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Tsunami Warning From the Cherokee Nation

Steve Russell
9/14/11

When does a tribal supreme court decision affect all of Indian County? Not often enough, in the sense that the mechanisms of tribal law application beside but not within the state and federal systems are a work in progress with which we can help each other.  Too often, in that a blunder in tribal court can have consequences that spill outside the homelands of the affected tribe.

The Cherokee Supreme Court just rendered a poorly reasoned decision that may or may not stay confined within the Cherokee Nation, so consider this comment an early tsunami warning.

For those who have not followed the circus the Cherokee Principal Chief election has become, there were a number of ballot countings, including one directly supervised by the Supreme Court in a stunning trespass outside the judicial function.  The several counts produced conflicting results, with vote margins ranging from one to 266.  It was the kind of election you shove in the face of people who don’t want to vote because “ my one vote does not matter.”

Why the differing numbers?  Think back to the race between George W. Bush and Al Gore, where the recount gave us the phrase “hanging chad.”  No, I’m not setting up a bad pun on the current chief’s name.

I was an election judge in Texas when we went from paper ballots to punched cards. In the punched card system, you often have ballots that have a clear stylus mark next to a candidate but for some reason the chad does not fall out. Either the card was off center in the machine or the voter did not push hard enough.  Do you count those votes?

The Cherokee election is run with ballots that require the voter to make a mark that completes an arrow next to the candidate’s name.  The voter is supposed to color that sucker in so the machine “sees” an unbroken line next to the selected candidate. Naturally, some voters will just draw one line.  Or they will erase.  Or they will circle the name instead of coloring the arrow. Or cross out the one they don’t like. Do you count those votes?

Courts mostly break down to two views of questionable ballots.  The minority view is that if you don’t follow instructions exactly right, your vote does not count. By this view, Sen. Murkowski of Alaska could not have won her write-in campaign because it is unlikely enough of her supporters spelled her name correctly.

The majority view is “reasonably ascertainable intent of the voter.” This calls for judgment, but the judgment is applied in the executive branch and the only role for judges is to decide whether the method was objectively reasonable and applied consistently across all ballots.

The Cherokee Supreme Court, without favoring Cherokees with a written opinion stating which standard was applied and how, held hearings behind closed doors. The result was a bare statement that the true result could not be stated “with mathematical certainty,” a phrase that appears in the tribal election code but is simply useless in the practice of counting votes without some reference to the method for dealing with ambiguous ballots. The Court ordered on July 21 that a new election be held for Principal Chief.

Meanwhile, back at the tribal sovereignty ranch, a lawsuit had been pending for some time regarding the citizenship status of the Cherokee freedmen.  We have a long history of tolerating “white Cherokees,” but Oklahoma being what it is, “black Cherokees” have always been more problematic. That simple racism is the social issue, but of course it takes more to make a legal issue.

The legal issue in the treaty signed between the United States and the Cherokee Nation in 1866, ending Civil War hostilities, is the declaration that both blacks freed by that war and all “free colored persons” living in the Cherokee Nation or who returned within six months “shall have all the rights of native Cherokees.”

By this provision, slaves that had escaped during the war could either return and “have all the rights of native Cherokees” or take their chances elsewhere with the Freedmen’s Bureau, which was thought at the time to offer “40 acres and a mule” to help former slaves get situated, an offer never to come to fruition.

The claim being made now is that “all the rights of native Cherokees” did not include citizenship or, specifically, the right to vote. That is, the real choice for the freedmen was to be US citizens or not be citizens of any nation on the earth, an absurd result.  At that time, Indians were not US citizens for most purposes. They could at will move from “Indians not taxed” to “Indians taxed” by quitting the tribe, but that would not gain them the right to vote.

Another fact of the time was that most of Indian Territory was held by Indian nations, including the Cherokee, who had guarantees by treaty that they would never become part of a state without their consent.

In those times, the issue was not like living in Arkansas or living in Oklahoma. Nations were nations, and the freedmen were allowed to choose the benefits of US citizenship or the benefits of Cherokee citizenship but not both. In modern times, we get the claim that the benefits of Cherokee citizenship were somehow different from the citizenship itself.

