Although this was written back during the Mankiller Junta it is just as pertinent today, maybe even more so, given the the Freedmen situation, in the Courts, and The Threatened congressional Actions, this gets into some detail of what and how CNOT claims their status is legal as far as recognition is concerned, and Dario explains why and how they are not and other concerns a good read.

            Although the current government of the Cherokee Nation of Oklahoma (CNO) claims to enjoy the same sovereign powers as every other federally recognized tribe, the constitutional foundations of the CNO government are, in fact, dangerously deficient and will likely remain so until the Cherokee people decide to convene an authentic constitutional convention and reorganize under the Oklahoma Indian Welfare Act of 1936 (OIWA).

            The constitutional crisis now confronting the Mankiller government is the direct result of decades of an authoritarian style of executive decisionmaking that has consistently valued political expediency above the due process of law. From W.W. Keeler to Ross 0. Swimmer to Wilma Mankiller, the modern chiefs of the Cherokee Nation of Oklahoma have uniformly neglected the pressing need for constitutional reform in the interest of preserving their own power. They and the governments over which they have presided merely asserted the authority to govern without taking seriously the responsibility to insure that their claims were based on secure constitutional foundations.

            The enormous political influence which each of these three chiefs came to enjoy with the federal government enabled them to deflect questions concerning the constitutional legitimacy of their governments. The longer they postponed confronting those questions, however, the harder it became to admit that they even existed. After all, how could a tribal government claiming a membership in excess of 160,000 and spending some $86 million annually acknowledge that its right to govern was uncertain, if not completely unfounded in a legitimate constitutional document? In the face of such a disturbing inquiry, the preferred solution has apparently been to pretend that the problem does not exist and have tribal attorneys rewrite Cherokee legal history to make it comport with whatever exercise of power the current administration deems useful at the moment.

            The status of the CNO as a legitimate tribal government vested with the same powers of internal self-governance enjoyed by all other tribal governments is suspect for at least three compelling reasons. First, around the turn of the century, Congress expressly extinguished several important sovereign powers of the Cherokee Nation which may only be restored by a rehabilitating act of Congress or by CNO reorganization under the Oklahoma Indian Welfare Act of 1936 (OIWA). Second, the procedures adopted for the drafting and ratification of the 1975 constitution violated the 1839 constitution and were not otherwise authorized by law. Third, the alleged popular ratification of the 1975 constitution may have been fraudulent. Each of these problems will be explored in this article.

Statutory Disabilities

            Around the turn of the century, Congress enacted several laws which expressly stripped the Cherokee Nation of certain powers of internal self-governance pursuant to the Dawes Act allotment policy. During this period, Congress extinguished the right of the Cherokee Nation to (1) establish tribal courts, (2) enact tribal law independent of U.S. Presidential approval, (3) collect certain tribal taxes and (4) enforce Cherokee laws in federal court. Although the problem of interpreting the statutes divesting the Cherokee Nation of these rights is extremely complex in light of the subsequent abandonment of the now discredited allotment policy which they were intended to implement, these federal laws are still on the books and may be construed to limit the current sovereign powers of the CNO unless the tribe reorganizes under the OIWA.

            Perhaps the most important and controversial sovereign prerogative extinguished by Congress was the power to establish and maintain tribal courts. Section 28 of the Curtis Act of 1898 provided that, effective July 1, 1898, "all tribal courts in Indian Territory shall be abolished, and no officer of said courts shall thereafter have any authority whatever to do or perform any act theretofore authorized by any law in connection with said courts....."

            A subsequent agreement with the Cherokee Nation, enacted into federal law only three years later in 1901, made clear that the abolition of Cherokee courts continued in effect, stating that nothing in the 1901 agreement "shall be construed to revive or reestablish the Cherokee courts abolished" by the Curtis Act.

            Although Section 28 of the Five Tribes Act of 1906 continued "the tribal existence and present tribal governments" of the Five Civilized Tribes, no provision of that 1906 Act re-empowered the Cherokee Nation to re-establish a tribal court system. Thus, it would seem that the CNO has no current legal right to establish a court system unless these turn-of-the-century-laws have somehow lost their force.   Do they still prevent the CNO from establishing a tribal court system?

