GALE A. NORTON, Secretary Of The United States
Department Of The Interior, UNITED STATES


CULLERS, CHARLENE WHITE and RALPH THREAT, citizens of the Cherokee Nation of
Oklahoma, as the direct descendants of individuals enrolled on Dawes Commission Rolls of the
Cherokee Tribe, under the inclusive Freedmen category of the Dawes Commission Rolls
(hereinafter referred to as "Freedmen"), by and through their undersigned counsel, for their
complaint against GALE A. NORTON, Secretary of the United States Department of the
Interior, and the UNITED STATES DEPARTMENT OF THE INTERIOR (the "Department" or
"DOI"), an agency of which is the Bureau of Indian Affairs (the "BIA") allege as follows:


1.     Plaintiffs, individual citizens of the Cherokee Nation of Oklahoma, bring
this civil suit for declaratory and injunctive relief arising under the Constitution and laws of the
United States to vindicate the rights of a long-oppressed and disadvantaged people. Plaintiffs
bring this action to redress long-standing and invidious racial discrimination against them by the




BIA. This discrimination has excluded the Freedmen from their right to vote in the May 24,
2002 election and a subsequent run-off (together, the "Election") to determine the Chief and
other elected officials of the Cherokee Nation as well as their right to vote in the Election on an
amendment to the Cherokee Constitution to strike the clause, "No amendment or new
Constitution shall become effective without the approval of the President of the United States or
his authorized representative."

2.     On or about August 6, 2003, the BIA, assisted by its local officials,
reversed its position that the 1970 Principal Chiefs Act mandates that the Cherokee Nation of
Oklahoma submit its election provisions to the Department of Interior prior to holding an
election, and the BIA recognized the Election of Chad Smith as Chief of the Cherokee Nation of

3.     The BIA's decision to recognize the illegal Election (i) is in direct
opposition to the Department's fiduciary duty to protect the Cherokee Nation from unlawful
elections; the BIA has the responsibility and indeed, the duty to intervene and attempt to protect
those rights through appropriate remedies, Seminole Nation v. Norton, No. Civ. A. 02-0730
(RBW), 2002 WL 31109804 (D.D.C. Sept. 23, 2002) ("Seminole ID. (ii) is in direct opposition
to the 1970 Principal Chiefs Act (as defined below), (iii) is a reversal of its position stated in
numerous letters to Cherokee Chief Chad Smith informing him of the requirement of submitting
election procedures prior to holding the Election, and (iv) is in opposition to the BIA's position
toward the Seminole Nation of Oklahoma regarding virtually the same matter.

4.     With respect to the Seminoles, in connection with an election that
prevented the Seminole Freedmen from voting, the BIA refused to recognize the illegally elected
Seminole officials and refused to recognize any govemment-to-govemment relationship with


that illegally elected administration. The BIA successfully defended such position in this Court
in Seminole II. In yet another case in this Court, the BIA successfully defended its position of
not recognizing the Seminole Nation or the govemment-to-govemment relationship, where the
Seminole Freedmen were voted out of the Seminole Nation by a Constitutional Amendment
Referendum Election, Seminole Nation of Oklahoma v. Norton, No. 00-2384 (D.D.C. Sept. 27,
2001) (CKK) (Seminole I). The basis for the BIA's position, upheld by this Court, was that the
Seminole Freedmen were ensured full citizenship rights under a Treaty entered into between the
United States and the Seminole Nation of Oklahoma in 1866.

5.     The United States and the Cherokee Tribe signed an 1866 Treaty with the
same citizenship protections to the Cherokee Freedmen that were afforded the Seminole
Freedmen in the Seminole Treaty of 1866. There is thus no principled distinction between this
litigation and that involving the Seminoles. The BIA's determination to recognize the Cherokee
Election that prevented the Cherokee Freedmen citizens from exercising their right to vote is a
breach of the BIA's fiduciary duty.


