UNLAWFUL RATIFICATION PROCEDURES

Since the 1975 constitution of the CNO was not ratified pursuant to the OIWA, the CNO does not enjoy
same legal protections as Tribal governments 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
still be in force. Apart from these statutory limitations, there are additional and even more troubling grou
which to question the legitimacy of the CNO government arising from the strange circumstances surrounding
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 President of the United States and "when ratified by the qualified voters of the Cherokee Nation at an election conducted pursuant to rules and regulation 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 Principal Chief Ross O. Swimmer for reasons of political expediency in direct violation of the amendment procedure 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
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, 58
949 (D.C.Cir. 1978). In Harjo the court found that, despite the original intention of the United States Conclusively terminate the Muscogee (Creek) Nation at the turn of the century, the Muscogee (Creek) Tribal government created by the Creek Constitution of 1867 had never been dissolved by statute and, instead, had been expressely extended. 420 F. Supp. at 1129. As Congress used the same provision to extend the Cherokee government the 1906 Five Tribes Act as it did to extend the Creek government, the conclusion that the 1839 Cherokee Nation 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 permissable 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. Ross O. Swimmer failed to do this.

After reconvening the National Council, two-thirds of each house would have had to have approved the
amendment, including a new constitution. Once proposed, the Principal Chief would then have been oblligated to
publish the proposal throughout the 9 districts of the Cherokee Nation for "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 preposed
amendment it would "be valid to all intent and purposes" as a part of the Cherokee Constitution, provided
reading requirements were also satisfied. Ross O. Swimmer complied with none of these procedures.
In fact, Ross O. 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 eligible to hold the office of Principal Chief who "shall not have attained to the age of thirty (35) five in
1975, Ross O. Swimmer was too young to be eligible! As someone without legal authority even to hold the office
he could hardly be deemed to possess the inherent power to promulgate extra-constitutional rules for the
ratification of a new constitution.

One of the candidates whom Swimmer defeated for Principal Chief, Sam Drywater, and other Cherokee
outraged by election irregularities, brought suit arguing that Ross O. Swimmer failed to meet the minimum
requirement of the 1839 constitution. The federal district court which heard that case incorrectly ruled in an
unpublished opinion expressed by O. U. Law Professor Rennard Strickland in a 1972 article on Cherokee law.

Ironically, in 1994, Rennard Strickland publicly admitted to having reversed his position [He publicly thanked
Chad Smith and Wilma Mankiller for pointing out his errors in regard to his 1972 opinion.] believing now
the 1839 Constitution survived the attempted termination of the Cherokee government at the turn of the century by the United States Congress.

With the benefit of hindsight and the many subsequent federal court decisions that have cast so much light
once uncertain legal status of the 1839 Constitution, it now seems reasonably certain that in 1975 the Principal
Chief was obligated to comply with the amendment requirements of the 1839 Cherokee Constitution, ratification
just invent his own. Swimmer elected to ignore the 1839 Constitution and devised his own procedures.

[According to official BIA documents obtained through the Freedom of Information Act by the Cherokee
Observer from the Muskogee area office (10/94) clearly show that they were also involved with the creation
the 1975 constitution.]

Dario F. Navarro,