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The Cherokee Nation v. Nash

United States District Court, District of Columbia

August 30, 2017

THE CHEROKEE NATION, Plaintiff Counter Defendant,
v.
RAYMOND NASH, et al., Defendants Counter Claimants Cross Claimants, and MARILYN VANN, et al., Intervenor Defendants/ Counter Claimants/ Cross Claimants, and RYAN ZINKE, SECRETARY OF THE INTERIOR, AND THE UNITED STATES DEPARTMENT OF THE INTERIOR, Counter Claimants/ Cross Defendants.

          MEMORANDUM OPINION

          Thomas F. Hogan J Senior United States District Judge.

         Although it is a grievous axiom of American history that the Cherokee Nation's narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American and MARILYN VANN,, Intervenor Defendants/ Counter Claimants/ Cross Claimants, and RYAN ZINKE, SECRETARY OF, Counter Claimants/ Cross Defendants.

         Indians and removed them from their lands, [1] it is, perhaps, lesser known that both nations' chronicles share the shameful taint of African slavery.[2] This lawsuit harkens back a century-and-a-half ago to a treaty entered into between the United States and the Cherokee Nation in the aftermath of the Civil War. In that treaty, the Cherokee Nation promised that “never here-after shall either slavery or involuntary servitude exist in their nation” and “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 . . . .” Treaty With The Cherokee, 1866, U.S.-Cherokee Nation of Indians, art. 9, July 19, 1866, 14 Stat. 799 [hereinafter 1866 Treaty].

         The parties to this lawsuit have called upon the Court to make a judicial determination resolving what they believe to be the “core” issue in this case, which is whether the 1866 Treaty guarantees a continuing right to Cherokee Nation citizenship for the extant descendants of freedmen listed on the Final Roll of Cherokee Freedmen compiled by the United States Commission to the Five Civilized Tribes, [3] also known as the “Dawes Commission.”[4] As partially reflected in the case caption, the parties to this lawsuit are as follows: Plaintiffs and Counter Defendants the Cherokee Nation and Principal Chief Bill John Baker (collectively the “Cherokee Nation”); Defendants, Counter Claimants and Cross Claimants Raymond Nash, Larry Wasson, Robert Allen, Kathy Washington and Lisa Duke, as well as Intervenor Defendants, Counter Claimants and Cross Claimants Marilyn Vann, Ronald Moon, Donald Moon, Charlene White, Ralph Threat, Faith Russell, Angela Sanders, and Samuel E. Ford (collectively the “Freedmen”-descendants of Cherokee slaves listed on the Dawes Commission's Final Roll of Cherokee Freedmen[5]); and the United States Department of the Interior and Ryan Zinke, Secretary of the Interior (collectively the “Interior”). Pending before the Court are the following four motions they filed: (1) Cherokee Nation and Principal Chief Baker's Motion for Partial Summary Judgment, ECF No. 233; (2) The Department of the Interior's Motion for Summary Judgment, Memorandum of Points and Authorities In Support Thereof, and Opposition to the Cherokee Nation and Principal Chief Baker's Motion for Partial Summary Judgment, ECF No. 234; (3) Cherokee Freedmen's Cross-Motion for Partial Summary Judgment, ECF No. 235; and (4) Cherokee Nation and Principal Chief Baker's Motion to Strike Expert Report of Emily Greenwald, ECF No. 240. As will be explained, because the 1866 Treaty guarantees that extant descendants of Cherokee freedmen shall have “all the rights of native Cherokees, ” including the right to citizenship in the Cherokee Nation, the Court will deny the Cherokee Nation's motion for partial summary judgment and grant both the Interior's and Cherokee Freedmen's motions. The Cherokee Nation's motion to strike will be denied as moot.

         LEGAL STANDARD

         As indicated, each of the parties have moved for full or partial summary judgment in their favor on the principal issue of whether the 1866 Treaty provides a lasting right to Cherokee Nation citizenship for the descendants of freedmen who were listed on the Dawes Commission's Final Roll of Cherokee Freedmen. Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). For the most part, the parties appear to agree about the historical events and facts that are material to this case, [6] albeit the parties' characterizations of the events and facts are contested, particularly to the extent that such characterizations touch on interpretive matters that are at the heart of the legal question.[7] Because there is no genuine dispute about the material facts, though, the focus of the Court's consideration will be directed at determining which of the moving parties, if any, is entitled to judgment as a matter of law. The Court will summarize the undisputed facts that are material to the legal issue in this case but commends one who has a historical interest in these matters to engage in a studied examination of all sources cited by the parties for a more nuanced portrait of the Cherokee Freedmen's tangled fate with the Cherokee Nation.

         Although the undisputed facts can be found in the documents, letters, legislation, and cases cited and attached as exhibits by the parties, see supra note 7, these documents do not offer a particularly cohesive presentation of the sequence of historical events that lend context to the legal issues raised in this case. In the absence of comprehensive statements of facts, which were not submitted by the parties, [8] and given the disagreements about the characterizations of historical events provided in the background sections of the parties' legal briefs, as well as the sources cited in those sections of the briefs, the Court found itself at somewhat of a disadvantage to furnish the historical background, which it views as a helpful foundation to understand the legal arguments and issues. The historical events that underlie the issues in this case are, however, well documented in legal precedent. To be clear, though, the historical events discussed in other legal precedent are cited only to set the scene for the legal contentions but otherwise serve no evidentiary purpose whatsoever with respect to the resolution of the pending motions.[9]

         BACKGROUND, UNDISPUTED FACTS AND PROCEDURAL POSTURE

         I. Historical Background: Pre-Civil War

         At the outset, it is “[b]eyond doubt the Cherokees were the owners and occupants of the territory where they resided before the first approach of [European settlers] to the western continent, ” Holden v. Joy, 84 U.S. 211, 243 (1872), and “they claimed the principal part of the territory . . . comprised within the states of North and South Carolina, Georgia, Alabama, and Tennessee, ” Heckman v. United States, 224 U.S. 413, 429 (1912). Before the Revolutionary War, as territories where the Cherokees resided were being colonized and settled by Europeans, “England claimed sovereignty over this territory but recognized the rights of the Indians to possession of the land on which they lived and to self-government.” E. Band of Cherokee Indians v. Lynch, 632 F.2d 373, 375 (4th Cir. 1980). After the Revolutionary War and formation of the United States of America, “the United States succeeded to England's sovereignty, ” id., and so began a lamentable saga of governmental treaties and policies by which the United States condescended to exercise dominion over the Cherokees, remove them from their lands, and dissolve their tribal government to serve the goals of expansionism and assimilation.[10]

         In the decades before the Civil War, the Cherokee Nation became fragmented[11] and was repeatedly removed, forcibly and tragically in the end, from all lands it possessed east of the Mississippi River, as well as land set aside in the Arkansas Territory, and the Nation ultimately resettled and reunited in land that was designated “Indian Territory” and is now Oklahoma.[12] Sadly, contemporaneous records suggest that the Cherokee Nation's experience of subjugation by the United States did not cultivate the compassion to moderate the treatment of slaves in its own nation.