6.     Plaintiffs Marilyn Vann, Ronald Moon, Donald Moon, Hattie Cullers,
Charlene White and Ralph Threat are Freedmen of the Cherokee Nation. Each named Plaintiff
can trace his or her ancestry to the Index and Final Rolls of Citizens and Freedmen of the
Cherokee Tribe in Indian Territory approved by Act of Congress dated June 21, 1906 (34 Stat.
325) (the "Dawes Rolls") as compiled by the United States through the Dawes Commission, and
is, accordingly, an enrolled member of the Cherokee Nation.

7.     Defendant Gale A. Norton is the Secretary of the Defendant Department
of the Interior ("Norton" or "Secretary") and the principal governmental official responsible for


NEWYORK. 449094.1





the administration of Native American affairs and the operations of the BIA. Norton is an officer
of the United States of America (the "United States"), which is the custodian and trustee of all
Native American communal property.

8.     Defendant United States Department of the Interior is and at all relevant
times was an agency of the United States government. The DOI includes, among various
agencies, the BIA and is responsible for the operations of the BIA.

9.     The Court has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C.
1331 and 1362. Jurisdiction to review agency action is invoked pursuant to the
Administrative Procedure Act (the "APA"), 5 U.S.C. 702-703. Declaratory relief is sought
pursuant to 28 U.S.C. 2201-2202.

10.    This action arises under the Constitution and laws of the United States,
including, but not limited to, the Fifth Amendment to the Constitution of the United States, the
Treaty with the Cherokee Indians, July 19, 1866, 14 Stat L., 799 (the "1866 Treaty"), Pub. L.
No. 91-495, 84 Stat. 1091 (the "1970 Principal Chiefs Act"), the Indian Civil Rights Act of 1968,
25 U.S.C. 1301 et seq.

11.    Venue is proper in this district pursuant to 28 U.S.C. 1391(e), as
Defendant Norton and Defendant DOI reside in this District.

12.    The United States has waived its and Defendant Norton's sovereign
immunity to the claims herein by virtue of (without limitation), the APA and the United States'
fiduciary and trustee obligations towards the Cherokee Nation and its citizens. Defendant
Norton, in turn, has acted beyond her statutory authority by allowing her subordinate officers to
violate the laws and the Constitution of the United States, as alleged herein, and thus has no







sovereign immunity under the doctrines established by Ex Parte Young. 209 U.S. 123, 28 S. Ct.
441 (1908), Larsen v. Domestic and Foreign Commerce Corp.. 337 U.S. 682, 69 S. Ct. 1457
(1949) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388,91 S.Ct. 1999(1971).

13.    In this action Plaintiffs seek a declaratory judgment under the Declaratory
Judgment Act, 28 U.S.C. 2201, setting forth their rights because of Defendants' violations of
the Constitution and laws of the United States, and a declaration that the BIA cannot recognize
the newly elected officials or the amended Cherokee Constitution, both put into place via the
illegal Election, until such time as an election is held that recognizes and permits the Freedmen
the right to vote in such election - in other words, a declaration that the United States (including
Defendants and the BIA), in its capacity as fiduciary and trustee, may not approve any election
or other act by the Cherokee Nation in derogation of the rights of its Freedmen citizens. In
addition, Plaintiffs seek a finding pursuant to the APA that Defendants' conduct has been
arbitrary, capricious, an abuse of discretion, and not in accordance with law. Plaintiffs also
request that a trustee be appointed to ensure that their civil rights are protected, as was done in
the late 1800's.


14.    In the 1830's Cherokees were forcibly removed from their lands in the
south eastern United States and forced to migrate to Indian Territory, present day Oklahoma, in
what has become known as the Trail of Tears. Among those persons in the Trail of Tears were
slaves of Cherokees as well as free intermarried Blacks or children of mixed racial families.


NEWYORK.. 449094.1





15.    In 1863, slavery was abolished and the Black Cherokees were
emancipated by virtue of the 13th Amendment of the United States Constitution. In the same year
the Cherokee National Council also abolished slavery. Thereafter, all of the Black Cherokees
became known as "Freedmen."