            The Muscogee Creek Nation recently litigated an answer to that question as it applied to its own court system. Interestingly, Congress used almost identical language to extend the Curtis Act abolition of tribal courts in the Creek agreement which, like the Cherokee agreement, was enacted into federal law in 1901.   In Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1443 (D.C. Cir. 1988), a three judge federal court of appeals panel concluded that since the "Curtis Act and the Creek Agreement expressly stripped the Tribe of the power to have courts . . . that power was not part of the 'present' Tribal government" as that phrase was used in the Five Tribes Act of 1906. Thus, in the absence of any legislation repealing the Curtis Act abolition of tribal courts, the Muscogee Creek Nation would not have been able to re-establish a tribal court system. The old laws continued in force.

            The Hodel court decided, however, that because the Creeks had re-organized under the OIWA in 1979, their right to establish a court system had been restored by a "general repealer clause" in the OIWA which was held to have repealed the Curtis Act by implication. In other words, as an OIWA tribe, their inherent sovereign rights of self-government had been fully restored.

            Unlike the Muscogee Creek Nation, the CNO has never reorganized under the OIWA. Consequently, the CNO may not claim the benefit of the "general repealer clause" in the OIWA that enabled the Creeks to re-establish their tribal court system.

            What, then, is the current legal basis of the tribal court system of the CNO?   The most plausible answer seems to be that there is none. Even the 1975 constitution does not create or authorize the creation of an independent judiciary or a court system, but merely establishes a "Judicial Appeals Tribunal" which was clearly intended to function only as an administrative appeals board. Despite the express abolition of Cherokee tribal courts by two federal statutes, in November 1990 the CNO enacted legislation purporting to re-establish the tribal court system. According to the Fiscal Year 1995 Annual Funding Agreement under the CNO SelfGovernance Compact, over $92,000 in federal funds will be spent on the CNO tribal courts in the 1995 fiscal year.

            How does the CNO justify the re-establishment of its tribal court system? In a recent manuscript by Chadwick Smith, a prosecutor for the CNO, and Stephanie Birdwell, entitled "Cherokee Nation Courts: A Historical and Modern Perspective," the authors incorrectly claim that the 1988 Hodel court held that the OIWA repealed the Curtis Act even for those tribal governments, such as the CNO, which have not yet reorganized under the OIWA.

            This reading of the Hodel is at best untenable and at worst deliberately misleading. The authors completely omitted from their discussion the crucial fact, essential to the reasoning of the Hodel court, that "pursuant to the OIWA" the Creeks "adopted a constitution providing for three separate branches of government, including a judiciary." Hodel, 851 F.2d at 1442. As the court emphasized, the "OIWA confers the power to adopt a constitution" and it was the act of adopting a constitution under the OIWA that allowed the Creeks to escape the prohibitions of the Curtis Act. Id. at 1445. The authors have taken general dicta completely out of context in a misguided attempt to find a legal basis for the CNO court sygtem where none appears to exist. In effe(A, they have taken the position that the CNO is entitled to the full protection of the OIWA without ever having undertaken the serious responsibility of reorganizing under its provisions.

            The solution to this problem seems obvious: why not just reorganize under the OIWA? Such a move would not only place the CNO's court system on a firm foundation, but would also help insure that CNO business enterprises chartered under tribal law would retain their tax exempt status under two recent IRS revenue rulings, as reported in the December 1994 issue of the Cherokee Observer. Why was not the CNO reorganized under an OIWA charter in 1975 when the new constitution was first submitted to the
Interior Department for approval and what accounts for the CNO's continuing reluctance to reorganize under the OIWA? In short, why is this such a hard decision for the CNO to make?

            Although there may be several reasons for the CNO's mysterious resistance to reorganization under the OIWA, the most important reason may be found in an obscure legal memorandum dated October 25, 1937 from the Director of Lands in the Interior Department to one Mr. Daiker in the Office of Indian Affairs. The memorandum was prepared in response to a request for an opinion on whether freedmen and intermarried whites shown on the final rolls of the Five Civilized Tribes would have a right to vote on the adoption of new OIWA constitutions. In the course of analyzing this issue, the Director of Lands reached the following startling conclusions, which, in view of their continuing importance, are quoted at length:

        "It is not believed that the Oklahoma Welfare Act [i.e., the OIWA] may be used as authority to reorganize the existing tribal government of the Cherokee Nation. On the contrary, that Act appears to contemplate the creation of a new, separate and distinct organization, to adopt its own constitution and bylaws and to procure a charter of incorporation without regard to the existing government. With respect to the existing tribal government, the freedman and intermarried whites, as well as other citizens of the Cherokee Nation, shown on the final rolls, have a voice in the limited tribal affairs which remain. If it is desired to deny the freedmen and intermarried whites the right to vote on the proposed constitution . . . of the new organization to be created under the Oklahoma Welfare Act, it is believed that the powers and jurisdiction of the new organization should be limited to the property and other benefits to be acquired under the Act. Those persons whose names are on the final rolls of the Cherokee Nation have certain rights in the remaining assets of the tribe, and if any attempt were made to deny them the right to vote on matters which may affect such rights, it would doubtless give rise to litigation."

