Congress's right to regulate commerce. Aaron Ogden had filed suit in New York against Thomas Gibbons for operating a rival steamboat service between New York and New Jersey ports. Ogden had exclusive rights to operate steamboats in New York under a state law, while Gibbons held a federal license. Gibbons lost the case and appealed to the U.S. Supreme Court, which reversed the decision. The Court held that the New York law was unconstitutional, since the power to regulate interstate commerce, which extended to the regulation of navigation, belonged exclusively to Congress. The framework that is the U.S. Constitution gives a braod framework that defines caselaw and gives a basis for decisions by the judicial system to determine framer's intent. And these decisions are a key element needed to keep the justice system consistent, fair, and enduring. The Constitution established this power for the courts as part of the check and to balances of power it establishes between different parts of the government. Without judicial review and a framework of legal decisions to offer clarity and consistency to the system as the Constitution clearly was set up for it to do, the system wold not work at all.
Well...that's just wrong. There are implied powers all through the document as well as some express powers that grant flexibility. There are some absolute proscriptions [Article 1 Section 9 and some of the amendments] but there is a great deal of flexibility built into the document. The Framers were smart enough to understand that they, as 18th and early 19th century men, were different from 17th century men and that 20th century men would be different still.
America...My Kind Of Place... "I truly am not that concerned about [bin Laden]..." "THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!" I lurk to see if someone other than Myst or Pookie posts anything...
We have adopted the English common law system of law federally, and in 49 of the 50 states (Louisiana uses a civil code system adopted from France). Using court precedents is essential to the system. Absent use of precedent, the system would result in chaos. Decisions based on the same facts would yield results that are unpredictable. It was the system of law in use in each of the 13 colonies when the government was formed. It may be considered a flaw in the system that permits politically appointed justices to wordsmith and interpret constitutional provisions into oblivion, or to discover previously unknown provisions emanating from a penumbra.
This is true of governments using the Common Law system of law, as we do. It is not true for governments using a Civil Code system of law that does not rely on precedent, but on written statutory law. http://en.wikipedia.org/wiki/Civil_law_(legal_system)
This needs clarification or refining. Precedent is only binding on lower courts. A Circuit Court opinion is only binding on the District Courts that fall within that Circuit. Another Circuit could issue a contrary ruling and that would be binding in that Circuit. The Supreme Court could resolve the issue, it's ruling being binding in all the Circuit and District courts. No precedent is binding on the Supreme Court and it may revisit it's own opinions, e.g. Plessey v. Ferguson (upholding separate but equal) was overturned by Brown v. Board of Education. The Legislature can act to change a statute upon which a Supreme Court decision is based, or the people can amend the Constitution if it is involved.
The Constitution requires some flexibility, via interpretation by the courts, as it is merely a framework. However, you may like Justice Scalia and the Dead Constitution which does not change with someone's evolving standards or perceived progress of a maturing society. http://directorblue.blogspot.com/2009/06/antonin-scalia-united-states.html Scalia: Much of the harm that has been done in recent years by activitist Constitutional intepretation… is made possible by a theory which says that, unlike an ordinary law, which doesn't change -- it means what it meant when it was enacted, and will always mean that -- unlike that, the Constitution changes from decade to decade, to comport with... quote "the evolving standards of decency that mark the progress of a maturing society". In other words, we have a morphing Constitution and, of course, it's up to the court to decide when it morphs and how it morphs! That's generally paraded as quote 'The Living Constitution' and, unfortunately, that philosophy has made enormous headway not only with lawyers and judges but even with John Q. Public. ..."Does the equal protection clause require states to permit same sex marriage?" That is not a hard question for an originalist. Nobody ever thought that is what the equal protection clause meant. … Is there a right to an abortion? For Pete's sake, it was criminal in every state for 200 years. If you want a right to abortion, create it the way most rights are created in a democracy. Persuade your fellow citizens it's a good idea and enact it into law. Don't tell me the Constitution confers such a right." ...For the living Constitutionalist, there are no answers. I have sat with four colleagues, one still on the Court, who thought that the death penalty was unconstitutional. It's mentioned in the Constitution! But [for proponents of "the living Constitution"] every day is a new day. If [the death penalty] used to be constitutional, maybe tomorrow it won't be." ...[On a resurgence of originalism,] I am not optimistic... I will put it that way. We got here. We ought to be able to get back. ... Harvard Law School now has three originalists on the faculty. I never thought I would see one. ... And there are other [originalist] federal judges, not just on the Supreme Court but on the Courts of Appeals, judges like Larry Silberman [Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia]. But I have to say it's a hard fight. ...[My] legacy doesn't matter. What matters is the Constitution. We had a wonderful thing here. We have a wonderful thing here. I truly believe it cannot continue if we turn over so much of our democratic self-governance--so much of what makes us great--to unelected judges. That is what I care about.