         The Cherokee Nation acknowledges that, before the Civil War, “[s]ome Cherokees . . . adopted the American institution of slavery.” Cherokee Nation's Mem. In Support of Mot. for Summ. J. 4, ECF No. 233. See also Cherokee Freedmen's Opp'n Br. 4, ECF no. 235-1 (stating that “[p]rior to and during the Civil War, members of the Cherokee Nation owned slaves of African descent”). Although not all Cherokees owned slaves, and the Cherokee Nation appears to contend that the practice of slavery was adopted out of a misguided attempt to mirror the “‘systems and ideologies of governance from the United States to avoid being colonized by the United States, '” Cherokee Nation's Mem. In Support of Mot. for Summ. J. 4-5, ECF No. 233 (quoting Tiya Alicia Miles, Bone of My Bone: Stories of a Black-Cherokee Family, 1790-1826, at 50 (2000) (unpublished Ph.D. dissertation, University of Minnesota)), it nevertheless is the case that the Cherokee Nation was complicit in legitimizing slavery within the Nation and securing the intended durability of the practice, as well as the disenfranchisement of people of African descent, as expressly evidenced by a constitution the Nation adopted and subsequent laws it enacted before the Civil War.

         For example, on September 6, 1839, the reunited[13] Cherokee Nation established a constitution that excluded slaves from the right to vote, excluded slaves from eligibility to obtain a seat in the law-making legislative department of the Cherokee Nation's government, and provided that the rights and privileges of the Cherokee Nation were vested in the descendants of Cherokee men by all free and non-African women or the descendants of Cherokee women by all free men. Cherokee Freedmen's Opp'n Br. Ex. 3, The Const. & Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839-51 7 (Tahlequah, Cherokee Nation 1852), Cherokee Nation Const. art. III, §§ 5, 7, ECF No. 235-3. “At that time, therefore, the right of citizenship was strictly limited to native Cherokees of Cherokee descent.” Journeycake v. Cherokee Nation, 28 Ct. Cl. 281, 312 (Ct. Cl. 1893), aff'd 155 U.S. 196 (1894). The 1839 Cherokee Nation Constitution also expressly prohibited people of “negro or mulatto parentage, either by the father or mother's side” from being “eligible to hold any office of profit, honor, or trust under this Government.” Cherokee Freedmen's Opp'n Br. Ex. 3, The Const. & Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839-51 7 (Tahlequah, Cherokee Nation 1852), Cherokee Nation Const. art. III, § 5, ECF No. 235-3.

         Shortly after the 1839 Cherokee Nation Constitution was established, and continuing for several years afterward, the Nation enacted punitive slave codes that not only served to recognize the legality of slavery within the Nation, but also ensured slavery's endurance by preventing slaves from owning property, becoming literate, or otherwise being aided to seek freedom. For example, on September 19, 1839, the Cherokee Nation enacted a law making marriage unlawful between free Cherokee citizens and slaves or people of color[14] and imposing corporal punishment for the offense in the form of beating or whipping, most harshly against “colored male[s]”:

Be it enacted by the National Council, That intermarriage shall not be lawful between a free male or female citizen with any slave or person of color not entitled to the rights of citizenship under the laws of this Nation, and the same is hereby prohibited, under the penalty of such corporeal punishment as the courts may deem it necessary and proper to inflict, and which shall not exceed fifty stripes for every such offence;-but any colored male who may be convicted under this act shall receive one hundred lashes.[15]

         Cherokee Freedmen's Opp'n Br. Ex. 3 at 19, An Act to Prevent Amalgamation with Colored Persons (Sept. 19, 1839), ECF No. 235-3. The following year, the Cherokee Nation enacted a law prohibiting slaves and “any free negro or mulatto, not of Cherokee blood” from owning certain property and imposing as a Sheriff's “duty” the public sale of any such prohibited property as well as the infliction of 39 whippings on the bare skin of “any slave, free negro, or mulatto, not of Cherokee blood” who introduced or sold liquor:

Be it enacted by the National Council, That it shall not be lawful for any free negro or mulatto, not of Cherokee blood, to hold or own any improvement within the limits of this Nation; neither shall it be lawful for slaves to own any property of the following description, viz: horses, cattle, hogs, or fire arms. And it is hereby made the duty of the Sheriffs of the several Districts, from and after the first day of June next, (1841) to sell, at public sale, to the highest bidder, after ten days notice, all such property as may be found owned by slaves, in violation of this prohibition: the proceeds of such sale to be paid to the said violator, after deducting eight per cent. for the Sheriff's fee.
And if any slave, free negro, or mulatto, not of Cherokee blood, shall introduce into the Nation, or sell, any spirituous liquors, it shall be the duty of the Sheriff of the District, upon being notified thereof, to waste or destroy such spirituous liquors, and to inflict thirty-nine lashes on the bare back of any such person, as above named, for so offending.

         Cherokee Freedmen's Opp'n Br. Ex. 3 at 44 (Nov. 7, 1840), ECF No. 235-3. The next year, the Cherokee Nation enacted a law prohibiting anyone from teaching literacy to slaves and free people of African descent who did not have Cherokee blood:

Be it enacted by the National Council, That from and after the passage of this act, it shall not be lawful for any person or persons whatever, to teach any free negro or negroes not of Cherokee blood, or any slave belonging to any citizen or citizens of the Nation, to read or write.