16.    In 1866, the Cherokees and the United States entered into the Treaty of
July 19, 1866 (ratified July 27, 1866; proclaimed Aug. 11, 1866), 14 Stat. L. 799 (the "1866
Treaty") The 1866 Treaty contains the following provisions:


All the Cherokees and freed persons who were formerly slaves to
any Cherokee, and all free negroes not having been such slaves,
who resided in the Cherokee Nation prior to June first, eighteen
hundred and sixty-one, who may within two years elect not to
reside northeast of the Arkansas River and southeast of Grand
River, shall have the right to settle in and occupy the Canadian
district southwest of the Arkansas River, and also all that tract of
country lying northwest of Grand River, and bounded on the
southeast by Grand River and west by the Creek reservation to the
northeast comer thereof; from thence west on the north line of the
Creek reservation to the ninety-sixth degree of west longitude; and
thence north on said line of longitude so far that a line due east to
Grand River will include a quantity of land equal to one hundred
and sixty acres for each person who may so elect to reside in the
territory above-described in this article: Provided, That part of said
district north of the Arkansas River shall not be set apart until it
shall be found that the Canadian district is not sufficiently large to
allow one hundred and sixty acres to each person desiring to obtain
settlement under the provisions of this article.


The inhabitants electing to reside in the district described in the
preceding article shall have the right to elect all their local officers
and judges, and the number of delegates to which by their numbers
they may be entitled in any general council to be established in the
Indian Territory under the provisions of this treaty, as stated in
Article XII, and to control all their local affairs, and to establish all
necessary police regulations and rules for the administration of
justice in said district, not inconsistent with the constitution of the






Cherokee Nation or the laws of the United States; Provided, The
Cherokees residing in said district shall enjoy all the rights and
privileges of other Cherokees who may elect to settle in said
district as hereinbefore provided, and shall hold the same rights
and privileges and be subject to the same liabilities as those who
elect to settle in said district under the provisions of this treaty;

Provided also. That if any such police regulations or rules be
adopted which, in the opinion of the President, bear oppressively
on any citizen of the nation, he may suspend the same. And all
rules or regulations in said district, or in any other district of the
nation, discriminating against the citizens of other districts, are
prohibited, and shall be void.


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.


Every Cherokee and freed person resident in the Cherokee Nation
shall have the right to sell any products of his farm, including his
or her live stock, or any merchandise or manufactured products,
and to ship and drive the same to market without restraint, paying
any tax thereon which is now or may be levied by the United
States on the quantity sold outside of the Indian Territory.

17.    In 1883, the Cherokee Tribal Council passed legislation that excluded the
Freedmen and other tribal citizens without Cherokee blood, such as the Shawnees, Delawares
and intermarried whites, from sharing in tribal assets.


NEWYORK. 449094.1




18.    In 1888, the United States Congress responded with legislation that
required the Tribe to share its assets equally with the Freedmen and other adopted citizens. (25
Stat. L. 608-609.) To determine the number of eligible Freedmen and provide for their equitable
treatment. Congress sent a federal agent to make a full record of all those who were entitled to
share in the dispersal of federal funds within the Cherokee Nation.

19.    In 1889, 3,524 Freedmen were enrolled on a federal document called the
Wallace Rolls to legitimate their claims to Cherokee Citizenship.

20.    In 1890, as the Cherokee Tribe continued to resist the Freedmen's equal
right to Cherokee citizenry, the United States Congress authorized the federal Court of Claims to
adjudicate the rights of the Cherokee Freedmen.

21.    Moses Whitmire, Trustee for The Cherokee Freemen v. The Cherokee
Nation and the United States,
30 Ct. Cl. 138 (1895), held that the Freedmen were entitled to
receive equal per capita payments of funds as equal citizens of the Cherokee Tribe. The Court of
Claims held that while the tribal council could sell the common property, it could not
discriminate against a particular class of citizens in deciding who was entitled to share in the
proceeds. Ruling in favor of the Freedmen, the court awarded them $903,365 as their rightful
share of $7,240,000. that had been generated from the sale of tribal lands.

