IN THE SUPREME COURT OF THE CHEROKEE NATION

SC-AD-06-06

In Re:  The matter of written protests against the initiative petition “PROPOSING AN AMENDMENT TO ARTICLE IV, SECTION I OF THE CHEROKEE CONSTITUTION OF 1999” and ARTICLE III, SECTION 1 OF THE CHEROKEE CONSTITUTION OF 1975

 

Comes now, Vicki Dee Baker, Protestant, a citizen and voter of the Cherokee Nation, and hereby files this protest against the initiative petition named above, hereinafter initiative petition, in accordance with the order of the Supreme Court filed on October 5, 2006.

Protestant’s challenges include four separate issues alleging the following:

  1. Fraud
    1. Petitioner Darren Buzzard verified petition sheets he did not carry.
    2. Petitioners Darren Buzzard, Jody Fishinghawk and Orvel Baldridge verified forged signatures.
    3. In order to obtain signatures, Proponents of Petition, John Ketcher and Jody Fishinghawk, lied to the public about the proposed amendment and its effect on the membership of the Cherokee Nation.
    4. In order to obtain signatures, petition carrier Councilwoman Cara Cowan-Watts lied to the Cherokee people regarding the true effect of the proposed amendment and its effect on the membership of the Cherokee Nation and the possibility of detrimental federal reprisals regarding Indian health care, among others.
    5. In order to obtain signatures, petition carrier Marjorie Johnson Lowe lied to the Cherokee people regarding the true effect of the proposed amendment and its effect on the membership of the Cherokee Nation.
  2. Insuffiency of signatures
    1. Partial or missing tribal registry numbers
    2. Partial or missing address
    3. Voter name block printed instead of signed
    4. Renumbered lines on signature page and/or verification page
    5. Pages missing or otherwise blank pages.
    6. Name not written legibly on verification page
    7. Name on signature page does not match names on verification page
    8. Signature not on line
    9. Two names on same line
    10. Petition carrier verification issues
    11. Incorrectly notarized

 

  1. Petition wording is vague and misleading
  2. Petition violates the constitution.

FRAUD

a.  Protestant challenges 521 signatures verified by Darren Buzzard.

Petition carrier Darren Buzzard appears to be the most prolific collector of signatures.  The pages he verified as having witnessed the signature of signors to the petition indicate that he traversed the entirety of the Cherokee Nation and many points beyond its borders.  This Protestant was amazed at his ability until notified by two of the signors that they had been approached to sign the petition, not by Darren Buzzard, but by his father Harley Buzzard, whose name does not appear as a petition carrier.  Attached, the Honorable Court will find affidavits signed by Reverend John Summerfield and his wife, Josephine Summerfield, stating that they were approached by Harley Buzzard, who asked them to sign the petition.  The action taken later by Darren Buzzard is what constitutes fraud.  Darren Buzzard did not personally witness the signing of the petition containing the signatures of both John Summerfield, a voter and Josephine Summerfield, a non-voter.  His actions constitute fraud and thereby impeach his signature.

Protestant challenges all signatures obtained by Petition Carrier Darren Buzzard based on the apparent fraud he committed in obtaining signatures.  Protestant has taken a random sampling of signors of the sheets verified by Darren Buzzard and has found that 15 out of 20 signed the petition in the presence of someone other than Darren Buzzard, notwithstanding the fact that Darren Buzzard gave a sworn statement that he had in fact witnessed each and every signature himself.

  1. Protestant challenges 59 signatures as forged.

Volume I – 10 forged signatures

Volume II – 8 forged signatures

Volume III – 15 forged signatures

Volume IV – 14 forged signatures

Volume V – 2 forged signatures

Volume VI – 10 forged signatures

 

Protestant, while not a handwriting expert, found numerous instances in the petitions of Darren Buzzard, Orvel Baldridge and Jody Fishinghawk (identified as affiant Jody Fishinghawk-Wilson), where the signatures were significantly similar enough to warrant a phone call to a random sampling of the suspicious names.  20 individuals were called and of those, 9 (nine) admitted they had not signed the petition themselves, with five having no idea how their name came to be on the petition.  Protestant is prepared to submit the suspicious signatures to a handwriting expert for verification of forgery.

c - f.  Protestant alleges that Proponents lied to the public regarding the effect of the proposed amendment on the Cherokee government and the general membership and asks that the entire petition be declared null and void based on deceit practiced by the proponents to obtain signatures, or in the alternative, asks the Court to disqualify the signatures obtained by those who practiced deceit.