         Cherokee Freedmen's Opp'n Br. Ex. 3 at 55-56, An Act Prohibiting the Teaching of Negroes to Read and Write (Oct. 22, 1841), ECF No. 235-3. Another year later, in 1842, apparently in reaction to the revolt and escape of 20 slaves, [16] the Cherokee Nation enacted a law commanding that free people of African descent who were not former Cherokee slaves voluntarily leave the Cherokee Nation or face expulsion, mandating that any Cherokee Nation citizen who freed a slave of African descent be held responsible for the freed slave's conduct, requiring that, upon the death of the Cherokee Nation citizen who freed a slave of African descent, such freed slave shall be required to “give satisfactory security . . . for their conduct” or be subject to removal, and further providing that:

[S]hould any free negro or negroes be found guilty of aiding, abetting or decoying any slave or slaves, to leave his or their owner or employer, such free negro or negroes, shall receive for each and every such offence, one hundred lashes on the bare back, and be immediately removed from this Nation.

Cherokee Freedmen's Opp'n Br. Ex. 3 at 71, An Act In Regard to Free Negroes (Dec. 2, 1842), ECF No. 235-3.

         II. Undisputed Facts: The Civil War and the 1866 Treaty

         After the Civil War began in 1861, the Cherokee Nation not only aligned itself with the Confederate States of America (also referred to as the “Confederacy”) but also, as a people, unanimously and formally resolved that they had a legal and constitutional right to treat slaves of African descent as property. Indeed, although the Cherokee Nation remained neutral at the inception of the war, several months after hostilities commenced the Nation held a meeting to decide, among other things, whether to offer allegiance to the Confederacy. Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation v. United States, No. 190, 12 Ind. Cl. Comm. 570, 572, 596, aff'd 180 Ct. Cl. 181, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 570, 572, 596, ECF No. 234-4. During that meeting, Principal Chief John Ross presaged in error that the Confederacy likely would be victorious and “emphasized that adherence to the Confederacy would promote preservation of the institution of slavery, instead of its destruction.” Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 234-4. Principal Chief Ross recommended abandoning the Nation's position of neutrality in favor of an alliance with the Confederacy. Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 596, ECF No. 234-4. The Cherokee people responded by proposing the following resolutions, among others, which were unanimously carried:

Resolved, That among the rights guaranteed by the constitution and laws we distinctly recognize that of property in negro slaves, and hereby publicly denounce as calumniators those who represent us to be abolitionists, and as a consequence hostile to the South, which is both the land of our birth and the land of our home.
* * *
Resolved, That, reposing full confidence in the constituted authorities of the Cherokee Nation, we submit to their wisdom the management of all questions which affect our interests growing out of the exigencies of the relations between the United and Confederate States of America, and which may render an alliance on our part with the latter States expedient and desirable.

Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 597, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 597, ECF No. 234-4.

         In pursuit of this ill-fated imperative, the Cherokee Nation entered into a Treaty of Friendship and Alliance with the Confederacy on October 7, 1861.[17] Interior's Mot. for Summ. J. Ex. 41, A Treaty of Friendship and Alliance, Confederate States of Am.-Cherokee Nation, Oct. 7, 1861, reprinted in Vine Deloria, Jr. & Raymond J. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, & Conventions, 1775-1979 666-679 (Gordon Morris Bakken, eds., Univ. of Okla. Press 1999), ECF No. 234-41; Cherokee Freedmen's Opp'n Br. 4, ECF No. 235-1; Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 597, ECF No. 235-3; Cherokee Nation's Mem. In Support of Mot. for Summ. J. 5, ECF No. 233. Although the treaty with the Confederacy was adopted unanimously by the Cherokee National Council, over the course of the war individual Cherokees' commitment to the alliance appears to have faltered[18] so that, by the end of the war, the Nation was again divided into factions of Cherokees according to those who supported the Union versus those who supported the Confederacy. Cherokee Nation's Mem. In Support of Mot. for Summ. J. 6-7, ECF No. 233; Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 598, 600, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 598, 600, ECF No. 234-4.

         In 1865, as the Civil War ended, President Andrew Johnson designated a commission to travel to Fort Smith, Arkansas, to convene a council for the purpose of negotiating new treaties with the Cherokee Nation and other Indian nations and tribes that allied with the Confederacy during the war. Cherokee Freedmen's Opp'n Br. Ex. 7, Report of D.N. Cooley, Southern Superintendency 296, 298 (Oct. 30, 1865), ECF No. 235-3; Interior's Mot. for Summ. J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 602, ECF No. 234-4. The members of this presidential commission declared that a treaty with the United States “must” contain certain stipulations, including that “‘[t]he institution of slavery, which has existed among several of the tribes, must be forthwith abolished, and measures taken for the unconditional emancipation of all persons held in bondage, and for their incorporation into the tribes on an equal footing with the original members, or suitably provided for.'” Cherokee Freedmen's Opp'n Br. Ex. 7, Southern Superintendency at 298, ECF No. 235-3; Interior's Mot. for Summ. J. Ex. 5, Report of Charles E. Mix, Southern Superintendency 314, 318 (Sept. 8, 1865), ECF No. 234-5. Although the faction of Cherokees who supported the Union did not resist this particular stipulation, the faction of Cherokees who supported the Confederacy accepted the abolition of slavery but “insisted . . . that it would neither be for the benefit of the emancipated negro nor for that of the Indian to incorporate the former into the tribe on an equal footing with its original members.” Cherokee Freedmen's Opp'n Br. Ex. 8, Charles C. Royce, The Cherokee Nation of Indians: A Narrative of Their Official Relations with the Colonial & Fed. Gov'ts 344 (Smithsonian Inst.-Bureau of Ethnology), ECF No. 235-3. In the end, although both factions signed a treaty at Fort Smith, that treaty was never ratified. Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 581, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 581, ECF No. 234- .

