Cherokee Nation reacts to BIA rejection of constitution

Wednesday, May 23, 2007

The leader of the Cherokee Nation of Oklahoma vowed a fight with the Bureau of Indian Affairs on Tuesday as controversy over the tribe's removal of African descendants continued.

Cherokee Chief Chad Smith said the tribe would take "all appropriate steps" to defend its right to self-determination. He accused the BIA of overturning 30 years of federal policy and court decisions after the agency asserted a role in reviewing the tribe's constitution.

"What is at stake here is the sovereignty and self-determination of all Indian tribes," Smith said. "The BIA is calling into question the right of Indians to be able to decide, through the exercise of their cherished democratic freedoms, the content of their own constitutions."

The tribe adopted a constitution in 1976 that required the BIA to review any changes. In 2003, Cherokee voters approved an amendment to remove the federal review provision.

But assistant secretary Carl Artman informed Smith on Monday that the Interior Department was rejecting the 2003 amendment. In a letter, Artman said he respected the tribe's ability to govern itself but voiced concerns about the Cherokee Freedmen, whose ancestors became members of the tribe by an 1866 treaty.

The Freedmen weren't directly at issue in the 2003 vote but Artman said he was rejecting the amendment because it could be used to validate their removal. In March, Cherokee voters changed the constitution yet again to preclude the descendants of African slaves from citizenship.

"Therefore, I cannot approve the 2003 amendment knowing it may provide the basis for violating the terms and intent of the 1866 treaty," Artman wrote.

In a follow-up interview, Artman said he acted because the Freedmen weren't able to vote on the 2003 amendment. It wasn't until March 2006 that the tribe's highest court ruled the Freedmen were entitled to citizenship.

"That was our concern with the 2003 amendment," Artman said.

Artman stressed that his letter has no bearing on the BIA's government-to-government relationship with the Cherokee Nation. He said the agency has no plans to cut off funding to the tribe, as the Freedmen have sought in federal court.

"Nothing changes," Artman said.

The BIA, however, intervened in a similar dispute when the Seminole Nation of Oklahoma changed its constitution to deny citizenship to its Freedmen. The agency cut off funding to the tribe and refused to recognize the results of an election until the Freedmen were restored.

The Cherokee Freedmen have pointed to the BIA's actions in the Seminole case in support of their position. But Artman said there are differences in the situations, although he wasn't able to go into them in detail.

"There are distinctions between the Cherokee case and the Seminole case," he said.

The Freedmen initially sued the Interior Department over the 2003 election, in which Chief Smith was re-elected. Only later was the Cherokee Nation added to the case by Judge Henry H. Kennedy in Washington, D.C., who cited the 1866 treaty and the 13th Amendment of the U.S. Constitution, which outlawed slavery.

Smith is running again for re-election but the tribe has agreed to an order in tribal court to allow the Freedmen to vote in the upcoming June vote. Stacy Leeds, a former Cherokee judge who wrote the decision that affirmed the Freedmen's right to citizenship, is running against Smith.

BIA Letters:
May 21, 2007 | March 28, 2007 | August 30, 2006

Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19, 2006)

Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen Case:
Allen v. Cherokee Nation (March 7, 2006)