The proponent John Ketcher, former Deputy Chief of the Cherokee Nation, in Claremore, on June 8th 2006, and in Sallisaw on June 15, 2006, told Cherokee voters that the citizenship of the freedmen had been forced on the Cherokee people by the federal government.  There were three court cases including Allen v. Council, which showed that both the Federal and tribal courts have ruled on this issue and held that the freedmen citizenship rights were not forced on the Cherokees by the U.S. government.  Mr. Ketcher was given the case Cherokee nation Vs United States US Court of Claims, and two other court cases, Riggs v. Ummerteskee and Allen v. Council in June 2006.  Mr. Ketcher confirmed that he had received the documents after the July council meeting.  Mr. Ketcher, on June 15th continued to state that the freedmen were forced on the tribe, and also made the same statement again in the August 2006 Cherokee Phoenix newspaper while the petition drive was still ongoing. Furthermore, we must point out that the  Choctaw-Chickasaw treaty did not force those tribe to adopt their freedmen, although the treaties did end slavery in those nations – adopting their freedmen was at the options of those nations, just as it was with the Cherokees, and indeed, the Chickasaw Nation did not adopt their freedmen. The Choctaw-Chickasaw treaty (14 Stat 769) was ratified June 28, 1866 and proclaimed July 10th 1866 while the Cherokee Treaty of 1866 (14 Stat 799) was ratified July 27th and proclaimed August 11th 1866. The Cherokee leadership were fully aware that 2 other tribes, which had supported the Confederacy almost to the man,  in contrast to the Cherokee’s divided allegiance, signed treaties in which their former slaves gained no citizenship rights. We also point out that unlike the Choctaw and Chickasaw Nations, slavery was ended in February 1863 by the Cherokee National Council; the U.S. government had no hand in this action.  Thus, this Protestant contends that the Petition Proponent, John Ketcher, used deceit to obtain signatures and the petition should be declared null and void or in the alternative, the 64 signatures he submitted should be disqualified.

Councilwoman and Petition Carrier, Cara Cowan-Watts of Claremore, at the monthly Rogers County Cherokee Association meeting, stated on June 8th, 2006 that the Cherokee voters should sign Mr. Ketcher’s petition and encourage the Council to approve an expedited election because it would be the first time that the Cherokee people would have voted on citizenship in the Cherokee Nation’s history. The Cherokee people voted on citizenship in the constitutions of 1827, 1839, 1976, and 2003.  Each of these constitutions contains a provision defining the citizenship of the Cherokee Nation and each of the constitutions was voted on by the general population of the Cherokee Nation.  Such a statement would no doubt encourage citizens to call for an election, believing that this would be a unique historical vote, when in fact, it is not.  Cowan-Watts’ statement was designed to deceive the Cherokee people into signing her petitions.  Thus, this Protestant contends that the Petition Carrier, Cara Cowan-Watts, used deceit to obtain signatures and the 86 signatures she submitted should be disqualified.

Cherokee citizen and Petition Carrier Marjorie Lowe, sister of Councilman Bill Johnson of District 8, organized and announced a public meeting held on June 24th in the Houston area for Cherokee citizens to allow them to sign the petition. E-mails sent to various Cherokee citizens as well as a posting on the Internet at the Houston Cherokee Organization website told the Cherokee voters that the Cherokee people have never voted on citizenship before. Your Protestant again points out that Cherokee citizens have voted on the constitutions of 1827, 1839, 1976 and 2003 which all include membership provisions.  The publicly announced meeting in which the petition was to be presented was later changed to a private meeting at the home of Ms. Lowe where a number of signatures were obtained.  Thus, this Protestant contends that the Petition Carrier, Marjorie Lowe, used deceit to obtain signatures and the signatures she submitted totaling ___________should be disqualified.

Both Proponents of the Petition, John Ketcher and Jody Fishinghawk have stated to Cherokee voters that Freedmen descendants with mixed Cherokee Indian ancestry will not be removed from the tribal rolls.  This statement is false, as shown by the Judicial Appeals Tribunal ruling in Riggs v. Ummerteskee, whereby the Court found that Ms. Riggs did in fact possess Cherokee blood, but that a “by blood” requirement imposed by the Council prevented her from enrolling because her ancestors were listed as Freedmen instead of Cherokees by blood.  The Proponent Mr. Ketcher publicly stated and advertised that he has no objections to mixed African-Cherokee citizens remaining as citizens of the Cherokee Nation. Mr. Ketcher implied that his petition would retain tribal membership rights of freedmen with Cherokee blood. However, he was shown the Riggs case.  Notwithstanding the ruling by the JAT that Ms. Riggs, possessed of Cherokee blood, would be denied citizenship by a “by blood” requirement, Deputy Chief Ketcher caused to be printed in the Cherokee Phoenix an article implying to the people that Cherokees listed on the Dawes Freedmen rolls, by definition, lack Cherokee, even though the JAT had ruled otherwise. Ketcher’s statements imply to the people that freedmen with documented Cherokee Indian ancestors predating the Dawes Roll will be able to retain their citizenship while the actual wording of the proposed amendment does not permit that.  Thus, this Protestant contends that the Proponents John Ketcher and Jody Fishinghawk used deceit to obtain signatures and the entire petition should be declared null and void or in the alternative, all 173 of the signatures they submitted be disqualified.