22.    In 1893, the United States government established the Dawes Commission
for the purpose of creating authoritative membership rolls for all of the Native American tribes in
Oklahoma, including the Cherokee Nation. Although not required or authorized to do so, by
1898 the Dawes Commission began enrolling the Black Cherokee on a "Freedmen Roll"; other
Cherokees were enrolled on a separate "Blood Roll." The effect of this gratuitous act of racial
segregation in compiling the Dawes Rolls - imposed upon the Cherokee Nation by the Dawes






Commission - was to divide the Cherokee Nation into "Freedmen" (those with some Black
ancestry) and "Blood Indians." This division was illogical and inconsistent, too: a Cherokee
who was half Native American and half Black was designated a "Freedman"; one who was one
quarter Native American and three quarters White was designated a Cherokee "by blood." No
effort was made to record the percentage of Native American blood of those listed on the
"Freedmen Roll," though historians agree that many of the Freedmen enrollees had mixed Native
American ancestry. As a result, throughout the segregation years the Freedmen were subjected
to Jim Crow laws and other forms of state-sanctioned discrimination.

23.    1898, Congress passed the Curtis Act, providing for allotment of
communal tribal lands to all citizens of Cherokee Nation including Freedmen. The Cartis Act
also extended jurisdiction over Indian Territory and abolished tribal courts.

24.   In Daniel Red Bird v. United States, 203 U.S. 76, 27 S. Ct. 29 (1906), the
Supreme Court affirmed the citizenship and proprietary rights of the Freedmen as ensured by the
1866 Treaty as opposed to the intermarried whites that did not have such rights.

25.    In 1907, the Dawes Commission closed the final rolls of the Cherokee
Tribe. The Dawes Commission created two separate rolls for the Cherokee Nation. Individuals
possessing African blood as unscientifically determined by the Dawes Commission official
would place the individual on the Cherokee Freedmen Roll. If an individual was half Black and
half Cherokee Native American, he or she would be placed on the Freedmen Roll with no
notation of Indian Blood, however, if the individual was ^A White and '/4 Cherokee Native
American, he or she would be placed on the Cherokee by Blood Roll with a notation of
percentage of Indian Blood. The Dawes Commission stated that the Negroes were on equal
footing with the full-bloods.







26.    BIA's Solicitor's Opinion, October 1, 1941, 1 Op. Sol. On Indian Affairs
1076 (U.S.D.I. 1979), addressed the question whether the Freedmen are entitled to vote on the
acceptance of a Constitution in pursuance of section 3 of the Oklahoma Indian Welfare Act. The
opinion states, in relevant part:

"As the membership rights of the Freedmen in the Five Civilized Tribes have
been fixed by Treaties, which are the equivalent of statutes, and by formal tribal
action in pursuance of these treaties, the Secretary would not appear to be
authorized to issue regulations which would deprive the Freedmen of their right to
vote on constitutions to be adopted by the Five Civilized Tribes under the
Oklahoma Indian Welfare Act."

27.    The 1970 Principal Chiefs Act, Pub. L. 91-495, 84 Stat. 1091, enacted by
Congress, states that, notwithstanding any other provisions of law, the principal chiefs of the
Cherokee, Choctaw, Creek, and Seminole Tribes of Oklahoma and the governor of the
Chickasaw Tribe of Oklahoma shall be popularly selected by the respective tribes in accordance
with procedures established by the respective tribes in accordance with procedures established by
the officially recognized tribal spokesman and or governing entity. It further mandates that such
established procedures shall be subject to approval by the Secretary of the Interior.

29.    On June 26, 1976, Cherokee Freedmen voted in a Cherokee election on
the adoption of a Cherokee Constitution ("1976 Constitution.").

30.    Article I of the 1976 Constitution states that the Cherokee Nation is an
inseparable part of the Federal Union, and that the Constitution of the United States is the
Supreme law of the land, and therefore, the Cherokee Nation shall never enact any law which is
in conflict with any Federal law.






31.    Article II of the 1976 Constitution states, in pertinent part, that the
appropriate protections of the Civil Rights Act of 1964 shall apply to all members of the
Cherokee Nation.

32.   Article III, Section 1, of the 1976 Constitution states: "All members of the
Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls...."
The Freemen can prove direct lineage to the Dawes Commission Rolls.