         Several months later, two delegations representing the two factions of the Cherokee Nation resumed treaty negotiations with the United States in Washington, D.C., which were described as follows by the Commissioner of Indian Affairs:

Two delegations, representing these opposing views, came on to Washington, and conference after conference ensued, now with one party-now with the other. Both sides had engaged as counsel gentlemen eminent for legal ability, who appeared in their behalf on many occasions, where the discussions of the important question at issue were marked with great interest. Draught after draught of treaties was made, and several clearly agreed upon, when some new difference would arise, and all arrangements be overturned. The so-called southern delegates insisted that their people must be separated from the remainder of the nation-that they could not and would not live with them; while the other party, with whom alone, as holding the national organization, the government could treat, except as a last resort, insisted that the nation should not be divided. About the middle of June, the commissioners, despairing of a satisfactory arrangement with the national party, made a treaty with the others, whose marked feature was a provision that the southern party, though not formally separated from the nation, should be allowed a certain part of the territory for their exclusive use and occupancy; they agreeing to sell their right to certain portions of the national domain. This treaty was not, however, laid before the Senate; but after another month of negotiation, a treaty was finally concluded on the 19th of July, which, although not entirely satisfactory to any party, was the best possible settlement of the matter attainable.

         Interior's Mot. for Summ. J. Ex. 30, Report of the Comm'r of Indian Affairs at 12, ECF No. 234-30. The United States reportedly advanced nine compromises during the negotiations, but the status of freedmen garnered no objection from either faction of the Cherokee Nation and it appears that the Nation instead focused on successfully averting four other compromises that it “deemed . . . repugnant.” Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 582, ECF No. 235-3; Interior's Mot. for Summ J. Ex. 4, Cherokee Nation, 12 Ind. Cl. Comm. at 582, ECF No. 234-4. As indicated, although the Commissioner of Indian Affairs stated that “[m]ore difficulty was experienced in arriving at the consummation of a treaty with the Cherokees than with any of the other tribes or nations of the Indian country, ” Interior's Mot. for Summ. J. Ex. 30, Report of the Comm'r of Indian Affairs at 11, ECF No. 234-30, a treaty was finally negotiated on July 19, 1866, [19] Article 9 of which stated:

The Cherokee nation having voluntarily, in February, eighteen hundred and sixty-three, by an act of their 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.

         Interior's Mot. for Summ. J. Ex. 8, Treaty With The Cherokee, 1866, U.S.-Cherokee Nation of Indians, art. 9, July 19, 1866, 14 Stat. 799, 801, ECF No. 234-8. With the advice and consent of the United States Senate, the 1866 Treaty was ratified by President Andrew Johnson on August 11, 1866. Interior's Mot. for Summ. J. Ex. 8, Treaty With The Cherokee, 14 Stat. at 809, ECF No. 234-8.

         Approximately two months after the 1866 Treaty was ratified, Principal Chief William P. Ross, who succeeded to leadership of the Cherokee Nation upon Principal Chief John Ross's death, addressed the Nation's National Council regarding amendments to the Nation's Constitution that he believed were necessitated by the 1866 Treaty. Interior's Mot. for Summ. J. Ex. 9, Message of Hon. Wm. P. Ross to the Cherokee Council (Oct. 19, 1866), ECF No. 234-9. In support of the constitutional amendments, Principal Chief William Ross advised:

The treaty concluded at Washington by the delegation of the Cherokee Nation on the 19th of July 1866, having met the approval, and being signed by the President of the United States, is now the supreme law. Whatever may be our opinion as to the justice and wisdom of some of the stipulations it imposes, we have full assurance that the delegation obtained the most favorable terms they could, and it is our duty to comply in good faith with all of its provisions. By this course the Cherokee people will not only perform a simple duty, but may be able to render harmless those articles of the treaty which regardless of our constitution, changes its provisions and clearly contains the germs of future strife and division.
As you have now before you such amendments to the constitution of the Nation as appear to be rendered necessary by the treaty, I simply recommend their careful consideration and early adoption.

         Interior's Mot. for Summ. J. Ex. 9, Message of Hon. Wm. P. Ross to the Cherokee Council, ECF No. 234-9. He went on to observe that implementation of certain provisions of the 1866 Treaty would “cause a census to be taken of the Cherokee people” that would include “the names, ages, and residence . . . of all blacks admitted to the full rights of Cherokee citizenship by the 9th Article of the Treaty . . . .” Interior's Mot. for Summ. J. Ex. 9, Message of Hon. Wm. P. Ross to the Cherokee Council, ECF No. 234-9. After the Cherokee National Council adopted the amendments to the Cherokee Nation Constitution, a proclamation seeking ratification of the amendments by a convention of the Cherokee people acknowledged that “[w]hereas, [b]y the treaty executed at Washington, on the 19th day of July, A. D. 1866, between the United States and the Cherokee Nation, through its delegation . . . certain things were agreed to between the parties to said treaty, involving changes in the Constitution of the Cherokee Nation, which changes can not be accomplished by the usual mode . . . .” Interior's Mot. for Summ. J. Ex. 10, Proclamation & Amendments to the Const. 17 (Nov. 28, 1866), ECF No. 234-10. Amendments to the Cherokee Nation Constitution were thereafter ratified, including the following amendment to Article III, Section 5:

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 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 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.

         Cherokee Freedmen's Opp'n Br. Ex. 9, Proclamation & Amends. to the Const. 25 (Nov. 26, 1866), ECF No. 235-3; Interior's Mot. for Summ. J. Ex. 10, Proclamation & Amends. to the Const. 19 (Nov. 26, 1866), ECF No. 234-10.

         III. Historical Background: Post-Civil War and the Dawes Rolls

         Almost a decade after the 1866 Treaty was ratified and the Cherokee Nation had amended its constitution, the Cherokee Nation's Principal Chief assured Congress that “‘[b]y the treaty of 1866 all freed persons who were former slaves to the Cherokees . . . and who should return to the nation within six months from the date of the treaty, and their descendants, have all the rights of native Cherokees'” and “‘[t]he Cherokees . . . have been munificent toward them, placing them upon an equal footing with native citizens, and this signifies equal rights under the laws in political franchises, in lands and moneys.'” Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 621, ECF No. 235-3 (quoting Principal Chief William P. Ross's testimony before the House Committee on Indian Affairs on February 9, 1874). As the following history reveals, however, after making this assurance, the Cherokee Nation increasingly sought to diminish the scope of these “equal rights, ” particularly with respect to Cherokee Nation lands and the proceeds therefrom as the United States government shifted to a policy of allotment and assimilation.

