By Donna Hales
Phoenix Staff Writer
May 23, 2007 12:24 am
—
The Bureau of Indian Affairs rejected a Cherokee amendment removing the federal government from having to approve any constitutional amendment.
Cherokee Principal Chief Chad Smith dismissed the ruling’s effectiveness saying the Cherokee Nation Supreme Court already ruled the Bureau of Indian Affairs had no authority to approve the tribal constitution.
U.S. Assistant Secretary of Indian Affairs Carl J. Artman wrote the Cherokee chief Monday. Artman wrote he was concerned that approval of the 2003 amendment “at this time would be used by some as a validation or evidence of legitimacy of the Cherokee Nation’s removal of its Freedmen members from the tribe in apparent violation of the 1866 treaty.
“Therefore, I cannot approve the 2003 amendment knowing it may provide the basis for violating the terms and intent of the 1866 treaty.”
Smith said Tribal courts ruled that the Cherokee Nation could take away the approval authority it had granted the federal government in the 1975 Constitution.
It is insulting and wrong, and the Nation will take all appropriate steps to defend its nationhood and right to self-determination, Smith said.
The decision was not taken lightly, Artman wrote Smith.
The United States 1866 treaty with the Cherokee Nation is somewhat unusual in that it required the Cherokee Nation recognize the rights of individual Freedmen. That was in exchange for tribal amnesty and the continuation of the government-to-government relationship between the United States and the Nation, Artman wrote.
Jon Velie, the attorney representing a group of Freedmen in a case before the federal court in the District of Columbia, pointed out that the tribal Supreme Court as it stands now with five members came into existence under the 2003 constitution.
Earlier the tribe’s highest court, the Judicial Appeals Tribunal, had ruled 2-1 that the Freedmen had full Cherokee citizenship rights, Velie said.
Velie said the BIA’s decision is nothing new.
“They didn’t recognize the amendment before,” he said.
And Smith is not saying the March 3 election to oust the Freedmen was wrong, Velie said.
Instead, Smith’s administration is saying “we’re going to temporarily back off and get this election (June 23 tribal election) in, and we’ll deal with it (Freedmen issue) later,” Velie said.
What is going on in the Cherokee Nation courts now is merely legal arguments to try to divest U.S. District Judge Henry H. Kennedy Jr. of the District of Columbia of his right to do anything, Velie said.
The Cherokee Nation District Court on March 14 restored the Freedmen to tribal citizenship. The order reopened registration for Freedmen only beginning at 8 a.m. May 21 and ending at 4:30 p.m. June 1.
The court order was negotiated between the tribe’s attorney general, the tribe’s election commission and Nate Young III, a Cherokee attorney appointed by the tribal court to represent 270 Freedmen appealing their March 3 ouster to the tribal court. It also included that Freedmen automatically would be sent absentee ballots, even though Cherokee Nation Attorney General A. Diane Hammons argued against that, said Cherokee spokesman Mike Miller.
Hammon argued Monday against the automatic mailout, saying it could cause confusion and election laws don’t allow someone to vote at the precinct if they have requested an absentee ballot.
Hammons also argued Monday she feared what ruling Kennedy might make if the Freedmen weren’t allowed to vote in the June election. She mentioned the judge might possibly cut off federal funding to the Cherokees and stop any government-to-government relationship, which Kennedy had been asked to do.
Kennedy has ruled consistently that the Freedmen have full citizenship rights, Velie said.
“The Cherokees want to get it out of Kennedy’s court and into a court where they can get a different decision,” Velie said in a Tuesday phone interview.
“The whole purpose of Nate is so they can negotiate these deals — he’s going to do whatever to try to stop our lawsuit,” Velie said.
“It’s very obvious they (Cherokees) want to get rid of the (federal) case we’re dealing with right now.”
Young said he doesn’t know what Velie’s motivation is, but assumes it is what his is ... that Freedmen’s permanent and full citizenship in the Cherokee Nation be fully restored. Nothing else is satisfactory.”
Velie said the question is what is the impact of the BIA’s Monday decision.
“To me — it’s nothing,” he said. “They don’t recognize the amendment. They didn’t recognize it before.”
Nedra Darling, spokeswoman for the BIA, said she does not know what possible ramifications the Monday decision will have.
Smith said the BIA decision has little practical effect, as tribal courts have ordered the Cherokee Nation to implement the amendment, and it has been effective for nearly a year.
“As Cherokee people, we must stand behind the order of our own Supreme Court,” Smith said.
But what the federal court will be asked to remember is that just because the Freedmen are getting back 12 of the more than 20 days they were ousted and couldn’t register to vote, they still don’t have their full citizenship rights restored, Velie said.
They no longer have the right to run for office as councilors and won’t have the opportunity to vote on a Freedmen as a councilor, he said.
Meanwhile, Marion Hagerstrand, a Cherokee elder who already is registered to vote appealed Tuesday a Monday ruling by Cherokee Nation District Judge John Cripps. That ruling is that only Freedmen will be allowed to register to vote in a 10-day registration period that began ends at 4:30 p.m. June 1.
Hagerstrand wants all Cherokees to be able to register during that same time, even though Cherokee citizens had the time allotted by law for registration while Freedmen were ousted and missed about 20 days of registration.
Only the Freedmen were shortchanged, according to Cripps. The appeal goes to the Cherokee Nation Supreme Court.
And the tribal election commission is expected to file a writ with the Cherokee Supreme Court today seeking they take jurisdiction.
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