33.    Article V, Section 7 of the 1976 Constitution states, in pertinent part:

"Laws or enactments which are required by Federal Statutes to be approved shall be transmitted
immediately upon enactment provided by Section 11 of this Article to the President of the United
States or his authorized representative."

34.    Also in the 1976 Constitution, Article IX, Elections, Section 1, states in
relevant part: "The Council shall enact an appropriate law not inconsistent with the provisions of
this Constitution that will govern the conduct of the elections. . ." Section 2 limits the candidacy
for Council to members by blood, but does not restrict voting to blood members only. Thus,
pursuant to the 1976 Constitution the Freedmen are entitled to citizenship with voting rights.

The May 24,2003 Election
And Defendants' Reversal of Position

35.    On March 15, 2002, Neal McCaleb, Assistant Secretary of Indian Affairs,
wrote to Cherokee Chief Chad Smith ("March 15, 2002 Letter") that he had no objection to the
Constitutional Amendment striking the approval of the President of the United States or his
authorized representative from the Cherokee Constitution, subject to certain understandings.
First, all members of the Cherokee Nation, including the Freedmen descendants who are
otherwise qualified, must be provided an equal opportunity to vote in the election. Second







under current law, no amendment of the Nation's constitution can eliminate the Freedmen from
membership in the Nation absent Congressional authorization. And lastly, notwithstanding any
amendment of the Nation's Constitution, the Act of October 22, 1970 (94 Stat. 1091), until it is
repealed or amended, will still require the Secretarial approval of the procedures for the election
of the leaders of the Cherokee Nation and the other Five Civilized Tribes.

55.    In a series of subsequent letters Defendants: denied the validity of the
March 15, 2002 Letter; informed Chief Smith, citing Seminole I, of the requirement that prior to
an election of the Principal Chief the election procedures must be submitted to the Secretary and
must be approved; advised Raymond Vann of the Cherokee Nation Election Commission that
such compliance was required; notified Chief Smith on July 11, 2003, that the Nation had been
previously advised on two occasions regarding the requirements of the Principal Chiefs Act of
1970 and asked the Nation to submit its current election laws for approval; stated later in July
2003 that the procedures for selecting the Principal Chief of the Cherokee Nation are subject to
approval by the Secretary, and that the BIA v/as '"aware of no evidence that the Secretary has
approved the current procedures for the election of the Principal Chief." Importantly, this July
25, 2003 letter also stated that "the BIA views the situation to be identical to the one involving
the Seminole Nation of Oklahoma .... " Copies of this correspondence are attached hereto as
Exhibits 1-17.

36.    On August 6, 2003, the BIA completely reversed its position. It did so in
a letter from Jeanette Hanna to Chief Smith, stating it is "inappropriate and premature" "for the
Department to question the validity of the Tribal officials. Based on the Nation's Election
Commission certification of the results of the May 24 election, the Department recognizes you as
Principal Chief of the Nation."


NEWYORK. 449094.1




37.   In the same letter of August 6, 2003, Defendants stated: "The Department
continues to have under review the May 24 Tribal election results on the proposed amendment of
the Tribal constitution that would remove the requirement that future amendments be approved
by the Secretary of the Interior."

38.   The BIA has made a final agency decision on the election for Principal
Chief. The BIA decided to not require the compliance of the 1970 Principal Chiefs Act and
require submission of voter regulations. The BIA was on notice that the Freedmen citizens were
not entitled to vote in the election.

39.    The decision of the BIA to defer review of whether to acknowledge the
Constitutional amendment is also a final decision, as the decision to recognize the Principal
Chief in the same Election wherein the Freedmen were not permitted to vote indicates that
Defendants do not find the stripping of voting rights as a basis for disavowing the Election

40.    Prior to the BIA's abrupt reversal of position, Plaintiffs, through their
counsel, notified Defendants that the Freedmen were denied the right to vote in the May 24, 2003
Election and, as a matter of policy, the Freedmen had been stripped of their membership rights.
(Copies of June 10, 2003 and July 21, 2003 letters from Plaintiffs' counsel, Jon Velie, are
attached hereto as Exhibit 18.)

