Julia Coates: The Process of Constitutional Reform: What the Cherokee Nation Did and Why

Native Nations Institute

Cherokee Nation Councilor Julia Coates presents an overview of the constitutional history of the Cherokee Nation, and chronicles the process the Cherokee Nation followed to reform its constitution in 1999.

Native Nations
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Coates, Julia. "The Process of Constitutional Reform: What the Cherokee Nation Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

"I will begin, it looks like. This is the second time I've presented at this conference, and I want to thank the Native Nations Institute for inviting me back. I really leapt at the opportunity this year, because we've had some interesting developments related to our constitution that occurred last year and as part of our recent elections.

Just a few points about the Cherokee Nation first of all. The Cherokee Nation is not an IRA [Indian Reorganization Act] government and it is not an OIWA government, the latter being Oklahoma Indian Welfare Act, which is the IRA equivalent for tribes in Oklahoma who were exempted initially from the original IRA. So it's important to state that we're not organized in that fashion. We never have been, and that it's not required that a tribe be organized under either of those statutes. The second thing about the Cherokee Nation is that we actually don't have a reservation. We have never had a reservation. As many of you may know, in 1838 the Cherokee Nation was removed from the Southeast [United States] to the area that is now Oklahoma that was previously known as the Indian Territory, and as part of that removal we received a fee-simple patent from the United States, so essentially as a government we owned our land as private property. It was not land that was held in trust by the United States for the Cherokee Nation. It was land that we owned privately, so we've never had what is called a reservation, but at the time when allotments were made for us it was between the years of 1898 and 1906. The privatization to the government of our land base was smashed, and all of that land went into private individual ownership and unlike the allotments on reservations, that meant that it could be lost. Reservations have tribes with fractionation, or reservation tribes have problems with fractionation of their allotments right now, but for us, 90 percent of those allotments passed out of individual Cherokee ownership within 20 years after the allotment ended. So we only hold in trust or in restriction today about one third of one percent of our original land base to the government. So we don't have a land base per se. We have probably less than 100,000 acres that are in trust or restricted status. At this time, it's not contiguous. It's scattered out all over an area of 14 counties in northeastern Oklahoma. So what we have instead is called a jurisdictional service area, which is the boundaries of the old fee-simple land holding and we exercise jurisdiction for law enforcement purposes, for taxation purposes and things like that within that service area. There are about approximately 300,000 citizens of the Cherokee Nation right now. About 35 percent, 35 to 40 percent of those -- approximately 120,000 -- live within the boundaries. They are still a minority within the boundaries, albeit the largest minority. There are more non-Indians living in our jurisdictional service area right now, however, than there are Cherokees. And about 65 percent of the Cherokee citizenry lives outside of that jurisdictional service area. We are scattered all over the country and as a tribal councilor, I represent the approximately 170,000 people who live outside of the boundaries. There are only two of us out of 17 tribal councilors who represent that large at-large population.

