The Nation’s Golden Age ended abruptly with the U.S. Civil War. Its 1866 Reconstruction
Treaty with the victorious Union forced the Nation to surrender land and
open its territory to railroads.11 During
the 1880s and 1890s, the United States placed increasing pressures on the
Nation to sell land to burgeoning railroads
and, later, to incorporate the Nation into a territory of the U.S. Government.12
In 1893, the U.S. Government formed the Dawes Commission to create a roll
of citizens of five Oklahoma tribes, including the Nation, for the purpose
of dividing up the Nation’s land into individual allotments. In 1898, the
U.S. Congress passed legislation accelerating the process of allotment and
formally mandating the abolition of the Cherokee government by 1906. 13
From 1907 through 1970, the Cherokee Nation functioned without a government.
During this time, the U.S. government appointed a Principal Chief, who did
little more than approve leases and sign documents transferring out the last
of the allotments. More than 60 years later, the Nation reconstituted itself
and obtained recognition by the U.S. Government in 1970. The intervening decades
without a functioning government, however, had taken its toll. Through a
combination of allotment forgeries, embezzlements, misuse of notary seals,
and other crimes, the
overwhelming majority of land allotted to Cherokee citizens fell into white
hands.14 The Nation’s population had
fallen to only 40,000 citizens and federal agencies of the U.S. Government
had taken over responsibility for delivering services to individual Cherokee
allottees.
Current 1976 Constitution
Before serving as Principal Chief of the Nation from 1975 to 1985 and heading
the U.S. Department of Interior’s Bureau of Indian Affairs in the Reagan Administration,
Ross Swimmer played a large role in helping to construct the
Nation’s modern government. With the beginning of the U.S. Government’s
policy of self-determination in the mid 1970s, Swimmer and other Cherokee
leaders began looking for ways to access the new inflow of federal funds
into tribal communities.
Swimmer saw federal funds as a “a big impetus” for the Nation to organize
its government and adopt a new constitution.15
By the time Swimmer was elected Principal Chief in 1975, a cluster of community
representatives had already been working on a new constitution for over ten
years.16 According to Swimmer, the process of reform “was all over the place”
with some people “wanting to recreate the 1839 constitution.” Soon after being
sworn in, Swimmer, frustrated at the slow pace of reform, decided to form
a small group that would push through with completing work on a new constitution.17
The Nation’s current 1976 Constitution supersedes completely the 1839 Constitution.
It divides the Cherokee government into three branches. The legislature consists
of a single-body Tribal Council, composed of 15 members elected at large from
the Nation’s 14 districts.18 Executive
power is vested in a Principal Chief and a Deputy Principal Chief, elected
to four-year terms of office.
The Deputy Principal Chief also serves as President of the Council with
the power to cast tie-breaking votes.19
The Judiciary is comprised of a three-member Judicial Appeals Tribunal (the
Nation’s Supreme Court) and other courts that the Council may choose to establish.20
The Constitution incorporates the protections of the 1968 Indian Civil Rights Act and contains provisions for referendum and initiative
Swimmer says he viewed the Cherokee Nation “not necessarily as a government but
as an organization. Sort of between a non-profit and a profit-making business
that was there for a specific purpose and that was to enhance the living
conditions of the people.”21 He therefore based
the Constitution on “ a corporate model” with Council members serving
in positions akin to members of a Board of Directors.22
In Swimmer’s view, a bicameral legislature, discussed at length in discussions
leading up to the new Constitution, would have been too “unwieldy” and not
useful for the quick receipt and disbursement of federal funds:
“[A bicameral legislature] would have meant about 60 or 75 people in
the government of the tribe, and it was a personal privilege. I didn't like
that. I thought we'd never get anything done. And so I said let's cut that
out and
let's just have a tribal council to act as a legislature. And we pegged
the
number at 15. There wasn't a lot of thought that went into that, but we
decided on 15 as a good number.”23
Swimmer grounds his preference for a unicameral, corporate form of government
in the context of the time. For almost 70 years, the Nation had had no enrollment
and no government. Services were delivered directly from the U.S. government
to individual Cherokee allottees. Swimmer says that before the era of self-determination,
he never could have imagined that the Nation would one day exercise taxing
powers or have a court system that could incarcerate Cherokee citizens and
handle adoption cases. Instead of creating a government, Swimmer simply wanted
to organize a system for the improvement of the delivery of services to
individual Cherokees: The court, for instance, its only purpose at the time
was to handle disputes between the executive and legislative bodies. It had
no outside function. It was going to be an internal court. The legislative
body was there to review programs and sign off for the most part on federal
programs and appropriations to the tribe. And, of course, the executive body
was to administer those programs that came in and do whatever it could to
improve the living conditions of Cherokees in eastern Oklahoma.”24
Two specific provisions in Article XV of the 1976 Constitution later proved
to play key roles in the Nation’s recent constitutional reform process. Article
XV, Section 9 requires that the question of a proposed constitutional convention
be submitted to the members of the Cherokee Nation at least once every 20
years.25
Article XV, Section 10 requires that any new constitution or amendment receive
the approval of the President of the United States or his authorized representative.
While Section 9 helped to launch the Nation’s process of political reform,
Section 10 has been responsible for the Nation’s difficulty in holding a referendum
to approve the proposed constitution adopted by convention delegates.
