What the 1970 Chiefs Act Is and Means:
The leadership of the CNO
have depended upon the passage of time, the lack of information and the draw of
the dominant culture upon our lives to give them free reign to control
the
affairs of the Cherokee people from an illegal perch.
1.
The United States Congress passed the Dawes Act in the 1890s to dissolve the
governments of the Five Civilized Tribes.
Some tribes resisted, particularly the Cherokee Nation. The Dawes Act stated specifically that its purpose was to divide up the
tribal
assets and terminate the existence of the governments of the Five Civilized
Tribes.
2. The United States Congress passed the Curtis Act in
1898 to force the resistant tribes to agree to the allotment of their lands
and dissolution of their governments. The Cherokee Nation agreed in 1901 and the end result was the allotment of tribal lands
and assets through the creation of the Dawes Roll.
Analysis: In
the latter part of the 19th Century, it was the intention of Congress to destroy
the governments of the Five Civilized Tribes. All lands and moneys of the
Nations were to be divided among the numerous citizens and the tribes would be
no more. Everyone thought the Final Roll and the division of the assets was the
end. It wasn't.
3. In 1906, Congress was informed by the Dawes
Commission that despite their best efforts, parcels of land remained to be
allotted or sold and they could not finish their work if the governments of the
Five Civilized Tribes terminated in 1906.
4. The United States
Congress passed the Five Civilized Tribes Act of 1906 which provided for the
continuation of the governments of the Five Tribes in accordance with law and
providing that the President of the United States or his designee could appoint
a "chief" to carry out the unfinished business of their respective nations.
Analysis: The lands
of the tribe yet to sold or allotted were valuable assets that could not just be
"taken" from the Indian people. The 1906 Five Tribes Act provided for only three
things:
a. The continued existence of the governments of
the Five Tribes until Congress deemed otherwise.
b. Those
governments would be controlled in their actions in accordance with existing
law. Since Oklahoma was not a state yet
and state law doesn't apply anyway, the only laws existing at that time were federal laws, ie the Dawes Act and the Curtis Act
and Cherokee law, ie
the 1839 Constitution.
c. The U.S. President would have
the authority to appoint the principal officer of the Five Tribes. The
governments of the Five
Civilized Tribes were saved from oblivion by the 1906 FTA. Without it, there would be no Cherokee Nation today. Yes, there
is a Cherokee Nation today, more on that later.
5. The U.S.
Congress passed the Indian Reorganization Act (IRA) in 1934 to restore Indian
governments and provide for self-governance. However, the act specifically
excluded the tribes in Oklahoma.
6. The U.S. Congress passed the
Oklahoma Indian Welfare Act (OIWA) in 1936 to restore self-governance to Indian
tribes in Oklahoma. This Act provided for the reorganization of tribal
governments and repealed any disability Congress had imposed from past
legislation, but only for tribes who reorganized under the authority of the
OIWA.
Analysis: It was the intent of Congress to right an historic
wrong it had committed against the natives of the this country. In so doing, it
provided a mechanism by which tribes might be restored to their sovereignty and
self-governance. Any tribe could reorganize and four of the Five Civilized
Tribes have done so. The only tribe not taking advantage of the provisions of
the OIWA is the Cherokee Nation.
7. Thophlocco, Kialagee and
Alabama/Quarsarte Tribal Towns are federally recognized local governments
governing under charters obtained through the Oklahoma Indian Welfare
Act.
8. The United
Keetoowah Band is a federally recognized local government governing under a
charter obtained through the Oklahoma Indian Welfare
Act.
Analysis: Nothing in the recognition of either the tribal
towns or the United Keetowah Band of Cherokee (UKB) affects or hinders the
rights of individuals as citizens of their respective larger nations. In other
words, UKB is an inseparable parts of the Cherokee
Nation (notice I did not
say CNO). And the Creek Tribal Towns are inseparable parts of the Creek Nation.
