Native Hawaiian Law Summaries: Recent Cases
Carl Christensen Visiting Assistant Professor
Derek Kauanoe 3L
Sarah Wong 3L

The Center for Excellence in Native Hawaiian Law promotes discourse between the legal community, the Native Hawaiian community, and the community at large.  To further this goal, the Center is providing brief summaries of selected state and federal court decisions that impact, or may impact, Native Hawaiians. This issue of Ka He‘e includes summaries of the U.S. District Court for the District of Columbia’s decision in Vann v. Kempthorne (the “Cherokee Freedmen” case), the Doe v. Kamehameha Schools settlement and its aftermath, and the Hawai‘ i Supreme Courts’ decision in Wailuku Agribusiness Co., Inc. v. Ah Sam.

Vann v. Kempthorne, 467 F. Supp. 2d 56 (D.D.C. 2006)

This case is one aspect of the complicated and continuing dispute over the rights and status of the descendants of the Cherokee Freedmen, former Black slaves and Black spouses of Cherokees, as citizens of the Cherokee Nation of Oklahoma.  The dispute raises significant issues of race, citizenship, membership, tribal sovereignty, and federal authority in Indian affairs.  The result of this case, as well as other facets of the overall dispute, may have ramifications for Native Hawaiians in seeking to forge a relationship with the federal government and in making decisions about citizenship requirements.

In Vann v. Kempthorne, the descendants of the Cherokee Freedmen sought the protection of the federal government in the face of efforts by the tribal leadership to prevent them from voting in tribal elections.  The Freedmen were granted full citizenship in the Cherokee Nation pursuant to an 1866 Treaty between the Cherokee and the U.S.  In this case, Freedmen descendants ask a federal court to require the Secretary of the Interior to protect their rights under the 1866 Treaty and other federal laws as citizens of the modern-day Cherokee Nation of Oklahoma. 

Historical Background

In 1830, when the Cherokee were forcibly moved from their traditional lands to Oklahoma, the tribe’s Black slaves, along with Black spouses of Cherokee members and their children, also traveled the Trail of Tears. During the U.S. Civil War, the Cherokee Nation sided with the Confederacy. Upon the Confederacy’s defeat, the U.S. viewed Cherokee lands as conquered territory and Cherokee treaty rights were forfeited. The U.S. was willing to re-establish treaty relations on condition the Cherokee Nation abolish slavery and give former slaves and other Blacks the same rights enjoyed by Cherokee Nation citizens.  Under the Treaty of 1866, these Black Cherokee members were to be given the same status as citizens who were Cherokee by blood. Cherokee laws were to be applied uniformly to all and the President of the United States was empowered to intervene in order to assure equal treatment. The intent of the 1866 Treaty and other treaties between the U.S. government and slave-holding tribes “was to protect . . . the freedmen.” The Vann Court characterized the Cherokee Nation as having been unwilling, since signing the Treaty, to treat the Freedmen as equals, and described several instances in which the federal government intervened to ensure compliance with the 1866 Treaty.

In 1907, the federally-appointed Dawes Commission compiled membership rolls for certain tribes in Oklahoma, including the Cherokee Nation. Cherokee members were listed on several different rolls - including the Freedmen Roll and the Blood Roll.  According to the Vann Court, the Dawes Commission listed any part Black member of the Cherokee Nation on the Freedmen Roll even if they were, by blood, part Cherokee.  Although the Freedmen were listed on a separate roll, the Dawes Commission declared that those on the Freedmen Roll were on “equal footing” with those on the Blood Roll.

In 1970, Congress passed an act requiring that the leaders of certain tribes, including the Cherokee Nation, be popularly elected in accordance with procedures established by those tribes and approved by the Secretary of the Interior. In 1976, the Cherokee adopted a constitution that provides that citizenship in the Cherokee Nation must be “proven by reference to the Dawes Commission Rolls.” Election to the Tribal Council is limited to members with Cherokee blood, but the Constitution does not limit membership in the tribe or voting rights to Cherokees by blood.  The 1976 Constitution also contained a provision requiring federal approval for amendments to the document.