Petition Carrier Darren Buzzard, in Jay, on June 22, provided a printed flier to Cherokee citizens indicating that the Cherokee Nation will have to pay back Indian Health Service money used by Cherokee Freedmen citizens.  However information at the Indian health services website www.ihs.gov at the link http://www.ihs.gov/GeneralWeb/HelpCenter/CustomerServices/elig.asp shows that Indian health services are available to tribal citizens as well as to others in the tribal community who are not members of federally recognized tribes under certain circumstances.  Passing out of such literature creates a fear in Cherokee citizens that the tribe may be sued by the Federal government to recoup funds expended on sick Cherokee citizens.  The same misinformation regarding Indian Health Services was sent out over the Internet by Councilwoman Cara Cowan-Watts of District 8 Rogers County on July 13, 2006.   This same disinformation was passed out at the Cherokee Nation Casino by Councilwoman Cowan-Watts to Cherokee citizens on June 30th during meetings held for community organizations.  Thus, this Protestant contends that the Petition Carriers, Darren Buzzard and Cara Cowan-Watts, used deceit to obtain signatures and the 607 signatures they submitted should be disqualified.

An information sheet passed out by Proponent John Ketcher indicates that the freedmen and intermarried whites are not “Cherokee by blood.”  The average citizen interprets that to mean that individuals listed as Freedmen by the Dawes Commission do not have Cherokee blood, a statement contrary to the findings of the JAT in Riggs v. Ummerteskee, and thus did not have Indian ancestors recognized as Cherokee citizens prior to the Dawes Commission enrollment and noted as such by the Dawes Commission records.  Councilwoman Cowen-Watts insisted at the meeting held in Rogers County on June 8th that Freedmen are not “Cherokee by blood”.  The listening citizen is not informed that “Cherokee by blood” is a political class of citizens just as the “Freedmen category” is; and that the Cherokee by blood roll includes adopted whites with no Indian ancestry, Creeks and Natchez with no treaty rights or Cherokee blood, Delawares and Shawnees with the same treaty rights as Freedmen, but no Cherokee blood, as well as “native Cherokees”.  More to the point, the citizen is deliberately mislead that all persons of mixed African/Cherokee blood were listed on the Cherokee by blood rolls, while the Freedmen section of the Dawes Roll is made up of persons strictly of African descent with no Cherokee blood. In Sango v. Willig, 1926 Ok 633, 119 Okla. 128 249 P 903, the federal court clearly lays out a case where a freedmen citizen had a mother listed with a blood degree by the Dawes Commission.  The plaintiff asked the court to classify her as an Indian relative to the sale of an allotment.  However, the court ruled the “freedmen” had no Indian blood for purposes of land restriction, but further stated that being listed as freedmen did not necessarily indicate that the freedmen had no Indian blood for other purposes.

Proponent John Ketcher and Petitioner Carrier Councilwoman Cara Cowan-Watts have stated publicly that if the voters do not sign this petition, the Cherokee Nation will be the ONLY tribe with non-Indian members.  First, the statement is false because even if the amendment passes at the polls, adopted whites listed as “Cherokee by blood” will continue to enjoy their rights of citizenship.  Further, the Kiowa and Comanche Nations retain as tribal members white and Mexican “captives” who were separately listed on captive tribal rolls prior to the allotment of tribal lands in the early 20th century and whose descendants, possessed NO INDIAN BLOOD, but continue to enjoy their rights of citizenship.  Also, the Seminole Nation of Oklahoma has Freedmen tribal members – See Seminole Nation Vs Norton 223 F. Supp 2d 122 (DDC 2002).

INSUFFIENCY OF SIGNATURES

Protestant asks the Court to disqualify certain signatures found throughout the petition for the following reasons:

a.      Protestant protests 260 signatures due to partial or missing tribal registry number as indicated on the tally sheets attached:

Volume I – 88 partial or missing tribal registry numbers

Volume II – 21 partial or missing tribal registry numbers

Volume III – 42 partial or missing tribal registry numbers

Volume IV – 55 partial or missing tribal registry numbers

Volume V – 10 partial or missing tribal registry numbers

Volume VI – 44 partial or missing tribal registry numbers

 

Cherokee law provides that the party signing a petition must provide three of four fields in order to facilitate verification of the signature, including the signature, the physical address, post office address and the Cherokee Registry Number to determine the signor is in fact a registered voter of the Cherokee Nation and not someone with a similar name.  The signature is mandatory, thus leaving three options for providing data for verification, i.e. the physical address, the post office box and/or the tribal registry number.  The 260 signatures protested here are those found throughout the petition where an incomplete or absent registry number prevented the Protestor from verifying voter status.  Often, it was merely an assumption whether or not individuals with the same name were in fact the petition signor.

b.  Protestant protests 140 signatures due to partial or missing address as indicated on the tally sheets attached:

Volume I – 3 partial or missing address

Volume II – 29 partial or missing address

Volume III – 27 partial or missing address

Volume IV – 7 partial or missing address

Volume V – 58 partial or missing address

Volume VI – 16 partial or missing address

 