Footnotes
15 “A lot of federal help was being given to tribes in the west, but none
in Oklahoma, because
again we didn’t have organized tribes. This was also an impetus, a big impetus,
for the
adoption of a constitution. I saw this opportunity with the federal money
that was coming in
that we could use that and turn it into a useful tool that we could do some
things in Eastern
Oklahoma.” Interview with Ross Swimmer, former Principal Chief of the Cherokee
Nation of
Oklahoma (September 4, 2000).
16 “In 1967 or `68, Bill Keeler had assembled a group of Cherokees in Eastern
Oklahoma to
look at the formation of a constitution, not necessarily, I think, with
the idea in mind of a
governing document but something that would, from a social point of view,
give more people
the opportunity to focus on the services, the Indian health services, the
BIA services, and
provide some input to the leadership, to the chief, for how those services
could be better
delivered to tribal members.” Ross Swimmer, former Principal Chief of the
Cherokee Nation
of Oklahoma, Address at John F. Kennedy School of Government Symposium on
American
Indian Constitutional and Governmental Reform (April 2, 2001) ( transcript
on file with
author)
17 “At that time we had all these myriad of drafts, we’ve been holding public
hearings, we’ve
gone through the community representatives and it had just seemed like that
we just
weren’t going to get there. So I had several people that I gathered together
and we sat
down and drafted a final version of the constitution and said ‘this is it.’
And we put it out
for a vote and it got passed.” Swimmer Interview (September 4, 2000). Swimmer
said later
in a separate context: “And then there were a couple of other things that
needed some
revision, I felt, from what the constitutional committee had been putting
together. I had
some opposition and people said well, it's not ready yet, you can't do this,
one thing after
another. I went ahead and took it to the Bureau of Indian Affairs, we got
them to sign off
on it, and in 1976 we took it to a vote and it was overwhelmingly adopted.
I don't think the
people had a clue as to what they were voting on. They accepted that we
needed something,
but they still, you can imagine, I mean up until that time the only government
the Cherokee
people were aware of in Eastern Oklahoma was county, state, city and local
government.
They were totally under the law of the state. They were totally under county
police
jurisdiction, that kind of thing. And in fact, in 1975 if somebody had suggested
to me that
the Cherokee Nation had tax powers, or that I, as principal chief, had the
opportunity to
incarcerate my fellow Cherokees for crimes they might commit, I would have
said they were
crazy. I would have said there is no such thing. We don't have that kind
of sovereignty. In
fact, as I recall, we were operating a restaurant and a motel and we were
still collecting
sales taxes to send to the state. That went on for several years until I
finally woke up and
said well why are we doing this.” Ross Swimmer, Address at John F. Kennedy
School of
Government Symposium on American Indian Constitutional and Governmental
Reform
(April 2, 2001) ( transcript on file with author)
18 Cherokee Nation of Oklahoma Constitution, art. V, § 3.
19 Cherokee Nation of Oklahoma Constitution, art. VI, § 11.
20 In 1990, the Nation passed legislation creating a District Court with
one or more judges.
20 Cherokee Nation Code § 11.
21 Swimmer said that in Oklahoma, “there’s such an assimilation that we
look to the local,
state, county, federal governments for primary services and the Cherokee
Nation sort of then
overlaps all of these services yet they have to be careful where they go
because their
jurisdiction is only over certain areas. It’s real complicated. And that’s
why I had not
envisioned, and perhaps I was being shortsighted, I don’t know, but when
we adopted the
constitution I said it was more of a corporate document, a development authority.
I mean our
job was to help improve lives. It wasn’t to create a government. I never
envisioned having
two or 3,000 people working for the government. I envisioned them working
and I always
thought at some point we would reach a peak and then we would start declining
in
employment because we would be able to say, “we have created the result
that we want,
people are working, we don’t need to be there any longer. We can have fewer
social workers
than we had yesterday.’” Interview with Ross Swimmer (September 4, 2000).
22 “I think actually I was probably thinking again of a corporate model.
I was thinking more
of a Board of Directors. And the rest of it, the executive branch and the
judicial branch is
pretty straightforward. It was mainly in the legislative arena that I suggested
we make those
changes and make it a 15 member council.” Interview with Ross Swimmer (September
4,
2000).
23 “The final document that was being considered as I recall would have
two houses of the
legislature and we would wind up electing around 100 people. And that’s
the part that I took
out. I just said, “look, we’re not going to do that”. Interview with Ross
Swimmer (September
4, 2000).
24 Interview with Ross Swimmer (September 4, 2000). Swimmer said in a different
context
that he wanted to “give more people the opportunity to focus on the services
(delivered by
HIS and BIA) and provide some input to the leadership, to the Chief, for
how those services
could be better delivered to tribal members.” Ross Swimmer, Address at John
F. Kennedy
School of Government Symposium on American Indian Constitutional and Governmental
Reform (April 2, 2001) ( transcript on file with author)
25 Swimmer said he had come across a similar provision in another state
or tribal
constitution. Ross Swimmer, Address at John F. Kennedy School of Government
Symposium
on American Indian Constitutional and Governmental Reform (April 2, 2001)
( transcript on
file with author)