History of this Case

Notwithstanding the fact that the 1976 Constitution does not limit membership in the tribe or voting rights to Cherokees by blood, the Code of the Cherokee Nation conditions membership and the ability to vote in tribal elections on “proof of Cherokee blood based on the Final Rolls of the Dawes Commission.” In 2003, the Cherokee Nation held elections, from which the Freedmen were excluded, re-electing Chadwick Smith as Principal Chief. Voters also approved a constitutional amendment eliminating the requirement for approval by the Secretary of the Interior of changes to the Cherokee Nation Constitution. The Freedmen claimed their exclusion from participating in these elections violated the 1866 Treaty and other federal laws. 

The plaintiffs petitioned the Secretary of Interior to “declare the election invalid and require a new election in which Freedmen would be permitted to vote.” The Secretary requested the Cherokee Nation to submit its election procedures as required by the 1970 act and to respond to the Freedmen claims. Counsel for the Cherokee Nation responded that the Freedmen’s concerns were properly being heard in tribal courts. Indeed, in 2006, the Cherokee National Judicial Appeals Tribunal held that the statutory requirement for “proof of Cherokee blood” violated the Cherokee Constitution. Chief Smith also responded, noting that the Department of the Interior had not required or requested submissions of their election procedures for the past two and a half decades. The plaintiffs complained to the Secretary again and the Secretary made another request to the Cherokee Nation. In August 2003, however, the Secretary issued a letter recognizing the Cherokee Nation leadership, stating that it was “inappropriate . . . for the Department . . . to question the validity of the election of Tribal officials.” 

Parties’ Claims and Arguments

The Freedmen claim violations of the Thirteenth and Fifteenth Amendments to the U.S. Constitution in addition to violations of the Cherokee Constitution, the Treaty of 1866, the Principal Chiefs Act of 1970, and the Indian Civil Rights Act of 1968. The Freedmen also claim that when the Secretary recognized the re-elected leaders and refused to require the Cherokee Nation to submit its election procedures, the Secretary breached fiduciary duties to the Freedmen. 

The Cherokee Nation sought to dismiss the suit, arguing, first, that the Cherokee Nation was a necessary and indispensable party but could not be joined because of its immunity as a sovereign, and, second, that the suit should be dismissed for lack of final agency action.  In addition, the Nation sought to prevent the Freedmen from amending the complaint to add the Cherokee Nation and its officials as defendants.

Court’s Analysis

To decide the Cherokee Nation’s motion to dismiss, the court needed to determine whether the Cherokee Nation was a necessary and indispensable party, as defined by the Federal Rules of Civil Procedure 19; if the Nation was a necessary party, than the court needed to decide whether it was feasible to join it as a party.  The court concluded that the Cherokee Nation was a necessary party because of its interest in its own electoral process, the subject of the suit between the plaintiffs and the Secretary of Interior. The court next turned to the feasibility of joining the Cherokee Nation. The Nation argued that Indian tribes are immune from suit in Federal courts and, as a result, joinder was not feasible.  As a general rule, tribes are immune from suit unless the tribe waives its sovereign immunity or Congress specifically abrogates that immunity. The court also found, however, that when Congress shows the intent to abrogate a tribe’s immunity, then the tribe will be deemed to have waived its immunity.

The court determined that the Thirteenth Amendment – which forbids the existence of slavery anywhere within the United States and gives Congress the authority to enforce the Amendment’s provisions – abrogated Cherokee tribal immunity. While the dispute between the Freedmen and the Cherokee Nation did not specifically involve slavery, the Supreme Court has ruled that the Amendment includes “badges and incidents of slavery” and may include non-governmental parties and private individuals. “Badges and incidents of slavery” in this context includes unequal treatment under the law. The district court interpreted Congress’s previous attempts to legislate for fair treatment of the Freedmen as showing a clear intent to abrogate the Cherokee Nation’s immunity when dealing with racial oppression. The court thus concluded that the Cherokee Nation was not immune from suit.

As to the Cherokee Nation’s contention that the suit should be dismissed for lack of final agency action, the court concluded there was final action when the Secretary of Interior recognized the elected Cherokee leaders. The court explained that the recognition determined rights and obligations that legally affect all others subject to those regulations. The court also noted a similar case involving the Freedmen of the Seminole Nation, in which the Secretary refused recognition of a government “elected without the participation of the Freedmen.”