            The 1937 opinion continues: "The existing tribal government should be permitted to exercise control over the present tribal assets and any benefits accruing therefrom should be distributed in accordance with the final rolls of the Cherokee Nation and the constitution . . . to be issued to the new organization to be created under the Act should be limited in . . . operation so as to exclude such tribal assets. If the new organization is so constituted the freedmen and intermarried whites, who are not entitled to benefits under the Oklahoma Welfare Act, will have no cause to complain by reason of their having been denied the right to vote in matters that do not concern them or in any manner affect their property rights."

            This opinion was reaffirmed by Hazel E. Elbert, the Acting Assistant Secretary for Indian Affairs of the Interior Department, as recently as February 4, 1988.

            In sum, the 1937 opinion seems to have concluded that (1) freedmen and whites, although citizens and members of the Cherokee Nation by operation of treaty and statute, do not qualify as "Indians" under the OIWA and are, therefore, apparently ineligible to participate in the vote to reorganize under the OIWA, (2) although ineligible to participate in the vote to reorganize under OIWA,, freedman and whites shown on the final Cherokee rolls nonetheless have vested property rights in tribal assets which must be protected, (3) any new Cherokee tribal entity reorganized under OIWA must be deemed "a new, separate and distinct organization" without any claim to the tribal assets of the pre-OIWA Cherokee Nation, and (4) "the powers and jurisdiction" of any new tribal entity chartered under OIWA would be limited to "the property and other benefits acquired" under the OIWA, leaving the assets of the pre-OIWA Cherokee Nation to the surviving enrollees including Indians, freedmen and whites.

            Assuming these legal conclusions are accurate, the reluctance of the CNO to reorganize under the OIWA becomes readily apparent. If the CNO were to reorganize under the OIWA, according to the logic of the 1937 legal opinion, the CNO would forfeit all claims to the tribal assets of the pre-OIWA Cherokee Nation and as "a new, separate and distinct organization" it could no longer claim to have succeeded to all of the rights and interests of the pre-OIWA Cherokee Nation.

            In short, the 1937 opinion creates a difficult dilemma for the CNO. If the CNO does not reorganize under the OIWA, its sovereign powers may still be subject to debilitating statutory prohibitions enacted during the allotment era. Foremost among these is probably the inability to establish a tribal court system. On the other hand, if the CNO reorganizes under the OIWA, it may forfeit not only its rights in the tribal assets of the old Cherokee Nation, but to any claim that it is, in fact, the successor in interest to the old Cherokee Nation, thereby creating a potentially devastating legal discontinuity in the life of the tribe.

Perhaps the best way to escape the horns of this dilemma is simply to realize that it is almost certainly a false dilemma based on the limited legal imagination of one Interior Department attorney 57 years ago. His opinion is hardly written in stone, nor does it even carry the precedential weight of a court decision. In fact, a moment's reflection on the state of tribal rights of selfdetermination under current law suggests that the 1937 opinion is almost certainly wrong.  There are many possible competing interpretations of relevant statutory language that would enable the CNO to reorganize under the OIWA without suffering the dire legal consequences predicted in the 1937 opinion.

            For example, freedmen and whites on the final Cherokee rolls could plausibly be deemed "persons of Indian descent" under Section 19 of the OIWA by virtue of their formal status as citizens of the Cherokee Nation. In short, for purposes of OIWA reorganization, the phrase "persons of Indian descent" could be construed to refer not to Indians by blood, but to Indians by citizenship, thereby giving freedmen and whites the right to vote for the adoption of an OIWA constitution, should that be deemed desirable.