         The Supreme Court has observed that, “[b]y the 1880's . . . white settlers increasingly clamored for the land . . . tribes held in Indian Territory.” Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 117 (1993). “In response to these ‘familiar forces' . . . Congress retreated from the reservation concept and began to dismantle the territories that it had previously set aside as permanent and exclusive homes for Indian tribes.”[20] S. Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 335 (1998). Consequently, “[t]he division of Indian lands in severalty or allotments to individual Indians evolved as a distinct policy of the federal government in the latter half of the 19th century, ” Thurston Cnty., Neb. v. Andrus, 586 F.2d 1212, 1217 (8th Cir. 1978), and, in the years after the 1866 Treaty, as the Cherokee Nation's lands continued to be ceded to the United States pursuant to historical treaties and new agreements, disputes arose about which Cherokee Nation citizens were entitled to share in the allotment and proceeds of those lands, see, e.g., Cherokee Nation v. Whitmire, 223 U.S. 108, 109 (1912) (“This appeal is prosecuted to review a supplemental decree of the court of claims enjoining and directing the Secretary of the Interior to enroll upon the final roll of the citizens of the Cherokee Nation for allotment of lands the names of certain persons and their descendants claiming rights as Cherokee freedmen . . . .”); Red Bird v. United States, 203 U.S. 76, 77 (1906) (stating that the “subject-matter of this suit consists of 4, 420, 406 acres of land in the Cherokee country about to be allotted among the Cherokee people entitled to participate in the distribution of the common property of the Cherokee Nation”); Cherokee Nation v. Journeycake, 155 U.S. 196, 204 (1894) (stating that “[t]his case hinges on the status of the individual Delawares as members and citizens of the Cherokee Nation”).

         One such example is demonstrated by the Cherokee Nation's response to a March 3, 1883 congressional appropriation that authorized a $300, 000 payment to the Cherokee Nation as additional compensation for land in the so-called “Cherokee Outlet” that the Cherokee Nation ceded pursuant to the 1866 Treaty for the purpose of establishing reservations for other Indian tribal groups.[21] Congress mandated that “such sum shall be expended as the acts of the Cherokee legislature direct.” Interior's Mot. for Summ. J. Ex. 13, Act of March 3, 1883, 22 Stat. 603, 624 (1883), ECF No. 234-13. Accordingly, the Cherokee National Council passed an act to restrict the distribution of the appropriated funds to be “‘paid out, ‘per capita[, ]' to the citizens of the Cherokee Nation by Cherokee blood.'” In re Enrollment of Persons Claiming Rights in Cherokee Nation, 40 Ct. Cl. 411, 428 (1905) (factual findings quoting An Act Providing for the Payment of the Balance Due on Lands West of 96º, Per Capita (May 19, 1883), available at https://www.loc.gov/law/help/american-indian-consts/PDF/ 2002615553.pdf), aff'd sub nom. Red Bird, 203 U.S. 76; Interior's Mot. for Summ. J. Ex. 14, Laws & Joint Resolutions of the Cherokee Nation, Enacted During the Regular & Special Sessions of the Years 1881-2-3 139 (Tahlequah, Cherokee Nation 1884), ECF No. 234-14. The Cherokee Nation's Principal Chief at that time, Dennis Wolf Bushyhead, vetoed the law and cautioned that:

“(3) The [land] ‘patent' was made to the ‘Cherokee Nation' in 1838, and the Cherokee Nation was then composed of citizens by right of blood, and so continued to be until the exigencies of the late war arose, when, in 1866, it became necessary to make a new treaty with the United States government. By this treaty, made by and with this Nation, other classes of persons were provided to be vested with all the rights of ‘native Cherokees' upon specified conditions. These conditions have been fulfilled as regards the acknowledged colored citizens of this Nation and the so-called Delaware and Shawnee citizens. I refer you to article 9th of said treaty, in regard to colored citizens, and article 15th, first clause, as regards Indians provided to be settled east of 96°. The language is, they shall have all the rights of native Cherokees, ‘and' they shall be incorporated into, and ever after remain a part of, the Cherokee Nation, on equal terms in every respect with native Cherokees.”
“(6) If the lands of the Nation were and are the common property of citizens, then no citizen can be deprived of his or her right and interest in the property without doing an injustice, and without a violation of the constitution, which we are equally bound to observe and defend. While the lands remain common property, all citizens have an equal right to the use of it. When any of the land is sold under provisions of treaty, all citizens have an equal right to the proceeds of their joint property, whether divided per capita or invested.”
“Senators, such is the treaty and such is the constitution. I have referred you to them, and stated their evident meaning in the premises ‘to the best of my ability, ' as is my duty. To the classes of citizens this bill would exclude, attach ‘all the rights and privileges of citizenship according to the constitution.' To three of these classes attach also all the rights of ‘native Cherokees, ' according to treaty.”

Journeycake, 155 U.S. at 217-18 (quoting without citation “extracts” of Principal Chief Bushyhead's “veto message”). See also Cherokee Freedmen's Opp'n Br. Ex. 6, Cherokee Nation, 12 Ind. Cl. Comm. at 621-22, ECF No. 235-3. Principal Chief Bushyhead's message went unheeded, however, and the Cherokee Nation National Council passed the act over the veto, Journeycake, 155 U.S. at 217, and directed the Principal Chief to appoint two people in each district of the Cherokee Nation to conduct a census of Cherokees entitled to the distribution of the appropriated funds, In re Enrollment of Persons Claiming Rights in Cherokee Nation, 40 Ct. Cl. at 428 (quoting the May 19, 1883 act of the Cherokee Nation National Council, cited supra).

         Nearly three years later, in 1886, the Cherokee Nation's National Council went a step further and expressly sought to exclude freedmen from rights or title to any Cherokee Nation land or proceeds by approving an act that construed the 1866 Treaty's phrase “all the rights of native Cherokees” to be limited to:

[T]he individual rights, privileges, and benefits enjoyed by white adopted citizens of this Nation, before and at the making of said Treaty, and who had been by law admitted to “all the rights of Native Cherokees”-civil, political, and personal, as subjects of the Cherokee Nation of Indians-without acquiring any right or title to the Cherokee Domain, or to the proceeds thereof when made subject to a division among those to whom such domain had been conveyed-all the right to the lands then held and owned by this Nation, and to the principal of the proceeds thereof when realized, being reserved by and to the original Cherokee owners, as in the case of white adopted citizens, as aforesaid, subject to be conveyed or granted only at the option of said owners, or for value received according to agreements provided to be made with friendly Indians in conformity with the 15th Article of said Treaty.