Cherokee law provides that the party signing a petition must provide three of four fields in order to facilitate verification of the signature, including the signature, the physical address, post office address and the Cherokee Registry Number, to determine the signor is in fact a registered voter of the Cherokee Nation and not someone with a similar name.  The signature is mandatory, thus leaving three options for providing data for verification, i.e. the physical address, the post office box and/or the tribal registry number.  The 140 signatures protested here are those found throughout the petition where an incomplete or absent address prevented the Protestor from verifying voter status.  Often, it was merely an assumption whether or not individuals with the same name were in fact the petition signor.

            c.  Protestant protests 288 signatures because the name of the voter was block printed rather than signed as indicated by the tally sheet attached:

Volume I – 34 printed names

Volume II – 77 printed names

Volume III – 52 printed names

Volume IV – 59 printed names

Volume V – 31 printed names

Volume VI – 35 printed names

           

The legal definition of a signature is not clear in Cherokee law.  As far as this Protestant knows, the Council has not defined the meaning of a legal/valid signature.  There is the possibility that an overzealous petition carrier might leave blank spaces among valid signatures and then block print the names of voters in an effort to achieve the required number of signatures.  There is also the possibility that a party signing the petition, with a voting family member away and unavailable to sign, might block print and forge the name of a voter.  The printed names are suspect and the people whose names were printed must be deposed to verify their own signature and compare their handwriting to prevent fraud. If found different it is fraud on the part of the carrier

            d.  Protestant protests 71 signatures due to signature page numbers do not match verification page numbers, thus preventing verification as indicated on the tally sheets attached:

Volume I – 23 renumbered lines

Volume II – 17 renumbered lines

Volume III – 13 renumbered lines

Volume IV – 15 renumbered lines

Volume V – 3 renumbered lines

Volume VI – 0 renumbered lines

 

The signatures on the face of the petition do not match the name on the verification lines on the back on the petition.  Often, confusing arrows are drawn on the petition, lines are renumbered and names are scratched out and rewritten in various locations on the verification page.

            e.  Protestant protests 122 signatures because pages were missing or blank as indicated on the tally sheets attached:

Volume I – 28 pages missing or blank

Volume II – 46 pages missing or blank

Volume III – 3 pages missing or blank

Volume IV – 0 pages missing or blank

Volume V – 0 pages missing or blank

Volume VI – 44 pages missing or blank

 

A very suspicious practice by various petition carriers was that the first page for signatures in their pamphlet was totally blank and all of the signatures appear on a second page.  Protestant contends that this practice is indicative of potential fraud because the second page could be easily carried by an individual other than the person who signed as the carrier, the amendment text page could then be stapled on later and the whole thing submitted as a notarized pamphlet.

All signatures signed on the second page are hereby challenged as that page is insufficient according to law.  That page should be thrown out because if fails to meet the requirement of the law because it is vague and does not specify exactly what the proposed amendment will say. Therefore all signatures on the page with only that statement are invalid because there was insufficient information for the people to know what they were signing.

            f.  Protestant protests 108 signatures because the name on the verification sheet is not legible as indicated on the tally sheet attached:

Volume I – 13 verification not legible

Volume II – 24 verification not legible

Volume III – 18 verification not legible

Volume IV – 21 verification not legible

Volume V – 6 verification not legible

Volume VI – 26 verification not legible

 

According to Cherokee law, the name of the signor must be written legibly on the verification sheet.  Protestant found numerous instances where the name of the signor was written in such a way as to be illegible or was incomplete, thus preventing verification.

            g.  Protestant protests 40 signatures because the name on the signature line does not match the name on the verification line as indicated by the tally sheet attached:

 

Volume I – 5 signature does not match verification

Volume II – 5 signature does not match verification

Volume III – 12 signature does not match verification

Volume IV – 11 signature does not match verification

Volume V – 1 signature does not match verification

Volume VI – 6 signature does not match verification

 

The signature on the front of the petition is a different name from that found on the verification section of the petition therefore preventing proper verification.

            h.  Protestant protests 11signatures because the signature is not on the signature line or a line has been added to the signature page as indicated by the tally sheet attached:

Volume I – 3 signature does not match verification

Volume II – 3 signature does not match verification

Volume III – 0 signature does not match verification

Volume IV – 4 signature does not match verification

Volume V – 1 signature does not match verification

Volume VI – 0 signature does not match verification

 

According to Cherokee law, only 20 lines may appear on the signature pages of a petition.  Further, the signature must be “on the signature line” in order to be counted as valid.

            i.  Protestant protests 23 signatures because more than one name appears on the signature line as indicated by the tally sheet attached:

Volume I – 2 more than one name per line

Volume II – 4 more than one name per line

Volume III – 2 more than one name per line

Volume IV – 6 more than one name per line

Volume V – 5 more than one name per line

Volume VI – 4 more than one name per line

 

According to Cherokee law, only one name per line is permissible.

            j.  Protestant protests 287 signatures because of various verification issues on the verification page as indicated by the tally sheet attached:

Volume I – 72 improper verification

Volume II – 26 improper verification

Volume III – 40 improper verification

Volume IV – 71 improper verification

Volume V – 76 improper verification

Volume VI – 2 improper verification

 

