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)