         Interior's Mot. for Summ. J. Ex. 15, Construction of the Rights of Cherokee Citizenship as Designed to be Conferred Upon Freedmen & Civilized Indians by the 9th and 15th Articles of the Treaty of 1866 (Apr. 27, 1886), Compiled Laws of the Cherokee Nation 370, 371-72, art. XXXV (The Foley R'Y Printing Co. 1893), ECF No. 234-15. See also Whitmire v. Cherokee Nation, 30 Ct. Cl. 138, 152-53 (Ct. Cl. 1895) (“Whitmire I”). “Accordingly, the Cherokee Nation distributed the proceeds from the sale of common lands only to ‘Cherokees by blood, ' excluding the freedmen.” Robinson v. United States, 7 Cl. Ct. 155, 157 (Cl. Ct. 1984).

         It should be noted that, only a year earlier, during a congressional hearing before the Senate Committee on Indian Affairs regarding the condition of Indian tribes in Indian Territory, former Principal Chief William P. Ross responded to a question seeking his knowledge about “the complaint of the freedmen that they are not recognized as citizens” and testified in part that:

I know this, that the treaty of 1866 provided what class of colored people were to be citizens, and fixed a limitation as to the time of their return. The largest portion of those who returned within the time so fixed have been admitted to citizenship and have regularly enjoyed their rights as citizens, and there are a great many others who, if they had returned within six months would have been citizens, were not barred by the limitation of the treaty.

         Cherokee Freedmen's Opp'n Br. Ex. 11, Comm. on Indian Affairs of the U.S. Senate In Relation to the Condition of the Indian Tribes In the Indian Territory, & Upon Other Reservations, Under Resolutions of the Senate of June 11 & Dec. 3, 1884, & Feb. 23, 1885 106 (1886), ECF No. 235-3. Principal Chief Ross conceded, however, that there were Cherokee citizens “under the terms of the treaty” who claimed the right to participate in the per capita distribution of funds resulting from the proceeds of Cherokee lands but recent distributions had been “confined to Cherokees by blood.” Id. (stating “[y]es, sir” in response to the question of whether “in regard to this last payment those who were citizens under the terms of the treaty claimed the right to participate in the funds, but that was confined to Cherokees by blood”). Principal Chief Ross also agreed that “[t]here was a good deal of complaint about that.” Id.

         On October 19, 1888, Congress expressed by legislation its disapproval that “by the [May 19, 1883] act . . . of the Cherokee legislature the . . . freedmen . . . have been deprived of their legal and just dues guaranteed them by treaty stipulations.” Interior's Mot. for Summ. J. Ex. 16, An Act to Secure to the Cherokee Freedmen & Others Their Proportion of Certain Proceeds of Lands, Under the Act of March Third, Eighteen Hundred & Eighty-Three, 25 Stat. 608, 608 (Oct. 19, 1888), ECF No. 234-16. Congress therefore appropriated $75, 000 to be “charged against the Cherokee Nation, on account of its lands west of the Arkansas River, and shall be a lien on said lands, and which shall be deducted from any payment hereafter made on account of said lands” and directed the Secretary of the Interior to distribute the appropriation “per capita, first among such freedmen and their descendants as are mentioned in the ninth article of the treaty of July nineteenth, eighteen hundred and sixty-six, between the United States and the Cherokee Nation of Indians[.]” Interior's Mot. for Summ. J. Ex. 16, 25 Stat. at 609, ECF No. 234-16. Several months later, Congress “supplemented” this legislation with an act to “‘enable the Secretary of the Interior to ascertain who are entitled to share in the per capita distribution of the sum of $75, 000 appropriated by the act approved October 19th, 1888'” and to authorize and direct the Secretary “‘to make inquiry and report to the next session of Congress what other sums of money, if any, have been appropriated by the Cherokee Nation in violation of their treaty obligations in reference to freedmen in said nation, and what sum would be required to secure to said freedmen those treaty rights in respect to the same.'” Whitmire v. Cherokee Nation, 30 Ct. Cl. 180, 183 (Ct. Cl. 1895) (“Whitmire II”) (quoting Act, 25 Stat. 980, 994 (Mar. 2, 1889)). “Under and by virtue of these statutes a commissioner was appointed by the Secretary of the Interior, ” a census was taken by him, “and by him the Wallace roll was made up.” Id. “[A]fter an investigation running through two years the Department revised and corrected the returns of the commissioner and made what is now known as the corrected Wallace roll, and upon that roll paid the freedmen.” Id. at 184.

         By 1889, allotment was underway pursuant to the General Allotment Act passed by Congress in 1887, although that Act “did not extend to the Five . . . Tribes, including the Cherokee . . . tribe[], ” Witt v. United States, 681 F.2d 1144, 1147 (9th Cir. 1982), “because of Treaty provisions, and, more importantly, because those tribes held their land in fee simple, ” which meant that “those tribes had to agree to allotment, ” Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988) (emphasis in original). “The purpose of the policy was to assimilate Indians into American society and to open reservation lands to ownership by non-Indians.” Cass Cnty., Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 106 (1998) (internal citations omitted). Despite the fact that the Cherokee Nation was not subject to the General Allotment Act, the United States nevertheless “desired to buy from the Cherokees . . . the Cherokee Outlet in Oklahoma, embracing 8, 000, 000 acres for settlement as public land.” Cherokee Nation, 270 U.S. at 480. Accordingly, on March 2, 1889, Congress authorized the United States to make an agreement with the Cherokee Nation to buy the Cherokee Outlet. Id. (stating that an agreement between the United States and the Cherokee Nation for the purchase of the Cherokee Outlet was “[u]nder the authority of section 14 of the Act of March 2, 1889, 25 Stat. 1005”).