By Cherokee tribal court decision, the citizenship of the freedmen was reaffirmed in 2006. The opinion was carefully reasoned and covered the entire modern history of Cherokee citizenship.

In response, a group of Cherokees undertook by referendum to amend the Cherokee Nation Constitution to limit which part of the Dawes Rolls one’s ancestor had to be on to support modern citizenship. The effect of this amendment would be to expel approximately 2,662 black Cherokees and eight white Cherokees. Delaware and Shawnee Cherokees were retained.

“The Cherokee people” voted in a special election called by the current chief rather than in a general election. In the last federal census prior to the election, 729,533 individuals claimed to be Cherokee-American. About 268,000 of them were tribal citizens at the time, and three quarters of those individuals were of less than one-fourth Cherokee blood. The turnout in the special election was 8,743 of about 35,000 registered voters, of which 6,702 voted to disenroll their follow citizens.  By comparison, the last Cherokee general election turnout had been 13,914.

I was raised in Oklahoma and in my childhood, the fifties, you absorbed racist attitudes with the air and water. Even so, I cannot venture an opinion whether most Cherokees are racists or the racists are simply more motivated to cast a ballot in a special election. Either way, the result is what it is.

Another lawsuit was begun in tribal court testing whether this amendment could remove citizenship retroactively and whether this was a proper method for abrogating a treaty with the United States. Nobody considers it a serious question whether an Indian nation can abrogate a treaty—of course it can.

Within this lawsuit, a temporary injunction had kept the voting rights of the currently enrolled freedmen in place, and the case had been pending in the Cherokee Supreme Court since January of this year.

Having ordered a new election for Principal Chief on July 21, the Court cut loose an opinion on the freedmen case on August 22 striking freedmen from the voting rolls. Most observers would agree that the bulk of the freedmen vote belonged to Bill John Baker, the challenger in the election just ordered redone.

I am a judge by profession, and the opinion appears to me to elide all the important issues and read more like a newspaper article than the cornerstone of Cherokee legal history it will, unfortunately, become.

What we have here is a Cherokee Bush v. Gore, judges reaching out to manipulate an election outcome.

What is attempted is more like a Cherokee Dred Scott v. Sanford. Dred Scott cast off the moral burden of chattel slavery by holding that “a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.”

We all know how that turned out. Dred Scott scuttled the Missouri Compromise, touching off the Civil War, which allegedly freed and conferred citizenship rights on the slaves with the 13th, 14th, and 15th Amendments. The Democratic Supreme Court gutted these “radical Republican” amendments and the former Confederate states enacted the Jim Crow laws, from which the American freedmen only escaped within our lifetimes.

The Cherokee Supreme Court has just tried to cast off the moral burden of chattel slavery on behalf of the Cherokee Nation.  It is that implication of the decision that threatens other tribes.

The freedmen are left with two remedies, one of which operates in derogation of tribal sovereignty and one of which does not.

The first remedy is to encourage the US to cut off federal funding in retaliation for violating the 1866 treaty and as required by the statutes enacted to destroy Jim Crow. As a Cherokee, I am embarrassed to see this happen but I can see no objection. We have a sovereign right to abrogate the treaty, and the US can respond however it likes.

The second remedy involves a lawsuit pending in federal court, where the freedmen have requested a temporary restraining order against the Cherokee Supreme Court decision so they may vote in the coming election. The federal court may grant the order as a means of maintaining the status quo, but any such order is in derogation of Cherokee sovereignty.

Any mixing of the fictional concept of race and tribal sovereignty in federal court is hazardous to the latter. As we speak, the white citizens of Hawaii continue to beat down native Hawaiians with the claim that any attempt to preserve their land and customs is discrimination against white people.

This is the same argument that got the US Supreme Court in Grutter v. Bollinger to set a presumptive date for the death of affirmative action in college admissions, 2028.

This is the same argument deployed against Indian sovereignty in community organizing by One Nation United in Oklahoma, Upstate Citizens for Equality in New York, Citizens Equal Rights Alliance in Montana, Arizona People for the West, Protect Americans’ Rights and Resources in Wisconsin, and no doubt a number of other organizations, real and Astroturf.