            Alternatively, if the vote on constitutional reorganization under the OIWA were limited only to "persons of Indian descent," in a strictly ethnological sense, why should the exclusion of freedmen or whites on the final Cherokee rolls from the vote to reorganize necessarily result in the creation of "a new, separate and distinct organization" without any rights as the successor in interest to the old Cherokee Nation?   Clearly, the "persons of Indian descent" entitled to vote could simply create a new successor Cherokee Nation under the OIWA which continued to recognize the rights of the non-Indian enrollees as citizens with vested property rights. The OIWA grant of voting rights only to "persons of Indian descent" could be construed to override any contrary statutory or treaty guarantees of equal participation by non-Indian enrollees only for purposes of determining who is eligible to vote for reorganization under OIWA.

            There is no basis at all in the language of the OIWA or the intent of its framers to divest reorganized tribal governments of their right to stand as successors in interest to preceding tribal governments. In fact, just the opposite is true.   Section 15 of the OIWA clearly preserves the claims of reorganized tribes against the United States.  The CNO is free to reorganize under the OIWA, just as the United Keetoowah Band of Cherokee Indians of Oklahoma did in 1950.

Unlawful Ratification Procedures

            Since the 1975 constitution of the CNO was not ratified pursuant to the OIWA, the CNO does not enjoy the same legal protections as tribes which have elected to reorganize under the OIWA. Practically speaking, this means that many of the allotment era enactments limiting the powers of the Cherokee Nation may still be in force. Apart from these statutory limitations, there are additional and even more troubling grounds on which to question the legitimacy of the CNO government arising from the strange circumstances surrounding the drafting and ratification of the 1975 constitution.

            The most conspicuous legal problem with the 1975 constitution concerns the procedures adopted for its ratification. According to Article 18 of the 1975 constitution, that document was to become effective when approved by the U.S. President and "when ratified by the qualified voters of the Cherokee Nation at an election conducted pursuant to rules and regulations promulgated by the Principal Chief."  On what authority did the Principal Chief presume to possess the lawful power to independently promulgate the "rules and regulation" governing the ratification of a new constitution?   This authority was merely assumed by the Principal Chief Ross 0. Swimmer for reasons of political expediency in violation of the amendment procedures specified in Section 10 of Article VI of the 1839 constitution of the Cherokee Nation.

            There can be little doubt in the aftermath of the federal district court decision in Harjo v. Kleppe that the 1839 constitution continued in force despite the suspension of the bicameral legislative branch of the Cherokee government for some sixty years. 420 F.Supp. 1110 (D.D.C. 1976), aff’d sub nom., Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978). In Harjo, the court found that, despite the original intention of Congress to terminate the Creek Nation at the turn of the century, the Creek tribal government created by the Creek constitution of 1867 had never been dissolved by statute and, instead, had been explicitly extended. 420 F.Supp. at 1129.   As Congress used the same provision to extend the Cherokee government in the 1906 Five Tribes Act as it did to extend the Creek government, the conclusion that the 1839 Cherokee constitution was in force in 1975 seems inescapable under the reasoning of the Harjo decision.

            Given that the 1839 constitution must be deemed to have been in effect in 1975, the only legally permissible procedures for amending the 1839 constitution were to be found in the 1839 constitution itself. In order to amend the 1839 constitution the Swimmer government would have had to first reconvene the bicameral National Council of the Cherokee Nation. He failed to do this.

            After reconvening the National Council, two-thirds of each house would have had to have approved the proposed amendment, including a new constitution. Once proposed, the Principal Chief would then have been obligated to publish the proposal throughout the districts of the Cherokee Nation "at least six months previous to the next election." After publication, if two-thirds of each house of the National Council were to ratify the proposed amendment it would "be valid to all intent and purposes" as a part of the Cherokee constitution, provided certain reading requirements were also satisfied. Swimmer complied with none of these procedures.

            In fact, Swimmer himself was ineligible even to serve in the position of Principal Chief when he was first elected in 1975 because Section 2 of Article IV of the 1839 constitution expressly requires that no person shall be eligible to hold the office of Principal Chief who "shall not have attained to the age of thirty five years." In 1975, Swimmer was too young to be eligible. As someone without legal authority even to hold office, Swimmer could hardly be deemed to possess the inherent power to promulgate extraconstitutional rules for the ratification of a new constitution.

            One of the candidates whom Swimmer defeated for Principal Chief, Sam Drywater, and others outraqed by election irregularities, brought suit arguing that Swimmer failed to meet the minimum age requirement of the 1839 constitution. The federal district court which heard that case incorrectly ruled in an unpublished opinion that the 1839 constitution was dead, relying in part on a legal opinion expressed by Professor Rennard Strickland.....

Dario F. Navarro,