This is so, even if they prohibit their members from 'enrolling' in the greater
part of the whole nation. It is the policy of the BIA and infettered by
Congress, that the United States, through the BIA, may develop government to
government relationships with local governments within a greater tribe. The
Creek Nation has provided in law that the government to government relationship
between the Creek Nation and the Tribal Towns is approved. The adversarial
relationship developed between the Cherokee Nation of Oklahoma and the UKB does
not change the relationship of the individual citizens to each other. The Earl
Boyd Pierce letter and the actual participation of the UKB in Cherokee Nation
affairs prior to 1976, all point to the fact that the UKB and the Cherokee
Nation are connected.
Since the creation of the
CNO in 1976, the Cherokee Nation itself has remained silent regarding it
relationship with the UKB or through its sole embodiment in the office of the
Principal Chief has furthered the antagony.
9. The Creek Nation is
a federally recognized government governing under a charter obtained thorough
the Oklahoma Indian Welfare Act.
10. The Cherokee
Nation is not a federally recognized government because it has not reorganized
under the authority of the Oklahoma Indian Welfare Act. The CNO is
recognized by the BIA for the purpose of social services delivery. Any
further recognition of the CNO as a sovereign entity is at risk of being
overturned in the federal courts.
A group of Cherokees,
headed by then Principal Chief Ross O. Swimmer, developed what they called a
"constitution" in 1976. Without authorization in the 1970 Five Tribes Act and
definitely not under the authority of the 1839 Constitution, Swimmer did one of
two things:
a. He created an illegal institution known as the Cherokee
Nation of Oklahoma (CNO) or,
b. The CNO is nothing more than promulgated
'rules' to carry out the popular selection of the principal officer of the
Cherokee Nation as provided for in the Act and its actions as a sovereign polity
are an illegitimate usurping of the authority of the silent Cherokee
Nation.
Either way, the 1976 Constitution, in spite of its language to
the contrary, could not superseded the 1839 Constitution, as there was no law
which provided for it. This means that the Cherokee Nation, as it existed in law
between 1906 and 1976, continued unfettered except by limitation imposed by the
Curtis Act and the 1970 FTA. After 1976, the Cherokee Nation became the silent
twin of the CNO (man in the iron mask). While the sole embodiment of the
Cherokee Nation reposes in the office of the Principal Chief, he is aided in his
work by a corporation he created which goes by the name Cherokee Nation of
Oklahoma. We know this is so because of the Court case of Harjo v. Kleppe in
which the Creek citizens demanded reorganization of their government. The Harjo
Court found that because of the limitation of the Curtis Act, 1906 and 1970 Five
Tribes Act, the sole embodiment of the
Creek Nation rested in the office of
the Principal Chief. The so-called constitution created by then Creek Chief
Claude Cox did not and could not replace the original Creek Constitution of 1867
and was, therefore a nullity. The situation of the Cherokee Nation is the
same. Nothing has occurred in the law which removes the disabilities imposed
upon the Cherokee Nation by the Curtis Act.
The rights of the Creek
Nation were restored in 1979 when that tribe reorganized under the authority of
the OIWA and all disabilities imposed upon it by the Curtis Act of 1898
were superseded. This fact is spelled out in detail in the federal court case of
Creek Nation vs. Hodel in which the Court ruled that the Oklahoma Indian Welfare
Act had repealed the destructive effect of the Curtis Act for those tribe
organized under it. The Creek Nation is organized under the OIWA, the Cherokee
Nation is not. The Cherokee Nation, as yet unorganized, remains under the
disabling cloud of the Curtis Act which dismantled its legislature, took away
the authority of its tribal courts and made Cherokee law
unenforceable.
11. The Five Tribes Act of 1970 provided for the
"popular selection" of the principal officers of the Five Civilized
Tribes. Previous to that time, the principal officers were appointed by the
president. Four of the Five tribes, Cherokees, Creeks, Chickasaws and Choctaws
moved quickly to hold elections.
The Seminoles had
continued to popularly elect their principal officers after 1906 despite the
language of the 1906 Five Tribes Act delegating the appointment to the U.S.
president. While the BIA refused to recognize their elections, they worked with
the elected chief so long as he did what they wanted. When he refused, they
simply appointed someone to do their bidding.