These modern Indian fighters have the advantage that their organizing strategy and their litigation strategy are the same. The argument is that Indian citizenship is race-based privilege and therefore anathema to everything this nation believes. With this argument, they bring in people with economic designs on Indian property and young people who, the Obama campaign showed, are coming up without color prejudice but also without much consciousness of their own history.

The Cherokee Supreme Court has walked right into the crosshairs of the Indian fighters without bothering to drop any analysis of the race/citizenship distinction that is fundamental to federal Indian law.

Compounding the legal jeopardy is the political jeopardy in making enemies of the Congressional Black Caucus.  Indians are a tiny minority and can only accomplish legislative goals by making coalitions.  In this matter, a major Indian tribe is urinating on the shoes of longstanding allies.

If the impact of this decision can be confined to merely it’s obvious goal of swinging the Cherokee election, the rest of Indian Country can breathe a sigh of relief. Given how well the new Indian fighters are organized and how consistent their message has been from New York to Hawaii, confining the blowback to the Cherokee Nation only would be a win for tribal sovereignty.

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jlodell's picture
If the Cherokee Nation is racist to exclude non-Indians from its rolls, then every Indian Nation in the country is racist because none of them open their rolls to non-Indians. Your opinion perpetuates the misconception about this issue, which is that the Cherokee Nation kicked all the black people out of the tribe, which is entirely untrue. No one who can prove ancestry to a Dawes enrolled Cherokee with a blood quantum was expelled from the tribe. You hit the nail on the head with your details about the issue becoming a political football both inside and outside the tribe as well as the detriment the decision could have in the rest of Indian Country. The point that you miss on this issue is that no matter how it's decided, it could hurt Indian Country.
jlodell
swrussel's picture
No, I don't miss that point. I simply come at it from a direction you are not used to. Tribal governments must decide if they want to defend the constitutionality of Title 25 of the US Code based on the distinction between "race" and political affiliation. Because most tribal histories conflate "race" with cultural competence (for a bunch of good reasons that appear elsewhere in my writings), Indians generally rely on "race." "Race," as a scientific category, does not exist. As a legal category it is poisonous, and I think we will lose. However, as an Indian lawyer I will take the Indian side even if the tribes cut my legs off. You are wrong to think the Cherokee Supreme Court was in a no win situation. That had a chance to take on the race/citizenship distinction and they did not. Even a bigger deal, they had a chance to make a principled statement on treaty abrogation from an Indian point of view and they did not. In short, they could have reached the same outcome in a manner more congenial to Indian interests, and they did not. I will say I would not have reached that outcome, but that's not the thrust of my criticism. The opinion is a horrible job of work, no matter what result.
swrussel
redwolf75's picture
hmmm im non native but we are one peoplewho elect theses idiots thinking there on the side of the people no matter the color when infact all there worrying about is laceing there pockets on the get rich sceme i think once there elected they should be held accountable for every two promises they break we put them in jail for two years a i think if theres a politichan in an office after two terms no matter what we need to boot them cuz theres aq problem
redwolf75
swrussel's picture
Hi. Good to hear from somebody not wanting to bite my head off. That argument does not come to my radar screen for two reasons. One is that there are a number of subsidiary arguments that are interesting but my column was already out of hand in terms of word count and I had to beg and plead to get it as long as it is. If I could have expended something, it would have been about Lone Wolf v. Hitchcock. Second is that the Cherokee Nation has had a constitutional convention since then, and I don't want to deal with the issue of whether the federal government can veto something decided at a constitutional convention. I don't think they can, but coming to that result would take more words than I've already used for the entire column, and it would be empty jawing if I failed to say even more controversial things about how the Cherokee Nation would have to prepare to defend it's right to self-government.
swrussel
ndnlady's picture
