15 September 2011

Cherokee Nation v. BIA: National Implications

Apparently Rush Limbaugh was talking about this situation on his show on Thursday. I will try to lay out events chronologically, and present some analysis and conclusions.

In 1866, a treaty was signed between the United States of America and the Cherokee Nation. One of the provisions of this treaty was that the Nation would admit as citizens certain "Freedmen", or freed African slaves.

From 1976 to 2003, the Tahlequah, OK-based Cherokee Nation's constitution contained a provision that required the US Bureau of Indian Affairs (BIA), part of the Department of Interior (DoI), to review changes to it. In early 2003, the Nation approved an amendment removing that requirement from the constitution. Then in March 2003, they approved a measure excluding the Freedmen (descendants of the original slaves) from Nation citizenship.

In an election on May 25, 2003, Chief Chad Smith was re-elected. Chief Smith seems to be in favor of excluding the Freedmen. According to a May 2007 statement by Asst. Secretary of the Interior Carl Artman, the Freedmen were not allowed to vote in that election (which is logical under the March 2003 law). The Freedmen sued the BIA and DoI over this election (Vann v. Salazar, filed Aug. 11, 2003). The suit was later expanded to include the Nation by Judge Henry Kennedy, citing the 1866 treaty and the 13th Amendment. I'm not sure what the 13th Amendment, which bans slavery, has to do with anything, as the original Freedmen had already been freed, hence the name.

The BIA reportedly reviewed the election issues in 2003, and at first said it would not accept the election due to the exclusion of the Freedmen, but reportedly later changed its decision to accept the election. It was this decision that the lawsuit challenged.

On May 21, 2007, associated with the above-mentioned statement, Artman sent a letter to Chief Smith about the DoI's final decision that it was rejecting the 2003 amendment, thus invalidating the law excluding the Freedmen from citizenship and voting.

Perhaps worth noting is that in June 2007 the Nation held an election for Chief. Opposing Chief Smith was Stacy Leeds, a former judge in the Cherokee Nation who had previously ruled that the Freedmen could not be excluded from Nation citizenship. As of today, Smith is still the incumbent Chief.

On Sept. 9, 2011, the Obama administration DoI's Asst. Sec. for Indian Affairs, Larry Echo Hawk, wrote a letter to Acting Chief Joe Crittenden stating that the DoI has never accepted the "disenrolling" of the Freedmen, and if they are not allowed to vote in the Sept. 24 election (with Smith running for re-election), the Department will not accept it. Of course, this hasn't stopped Smith from remaining Chief since before the constitutional change in 2003.

Now the monkey wrench to throw in the middle of all these works is shown in this AP article published in July 2009. At that time, Mr. Echo Hawk sent a letter to the Cherokee Nation of Oklahoma in which he stated that they were "not the historical Cherokee tribe, which…no longer exists as a distinct political entity." Ms. Leeds, at that time the director of the University of Kansas’ Tribal Law and Government Center, said that the decision outlined in the letter stated the opinion that "reorganized tribes in this century [are] not necessarily the historic nations that the treaties are with."

It appears that Judge Kennedy (or another federal judge) must now decide whether that opinion is legally valid. If it is not, the result is a victory--albeit relatively minor--for the Cherokee Nation in the matter described in that AP article.

If, on the other hand, that opinion is vald, the courts should remove the Nation from the Freedmen's lawsuit, since their inclusion was based on the 1866 treaty. Also, if that treaty is no longer in force because one party no longer exists, it seems to me that the Nation can decide for itself who its citizens are--just as the United States defines laws for naturalization.