According to Cherokee law, the Petition Carrier must verify the signatures he/she has obtained by swearing before a notary that he/she witnessed the signatures.  Numerous instances are found through the petition whereby the Petition Carrier did not give a proper address, did not sign the sworn statement, did not state a voting district or two names appear as the petition carrier.

            k.  Protestant protests 305 signatures due to improper or incomplete notary as indicated by the tally sheet attached:

Volume I – 23 improper or incomplete notary

Volume II – 20 improper or incomplete notary

Volume III – 49 improper or incomplete notary

Volume IV – 72 improper or incomplete notary

Volume V – 133 improper or incomplete notary

Volume VI – 8 improper or incomplete notary

 

The copies of the petition obtained by Protestant from the Election Commission showed various seals used by notaries including stamps and raised seals darkened by the Election Commission to make them show up on copies.  The protested signatures are part of pamphlets which showed no seal.  Protestant was unable to determine from the copies whether there actually was a seal and the Election Commission forgot to darken it for copying or if there is no seal thus invalidating the notary.  Protestant protests these signatures under the assumption that the notary is defective.

Pamphlets lack “warning page”

According to Cherokee law, each pamphlet must have a cover page with a warning which states the penalties under the law for signing the petition unlawfully.  Protestant challenges 66 signatures from Volume IV, by petition carriers Darren Buzzard and Lisa D. Melchior because the pamphlets lacked the requisite warning page in violation of Cherokee law.

Proposed amendment is vague and misleading

The petition is protested regarding the wording of the petition. In no place are the voters made to understand which rolls by the Dawes Commission will be removed and which will be retained. Furthermore, it is not clear to the voters the makeup of the people on the lists compiled by the Dawes Commission.  For example, the wording on the proposed constitutional amendment to retain persons enrolled as Cherokee by blood does not indicate to the voter that the category consists of Shawnees, Delawares, Creeks, and adopted whites, many of whom possess no Cherokee blood ancestry, while some such as the adopted whites, while listed as Cherokees by blood, possess no Indian or Cherokee blood at all..  The amendment proposes to include the Delaware people parties to the 1867 Agreement, but does not further state that the Dawes list is composed of both Delaware Indians and their non-Indian spouses who will retain citizenship while Cherokee Indians with African ancestry will be removed.

It is not clear to the voters that the Freedmen roll consists of both those individuals with African ancestry who also have Cherokee blood and those individuals of African ancestry without Cherokee blood.  It is not clear that there is no separate Shawnee roll or list. Knowledge regarding the makeup of the Dawes Rolls will directly impact the decisions of the voters regarding support or non support of the proposed amendment.

Protestant is prepared to show that numerous individuals listed on the Freedmen section of the Dawes Roll actually do have and can prove Cherokee blood ancestry, even though they are not listed on the Cherokees by blood section of the Dawes Roll.  Protestant can also prove that certain individuals are listed as Cherokee by blood on Dawes, yet have no Cherokee blood as noted by the Dawes Commission.

The Proponents of the petition have confused the voters by offering amendments to two constitutions in the same proposal.  The Judicial Appeals Tribunal, now the Supreme Court, made it clear that the 1999 Constitution was in full force and effect and the 1976 Constitution has been supplanted.

In the “statement of proposition” the Proponents have again confused the voters by stating that the Final Rolls of the Cherokee Nation is “commonly called the Dawes Act.”  This statement is false and misleading.  The Dawes Act, which exempted the Five Civilized Tribes, of which the Cherokee Nation is one, is not the Final Rolls and has never been commonly known as such.  Proponents have used the wrong legal reference or terminology in their explanation making their “statement of proposition” confusing and invalid.  It is shear incompetence but enough to challenge the petition because Proponents effort was based on invalid, confusing and incorrect information which fails to meet the requirement of law.

The amendment attempts to limit citizenship in the Cherokee Nation to those persons who are “Cherokees by blood, Delaware Cherokee and Shawnee Cherokee.”  However, the wording of the proposed amendment does not achieve this goal.  A black letter reading of the proposed amendment shows that there are actually four classes of citizens to be admitted to Cherokee citizenship.  The first class are quote:  “those originally enrolled on, or descendants of those enrolled on, the Final Rolls of the Cherokee Nation, commonly referred to as the Dawes Rolls.  The other classes include “…those listed as Cherokees by blood, Delaware Cherokees…and the Shawnee Cherokees…”  Clearly this vague statement would give rise to the question in the minds of some voters, if not most, that everyone who is listed on the Dawes Roll will still be included.  The voter is lead to believe that his vote for this proposal will retain those persons mentioned in the four categories, i.e. Dawes enrollees, Cherokees by blood, Delawares and Shawnees.  In order for the petition to survive, the wording of the amendment must be clear and succinct, it is not.