Furious: The decision has been labelled a serious human rights abuse by critics
Notwithstanding any provisions of the Cherokee Nation Constitution approved on October 2, 1975, and the Cherokee Nation Constitution ratified by the people on July 26, 2003, upon passage of this Amendment, citizens of the Cherokee Nation shall be only those originally enrolled on, or descendants of those enrolled on, the Final Rolls of the Cherokee Nation, commonly referred to as the Dawes Rolls, for those listed as Cherokees by Blood, Delaware Cherokees pursuant to Article II of the Delaware Agreement dated the 8th day of May, 1867, and the Shawnee Cherokees pursuant to Article III of the Shawnee Agreement dated the 9th day of June, 1869.
There is no subject matter jurisdiction for the Cherokee Nation District Court, or this Court, to determine that the March 3, 2007, Amendment to the Cherokee Nation Constitution is unconstitutional. And, subject matter jurisdiction cannot be waived.
I respectfully suggest that the Freedmen should have timely raised their Constitutional and Treaty violation claims before passage of the Constitutional Amendment of March 3, 2007; however, they failed to do so. The Freedmen's fa ilure to timely raise the issues at bar, until after March 3, 2007, has divested this Court and the lower court of subject matter jurisdiction.
#2. To: nolu chan (#1)
The Cherokee Nation amended their constitution in 2007. The Court has no choice but to follow it.
#3. To: Sebastian (#2)
#4. To: diva betsy ross (#3)
(Edited)
I am not thinking...
#5. To: diva betsy ross (#3)
I am not thinking this should be a hill to die upon.
#6. To: diva betsy ross, Sebastian (#3)
I am thinking it is their right to do, however, it is not a kind or benevolent move.
citizens of the Cherokee Nation shall be only those originally enrolled on, or descendants of those enrolled on, the Final Rolls of the Cherokee Nation, commonly referred to as the Dawes Rolls, for those listed as Cherokees by Blood, Delaware Cherokees pursuant to Article II of the Delaware Agreement dated the 8th day of May, 1867, and the Shawnee Cherokees pursuant to Article III of the Shawnee Agreement dated the 9th day of June, 1869.
John Ross (October 3, 1790 – August 1, 1866), also known as Guwisguwi (a mythological or rare migratory bird), was Principal Chief of the Cherokee Native American Nation from 1828–1866. Described as the Moses of his people, Ross led the Nation through tumultuous years of development, relocation to Oklahoma, and the American Civil War.
Tribal leadership In 1862, after John Ross fled the Cherokee Nation for Washington, D.C., Stand Watie was elected principal chief of the Cherokee Nation. Ross' supporters, who this time were in the minority, refused to recognize his election and open warfare broke out between the "Union Cherokee" and the "Confederate Cherokee". After the bigger war ended, both factions sent delegations to Washington City. Watie pushed for recognition of a separate "Southern Cherokee Nation", but never got it. Instead, the government negotiated a treaty with the Union Cherokee in 1866, declaring Ross as the rightful Principal Chief. It seemed that open hostilities would break out again in the Cherokee Nation, but then Ross died, necessitating a new election. The election in 1867 of a compromise candidate, the fullblood Lewis Downing, who proved to be a shrewd and politically savvy Principal Chief, finally managed to bring about peaceful reunification, though tensions lingered under the surface into the 20th century. Shortly after Downing's election, Watie returned to his home from his exile in the Choctaw Nation to spend the remainder of his years rebuilding his fortunes while staying out of politics until his death in 1871, dying a citizen of the Cherokee Nation.
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.