Prof Russell, your statements about some facts of the recent Supreme Court proceedings on the Cherokee election are incorrect. There were three counts: the original certified count which showed Chief Smith the winner by 11 votes, the first recount which has come to be called "the Baker recount" which showed Baker winning by 266 votes and the count overseen by the Court which showed Chief Smith with 5 votes more than Baker. The hearings were not conducted behind closed doors. I attended every session, wading through Baker supporters hurling epithets as I went. The crux of the issue was the fact that over 270 votes had vanished from Chief Smith's totals in the "Baker recount." Every election commissioner testified that they knew it was wrong even though they had signed a certification. Since the election law requires certification by both the EC AND the Supreme Court, perhaps they simply left it to Court to sort out. Baker's attorneys attempted to defend the recount total by claiming that the original machine count must have been faulty, not the hand count. The law provides for the Court to examine all evidence they deem appropriate and in this case, the only way to see whether the machine or hand count was correct was to open the vault and conduct another count. The Court was careful to state in the order that the count was for evidentiary purposes only. The exhaustive hand recount supervised by the court was witnessed by both candidates, a plethora of their attorneys and several designated watchers. Though the Court did deem that voter intent was discernible on some ballots that the EC had not counted, those votes were not the reason for the invalidation. There were 24 absentee envelopes that were not properly notarized, but those ballots had been included in the original count. Though Chief Smith was shown to have 5 more votes than Baker, that margin was not large enough to discount those 24 improperly cast votes. Bill John Baker asked for and got an order for a new election.
ndnlady
ndnlady's picture
Woops, I have mistated. Chief Smith was originally certified by a margin of seven votes, not eleven.
ndnlady
ethnosify's picture
As you are taking your position as a Judge in certain matters, I believe you have crossed over the line on being non-discriminating. This article seems to be fabricated and is not solid enough to face the issue at hand. People who would like to see slavery revived live everywhere. We are more sensitive when we have to share some of the suffering of the poor, and disabled. If a certain group wants to claim all or most of this suffering, it would be good to analyse why this is rather than suddenly blocking tens of millions of housing funding to the elderly and empoverished by a large dominant entity, in reference to this weeks HUD embargo towards Native Cherokee people. This action is far more definitive to causing " race based " privy than any group of Indians and their humble court.
ethnosify
swrussel's picture
I did not make any distinction between official and unofficial counts (and you know exactly what I mean) because I was attempting to show that the dispute was legitimate and not a product of dishonesty. It was my insistence on legitimizing the dispute that put me way over my word limit. I could have just let people assume the worst, as some people are doing anyway. While I did not try to attend, the Phoenix told me the critical part was behind closed doors and subject to an (obviously ineffective) gag order at the time. Yes, there was, as you say, a public hearing eventually. But, you know what? I'm willing to spot you every error the Cherokee Supreme Court made--the trespass on the executive, the secrecy, the timing, EVERY error--and just look at the written opinion. It stands as a pitiful attempt to deal with issues obviously beyond the capacity of the writers, an embarrassment to the Cherokee Nation and to all of Indian county. You can nitpick the facts with half-truths but you cannot erase what was written or make what was written respectable.
swrussel
swrussel's picture
You know, this last comment really reminded me of the column I wrote about the Cherokee Constitutional Crisis from the Byrd Administration. After that column ran, Joe Byrd wrote a letter, which ICT published, claiming that my statement that he had fired the entire Cherokee Marshal service was incorrect and in fact they had resigned en masse. On the nitpick, I was right and he was wrong but--and here's the similarity--it didn't really matter whether he fired them or they resigned in terms of the problems I was discussing. Same deal here. I'm correct in terms of what I was actually saying and the writer is also correct but it really does not matter to the "tsunami warning" I'm sending out whether those nits are correct or not. We're not talking about lice here. It's more like a starving pack of wolves howling on our trail....
swrussel
refazenda's picture
The problem I have with "race" in the U.S. is that no one is "pure" after 500 years of occupation/arrival of non-Indians. That being the case, "race" is actually about culture rather than blood-quantum. if one is culturally Indian (and many tribes have, over the years, adopted non-Indians) and if Indians with more recent mixture of non-Indian ancestry are accepted as members of a tribe, then why aren't the Freedmen, who presumably are culturally Indian, accepted? It's just a question.
refazenda

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