41.    Plaintiffs have exhausted their remedies before the BIA, and further, their
pursuit of any such remedies would be futile in light of the well-documented and pervasive
discrimination against them.

42.    Plaintiffs have no adequate remedy at law.







(Violation of United States Constitution / Federal Law)

43.    Plaintiffs repeat and reallege the allegations contained in paragraphs 1
through 42 as though set forth fully herein.

44.    The BIA has breached its fiduciary duty to protect the voting rights of the
Freedmen so that as citizens they can participate in the fundamental right to elect their leaders
and determine whether their Constitution should be amended. Their rights to participate in this
solemn process has been stripped on the basis of their race, with the knowledge that the
Cherokee Nation will be ruled by officials that will be recognized by the United States although
citizens were forbidden to vote. The recognition will result in millions of dollars of United
States funds being dispersed to officials empowered by an unlawful election despite the demands
and requests for the BIA's protection of the oppressed Freedmen citizens and elected officials of
the Cherokee Nation.

45.    Defendants' acts violate, without limitation, the United States
Constitution, the 1920 Principal Chiefs Act, the Cherokee Constitution, the Treaty Between the
United States and the Cherokee Indians, March 21, 1866, 14 Stat. 755, and the Indian Civil
Rights Act, 25 U.S.C. 1301, et seq.

46.    By reason of the foregoing, a ripe and justiciable controversy exists, and
Plaintiffs have standing to assert their rights.

47.    As a result of the foregoing. Plaintiffs are entitled to declaratory and
injunctive relief to preserve their rights as members of the Cherokee Nation.








(Judicial Review of Agency Action Under the APA)

48.    Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 - 47
as if set forth fully herein.

49.    Defendants are responsible for protecting the interests of the Cherokee
Nation, including the interests of the Freedmen.

50.    By failing to require the filing of procedures prior to the Election,
Defendants have breached their fiduciary duty.

51.    By recognizing Chad Smith as Chief of the Cherokee Nation, as well as
other officials elected to office in the illegal Election, Defendants have approved the racially
discriminatory and unlawful disenfranchisement of the Freedmen.

52.    By deferring consideration of the legality of the amendment of the
Cherokee Constitution, Defendants have given it de facto approval, despite its having been
effected illegally because of the unlawful preclusion of the Freedmens' voting rights.

53.    By failing to follow the law as set forth in the Seminole I and Seminole II
decisions, Defendants have failed to follow their own recognized laws and policies and have
discriminated against the Cherokee Freedmen to their injury and prejudice.

54.    Plaintiffs require and request a declaration, pursuant to 28 U.S.C. 2201,
that pursuant to 5 U.S.C. 701 et seq., the complained of actions of the Defendants are arbitrary,
capricious, an abuse of discretion, and not in accordance with law.

WHEREFORE, Plaintiffs respectfully pray for judgment granting declaratory and
injunctive relief as follows:







55.    Declaring that the United States government (including Defendants and
the BIA), in its capacity as fiduciary and trustee, may not approve any election or other act by the
Cherokee Nation in derogation of the rights of its Freedmen citizens.

56.    Enjoining Defendants and the BIA from recognizing the Election results
of the May 24, 2003 Election or the subsequent run-off until such time as a lawful election that
includes all citizens of the Nation.

57.    Directing the BIA to recognize the hold-over officials until such time a
lawful election is held.

58.    Directing the BIA to appoint a Trustee to ensure the civil rights of the
Freedmen are not violated in the future.

59.    Awarding Plaintiffs their reasonable attorneys fees, costs and
disbursements from the parties, including but not limited to recovery of fees and costs from the
United States pursuant to the Equal Access to Justice Act.





60.    Awarding such other relief as accords with Plaintiffs' causes of action
herein and as the Court deems just and proper.
Dated: August 11, 2003

2300 N Street, N.W.
Washington, D.C. 20037
(202) 663-8000


AlvinDunn #423229


Jonathan Gannon #


210 East Main Street, Suite 222

Norman, Oklahoma 73069

(405) 364-2525

Jon Velie


Attorneys for Plaintiffs, Marilyn Vann, et al.