The third thing, just introductory fact I want to give you right now, is that the Cherokee Nation has been a constitutional government ever since 1827, so we're coming up on almost 200 years of constitutional government. Someone made a remark yesterday that many tribes choose to do this, and we were one that did. It was a strategy that we employed to try to defend ourselves politically and legally in the Southeast when it was apparent to us that military options were not there for us any longer, that we could not prevail in that fashion, and so we were looking for other ways to do it in ways that the United States itself would understand and sort of on their terms that we could defend ourselves. So our first constitution was developed in 1827, but it was a long process. I would say it was probably 40 years of struggle internally, even within the Cherokee people, to try to get to that point. There were ups and downs along the way, there were several fairly nonviolent revolts nevertheless that took place against that process, as people did not understand what the movement was for and it took awhile for it to catch on. I would say however by the late 1800s, we had three or four generations who had lived under constitutional government by that time and who were deeply, deeply invested in the idea that they were a nation of treaty, of constitution and of statute that they lived by. All of that was smashed in 1907, when Oklahoma became a state and the Cherokee Nation government was pretty much driven underground I would say. It was a government in name only for much of the 20th century. And it's not until the early 1970s that it began to emerge again, that the social climate, the political climate kind of opened up enough to be able to do that. And so one of the first efforts was to develop a superseding constitution to the one that had existed in the 1800s and which had become outdated by that time. So that effort occurred in the early 1970s and it involved the [Cherokee Nation] principal chief at that time, W.W. Keeler, going to a number of grassroots community organizations that were all together known as the Original Cherokee Community Organizations, the OCCO groups, and asking them as community groups to provide input as to what they would like a superseding constitution to look like. Those groups did so. Keeler, his attorney Earl Boyd Pierce, [and]some others were involved in putting together a superseding document. That constitution was taken to Washington in 1975 by the principal chief at that time, Ross Swimmer, for Bureau [of Indian Affairs] approval. We were told in 1975 that Bureau approval would be required of us, even though we had not organized under the Oklahoma Indian Welfare Act. We were nevertheless told that, and so that Bureau approval was required. In that 1975 document, we have an article in it that states that the Bureau also will approve any amendments to this constitution or any superseding constitutions that the Cherokee Nation might develop. The following year in 1976, the Muskogee Creek Nation, a councilor of that Nation, brought a suit against the United States, against the Department of the Interior and the Bureau of Indian Affairs, and one of the outcomes of that lawsuit was that the federal judge said that the five tribes -- the Cherokees, the Choctaws, the Muskogee Creeks, the Chickasaws and the Seminoles -- didn't need to have that Bureau approval, that they could develop new constitutions as exercises of their inherent sovereignty. And so we knew at that point that that article didn't need to be in our constitution as the Bureau had told us, but by that time it was in our constitution and so that was something that we were living with as a result. That '75 constitution also said that we had to have a constitutional convention every 20 years. We had to revisit our constitution every 20 years to keep it current, to keep it updated, to see what kinds of revisions we wanted to make. And so in 1995, that convention took place. I'm sorry, the convention didn't take place, the vote took place to hold the convention. But at the same time in 1995, there was a very strange sort of non-election that happened in the Cherokee Nation, where we had two candidates that were involved in a runoff, and one of the candidates it was discovered had been convicted of felony offenses. The conviction had been expunged and so he had run on that, but the question had gone to our court and our highest court had said an expungement did not mean that he had not been convicted and so they disqualified him from running. At that point, the third-place finisher in the primary, a man named Chad Smith, who later did become our principal chief, questioned the tribal court as to whether he could now enter the election against the other person in the runoff. The court said, no, he could not. And so effectively in 1995, what happened was that a man named Joe Byrd was, just catapulted into the seat of principal chief without any election, any real election actually taking place. So this had happened in that year, and during the term of Chief Byrd, between 1995 and 1999, the Cherokees entered into what has been referred to in our history now as a constitutional crisis. By our constitution, the chief, the administration, is required to provide budgets to the tribal council, which has budgetary authority. The chief did not do that, and so for three years we went without any kind of budget, the council not knowing where the money was, how much money there was, and so they went to the court to try to ask for, to retrieve records from the chief's office. The court issued that order for those records to be achieved and our marshal service, our law enforcement, enacted that court order in what the chief styled as a raid on his office but which was actually a court-ordered search. And with that the chief fired every single member of the marshal service, and he impeached the justices of the Supreme Court, something which under our constitution he didn't have the authority to do. So the Bureau of Indian Affairs police was now brought in to the situation because all of our tribal law enforcement had been fired by the chief, and the justices were barred by BIA police, by federal authorities, from entering their own offices at this point under this mock sort of impeachment that had taken place. This led to a situation where eight of the 15 tribal councilors now began to boycott the tribal council meetings in order that a quorum could never be established and no business could take place. So everything had ground to a halt by 1997 in the Cherokee Nation in terms of any business being done, anything like that.

