The filing period for council elections began on Monday and candidates began submitting their paperwork. One candidate doing so was Robin Mayes, who is running for the at-large seat being vacated by Mary Baker Shaw. Also running for the seat is Marilyn Vann, a Freedmen descendant who has been a prominent voice for the rights of Freedmen descendants. While Freedmen were guaranteed citizenship and all rights afforded to citizens by the 1866 treaty, the status of their descendants has been controversial among some non-Black Cherokees. Despite the language of the treaty, which has long been understood to still be in effect, the Cherokee Nation has on several occasions attempted to disenfranchise the descendants of the Black enslaved laborers once held by Cherokees and freed following the US civil war.
Despite being guaranteed all the rights of native Cherokees for them and their descendants, the issue has been relitigated over and over. The most major case on the issue was decided in US District Court on August 30, 2017, where the court ruled that Freedmen descendants were entitled to citizenship and all rights equal to native Cherokees under the 1866 treaty. More recently, the Cherokee Nation election commission ruled on the question of the candidacy of Rhonda Brown-Fleming for Principal Chief that she was ineligible to run, but because she did not meet the residency requirement, but that she was not a "by blood" citizen did not disqualify her.
This suit brought by Mayes essentially alleges that the court has no authority to rewrite the constitution, which is true, but they do have the role of interpreting the law. While it is true the constitution restricts citizenship to "by blood," the 1866 treaty, which remains in effect, gives Freedmen descendants equal rights as those by blood, including citizenship and the right to run for and hold office. The treaty being worded the way it is, Freedmen descendants must be entitled to any rights afforded to by blood citizens and the only way to override that provision is to annul the 1866 treaty. It is a frequent argument that courts are acting as legislators when they interpret the law in ways someone doesn’t like, but saying that doesn’t make it so.
There is no question in my mind that, no matter how much it is masked behind procedure, this is a direct attack on the rights of Freedmen descendants with no legal merit and it reignites an old racist debate. While I’m sure there was no conscious racial animosity, the impact is still prejudicial and harmful. We all have racial biases that we have learned living in a society that is rooted in colonialism and anti-Blackness, and this lawsuit is rooted solely in those prejudices and is not based on any legitimate legal interpretation. Marilyn Vann and all other Freedmen descendants are eligible to run for office. That question has been asked and answered, and answered, and answered again. As Cherokees, we must learn to do better and rid our nation of this anti-Freedman culture that has persisted all these years.
Cherokee Nation Election Commission: https://election.cherokee.org/media/umbfebkn/02-21-2019-special-meeting-minutes.pdf
US District Court: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv1313-248
1866 Treaty: https://d3gqux9sl0z33u.cloudfront.net/AA/AT/gambillingonjustice-com/downloads/233893/Cherokee_Treaty_of_1866.pdf
See below for court filing from Robin Mayes on the candidacy of Freedmen descendants, courtesy of David Cornsilk