In opposing the Freedman’s motion to amend the complaint to add the Cherokee Nation and its officials as parties, the Nation put forth two arguments. First, it argued that the Freedmen had not exhausted all tribal remedies, and second, that there was no federal jurisdiction over individual tribal officials.  The court reasoned that where a tribal court lacks jurisdiction, a complaining party, such as the Freedmen, is not required to exhaust all tribal remedies. Because the claims of the Freedmen were against the Secretary of Interior and tribal courts have no jurisdiction over federal officials, the district court concluded that exhaustion of tribal remedies was not necessary.  With regard to adding tribal officials as parties, the court said that the tribal government acted outside of its authority when it prevented the Freedmen from voting.  As a result, sovereign immunity did not apply to individual officials and they could be added to the suit.

Ultimately, the court denied the Cherokee Nation’s motion to dismiss and granted the Freedmen’s motion to amend the complaint.  The court has not yet ruled on the merits of the Freedmen’s claims.

Conclusion and Comments

It appears that in the 1866 Treaty, Congress required the Cherokee Nation to accept as members Black slaves and spouses who had no Cherokee (or other Indian) blood at all, and nothing suggests that the Court or Department of the Interior is asking the modern Freedmen descendants to prove Indian blood, as long as they can prove descent from an individual listed on the Freedmen Roll. It is important to note that the Court’s opinion makes reference to the terms Cherokee Blood and Indian Blood. The two terms are not synonymous – Cherokee Blood is specific to the Cherokee while Indian Blood is more general, suggesting that other Indians, besides Cherokee, may have been listed on the Dawes Commission Rolls.  Indeed, further research indicates that the Dawes Commission listed both Shawnee and Delaware Indians who had been “adopted” into the tribe. This case is more interesting as the court recognized that “an individual possessing any Indian blood was placed on the Blood Roll, as long as that individual did not possess any African blood.” Thus, some Shawnee and Delaware Indians, with no Cherokee blood at all, are citizens of the Cherokee Nation. These are significant points to a Hawai‘i reader, because they call into question the factual basis for the statement of U.S. Supreme Court Justice Breyer in his concurrence in Rice v. Cayetano, that “I have been unable to find any Native American tribal definition that is so broad” as the State of Hawai‘i’s definition of Native Hawaiian.  Justice Breyer had objected to the State’s definition of “Native Hawaiian” because it was so expansive as to include “individuals who are less than one five-hundredth original Hawaiian.” 

Readers may also be interested in the fact that there is no discussion in the Vann court’s opinion about whether the terms “citizenship” and “membership” are synonymous; indeed, the court at times appears to use the terms interchangeably. 


Finally, as noted above, in 2006, the Cherokee Nation’s highest court found that the Nation’s tribal code provision restricting voting to Cherokees by blood violated the Nation’s 1976 Constitution.  In March 2007, Cherokee voters approved an amendment to the 1976 Constitution to limit citizenship in the Cherokee Nation to descendants of those listed on the Dawes Rolls as Cherokee, or as adopted Delaware or Shawnee, and exclude, among others, descendants of those listed on the Freedmen Rolls.

Doe v. Kamehameha Schools (Settlement)

On May 14, 2007, the Trustees of the Kamehameha Schools and the plaintiff, Doe, settled one of the most important Hawaiian cases in history.  Doe v. Kamehameha Schools questioned the legality of Princess Bernice Pauahi Bishop’s vision “to save her people through education” in light of the many injustices inflicted upon Native Hawaiians, the Iindigenous People of Hawai‘i.  The issue was whether or not the Kamehameha Schools’ admissions policy – which favors Native Hawaiians – discriminates on the basis of race, in violation of a federal statute, title 42 of the U.S. Code, section 1981. At the Federal District Court level, Judge Kay focused on historical context to rule that Kamehameha Schools’ policy served a “legitimate, remedial purpose by improving native Hawaiians’ socioeconomic and educational disadvantages.” In deciding the policy was permissible, he referred to the history of Western encroachment in the Hawaiian Islands, the purposes of the Kamehameha Schools, and the federal legislation enacted by Congress to benefit Native Hawaiians. 