So, it was under these conditions that we were now going to hold a constitutional convention, and it was a very tough time period in which to do that because the animosities between the two sides in this conflict were becoming extremely entrenched at this point. Nevertheless the process -- which is what I'm really here to talk about today I guess -- was to take testimony, to try just as had been done in the early 1970s, to get input from the Cherokee citizens themselves as to what they would like to see in a very fundamental governing document. And we -- there were a series of essentially town hall-type meetings that took place in all of the communities of the Cherokee Nation, the larger communities at least, and very interestingly for the very first time the Cherokee Nation also sort of extended a hand to the majority of its citizens who were living outside of the boundary, so there were even several of these kinds of convocations that took place in other cities. I know there was one in Houston, there was one in Los Angeles, there was one in Sacramento, there was one that was scheduled to be in Albuquerque as well, but which got cancelled for funding reasons. But the reasons these areas were chosen is because they were areas where Cherokee citizens who lived there had sort of self organized into community organizations, so we had some kind of structure with which to interact in that process. Out of the people who provided testimony, the constitutional commission -- which had been formed by the legislation in 1995 -- selected about 75 delegates. Actually, there was a process where the judicial branch selected eight delegates I believe it was, the executive selected the same number, the legislative selected the same number, the rest were selected by the constitutional commission out of the people who had provided testimony. And I was one person who had provided testimony, and so I was one that was selected by the commission to participate. In total we had about 75 delegates that then attended a constitutional convention, which was held in 1999 just literally four months before there was to be a new election for principal chief. Now the constitutional commission had also drafted a document, a draft constitution out of the testimony that they had received from the people at these hearings, and clearly their intent was that these 75 delegates would come in over a weekend, that they would look at this draft document, they would kind of fine tune it and they would stamp it and we would have a new constitution. The delegates had a different thing in mind, however, as we might suspect, and they immediately hijacked the proceedings as the convention got underway. The commission had established a man named Charles Gourd to be the chairman of the convention. Now the problem for the delegates was that Gourd was also the chief of staff for the principal chief, for Joe Byrd, and so he was perceived as being very, sitting very heavily on one side of this conflict that was going on. So immediately the delegates replaced him with another man named Jay Hannah, who was perceived as a more neutral sort of individual, and from there it went on. They didn't just look at the document and fine tune it. They went line by line through every bit of that document, and what was intended to be a two-day process ended up being a nine-day process, 14-hour days oftentimes as the delegates worked very, very thoroughly through this document. We had a very mixed group. We had nine attorneys, all of them Cherokee Nation citizens, as part of the delegation. We had a number of community people who were part of it. We had people from the legislative branch, we had people who were from the administration, and we had about 20 delegates out of the 75 who were from what we refer to as the at-large citizens, those who lived outside of the boundaries. So it was a very good representation, I think, of real cross sections of the overall citizenry.

Some of the things that we did -- and this was not part of process -- but we strengthened the matters of referenda and recall, because the crisis was proving that we did not have good enough mechanisms to handle a situation such as the one we were finding ourselves in. We expanded the judiciary as well from a system of three tribal Supreme Court justices to five. They were given longer terms. The council terms were staggered. We had term limits placed on the legislative and judicial branches. We established two councilors for the at-large people specifically. They did not have separate specific representation up to that time. And we tried to address some of the outside threats from other tribes and the Bureau of Indian Affairs that were coming at us. So these were some of the things that were taking place.

