"It is not believed that the
Oklahoma Welfare Act [i.e., the OIWA] may be used as authority to reorganize the
existing tribal government of the Cherokee Nation. On the contrary, that Act
appears to contemplate the creation of a new, separate and distinct
organization, to adopt its own constitution and bylaws and to procure a charter
of incorporation without regard to the existing government. With respect to the
existing tribal government, the freedman and intermarried whites, as well as
other citizens of the Cherokee Nation, shown on the final rolls, have a voice in
the limited tribal affairs which remain. If it is desired to deny the freedmen
and intermarried whites the right to vote on the proposed constitution . . . of
the new organization to be created under the Oklahoma Welfare Act, it is
believed that the powers and jurisdiction of the new organization should be
limited to the property and other benefits to be acquired under the Act. Those
persons whose names are on the final rolls of the Cherokee Nation have certain
rights in the remaining assets of the tribe, and if any attempt were made to
deny them the right to vote on matters which may affect such rights, it would
doubtless give rise to litigation."
The 1937 opinion continues: "The existing tribal government should be permitted to exercise control over the present tribal assets and any benefits accruing therefrom should be distributed in accordance with the final rolls of the Cherokee Nation and the constitution . . . to be issued to the new organization to be created under the Act should be limited in . . . operation so as to exclude such tribal assets. If the new organization is so constituted the freedmen and intermarried whites, who are not entitled to benefits under the Oklahoma Welfare Act, will have no cause to complain by reason of their having been denied the right to vote in matters that do not concern them or in any manner affect their property rights."
This opinion was reaffirmed by Hazel E. Elbert, the Acting Assistant Secretary for Indian Affairs of the Interior Department, as recently as February 4, 1988.
In sum, the 1937 opinion seems to have concluded that (1) freedmen and whites, although citizens and members of the Cherokee Nation by operation of treaty and statute, do not qualify as "Indians" under the OIWA and are, therefore, apparently ineligible to participate in the vote to reorganize under the OIWA, (2) although ineligible to participate in the vote to reorganize under OIWA,, freedman and whites shown on the final Cherokee rolls nonetheless have vested property rights in tribal assets which must be protected, (3) any new Cherokee tribal entity reorganized under OIWA must be deemed "a new, separate and distinct organization" without any claim to the tribal assets of the pre-OIWA Cherokee Nation, and (4) "the powers and jurisdiction" of any new tribal entity chartered under OIWA would be limited to "the property and other benefits acquired" under the OIWA, leaving the assets of the pre-OIWA Cherokee Nation to the surviving enrollees including Indians, freedmen and whites.
Assuming these legal conclusions are accurate, the reluctance of the CNO to reorganize under the OIWA becomes readily apparent. If the CNO were to reorganize under the OIWA, according to the logic of the 1937 legal opinion, the CNO would forfeit all claims to the tribal assets of the pre-OIWA Cherokee Nation and as "a new, separate and distinct organization" it could no longer claim to have succeeded to all of the rights and interests of the pre-OIWA Cherokee Nation.
In short, the 1937 opinion creates a difficult dilemma for the CNO. If the CNO does not reorganize under the OIWA, its sovereign powers may still be subject to debilitating statutory prohibitions enacted during the allotment era. Foremost among these is probably the inability to establish a tribal court system. On the other hand, if the CNO reorganizes under the OIWA, it may forfeit not only its rights in the tribal assets of the old Cherokee Nation, but to any claim that it is, in fact, the successor in interest to the old Cherokee Nation, thereby creating a potentially devastating legal discontinuity in the life of the tribe.
Perhaps the best way to escape the horns of this dilemma is simply to realize that it is almost certainly a false dilemma based on the limited legal imagination of one Interior Department attorney 57 years ago. His opinion is hardly written in stone, nor does it even carry the precedential weight of a court decision. In fact, a moment's reflection on the state of tribal rights of selfdetermination under current law suggests that the 1937 opinion is almost certainly wrong. There are many possible competing interpretations of relevant statutory language that would enable the CNO to reorganize under the OIWA without suffering the dire legal consequences predicted in the 1937 opinion.