Although the Ninth Circuit Court of Appeals decision, authored by Judge Bybee, overturned Judge Kay’s ruling, the case was further reviewed by a 15-judge (“en banc ”) Ninth Circuit panel.  Writing for the en banc majority, Judge Graber ultimately held that the Schools’ admissions policy did not violate Section 1981.  Like Judge Kay, Judge Graber’s majority opinion acknowledged the Kamehameha Schools’ unique history and the importance of its mission:  Congress intended that a preference for Native Hawaiians, in Hawai[‘]i, by a Native Hawaiian organization, located on the Hawaiian monarchy’s ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians, which Congress has repeatedly identified as necessary. Judge William Fletcher’s concurring opinion concluded that Native Hawaiians have a special political relationship with the United States as a Native people.

The settlement successfully brought to an end the four-year-old lawsuit challenging the Schools’ admissions policy, and preserves Judge Graber’s Ninth Circuit en banc ruling upholding the policy as legally permissible. As a result of the settlement, the United States Supreme Court dismissed plaintiff Doe’s petition for review of the Ninth Circuit’s decision. Because the Ninth Circuit ruling stands, Kamehameha Schools maintains the legal right to offer admissions favoring Native Hawaiian applicants – a “legitimate remedial purpose.”  According to the Kamehameha Schools’ trustees, the settlement upholds a “great ruling …for Kamehameha Schools and the many federal and state programs that acknowledge and support the determination of our [Native Hawaiian] people to thrive.”

The Doe settlement does not, of course, preclude further suits challenging the admissions policy. Indeed, the day after the Doe v. Kamehameha settlement, attorney David Rosen sent an e-mail seeking clients for a new lawsuit against Kamehameha Schools. As a result, the Hawai‘i State Bar Association’s board of directors issued a statement: “It is not easy to reconcile these issues and Mr. Rosen’s e-mail and the subsequent public controversy have highlighted the need to review, in a timely and reasoned manner, the issue of client solicitation in our community.” Regardless of the specific outcome of that controversy, there will likely be other attempts to challenge not only the Kamehameha Schools’ admissions policy, but also other Native Hawaiian programs.

Wailuku Agribusiness Co., Inc. v. Ah Sam, 114 Hawai‘i 24, 155 P.3d 1125 (Hawai‘i 2007) (rev’g 112 Hawai‘i 241, 145 P.3d 784 (Hawai‘i App. 2006)).

The last issue of Ka He‘e contained a report on the Intermediate Court of Appeals’ opinion in this quiet title action.  The principal issue is the standard by which a cotenant in possession can assert a claim of ownership by adverse possession against out-of-possession cotenants without having given actual notice of an intent to adversely possess against them.  Under City and County of Honolulu v. Bennett (Hawai‘i 1976), a cotenant has a fiduciary duty to other cotenants and must give them “actual notice” of such intent unless the party claiming by adverse possession has no reason to suspect that a cotenancy exists.  Plaintiff Wailuku Agribusiness argued that it had no reason to know of the cotenancy in this case because it had taken possession of the land under color of an 1855 quitclaim deed, which purported to convey all ownership interests in the property. The ICA agreed, and the defendants sought further review in the Hawai‘i Supreme Court.

The Supreme Court granted the petition for a writ of certiorari and reversed.  In doing so, it noted that the plaintiff did have notice of the possible existence of a cotenancy because of the recording of a deed of an interest in the property to the defendants’ ancestors executed in 1875 (i.e., subsequent to the deed which supposedly established Wailuku Agribusiness’ sole ownership of the property and prior to the initiation of the period of “open, notorious, and exclusive occupancy” of the property demonstrated by Wailuku Agribusiness). The decision reaffirms the holding of Bennett that a cotenant seeking to establish ownership by adverse possession as against other cotenants bears the heavy burden of proving that it had “no reason . . . to suspect the existence of a cotenancy” (emphasis in original). The Court did not address the argument, discussed in the previous Ka He‘e note, that the mere fact that the putative adverse possessor entered under color of a quitclaim deed was enough by itself to put a prospective adverse possessor on notice of the existence of possible cotenants.