The proposed amendment does not comply with the findings of the Court in Allen v. Council, wherein the Court stated that citizens of the Cherokee Nation “could not be excluded by silence or omission.”  Just as was the case with the 1976 constitution originally and the legislative act designed to impose a “by blood” requirement on membership ruled to be unconstitutional in Allen, this amendment attempts to make Cherokee Nation membership exclusive by remaining silent on the status of an entire class of Cherokee citizens, the Freedmen.  By this very silence and omission, the voters will be unable to determine just who is being excluded from citizenship in the Cherokee Nation.  If the Cherokee people are to vote on whether or not the Freedmen will continue to be citizens, the wording of the proposal must be forthright and state succinctly what it intends, rather than hide behind veiled wording that prevents the voter from knowing what he/she is really voting on.

The statement does not make clear to the signer that the amendment will include those descendants of Dawes enrollees listed on the “Final Rolls” who identified themselves as full blood Natchez, Creeks, etc. yet who are listed on the Cherokee by blood roll, many having absolutely no Cherokee blood. The signor is not given the understanding that adopted whites were listed on the Cherokee by blood roll as Cherokees by blood and their descendants will retain citizenship in the Cherokee Nation although they are not required to have Cherokee by blood ancestry, Shawnee ancestry, or Delaware ancestry.

Also, the references to the Dawes Act are erroneous and misleading. The General Allotment Act, commonly known as the Dawes Act (24 Stat 388) , (25 USC 331)  passed in 1887,  dealt with the allotments of lands of various tribes but the Cherokee Nation was specifically excluded from the provision of this act. Various U.S.  Supreme  Court cases indeed refer to the General Allotment act as the Dawes Act – Oklahoma Tax Com’n Vs Sac  and Fox Nation 508 US 114; and Yakima Vs Confederated Tribes 502 US 251 are examples of 2 cases in which the Court referred to this Act.

The signors of the petition have been mislead by the wording in the proposal which demands the proposed amendment be submitted to the legal voters of the Cherokee Nation at a “special election.”  The Cherokee people have not retained the right to call special elections.  It is clear that the 1999 Constitution delegates the authority to call a special election on an initiative petition to the Council.  The only other party with any authority to call special elections is the Principal Chief and his power is limited to calling special elections on referendum petitions only.  There is no reference in the wording of the petition which would give the voter any other belief than the petition itself, by the power of the people to propose amendments, could call a special election.  This wording is false and misleading.

Constitutional flaws in the petition

Both the 1975 (Article II) and the 1999 constitutions (Article III) require equal protection under the law for Cherokee citizens. However, it is clear that the freedmen citizens of the tribe do not receive equal protection of the law with this petition. The JAT ruled in the Lucy Allen case that the Cherokee freedmen had illegally been stripped of rights they held under the Tribal constitution when ordinances requiring tribal members to obtain a CDIB card were instituted after the 1983 tribal election. Even Cherokee freedmen tribal members who had registered during the 1970s after the passing of the Principal Chiefs Act of 1970, have been required to reregister as tribal members and voters. However, the number of Cherokee freedmen who will be able to have a voice in the proposed election is completely dependent on the effectiveness of the registration department to process their applications; meanwhile other tribal members have been able to register to vote while the freedmen were barred for more than 23 years from the voting booth. Freedmen who are on military details in foreign countries, with extended illnesses, or who must use the state courts to cure defects on birth certificates, etc. will not be able to register to vote in such a special election. The petition should be barred on the grounds that the due process rights and equal protection of the law will be impaired for the freedmen citizens based on the long term disenfranchisement of this segment of Cherokee citizens.

The Opinion of the Solicitor of the Interior dated October 1, 1941 states that the Freedmen of the Cherokee Nation have citizenship rights based on treaty and under provisions of the tribal constitution, have the right to vote on constitutions which would or could exclude them from future tribal membership. The Solicitor contrasted this with the lesser rights of adopted tribal members of the Kiowa Nation who did not have tribal membership through treaty or statutes.  At a May 11th subcommittee meeting, the tribal registrar, Ms. Lela Ummerteskee stated that approximately 25,000 descendants of Dawes enrolled Cherokee freedmen were eligible for tribal membership; with about 800 such descendants enrolled at that time.  On August 15, 2006, Councilman Taylor Keen reported in Wichita, Kansas that 3000 Freedmen tribal members had been enrolled since the Allen decision of March 7th 2006. Chief Smith stated that there is a several month backlog to process tribal members at the registration department.  It is very clear that the majority of descendants of Dawes enrolled freedmen who have citizenship rights in the Cherokee Nation will not be registered tribal members or voters by the time of the June 2007 constitutional amendment vote, much less at an earlier time for a special election called by the Principal Chief. The legality of such a vote, based on this opinion is in question.  A special election, held anytime prior to the next general election in June 2007 would be a clear attempt to prevent the Freedmen from voting and would be a violation of their due process and equal protection rights in the Cherokee Nation.