12. The Five
Tribes Act of 1970 provided for the promulgation of rules to carry out the
"selection."
Analysis: The 1970 Five Tribes Act repealed that
portion of the 1906 Five Tribes Act relative only to the appointment of the
principal officers of the Five Civilized Tribes by the president. Nothing in the
Act did or could be construed to repeal any of the disabilities imposed by the
Curtis Act of 1898. In order for a federal law (relative to Indians) to do
something, it must be specific and emphatic. The Courts of the United States
have ruled that Congress must have its INTENT apparent in the wording of the
law, to take away or restore the rights of an Indian tribe. OIWA is emphatic
that its liberal provisions apply only to tribes organized under it. All others
are excluded. The reason this language is there is to protect the rights of
Indians in Oklahoma who did not want to retribalize, particularly mixed blooded
Cherokees and some Creeks who had expressed their opposition to any bill
which would provide for a restoration of the governments of the Five Civilized
Tribes. The full bloods, however, wanted to reorganize and did so through the
tribal towns and the UKB.
CONCLUSION:
So
in closing, what do we have here? We have four of the Five Civilized Tribes
organized under a law which removes all disabilities previously imposed by
Congress. We have three Creek Tribal Towns organized under that same act
as local governments who are working with the larger Creek Nation to assist
their members. We have a group of Cherokees (UKB) organized under that same act,
but who have been placed in an adversarial relationship with the corporate
entity known as CNO and the sole embodiment of the Cherokee Nation, the
Principal Chief, refuses to work with them. We have the Cherokee
Nation
catapulted forward in time by the 1906 FTA. We have the OIWA passed to restore
tribal sovereignty for those tribe organized under it. We have the 1970 FTA
providing for the popular selection of the principal officers of the Five
Tribes as they existed under the law and repealing the appointment of the chief
by the president and allowing the promulgation of rules to carry
out the selection. We have
the chief of the Creek Nation creating a constitution later found to be bogus
and the courts restored the old Creek Constitution and allowed the Creeks to
reorganize under OIWA. We have a Cherokee chief, Swimmer, operating under a
bogus constitution that by his own admission created nothing more than a
corporation that would assist him in governing. We have a federal court case
(Harjo) which states emphatically that the sole embodiment of the Creek Nation
was the office of the Principal Chief. All things being equal, and they are, the
same is true for the office of the Cherokee Principal Chief as well. We have a
court (Hodel) case which says the Creeks, by reorganizing under OIWA have had
all disabilities removed. And we have the CNO officials laying claim to that
same court case trying to give legitimacy to their court systems when there is
not a shred of evidence that it was the intent of Congress to remove the Curtis
Act disabilities unless a tribe took steps to reorganize under OIWA and the
Harjo court gave no indication that it meant by its ruling that a tribe not
organized under OIWA could claim the benefit of its
provisions.
Therefore, what we have in our tribe, the Cherokees, are two
entities, one, what is left of the Cherokee Nation and represented solely
by the office of the Principal Chief as popularly selected by the Cherokee
people every four years. The second entity is the Cherokee Nation of Oklahoma, a
corporation created by Swimmer to first carry out the popular selection of the
principal chief and then to assist him in governing. The Cherokee Nation is the
office of the Principal Chief in accordance with law. The CNO is the chief's
corporate partner. Wrap your mind around the fact that there are two entities,
Cherokee Nation and the CNO.
So why such an
adversarial relationship between the UKB and the CNO?
First, the UKB
knows the CNO is not the legitimate government of the Cherokee Nation. Second,
the Principal Chief (Chad), acting as the sole embodiment of the Cherokee
Nation, refuses to allow the UKB to interact in a positive manner and has
refused to permit the Cherokee Nation to reogranize under the OIWA.
I
hope this bit of information helps everyone to understand the
situation among the Cherokees and why it is so important for the Cherokee people
to recognize the unlawful governance practiced by the CNO over the Cherokee
people and against the UKB, the Delaware and the Freedmen.
David Cornsilk