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Cherokee Freedmen caught in high-level dispute
Wednesday, August 20, 2003

The Bureau of Indian Affairs was prepared to reject the results of the Cherokee Nation's recent election in which African descendants weren't allowed to vote until a high-level delegation of tribal dignitaries, including former chief Wilma Mankiller, requested to meet with Bush administration officials to protest, documents filed in federal court show.

On July 14, Cherokee Nation chief Chad Smith wrote an urgent letter to Secretary of Interior Gale Norton, her top deputy J. Steven Griles and acting assistant secretary Aurene Martin. He demanded an "immediate conference" to discuss the status of the election, in which he was re-elected, and a new tribal constitution.

"In the spirit of government-to-government relationship, I respectfully request that this conference be between the leaders of the Department [of Interior] and the Cherokee Nation and not our attorneys," Smith wrote. "If this matter is to be resolved quickly, it will rely upon our collective leadership and desire to avoid litigation and public controversy."

That same day, Smith sent a scathing letter to Jeanette Hanna, the BIA's director for the Eastern Oklahoma region. In it, he accused Hanna of tramping on the tribe's sovereignty because she sought assurances that the Cherokee Freedmen, descendants of Africans who were made members of the tribe in a post-Civil War treaty, were allowed to vote.

"In this age of self-determination and self-governance, I am shocked to find the contents and tone of your letter to be both patronizing and very paternalistic," Smith told Hanna.

There is no record that Smith, Mankiller and other tribal officials traveled to Washington, D.C., as originally planned. But Smith did end up speaking by telephone with Griles, Martin and a department attorney on July 17. He left with the understanding that the BIA would recognize the election and the new constitution, according to a letter he sent to Griles the next day.

Hanna had a different take. In a July 25 letter, she continued to press Smith, noting a recent dispute in which the Freedmen of the Seminole Nation were stripped their membership and voting rights. In that case, the BIA refused to recognize the Seminole Nation's election and constitution, and ended up denying federal funds to the tribe.

"This situation appears identical to the one involving the Seminole Nation," Hanna wrote. A federal judge last September upheld the BIA's treatment of the tribe.

But the Cherokee Nation fared much better. Days after Hanna's letter, the BIA suddenly dropped its objections to the election and constitution. With little explanation, the agency relied on a 1987 court decision instead of the more recent Seminole Nation case.

The BIA's change in stance didn't seem odd to Mike Miller, a spokesperson for the Cherokee Nation. He said the tribe had always been assured, at least verbally, that its election and constitution were going to be approved, a view backed up by Smith's correspondence.

Miller also drew a distinction with the Seminole case, in which tribal members changed their constitution to oust the African descendants. Freedmen who can document Cherokee ancestry have always been eligible for membership, he said.

"It's not a matter of skin color, it's a matter of citizenship," he said. "If you don't have Indian blood, then you are not eligible for membership, regardless of what other ethnicity you may be."

Jon Velie, an attorney representing the Cherokee Freedmen, sees it differently. He believes the Cherokee Nation is violating an 1866 treaty with the United States that put the Freedmen on equal ground with other Cherokee citizens, regardless of blood.

"Treaties are the establishment of the government-to-government relationship with the United States," he said. "Once you start saying that we don't need to follow this treaty, you are getting on a slippery slope."

"This is very dangerous to Indian Country," he said.

On behalf of several Freedmen, Velie last Monday filed a lawsuit in Washington, D.C., against the Secretary Norton. The Freedmen want a federal judge to hold back the BIA's approval of the election and new constitution until their voting rights are restored.

Dan DuBray, a BIA spokesperson, would not comment due to the pending litigation. But he said the 1987 case, Wheeler v. Swimmer -- named for former Cherokee chief Ross Swimmer, now a top Bush administration official -- precludes the BIA from getting involved with the Cherokee Nation.

"We have a specific case that guides what our intervention ability is," he said. "It's the Wheeler case."

According to Velie, the Freedmen were allowed to vote as recently as the late 1970s, when Swimmer was elected chief of the tribe. Swimmer went on to serve two terms and was followed by Mankiller, who also served two terms.

Miller could not conclusively say whether the Freedmen have ever participated in tribal elections. But according to former deputy chief Hastings Shade, who served one term under Smith, the Freedmen have voted in the past. On August 5, Shade wrote to the BIA to protest the exclusion of the African descendants.

"If the department recognizes a new tribal government, then you have recognized an unlawful election and disenfranchised the freedman and citizens of the Cherokee Nation," he told Martin, the acting assistant secretary.

According to the Descendants of Freedmen of the Five Civilized Tribes Association, an organization representing African descendants of the Cherokee, Choctaw, Chickasaw, Creek and Seminole nations, there are 25,000 Cherokee Freedmen. The Cherokee Nation has more than 100,000 enrolled members.

Velie said the BIA and the tribe are hiding behind self-determination in order to deny the rights of a minority group. The tribe, he said, is claiming "we're sovereign, so we have the right to be racist. That's just wrong."

"This time they were doing the right thing," he said of Hanna's original stance. "They flip-flopped they caved to the most powerful tribe in the country."

Relevant Documents:
Jeanette Hanna Letter (July 11, 2003)| Chad Smith to Jeannette Hanna (July 14, 2003) | Chad Smith to Gale Norton (July 14, 2003) | Jeanette Hanna Letter (July 25, 2003) | Hastings Shade Letter (August 5, 2003)

Relevant Links:
Cherokee Nation - http://www.cherokee.org

Related Stories:
Cherokee Nation chief sworn in for another term (8/15)
Cherokee Freedmen sue BIA for disenfranchisement (8/12)
Court tackles Seminole dispute (9/24)
The Seminole Nation's hanging chad (8/8)
Resolution of Seminole dispute sought in court (5/28)
Court decision rocks Seminole Nation (5/8)

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