         In 1890, as the United States continued seeking to induce the Cherokee Nation to surrender its lands and controversy lingered about the rights of freedmen to the proceeds of those lands, Congress enacted a law conferring jurisdiction on the Court of Claims “to hear and determine what are the just rights in law or in equity . . . of the Cherokee freedmen, who are settled and located in the Cherokee Nation under the provisions and stipulations of article nine of the . . . treaty of eighteen hundred and sixty-six . . . .” Interior's Mot. for Summ. J. Ex. 17, Act to Refer to the Court of Claims Certain Claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee Nation, and for Other Purposes, § 1, 26 Stat. 636, 636 (Oct. 1, 1890), ECF No. 234-17. “In accordance with the 1890 Act, Moses Whitmire, a trustee for the Cherokee freedmen, filed suit in the U.S. Court of Claims to recover the freedmen's proportionate share of moneys derived from the sale of Cherokee lands.” Robinson, 7 Cl. Ct. at 157-58.[22]

         The following year, on December 19, 1891, the United States negotiated an agreement with the Cherokee Nation by which the Cherokee Nation agreed to convey the Cherokee Outlet to the United States for $8, 595, 736.12. Cherokee Nation, 270 U.S. at 480-81. That agreement was approved by the Cherokee Nation's National Council in 1892 and was ratified by Congress via a March 3, 1893, appropriations act, which provided for the immediate availability of $295, 736 and payment by annual installment of the remaining $8, 300, 000. Interior's Mot. for Summ. J. Ex. 18, Act Making Appropriations for Current & Contingent Expenses, & Fulfilling Treaty Stipulations with Indian Tribes, for Fiscal Year Ending June 30, 1894, 27 Stat. 612, 640, 641 (1893), ECF No. 234-18. The March 3, 1893 appropriations act also stated in relevant part that, of the appropriated funds being paid for the Cherokee Outlet, “a sufficient amount shall also be retained in the Treasury to pay the freedmen who are citizens of the Cherokee Nation[] or their legal heirs and representatives such sums as may be determined by the courts of the United States to be due them” and “ n]or shall anything herein be held to abridge or deny to said freedmen any rights to which they may be entitled under existing laws or treaties.” Id.

         In addition to securing the purchase of the Cherokee Outlet for ultimate settlement, see Interior's Mot. for Summ. J. Ex. 18, 27 Stat. at 642, ECF No. 234-18, the March 3, 1893 appropriations act also “sought to encourage the Five . . . Tribes to themselves enter upon the policy of allotting their lands in severalty, by giving the express consent of the United States to such allotments, ” and “declaring that the allottees should be deemed to be citizens of the United States, and that the reversionary interest of the United States in the allotted lands should cease, and appropriating money to pay for the survey of any lands so allotted.” Woodward v. Graffenried, 238 U.S. 284, 295 (1915). Accord Interior's Mot. for Summ. J. Ex. 18, 27 Stat. at 645. The act also provided:

[F]or the appointment of a commission to enter into negotiations with the same tribes for the purpose of extinguishing the tribal titles, either by cession to the United States, or by allotment and division in severalty among the Indians, or by such other method as might be agreed upon between the several tribes and the United States, with a view to the ultimate creation of a state or states of the Union to embrace the lands within the territory. This was the origin of the Commission to the Five . . . Tribes, familiarly known as the Dawes Commission.

Woodward, 238 U.S. at 295. “The Dawes Commission was a quasi-judicial tribunal[, ]” United States v. Mid-Continent Petroleum Corp., 67 F.2d 37, 43 (10th Cir. 1933), that was “empowered” to “negotiate allotment agreements with the Five . . . Tribes” but, over the course of several years, it failed to negotiate agreements with any of them, Muscogee (Creek) Nation, 851 F.2d at 1441.

         In the meantime, the Whitmire litigation was advancing before the United States Court of Claims, which initially issued two decisions within about two weeks of each other in 1895. See Whitmire I, 30 Ct. Cl. 138; Whitmire II, 30 Ct. Cl. 180. As summarized by the United States Claims Court (successor to the United States Court of Claims and predecessor to the United States Court of Federal Claims) the Whitmire litigation proceeded as follows:

The U.S. Court of Claims found that under Article IX of the 1866 treaty, the Cherokee freedmen possessed the same rights as blood Cherokees, including equal rights to property and any proceeds. However the court found the record insufficient to determine the number of Cherokees who had previously received distributions and the number of freedmen claimants.
Thereafter, the court held that a census taken by the United States of the Cherokee Nation, including freedmen, (known as the Wallace Roll) established the total number of freedmen (3, 524) entitled to share in previously distributed Cherokee funds. The court entered its decree directing the Secretary of the Interior to pay the individuals listed on the Wallace Roll, with some modifications.
Both parties appealed the decree. However, they stipulated to a withdrawal of their appeals upon entry of an agreed upon revised decree, which the Court of Claims issued on February 3, [1896].
The court's decree authorized the Secretary of the Interior to prepare a new roll of freedmen, which then became known as the Kern-Clifton roll.

Robinson, 7 Cl. Ct. at 158. Based on the Kern-Clifton Roll, “the freedmen's proportionate interest in the proceeds of the sale of the Cherokee Outlet was distributed to them . . . .” Whitmire v. United States, 44 Ct. Cl. 453, 460 (Ct. Cl. 1909) (“Whitmire III”). Accord Whitmire, 223 U.S. at 115.

         In the Indian Appropriation Act of 1896, 29 Stat. 321, c. 398 (June 10, 1896), Congress directed the Dawes Commission to make a roll identifying the citizens of the Five Tribes, including the Cherokee Nation, in anticipation of the eventual allotment of tribal lands, dissolution of tribal governments and intended statehood. Cherokee Nation v. United States, 85 Ct. Cl. 76, 95- 97 (Ct. Cl. 1937). See also Stephens, 174 U.S. at 453. Because the Dawes Commission theretofore had failed to secure allotment agreements with the Five Tribes, “in 1897, Congress added several provisions to the Indian Department Appropriations Act designed to coerce the tribes to negotiate with the Commission.” Muscogee (Creek) Nation, 851 F.2d at 1441. “When it became apparent that the Creeks, Choctaws, Chickasaws and Cherokees would not cooperate, Congress passed the Curtis Act” in 1898, which “provided for forced allotment and termination of tribal land ownership without tribal consent unless the tribe agreed to allotment.” Id. In addition, the Curtis Act mandated that the Dawes Commission make a roll of the Cherokee freedmen in strict compliance with the revised decree of the Court of Claims that was issued on February 3, 1896. Cherokee Nation, 85 Ct. Cl. at 95.