For example, freedmen and whites on the final Cherokee rolls could plausibly be deemed "persons of Indian descent" under Section 19 of the OIWA by virtue of their formal status as citizens of the Cherokee Nation. In short, for purposes of OIWA reorganization, the phrase "persons of Indian descent" could be construed to refer not to Indians by blood, but to Indians by citizenship, thereby giving freedmen and whites the right to vote for the adoption of an OIWA constitution, should that be deemed desirable.
Alternatively, if the vote on constitutional reorganization under the OIWA were limited only to "persons of Indian descent," in a strictly ethnological sense, why should the exclusion of freedmen or whites on the final Cherokee rolls from the vote to reorganize necessarily result in the creation of "a new, separate and distinct organization" without any rights as the successor in interest to the old Cherokee Nation? Clearly, the "persons of Indian descent" entitled to vote could simply create a new successor Cherokee Nation under the OIWA which continued to recognize the rights of the non-Indian enrollees as citizens with vested property rights. The OIWA grant of voting rights only to "persons of Indian descent" could be construed to override any contrary statutory or treaty guarantees of equal participation by non-Indian enrollees only for purposes of determining who is eligible to vote for reorganization under OIWA.
There is no basis at all in the language of the OIWA or the intent of its framers to divest reorganized tribal governments of their right to stand as successors in interest to preceding tribal governments. In fact, just the opposite is true. Section 15 of the OIWA clearly preserves the claims of reorganized tribes against the United States. The CNO is free to reorganize under the OIWA, just as the United Keetoowah Band of Cherokee Indians of Oklahoma did in 1950.
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.]
After collecting signatures in support of a call for a new constitution at various community meetings, Ross O Swimmer supposedly had several thousand ballots mailed out to selected voters who were to return their completed ballots by June 26, 1976.
Following this procedure and without any independent administrative scrutiny of the mailing and collecting of the ballots, Swimmer claimed that the constitution was ratified by a vote of 6,028 in favor and 785 against this procedure was not authorized by Cherokee law and the Interior Department was without power to impart ratification procedures in violation of the 1839 constitution, the entire ratification process was undertaken without lawful authority and should probably be viewed as having no legal effect, with the result that the CNO "constitution" is invalid and unenforceable. Thus, the 1839 Constitution is still in effect.
If the ratification of the 1975 constitution was, in fact, an authentic expression of popular will, it might be deemed to have cured any legal defects in the adoption of extra-constitutional ratification procedures. Unlike most modern theories of constitutional government, SOVEREIGNTY resides in the PEOPLE and the PEOPLE always retain the inherent right through collective majoritarian action to replace a given constitutional document as they deem necessary and appropriate.
Given the uncertainty of the legal status of the 1839 constitution in 1975, a decision to adopt a new constitution by popular referendum should be put on the Cherokee ballot in 1995 because it does not seem inherently unreasonable or necessary illegitimate per se, assuming, of course, the new document truly reflected the will of the people it is intended to govern and is properly ratified through a fair and open referendum process. Unfortunately, there is substantial evidence that the ratification process may have been tainted by fraud. unnamed sources intimately connected with the 1976 ratification process have alleged that Ross O. Swimmer had constitutional ballots mailed only to those voters be expected to vote in favor of the adoption. Other sources insist that no authentic expression of popular will was even possible during the ratification process, three different versions of the proposed constitution were then in circulation, making it impossible for Cherokee voters to know which document was actually up for ratification. In addition, the members of the Cherokee Nation Registration Committee who actually counted the constitutional ballots had no way of confirming whether the envelopes with which they were presented were authentic as they were not allowed to oversee mailing and collection process.
Taken in conjunction with mounting evidence that Ross O. Swimmer was able to win the 1975 election for Principal Chief [8120 Cherokees voted in this election and Ross O. Swimmer recieved around 1868 votes, meant 6,252 Cherokees voted against him and he still won.] only by having fraudulent absentees ballots from California, the possibility that Ross O. Swimmer may have rigged the 1976 ratification vote cannot be dismissed out of hand. According to Georgia Rae Leeds, in her doctorial dissertation for the University of Oklahoma History Department, an eye-witness reported to her that "Ross O. Swimmer and one of his supporters.....formulated plans to illegally rig the absentee votes by hand-carrying a large number of ballots California and mailing them from there." If Swimmer did, in fact, rig his own election, as sources say, supposed malfeasance suggests a pattern of deceptive behavior that could have easily led him to rig the ratification well.