Both the 1976 and the 1999 constitution state that the members of the council shall support the U.S. Constitution, the Cherokee Nation Constitution and promote the history, culture and heritage of the Cherokee people.

a)      The Principal Chief has made many public statements in various places within the jurisdictional areas of the Cherokee Nation encouraging citizens to vote on the rights of the freedmen citizens. He stated on March 13, 2006 to the tribal council that ‘many people feel that the freedmen were paid off with allotments and been gone from  the tribe 100 years ago”. He stated to the Muskogee Phoenix that he was merely rendering an opinion that many people have. However, the Chief at no point in time has used his knowledge to correct the misinformation which may be held by some Cherokee people regarding the history of the Cherokee freedmen.  To the contrary, he has stated to the Cherokee people in his history classes that the freedmen people’s citizenship was forced on the tribe; which can only have the effect of prejudicing Cherokee voters against the freedmen tribal members.

b)      The  Principal Chief, Deputy Chief, and  Councilwoman Cowen-Watts have gone throughout the Cherokee Nation  calling  for a vote to allow the Cherokee constitution to be changed.  They have appeared at meetings with Mr. Ketcher, endorsing the petition. They have used the power and prestige of their offices to assist in this petition in an unethical, if not illegal manner, providing special privileges for gathering signatures not afforded past petition carriers, as well as free rides to meetings across the Cherokee Nation.  One petition carrier is alleged to have been given “leave from work” at CNE to carry the petition.  However, the citizenship rights of the freedmen people have been treated in a manner unheard of in the history of the Cherokee Nation.  The council spent over one year obtaining citizen input on changing tribal election laws. Public meetings were advertised in local newspapers and in the tribal newspaper to allow citizen input in various cities. Currently, well advertised public meetings are being held to gain citizen input about hunting and fishing law changes. However, the council held only one subcommittee meeting at the council house on May 11th to gain citizen input about the freedmen.  A community meeting set up by Councilwoman Meredith Frailey was held in  Pryor on July 12 which was announced at the end of the  July 10th council meeting, however, it was not announced that the meeting was set up to allow Mr. Ketcher to gain signatures for his  petition. The meeting held in Sallisaw, Oklahoma on June 15th originally set up by the Chief’s office and listed on the Cherokee Nation website was not advertised as a Petition meeting. Some individuals who called the Principal Chief’s office asking for directions, etc. were told that the meeting was cancelled because the Principal Chief would be unavailable due to surgery. However, Deputy Chief Grayson, Freda Vann, and Mrs Bobbie Smith (wife of the Principal Chief) attended the meeting. Deputy Chief Grayson showed a short film and turned the meeting over to Mr Ketcher. Mr. Ketcher, at the end of the meeting left Sallisaw in a car with Deputy Chief Grayson and Mrs. Smith.  No presentations were made by employees from various departments of the Cheorkee Nation. It is apparent that the petition meeting was sponsored by the Cherokee Nation and tribal employees such as Mrs. Freda Vann selectively steered certain members of the public away from receiving information to attend the meeting while using the meeting to collect signatures.

c)      Cherokee freedmen are not receiving equal protection of the law as other adopted citizens are.  Some adopted citizens will retain their citizenship rights while the Freedmen will not. Some who lack “Indian blood – i.e. descendants of adopted whites listed on the Cherokee by blood rolls and the Delaware rolls’ will retain status as Cherokee tribal members while others will not. Although the proponents have stated repeatedly that their petition will not remove freedmen with Cherokee blood, there is no mechanism for those individuals whose ancestors were listed as freedmen and were identified by the Dawes commission  (and or later the Guion Miller commission ) as having Cherokee blood to retain their tribal membership. Those freedmen tribal members whose ancestors gained Cherokee citizenship rights as Shawnees  (such as the descendants of  Shawnee immigrant Nancy Barlow  later Nancy Baldridge through her marriage to Dawes enrolled Cherokee freedmen Jack Baldridge) and Delaware through the treaties of 1869 and 1867 respectively with those sovereign nations will be denied the same treaty rights as others whose Shawnee or Delaware Indian ancestor did not marry people listed as Cherokee freedmen by the Dawes Commission.

d)      The petition is also challenged under the ‘equal protection clause” of the Cherokee Constitution. Article III of the 1999 constitution - Bill of rights states that equal protection shall be afforded under the laws of the Cherokee Nation to every person and entity within the jurisdiction of the Cherokee Nation.  (This protection was also guaranteed to every member of the Cherokee Nation under Article II of the 1976 Cherokee constitution which guaranteed all protections of the Indian Civil Rights Act of 1968  (Title 25 Section 1301-1303) .