         On July 1, 1902, Congress enacted a law that was subsequently ratified by the Cherokee Nation and “embodie[d] the Cherokee Agreement, in accordance with the terms of which the United States, the Cherokee Nation and its members agreed that the lands of that nation should be alloted to and thereafter owned by its members in severalty.” Welch v. First Trust & Sav. Bank of Pasadena, Cal., 15 F.2d 184, 185 (8th Cir. 1926). See also Act to Provide for the Allotment of the Lands of the Cherokee Nation, for the Disposition of Town Sites Therein, & for Other Purposes §§ 11-23, 63, 32 Stat. 716, 717-19, 725 (1902). The act further mandated that the Cherokee Nation tribal government would cease as of March 4, 1906. Act to Provide for the Allotment of the Lands of the Cherokee Nation § 63, 32 Stat. at 725. As a result of “[d]ifficulty in completing tribal rolls and resistance to allotment, ” however, Congress in 1906 passed an act that “extended indefinitely the existence and government of each of the Five Tribes.” Muscogee (Creek) Nation, 851 F.2d at 1442. That act, which is referred to as the “Five Tribes Act of 1906, ” also provided that:

The roll of Cherokee freedmen shall include only such persons of African descent, either free colored or the slaves of Cherokee citizens and their descendants, who were actual personal bona fide residents of the Cherokee Nation August eleventh, eighteen hundred and sixty-six, or who actually returned and established such residence in the Cherokee Nation on or before February eleventh, eighteen hundred and sixty-seven: but this provision shall not prevent the enrollment of any person who has heretofore made application to the Commission to the Five . . . Tribes or its successor and has been adjudged entitled to enrollment by the Secretary of the Interior.

         Act to Provide for the Final Disposition of the Affairs of the Five Civilized Tribes in the Indian Territory, & for Other Purposes, 34 Stat. 137, 138 (1906) [hereinafter Five Tribes Act of 1906]. Thereafter, the Dawes Commission “proceeded to perform its work” and completed the rolls on March 4, 1907. Cherokee Nation, 85 Ct. Cl. at 95. “The rolls for the Cherokees . . . resulted in two lists: a ‘Blood Roll' for native Cherokees, and a ‘Freedmen Roll' for former slaves and their descendants.” Vann v. Kempthorne, 534 F.3d 741, 744 (D.C. Cir. 2008). On November 16, 1907, Indian Territory “became a part of the state of Oklahoma upon [Oklahoma's] admission to the Union.” Priddy v. Thompson, 204 F. 955, 956-57 (8th Cir. 1913).

         By the mid-1930s, “Congress . . . repudiated its earlier policies of [tribal] termination and enacted legislation designed to restore governmental powers to the Oklahoma tribes.” Indian Country, U.S.A., Inc. v. Okla. ex rel. the Okla. Tax Comm'n, 829 F.2d 967, 981 (10th Cir. 1987) (citing Oklahoma Indian Welfare Act, ch. 831, 49 Stat. 1967 (1936) (codified as amended at 25 U.S.C. §§ 501-509 (1982)), Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461 et seq. (1982)), and Bd. of Cnty. Comm'rs v. Seber, 318 U.S. 705, 718 (1943)). Indeed, “[i]n 1934 the congress passed the Wheeler-Howard Indian Reorganization Act, (48 Stat. 984, 25 U.S.C. § 476), ” which “permit[ted] an Indian tribe to organize for its common welfare and adopt an appropriate constitution and by-laws which [were] to become effective when ratified by the members of the tribe and approved by the Secretary of the Interior.” Colliflower v. Garland, 342 F.2d 369, 373 (9th Cir. 1965). In addition, “[o]ne of the purposes of the [Indian] Reorganization Act was to put an end to the allotment system[, ] which had resulted in a serious diminution of Indian land base and which, through the process of intestate succession, had resulted in many Indians holding uneconomic fractional interests of the original allotments.” Stevens v. Comm'r of Internal Revenue, 452 F.2d 741, 748 (9th Cir. 1971). Under the Indian Reorganization Act, however, “[c]ertain tribes, primarily those in Oklahoma . . . were excluded from six of the provisions of the [Act] including the sections dealing with self-government and corporate charters.” Muscogee (Creek) Nation, 851 F.2d at 1442. Accordingly, “[t]wo years later, Congress passed the Oklahoma Indian Welfare Act (OIWA) Act of June 26, 1936, 49 Stat. 1967 (codified at 25 U.S.C. §§ 501 et seq. (1983)). Id. The Oklahoma Indian Welfare Act “expanded the Indian Reorganization Act . . . to include Indian tribes in Oklahoma, ” Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 918 (6th Cir. 2009), although “the language used in the self-government provision of the [Act] differed from that of the [Indian Reorganization Act], ” Muscogee (Creek) Nation, 851 F.2d at 1442.

         To round out the historical events that are relevant, even if only tangentially, to matters raised in the instant lawsuit, it also is helpful to know that, as federal policy regarding Indian tribes continued to forge a new course that favored tribal self-government, on October 22, 1970, Congress enacted the Act to Authorize Each of the Five Civilized Tribes of Oklahoma to Popularly Select Their Principal Officer, & for Other Purposes, Pub. L. 91-495, 84 Stat. 1091 (1970), which “was passed to permit the members of the Five . . . Tribes of Oklahoma to select their own principal chiefs or governors, rather than accepting such appointments by the Secretary of the Interior.” Morris v. Watt, 640 F.2d 404, 409 n.12 (D.C. Cir. 1981). This act is also referred to as the “Principal Chiefs Act.” See Vann, 534 F.3d at 744; Cherokee Nation v. Nash, 724 F.Supp.2d 1159, 1161 (N.D. Okla. 2010); Seminole Nation of Okla. v. Norton, 223 F.Supp.2d 122, 124 (D.D.C. 2002); Cherokee Freedmen's Opp'n Br. 28, ECF No. 235-1.

         IV. ...


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