Probably one of the most interesting things out of this document was the question of the little article requiring BIA approval, and the delegates at the convention removed that. There was just no discussion about it. It took about 20 seconds for everybody to say, 'No, we don't need to have the Bureau of Indian Affairs in our approval process.' So that came out of the 1999 document. But as we finalized this, the convention finalized this document, the next step was to send it to solicitors from the Bureau of Indian Affairs at the various agency offices throughout the United States, and as we did that, these solicitors began to sort of nickel and dime the thing. They looked at it said, 'We don't like this, we don't like that, we don't like...' And our chief at that time, who by then was Chad Smith, who had been elected to replace Joe Byrd, he essentially said to everybody, 'We didn't ask you if you liked it. We asked you if it would pass legal muster. That's all we asked.' And so with them sort of trying to nickel and dime everything, we quickly pulled it back from the solicitors, and what we did instead was that in 2003 we decided that we would put two questions on our ballot. We were having a regular election for principal chief again in that year and we added these two questions for the people to vote on. The first was to vote on one question, one amendment only, which would take the Bureau of Indian Affairs out of our approval process. And then the second question was to approve the overall 1999 document that the convention had put forth. And the people voted on both of those and both of those measures passed. The surprise to me is that in the Bureau of Indian Affairs only about, only two-thirds of our people voted to take them out. There was fully a one-third of our people who said, 'No, let's keep the Bureau in our approval process,' and it mystifies me to this day as to why. I think there was misunderstanding. People thought we were cutting all ties with the Bureau, that we were rejecting any relationship with the Bureau and what would that do to our federal recognition? But two-thirds said, 'Yes, get them out of there,' and so we sent one amendment to the Bureau and that was, take yourselves [the BIA] out of the process. The [BIA] director at that time was Kevin Gover, or the assistant secretary. He assured us that he would, but it never happened. Some people in the interim, Neal McCaleb was the one who got closest to it, sent us a letter stating that yes, that was their intent and then they would do it, but then he resigned before it was actually achieved. So we stayed again in this state of limbo of just sort of having promises from the Bureau that they would take themselves out, but they didn't. So by 2006 our tribal court just said, 'Go ahead and do it. We've got this letter of intent from Neal McCaleb,' and on the basis of that, they said just go ahead and enact this new constitution, implement it within the Cherokee Nation. Our tribal court said that. We had three justices on the court. At that time it was a two to one decision. The dissenting person who said, 'No, we can't move forward until the feds sign off here,' was a woman named Stacy Leeds, and again the following year she ran for principal chief against Chad Smith. So you can do with what you will with that piece of information. I know what I do with it, anyway. But anyway, it was implemented by the court in 2006. The Bureau never said -- we got a couple of things that said, 'You shouldn't do that,' but they did nothing. They took no action whatsoever and this went on for a process of five years until last year, and last year we had another very, very contentious election that took place. We had the incumbent Chad Smith, who in the first election appeared to have won by seven votes out of over 15,000 votes that had been cast. And so this sent everything to a recount. The court got involved, they looked at the votes and noticed that there were 24 ballots that had been improperly notarized and because the vote was so close they said that the winner could not be determined by a mathematical certainty, so it went to a revote basically of the whole situation. In the middle of that process, between the time when the first vote was cast out and the second one was to be taken, our questions over the [Cherokee] Freedman and their citizenship within the Cherokee Nation -- these are descendants of former slaves that had been held by Cherokees -- came up. And we had very quickly a process of the Supreme Court saying, 'No, they were not citizens,' the Bureau of Indian Affairs coming back with a very threatening and intimidating letter saying that we've never actually approved that amendment and we've never approved your election processes for this time. They had never demanded to approve the election procedures for 40 years previously, so we got a very threatening letter from them, we got funds cut off by HUD [U.S. Housing and Urban Development], and we were in this situation now, a situation that I firmly believe was intimidation of our voters, scaring them to death that federal recognition was going to be revoked, because that's what the letter from the BIA essentially states. We made a deal -- many of us did not agree with it -- but our interim chief made a deal at that time with the federal courts to go ahead and allow the freedmen to vote. They did vote, they were given an additional two weeks of voting time beyond that that most Cherokee Nation citizens received -- Cherokee by blood citizens received -- and as a result of that, the challenger won in the election. So this is where we sit at this time, and I know that my time is up at this point, so I'll stop there. But I know that some people have indicated to me privately that this is a question that is coming up for many right now about the Bureau of Indian Affairs and their involvement in the process of our constitutions and our elections. And I would say if you get them out of there, get them out of there, because they in my estimation essentially engineered our last election with these threats of intimidation and so forth. Thank you."

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