Cherokee Nation v. Nash, 267 F. Supp. 3d 86

Background

After the Civil War the U.S. and the Cherokee Nation signed the 1866 Treaty (Art. 9), which abolished slavery in the Nation and provided that freedmen and their descendants “shall have all the rights of native Cherokees.”
The Cherokee Nation amended its constitution (1866) to implement the treaty; historically the Nation later sought to limit freedmen’s participation in distributions and membership.
Federal enrollment and allocation processes (Wallace roll, Kern‑Clifton roll, Dawes Rolls) and subsequent statutes (including the Five Tribes Act of 1906) produced disputed rolls identifying “blood” Cherokees and “freedmen” and framed who could share in land proceeds and allotments.
The Cherokee Nation amended its constitution in 2007 to limit citizenship to those who trace to the Dawes Commission “blood” roll, disenrolling many descendants of freedmen; freedmen intervenors and the Department of the Interior challenged that change.
The core legal question before the court: whether Article 9 of the 1866 Treaty guarantees a continuing right to Cherokee Nation citizenship for extant descendants of qualifying freedmen listed on the Dawes Freedmen Roll, and whether the Five Tribes Act or other developments abrogated or limited that treaty right.

Issues

Issue	Plaintiff's Argument (Cherokee Nation)	Defendant's Argument (Freedmen & Interior)	Held
Does Art. 9’s phrase “all the rights of native Cherokees” include a right to Cherokee Nation citizenship?	Art. 9 granted settlement/occupancy and certain protections but did not itself confer tribal citizenship; citizenship derives from the Nation’s constitution.	"All the rights of native Cherokees" includes citizenship; Art. 9 guarantees that right and the Nation’s constitution implements it.	The treaty guarantees the right to citizenship to the same extent native Cherokees have that right; Art. 9 is not self‑executing as an automatic grant but secures a coextensive right implemented by the Nation’s laws.
Do descendants (not alive or resident by Feb. 11, 1867) of qualifying freedmen retain treaty rights today?	Art. 9’s residency language and historical context limit rights to those who were residents by the six‑month deadline; descendants beyond that are excluded.	Art. 9’s grant of rights applies to descendants broadly; later administrative enrollment rules do not abrogate the Treaty.	Art. 9 applies to extant descendants; historical practice and subsequent constitutional implementation support continuity of rights for descendants.
Did the Five Tribes Act of 1906 amend or abrogate Art. 9 to limit rights to only those descendants who were bona‑fide residents by Feb. 11, 1867?	Yes; the Act moved the placement of “descendants” and limited enrollment eligibility, effectively narrowing treaty rights.	No; the Act regulated the limited administrative enrollment process for closing the Dawes Rolls and did not express an intent to abrogate the treaty; abrogation requires clear congressional intent.	The Five Tribes Act did not abrogate or amend Art. 9; it addressed roll‑closing/enrollment procedures and lacks clear evidence of congressional intent to change treaty rights.
Can the Cherokee Nation eliminate freedmen descendants’ citizenship by amending its constitution?	The Nation’s sovereign power to define membership permits constitutional amendment to set enrollment criteria (e.g., Dawes blood roll).	Treaty limits tribal authority; Art. 9 constrains the Nation from revoking rights guaranteed by treaty to freedmen descendants.	The Nation retains membership authority but it is limited by the Treaty: it cannot lawfully deprive freedmen descendants of treaty‑guaranteed rights while native Cherokees retain those rights.

Key Cases Cited

Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943) (treaties construed in light of history and negotiations; canons favoring Indian interpretations explained)
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) (discussion of Indian treaties and federal policy toward tribes)
Journeycake v. Cherokee Nation, 155 U.S. 196 (1894) (construction of treaty agreements and status of incorporated groups)
United States ex rel. Lowe v. Fisher, 223 U.S. 95 (1912) (Supreme Court review of Dawes roll enrollment disputes and Secretary of Interior authority)
Whitmire v. Cherokee Nation / Whitmire litigation, 223 U.S. 108 (1912) (cases addressing freedmen’s rights to share in Nation proceeds and interplay of treaty and Cherokee constitution)
Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449 (7th Cir. 1998) (treaties treated like statutes and contracts subject to special interpretive rules)
Medellín v. Texas, 552 U.S. 491 (2008) (interpretation of treaty/statutory text begins with the text)
United States v. Dion, 476 U.S. 734 (1986) (Congressional abrogation of treaty rights requires clear and plain intent)
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) (reluctance to infer congressional abrogation of treaty rights absent explicit language)