The Cherokee Freedmen were never afforded citizenship in the Cherokee Nation by the Treaty of 1866. A fair reading of the Treaty of 1866 indicates that it was an expression by the parties that the Freedmen would be treated as equals to the citizens of the Cherokee Nation under the federal law as it existed at that time. The Freedmen at that time gained citizenship status in the Cherokee Nation by the Cherokee People's sovereign expression in the 1866 Constitutional Amendment to the 1839 Cherokee Nation Constitution.
#7. To: All (#6)
The pretended treaty made with the so-called Confederate States by the Cherokee Nation on the seventh day of October, eighteen hundred and sixty-one, and repudiated by the national council of the Cherokee Nation on the eighteenth day of February, eighteen hundred and sixty-three, is hereby declared to be void.
#8. To: nolu chan (#6)
#9. To: nolu chan (#6)
Note carefully that nowhere does it state that the Freedmen, or their descendants, became members of the Cherokee Nation or Tribe.
#10. To: Sebastian (#9)
As opposed to those (such as Sam Houston, for example) who were adopted into the Cherokee Nation, I suppose.
All native born Cherokees, all Indians and whites legally members of the Nation by adoption and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as freed 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 from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be citizens of the Cherokee Nation.
No person shall be eligible to a seat in the National Council but a free Cherokee Male citizen who shall have attained the age of twenty-five years.
Whereas an order has been published by the agent of the Cherokee Nation requiring all white men who reside in the Nation without the consent of the Chiefs of the said Nation to comply with certain rules and regulations set forth in Said order Now be it know by these presents, that Genl. Samuel Houston, late of the State of Tennessee, has been residing in the Nation for Some time past, and has manifested a disposition to remain with us. In consideration of his former acquaintance with and Services rendered to the Indians, and his present disposition to improve their condition and benefit their scircumstances [sic], and our confidence in his integrity, and talents, if he Should remain among us; we do as a committee appointed by order of the principal chief John Jolly; Solemnly, firmly, and unrecovable [sic] grant to him for ever all the rights, privileges, and Immunities of a citizen of the Cherokee Nation and do as fully impower him with all rights and liberties as tho he was a native Cherokee, while at the Same time the Said Houston will be required to yield obedience to all laws and regulations made for the government of the Native Citizens of the Cherokee Nation.
#11. To: nolu chan (#10)
#12. To: nolu chan (#10)
The court cannot strike down, as unconstitutional, a provision of the Constitution. When it is the Constitution involved, it just works differently than when a statute or treaty is involved.
#13. To: buckeroo, nolu chan (#12)
That was the intended method of the framers. To circumvent this minor issue, the courts have interpreted the US constitution to the point that no-one can make "heads or tails" of the document anymore; 222 years of court precedent becomes weary to understand.
#14. To: A K A Stone (#13)
The whole idea of precedents seems to me like an usurpation and unconstitutional.
#15. To: buckeroo (#14)
I disagree, Stone. Any government needs precedence within judicial decisions for further decisions that may or may not deviate from the earlier cases under adjudication; continuity of governance is a key idea here.
#16. To: nolu chan (#15)
#17. To: A K A Stone (#15)
STARE DECISIS
#18. To: Ferret Mike (#17)
Case law keeps things consistent, and it allows the living, breathing document, the U.S. Constitution the means to be flexible in changing times and realities.
#19. To: A K A Stone (#18)
#20. To: A K A Stone (#18)
The constitution isn't supposed to be flexible.
--GW Bush
--Sarah Palin's version of "The Midnight Ride of Paul revere"
#21. To: A K A Stone, buckeroo (#13)
The whole idea of precedents seems to me like an usurpation and unconstitutional.
#22. To: buckeroo, A K A Stone (#14)
Any government needs precedence within judicial decisions for further decisions that may or may not deviate from the earlier cases under adjudication; continuity of governance is a key idea here.
Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.
#23. To: A K A Stone, buckeroo (#15)
If a judge gets it wrong. Oh well he got a wrong decision. The next judge can look at the constitution and get it right. If you use precedents. The judge gets it wrong and every future judge is bound by a wrong decision. That is how we get the system that you described above.
#24. To: A K A Stone, Ferret Mike (#18)
The constitution isn't supposed to be flexible. It says what it says and means what it says. It is pretty black and white.
Question: Antonin Scalia, quote: "The Constitution that I interpret is not living, but dead." Close quote. Explain that one.
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