The petition unquestionably will deny the Freedmen citizens of the Cherokee Nation equal protection of the law.  The Cherokee freedmen were banned from voting under rules passed by election commission, and the tribal council for more than 20 years. The tribal council approved rules of the Cherokee registration committee in March 1988, requiring that a tribal member of the Cherokee Nation must possess a valid certificate of degree of Indian blood (CDIB) card for all tribal members based on a degree of blood listed on the “final rolls of citizens and freedmen” (pursuant to Act of April 26, 1906 – 34 Stat 137). Later Acts passed by the tribal council such as legislative Act 7-97 which revised Title 26 (the election code) clearly removed by Tribal statute the voting rights of the Cherokee freedmen, who held citizenship based on the tribal constitution of 1976.  Although the Cherokee freedmen tribal members, even those who had voted in elections during the 1970s were barred from voting, others whose ancestors were Dawes enrollees who were listed on the “Cherokee by blood “ rolls and the “Delaware” roll continued to register as voters. The number of freedmen descendants who will be allowed to vote in the election which directly affects them and their citizenship rights they have held by law for more than 140 years is dependent on the speed in which the registration department can process their applications, the election commission can process their voting applications, and other things mostly outside of their control.  The freedmen descendants applying for tribal membership in some instances must obtain delayed birth certificates, revise death certificates, and perfect other documents in order to complete the tribal membership requirements. These for some individuals will take more time to complete than the 15 months between the March 2006 Lucy Allen court decision and the June 2007 regular election. Furthermore, although some elected officials and former elected officials have been very vocal about a constitutional vote to put the freedmen tribal members rights on the chopping block, no efforts have been made by the government officially so far as publications throughout the Cherokee Nation jurisdictional area or to major cities in which out of state Cherokee people live to let these individuals know that their rights are in jeopardy.   This does not give this segment of the Cherokee people equal protection of the law, as others whose rights are not being challenged have been able to register leisurely while the freedmen tribal members’ ability to register to vote has been and is currently being affected by outside forces.

Odds and Ends

Petitions left at cafes

A petition was left laying out at the cash register at a restaurant named Mom’s Kitchen in Jay and another named Deb’s Diner in Jay.  According to statements by restaurant employees, both petitions were placed there by a John Stephenson and picked up by Darren Buzzard.  No person named John Stephenson appears to have verified any of the petitions with names of Jay resident voters and witnesses are willing to testify that neither Mr. Stephenson, nor Mr. Buzzard actually witnessed the signatures being taken.

Revoking citizenship

The petition proposes to do something that is impossible. Proponents are attempting to revoke citizenship that was officially granted by a treaty that only Congress can rescind. Proponents, and particularly Chad Smith, misrepresented that a simple vote of the people “could” change this.  However it is a unique case in which only Congress can revoke this sectors’ citizenship because of the manner in which it was granted through a government to government transaction, i.e. the Treaty of 1866.  Remember a treaty between the Cherokee Nation and the U.S. Government is supreme to the Cherokee Constitution.  Our tribe, the Cherokee Nation, is an integral part of the “American family of governments” and as such, the U.S. Constitution is the Supreme Law of the Land.  Further, the Treaty of 1866 is the specific treaty that created our current tribal boundaries.  Can a vote of the people change the boundaries of the Cherokee Nation? One of the reasons that the U.S. government has stopped using treaties is because of the power a treaty has.  The government now uses “compacts” which creates fewer complications in relation to the U.S. Constitution and has fewer consequences in the long run if it is breached.

Election will be held invalid

            Any election, such as the one proposed, may be ruled invalid because of one important detail that has been the standard of the BIA.  The CNO has never been reorganized under the OIWA.  Neither have they submitted their election procedures and regulations to the BIA according to the Principal Chiefs Act of 1970.  The third requirement of the BIA in similar situations is that all freedmen are allowed to vote in any election that might determine their eradication as members.  This will be impossible on such short notice.  These three items have been the standard for the BIA in all such situations regarding freedmen citizenship in other tribes.  The election will undoubtedly be ruled invalid by the BIA as was a similar election to amend the constitution of the Seminole Nation.

Tribal Registry Numbers added

            A random sampling of voters whose tribal registry numbers were written in handwriting different than their signature was taken and it was found that none of those sampled knew or wrote their own tribal registry number. Most of these handwritten tribal registry numbers appear to be in the same handwriting and may have been added to the petition after it was submitted to the Election Commission.  If the signors did not provide their own tribal registry numbers, where did they come from?

Wherefore all premises considered, Protestant Vicki Dee Baker, by and through the above and foregoing written protest, does hereby ask the Honorable Supreme Court of the Cherokee Nation to review and consider each of her protests and if found to be accurate, declare the petition to be null and void and held for naught because of insuffiency of signatures, fraud, the proposed amendment is vague, confusing, does not achieve its goal, the proponents used deceit to obtain signatures, the question is unconstitutional and any other relief the Court may deem proper.

Respectfully submitted this 1st day of November, 2006.

 

_______________________________________

Vicki Dee Baker

7690 S 4200 Road

Chelsea Okla. 74016

 

Add Vicki’s phone numbers

DECLARATION

I, Vicki Dee Baker, do hereby declare that the above and foregoing instrument is true and correct to the best of my knowledge under penalty of law.

 

__________________________________

Vicki Dee Baker

 

CERTIFICATE OF SERVICE

I, Vicki Dee Baker, did mail with postage paid thereon, fax or hand deliver the above and foregoing instrument to the following:

 

Cherokee Nation Election Commission             John A. Ketcher                       Jody Fishinghawk

Address                                                                       address                                                address

Tahlequah, OK 74465                                                  Tahlequah, OK 74464              

 

 

__________________________________

Vicki Dee Baker