## Facts

- The Cherokee Nation and the United States entered a treaty in 1866; Article 9 promised that slavery would not exist in the Nation and that Cherokee Freedmen, certain free Black residents, and “their descendants” would have “all the rights of native Cherokees.”
- In the early twentieth century, the Dawes Commission created final rolls for the Five Civilized Tribes, including a final roll identifying Cherokee Freedmen.
- For decades, descendants of persons on the Dawes Freedmen roll were generally accepted as Cherokee citizens.
- In 2007, the Cherokee Nation amended its constitution to limit citizenship to persons with “Cherokee by blood” ancestry as reflected on the Dawes rolls, excluding many Freedmen descendants.
- The Cherokee Nation sought a declaration concerning the scope of Article 9 and its authority to define citizenship; Freedmen descendants and the United States opposed the Nation’s position.
- The case was before the court on cross-motions for summary judgment and the Nation’s motion to strike an expert report.

## Issues

1. Whether Article 9 of the 1866 treaty guarantees present-day descendants of Cherokee Freedmen a continuing right to Cherokee Nation citizenship equal to that of native Cherokees.
2. Whether subsequent federal statutes, including the Five Tribes Act of 1906, modified or abrogated any treaty-based citizenship rights for Freedmen descendants.
3. Whether the Cherokee Nation may restrict citizenship in a manner that treats Freedmen descendants differently from native Cherokees despite Article 9.

## Decision

- The court held that Article 9 guarantees Cherokee Freedmen and their descendants the same rights as native Cherokees, including tribal citizenship.
- The court held that the Five Tribes Act of 1906 and other subsequent legislation did not abrogate or limit the treaty-based citizenship rights recognized in Article 9.
- The court denied the Cherokee Nation’s motion for partial summary judgment.
- The court granted summary judgment for the Freedmen descendants and the Department of the Interior on the central treaty-interpretation question.
- The court denied the Cherokee Nation’s motion to strike an expert report.

## Legal Principles

- Treaty interpretation begins with the text; language granting Freedmen and “their descendants” “all the rights of native Cherokees” includes citizenship and creates a continuing, heritable right.
- Indian-law interpretive rules and historical context may confirm treaty meaning, including how the parties’ long practice has treated the rights at issue.
- Tribal sovereignty includes the power to define membership, but that power may be limited by treaty obligations that the tribe accepted.
- Congressional abrogation of treaty rights requires clear evidence of intent; general or indirect statutory provisions do not eliminate treaty guarantees without such clarity.

## Conclusion

The court ruled that the 1866 treaty requires the Cherokee Nation to recognize eligible Cherokee Freedmen descendants as citizens on the same terms as native Cherokees and that later federal legislation did not clearly abrogate this treaty-based citizenship right.


Cherokee Nation v. Nash, 267 F. Supp. 3d 86 (D.D.C. 2017)